International Day Against School Violence and Bullying Including Cyberbullying was marked on 2 November under the theme “No Place for fear: Ending school violence for better mental health and learning”. How are we doing as a country?

The last thing you want to hear or learn as a parent is that your child is the target of persistent acts of bullying, which can lead to severe depression and harm to themselves or others. Unfortunately, parents with children in South African schools live with this unfortunate reality.

The latest reports from Sannieshof in North West, where two young learners are grappling with severe depression as a result of bullying, are truly heart-wrenching for anyone concerned about the wellbeing of South African children, especially those who are vulnerable.

The alleged Sannieshof bullying case and others serve as stark reminders of the devastating toll that bullying takes both on children and their parents. It inflicts emotional pain, trauma and, tragically, in some cases, even leads to the loss of young lives.

Bullying has a profound impact on the physical and mental health of its victims, as well as their academic performance. The lasting psychological scars can be incredibly destructive, and there have been alarming instances of increased suicide risk, such as the recent tragic case at Khehlekile Primary School in Thokoza, east of Johannesburg, where a Grade 6 learner took their own life after experiencing bullying.

Something has got to give, and it should not be our children. Bullying and harassment in school is a serious human rights violation that we should all strive to combat and requires serious legal action. What is aggravating the problem is that there is also cyberbullying, which has no borders in its noxious harming of others and publicly humiliating them on a continual basis.

Who is liable if a learner is bullied at school? This is not a simple matter to address, but the fact that school management is in loco parentis, that is, in the place of a parent of learners, should be our starting point when dealing with school bullying as an important societal problem in South Africa.

There are landmark best lessons globally. A significant legal milestone was reached by the US Supreme Court in 1999 when it ruled in the case of Davis v Monroe County Board of Education that school authorities could be held accountable for damages in cases involving student-on-student harassment. To establish liability, the Supreme Court outlined four critical conditions that must be met:

• The targeted student must be victimised based on their membership in a protected category;
• The harassment within the school environment must be of a severe nature. Mere instances of ordinary teasing, name-calling, or rough play among students are not sufficient to trigger liability, unless the behaviour is so pervasive, offensive and severe that it creates an environment denying victims equal access to education;
• School authorities must have knowledge of the harassment. They cannot be held liable for harassment they were unaware of, underscoring the importance of awareness; and
• Schools bear liability only if they exhibit “deliberate indifference” to the harassment. While schools are not obligated to prevent or stop harassment outright, they are required to make reasonable efforts to intervene once they become aware of it, emphasising the proactive role that schools must play in addressing such issues.

I fully agree with this ruling in the context of liability by the Department of Basic Education and the school when a school is deliberately indifferent to the bullying and harassment of a learner.

In fact, protections from bullying and harassment afforded to adults in the workplace must be afforded to learners, even in cases of learner-to-learner incidents. Teachers and school authorities have a common-law duty of care towards their learners, and this duty should undoubtedly encompass instances of bullying within school premises.

Schools and teachers must be held accountable

To put it simply, they should be held accountable for their failure to prevent the emotional, mental and physical harm caused by learner-on-learner bullying.

Furthermore, as a society, we bear the responsibility of shaping learner behaviour and contributing to the betterment of the educational environment.

In light of this, I firmly believe that parents or guardians of learners who engage in bullying should be held accountable if they were aware of their child’s bullying tendencies but neglected to take the necessary steps to address the issue.

There is a raft of policies and legislation in place to be used to combat bullying and related acts of criminality. For instance, the Protection from Harassment Act 17 of 2011 seeks to protect and enforce the rights of bullying victims. Section 2(4) states that a child may apply for a protection order without the assistance of his or her parents.

There is also Children’s Act 38 of 2005, which can be used to protect learners against abuse and bullying in schools. The South African Schools Act 84 of 1996, on the other hand, empowers public schools’ governing bodies to craft learner codes of conduct, which can be instruments to combat behaviours such as bullying.

Other relevant pieces of legislation for this discussion are the Cyber Crime Act 19 of 2020 and the Child Justice Act 75 of 2008.

However, what use is any legislative framework and policy when everything is fragmented, inconsistent and ineffective against bullying? It is because of the failure of the current legislation to curb bullying that on 21 August 2023, the Department of Basic Education announced plans to make legislative changes to allow for child victims of bullying as young as 10 to themselves apply for protection orders against their bullies, with possible jail time or correctional service programmes.

Unfortunately, this attempt to place an old head on young shoulders may meet with legal hurdles when it comes to the legal capacity to act. It is our duty as a society to stop the scourge of school bullying and create schools as safe spaces. DM