In our last article we wrote about protection orders and harassment in general terms. In this article we have been asked to address child bullying and violence within schools. One could write for days on this issue as it is prevalent and very contentious.
The Protection of Harassment Act (“the Act”), similarly to our Constitution, protects the rights of children and states that their rights are of paramount importance. The Act states that one may apply for a protection order to be taken out against “any person” who has been involved in harassment, meaning that protection orders may be instituted by and against children.
The Act provides but one remedy to victims of bullying. Depending on the nature of the bullying the victim may be able to lay criminal charges against the guilty party as well.
In this regard, children over the age of 14 are presumed to have criminal capacity. This means that they have or ought to have the ability to appreciate the difference between right and wrong. As such, children over 14, and sometimes even younger, may be subject to a protection order and if a bully continues to harass the victim, he/she may face criminal prosecution. The application may be made in the absence of assistance from a parent or guardian, although a parent or guardian may (and should) make an application on the child’s behalf. The child also has a right to legal representation.
Children under 10 are presumed not to have criminal capacity or to fully appreciate that their behaviour is harmful. As such an application for an order against a child under 10 is unlikely to be successful. Even if such an application were to succeed, enforcement in the event of a breach would fail as a child under 10 cannot be criminally prosecuted.
Children between the ages of 10 and 14 are presumed not to have criminal capacity however this presumption can be challenged. The court would need to be convinced that the child has the necessary maturity to understand the difference between right and wrong.
Bullying takes many forms and has, in the recent years, evolved into what is termed “cyber bullying” which relates to social media and the likes thereof. We highly recommend that parents monitor their children’s online activity with the aim of keeping them out of harms way.
Interestingly, should a child be bullied at school, and should the school be made aware of the issue and fail to appropriately address the situation, the school may be held liable as well. With this in mind, we recommend that every school obtain a policy that specifically deals with bullying.
To conclude, we urge every person to take bullying seriously as the effects thereof can be extreme with cases being reported of children committing suicide based on the bullying they are exposed to. Should you require any further information about this topic you are welcome to contact our offices on 011 897 1900 or email@example.com.
Article contributed by Diane Charles and Kenny Smith