Kids can now apply for protection orders against bullies

In a move aimed at curbing the persistence of school bullying, children over the age of ten can now independently obtain protection orders without their parent’s involvement.

Moreover, an even more stringent consequence awaits bullies over the age of 10, as under this change, they could be arrested.

Outlining the spectrum of bullying behaviours, LegalWise underlines that bullying can manifest in various forms, including “physical abuse or verbal abuse.” Notably, this opens the door for various offenses to arise:

• Assault – for example, where a person hits another person (physical abuse) or where a person threatens another person that he or she will hit their intended victim.
• Crimen injuria – This is where one person teases and humiliates another person by calling him/her names (verbal abuse).

The prevalence of cyberbullying has also introduced a new dimension of distressing victimisation, enabling bullies to wreak havoc on their targets from a distance. Addressing this, Schoeman Law asserts that such actions are not only morally reprehensible but are also “highly illegal,” rendering perpetrators subject to legal accountability as per the law.

LegalWise steps forward with practical guidance, offering clarity for instances in which a child is ensnared by bullying within the school environment.

In such cases, the parents or legal guardians of the victimised child have the prerogative to press criminal charges against the perpetrator via the South African Police Services (SAPS).

It is important to note, if the child feels that his parents, guardians, or educators at school are not taking the matter seriously, the child can open a case without their parents.

“However, if the bully is under the age of 10 years, she/he does not have the criminal capacity and cannot be held criminally liable. This does not mean that the bully will not face the consequences of his/her actions,” said LegalWise.

Delving into the ramifications a bully above the age of 10 may face. As stipulated,  a procedural sequence comes into play after the parents or legal guardians of the victim press criminal charges against the perpetrator at the SAPS:

• A police official will personally deliver a written notice or summons detailing the location, date, and time of the preliminary inquiry.
• The delivery of this notice or summons takes place in the presence of the bully’s parents or legal guardians, who are required to affix their signatures.
• Before the preliminary inquiry is convened, a probation officer is appointed to evaluate the bully, mirroring the aforementioned process.
• Following the assessment by the probation officer, the bully is obliged to attend the preliminary inquiry. This transpires within the premises of a Magistrate’s Court. During this phase, parents or legal guardians retain the right to be present.

“The purpose of the preliminary inquiry is to, amongst others, consider the assessment of the probation officer and to decide on what appropriate measures should be taken against the bully,” explained LegalWise.

Following this, the bully might either be directed toward diversion programs, including rehabilitation or be referred to a Child Justice Court for the continuation of criminal charges.

However, the trajectory can take a starkly grave turn if the bully, their parents, or legal guardians refuse attendance at the preliminary inquiry. LegalWise cautions that noncooperation can trigger the issuance of a warrant of arrest, compelling their presence.

Can a bully be arrested?

The legal service clarifies that while a bully under the age of 10 years cannot be arrested, those over the age of 10 years can be subjected to arrest as a measure of last resort. In case of arrest, the custody of the bully must be immediately handed over to their parents or legal guardians.

Additionally, if a bully is detained and confined in police cells, stringent protocols must be maintained. These encompass segregation from adults and cohabitation with same sex minors. Additionally, stringent protection from maltreatment, and ensuring they’re not subjected to practices that jeopardise their wellbeing.

“After being arrested, a bully must be assessed by a probation officer and must be taken to court within 48 hours (weekends and public holidays excluded) after the arrest for a preliminary inquiry to be held,” elaborates LegalWise.

Beyond immediate consequences, victims also possess the option to seek protection orders against bullies under the umbrella of the Protection from Harassment Act. While children can independently initiate this process, LegalWise recommends consulting with parents, legal guardians, teachers, or other reliable figures.

Focusing on the pivotal role of reporting bullying incidents, LegalWise emphasises the importance of involving the school’s governing body. This mechanism can catalyse disciplinary proceedings, culminating in the potential suspension of the bully in accordance with the school’s Code of Conduct.

Furthermore, it’s paramount to acknowledge that a bully’s parents and legal guardians share a stake in the outcomes.

Attorney and Managing Director at Rahman and Rahman Law Firm, Mollica Maharaj, explained during an interview with Cape Talk that a bully’s parents can also face legal repercussions if they are made aware of the bullying and do not take action against it.

Maharaj further explained this made them jointly accountable and could be held as co-perpetrators, seeing them join their children in the legal action.

In light of South Africa’s commitment to safeguarding its youth, as evidenced by the Children’s Act, what are your perspectives on these measures? Feel free to share your thoughts in the comment section below.