John is 9 years old and is being bullied at school by one of his class mates, Trevor. Trevor is teasing John on a daily basis by calling him loser and piggy breath, hitting John during breaks and sending John threatening text messages of how he is going to make him pay for being such a nerd. John informed his parents of the bullying and they want to know if they can bring criminal charges against Trevor. LegalWise advised them as follow:
- Bullying can appear in many forms, such as physical abuse or verbal abuse. The following offences might arise from these types of bullying:
- Assault – for example, where a person hits another person (physical abuse) or where a person threatens another person that s/he will hit him/her.
- Crimen iniuria – for example, where one person teases and humiliates another person by calling him/her names (verbal abuse).
- If a child is being bullied at school by another child (“bully”), that child, his/her parents or legal guardians can bring a criminal charge against the bully at the South African Police Service (“SAPS”). However, if the bully is under the age of 10 years, s/he does not have criminal capacity and cannot be held criminally liable. This does not mean that the bully will not face the consequences of his/her actions.
What consequences may a bully under the age of 10 years face?
- After the parents or legal guardians of a child have brought a criminal charge against the bully under the age of 10 years, at the SAPS, the following procedure will be followed:
- A probation officer (such as a qualified social worker) will be appointed and will do an assessment of the bully.
- The purpose of the assessment is to gather all the necessary information regarding the criminal charges and what appropriate measures should be taken against the bully.
- The assessment must be done as soon as possible, but not later than 7 days after the probation officer has been notified about the matter.
- The assessment will be held at a private place, such as a police station, an office of a Child Justice Centre or a Magistrate’s Court, and the bully’s parents or legal guardians are allowed to be present during this assessment.
- After the assessment, the probation officer can select one or more of the following appropriate measures that the bully must follow, such as to:
- refer the bully for counselling or therapy;
- refer the bully to an accredited programme to suit the needs of the bully;
- arrange for support services; or
- decide to take no action.
- If the bully fails to comply with a decision made by the probation officer, s/he may be referred to the Child Justice Court.
What consequences may a bully over the age of 10 years face?
- After the parents or legal guardians of a child have brought a criminal charge against the bully over the age of 10 years, at the SAPS, the following procedure will be followed:
- A police official will hand the bully a written notice or summons which will indicate the place, date and time where the bully must attend a preliminary inquiry.
- The written notice or summons must be delivered to the bully in the presence of his/her parents or legal guardians, who must sign the written notice or summons.
- Before the preliminary inquiry can be held, a probation officer will be appointed to assess the bully in the same manner as mentioned above.
- After the assessment by the probation officer, the bully must attend the preliminary inquiry.
- The preliminary inquiry will be held at a Magistrate’s Court and the bully’s parents or legal guardians are allowed to be present during the preliminary inquiry.
- 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.
- After the preliminary inquiry, the bully can be referred for diversion (for example, a rehabilitation programme) or referred to a Child Justice Court to continue with the criminal charges against the bully.
- If the bully, his/her parents or legal guardians fail to attend a preliminary inquiry, a warrant of arrest may be issued to force that person to attend a preliminary inquiry.
Can a bully be arrested?
- A bully under the age of 10 years cannot be arrested.
- A bully over the age of 10 years can be arrested, but usually as a last resort.
- If a bully is arrested, s/he must be handed over to his/her parents or legal guardians.
- If a bully is detained, s/he must be kept separately from adults, with children of the same sex, be protected from maltreatment and must not be subjected to practices that could endanger his/her 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.
What other consequences can a bully face?
- A protection order can be obtained in terms of the Protection from Harassment Act against the bully at the Magistrate’s Court. A child can apply for a protection order without assistance, however, it is advisable for the child to consult with his/her parents, legal guardians, teacher or any other reliable person to assist him/her in bringing such an application.
- The parents or legal guardians of a child may report the bully to the school’s governing body as soon as possible. The school will hold a disciplinary hearing and discipline the bully in terms of the school’s Code of Conduct, which might lead to the bully being suspended.
Kindly note that any names used in this article are for illustrative purposes only.
Date: June 2017