Harsher penalties a deterrent for bullying?
DURBAN - A PRETORIA-BASED attorney believes that harsher punishment of child offenders for bullying may be a deterrent mechanism.
Mthokozisi Maphumulo, an associate attorney at Adams and Adams, was reacting to last week’s bullying incident, which went viral on social media, of a brawl between Mbilwi High School pupils in Limpopo.
Grade 10 pupil Lufuno Mavhunga then reportedly committed suicide as a result.
A 14-year-old schoolgirl, arrested last week and charged with assault, appeared at the Thohoyandou Children’s Court on Tuesday, where her application to return to her parents’ care was denied. She will remain in custody at a youth centre.
This week, the Mahlabathini Magistrate’s Court sentenced a 16-year-old schoolgirl to 12 months’ community service and counselling, for assault with intent to do grievous bodily harm. The incident was captured on video and was widely circulated on social media in September last year.
“In criminal law, depending on the nature and extent of the bullying, a bully may face criminal charges of assault with intent to inflict grievous bodily harm; assault; intimidation; crimen injuria; etc,” Maphumulo said.
He said these charges can be laid against pupils who are bullies.
“In civil law, there may be claims for damages against the school and/or Department of Education and/or, more specifically, the bully.
“In the case of children, the laws are applied in a manner that considers the fact that they are children – taking cognisance of their youthfulness; immaturity; inability to fully appreciate and understand the seriousness or ramifications that may flow from their actions,” said Maphumulo.
The law made a distinction between children below the age of 7 (they lack capacity and cannot be held legally responsible for their actions); children above 7 years of age are presumed to lack capacity but this presumption can be rebutted – in which case the minor can be held accountable, he said.
He added that children between the ages of 15 and 18 can be held legally responsible.
Maphumulo felt that while punishment measures in place were meant to rehabilitate the perpetrators, especially in the context of children, there had to be equally protective laws for the victims.
“Harsher punishment may be a deterrent mechanism. In so doing, you inspire confidence in the public about our justice system.
“While civil claims are important, as they play a crucial role in consoling victims and allowing them some financial freedom to seek professional help, the healing process requires perpetrators to be held accountable in a befitting manner.”
He said the unique facts of each case determine who should be held responsible, and the success of the case would also be bound to the facts.
“In some extreme cases, where a minor dies from extreme forms of bullying, the minor’s family may still claim for emotional shock and trauma, and grief.
“Where circumstances permit, there may also be a claim for constitutional damages.”