Legal Framework around Bullying in Schools:

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There must be laws against bullying in schools, right?

Well, there are, but it is not quite as simple as that. In a related article we highlighted the legislation dealing with this issue. This article aims to set out the legal framework and give some practical advice.

Statistics vary wildly and recent, reliable research is hard to find, but a 2015 study by the Trends in International Mathematics and Science Study found that among a  group of Grade 5 pupils 48 % in public schools and 25% of learners in independent schools were bullied ‘about weekly’ with the prevalance being slightly higher among boys than girls. The same research among grade 9 learners found 47% reported being bullied ‘about monthly’ and 17% ‘about weekly’.

Admittedly, this report seemed to have a wide ambit of what constituted bullying behaviour, such as being left out of activities or being made fun of, but nevertheless, the statistics are poor, and rank South Africans poorly, worldwide. The reasons for bullying are complex, but some insights into the psychology of bullying are quite telling. Essentially, the bully’s problems stem from a deep seated sense of inadequacy, which is then compensated through the victim’s fear and intimidation to get the illusion of ‘respect.’ The laws that deal with this unfortunate issue are considered below:

The Constitution:

The supreme law of the land provides our Bill of Rights. A learner’s rights to Human Dignity (s10), Freedom and security of the person (s12) and Privacy (s14) may be affected by bullying. The section 28 rights of Children to be protected from maltreatment, neglect, abuse or degradation is most applicable. So clearly, the state views these rights as important.

Children’s Act(38 of 2005):

Section 6 contains the all important ‘paramountcy principle’ which places the rights, interests and well-being of children as being most important in any decision involving the child. The Act also allows children to approach a court in certain limited circumstances.

Child Justice Act(75 of 2008): 

In the most serious of cases, the Child Justice Act has amended the age of criminal liability for children. Those below 10 are still considered doli incapax, being incapable of a criminal intent, while those aged 10 to 14 at the time of offence may be held liable if the state can prove the child understood the nature of their actions and has acted in accordance with such appreciation. There are many procedures to determine and handle these aspects. This Act was quite forward-thinking, with a large focus on restorative justice. By its mechanisms,  a balance is created between the rights of the accused child and the rights of the community.  The focus is placed on rehabilitation and support rather than on ostracising a child offender. The Department of Justice should be commended for their efforts. A criminal complaint against a child should only be considered if absolutely no other avenue is open to parents, teachers or learners.

Protection from Harassment Act(71 of 2011): 

In terms of this both a child or their parent could apply to a magistrate’s court for a protection order. This acts on an interim basis against a bully, which may prevent their conduct through means of those holding such an order being able to approach a police station with the order and have it served and if necessary, enforced. Any order obtained will have a return date, where the person against whom the order is granted can provide evidence to have the order set aside. It is of vital importance that any facts stated in an application under this Act be true. As the risk for perjury, defeating the ends of justice, crimen iniuria and liability for costs can arise. Again, this remedy should only be used in cases of severe and especially persistent bullying.

South African Schools Act(84 of 1996):

While ‘Bullying’ is not defined in this legislation, the conduct which will not be tolerated in terms of section 10A includes: the endangerment of mental or physical wellbeing, undermining human dignity, humiliation, undermining rights set out in the Bill of Rights and the destruction of property.

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This brings us to our next point. What to do when bullying occurs, in terms of the law. This Act provides that Schools should adopt their own codes of conduct. To rectify misconduct and provide procedures to attend to misconduct.  As such, the restorative justice approach set out in our related article again finds application.

 

When you discover signs of bullying and learn of incidents taking place in your school there should be clearly defined procedures of addressing these incidents. A code of conduct aims to do just that.

The Department of Basic Education, who should be applauded for their work in this regard, have made available a model framework for school safety which very cogently and clearly addresses a well-researched approach to dealing with bullying. Template policies in dealing with complaints, procedures and even cyber-bullying, which we address in a separate article are provided.

Ultimately, educators and parents should keep in mind the paramountcy principle, holding the best interests of the child, being both the victim and perpetrator as the yardstick by which all other decisions are measured. Where possible, parties should assist the school to develop, adapt and implement a proper code of conduct. This should, we hope bring some peace between educators, victims and parents. May your child shine brightly in their schooling career!

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This article is not intended as legal advice, but merely informative and we hope, thought provoking. Please visit our site http://www.contractuallyspeaking.co.za/contact.html to get in touch, or our facebook page to see what we’re up to http://www.facebook.com/contractuallyspeaking/ 
All comments or queries are welcome. Copyright reserved.
Special credit must go to A Laas and T Boezaart for their article: The Legislative Framework regarding bullying in South African Schools, published in the PotchestroomElectonicLawJournal

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