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A school's obligation in relation to bullying

In passing

In the last two months I have had three clients mention, in passing, that their children had been bullied at school. I am interested in this, since I had drafted the bullying policy for my daughter's school, which takes bullying very seriously.

In each of the three case, the school in question did nothing, or the bare minimum. It seems that in each case the Heads did not want to admit that bullying was happening at their school. They either minimised the effect of the bullying on the victim, or assured the parent that steps had been taken. In all three cases the bullying continued. 

Regulations

In relation to Bullying, the School has duties to act not only in relation to the Bully and the student that is Bullied, but also to the other students in the school's care. The Department of Basic Education has issued regulations that govern the safety of students. These regulations are instructive:

  • (N)o person may cause any form of violence or disturbance that can negatively impact on any independent school activities.[1]
  • Every child has the right to be protected from maltreatment, neglect, abuse or degradation. [2]
  • All appropriate social and educational measures must be taken to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of any person who acts in loco parentis.[3]
  • The principal, as head of the institution in terms of section 16(3) of the Act, has a primary responsibility to ensure that students are not subjected tocrimen iniuria,[4] assault, harassment, maltreatment, degradation, humiliation or intimidation from educators or students and must protect students from such practices. [5]
  • A principal must also take reasonable steps to ensure that such practices are not caused by peer pressure.[6]

[1] Reg 4.2, Regulations relating to safety measures at independent schools, GG No. 26663, No. 975, 20 August 2004.

[2] Reg 3.4 GG No. 24165, Vol. 450, GN no. 1589, 13 Dec 2002, South African Schools Act 84 of 1996.

[3] Ibid.

[4] An intentional injury to someone's dignity, caused by the use of obscene or racially offensive language or gestures.

[5] Ibid.

[6] Ibid.

This is what a Bullying Policy might look like

1.  Introduction to the [School] Bullying Policy

  • [School] is committed to providing a safe and caring environment for all those who work, play and learn with in it and which fosters respect for others and does not tolerate Bullying.
  • [School] remains focussed on restorative justice. The use of demeaning and disempowering labels such as Bully or Victim do not help any of the Affected Parties concerned during the implementation of the Disciplinary Procedure. In giving effect to this Policy and in relation to the implementation of the Policy and the Disciplinary Procedure, and for record purposes, the student that is reported to have Bullied, shall be referred to as the student that is reported to have bullied or by their name. Similarly, the student that is bullied shall be referred to as the student reported to have been bullied or by their name, and together, they are referred to as the Affected Parties.
  • In relation to the right, obligation and duty of [School] to give effect to the Bullying Policy, [School] shall take the steps set out in this Bullying Policy in relation to Bullying that takes place on the Premises of the School and in relation to Bullying that takes place between students of [School] regardless of where the Bullying occurs.
  • This Bullying Policy describes the substance of what [School] regards as Bullying. The Disciplinary Policy is used to assess whether the reported incident is in fact Bullying and if so, what the appropriate sanction should be.

2.  What is Bullying?

  • Bullying is unwanted, aggressive behaviours that involves a real or perceived power imbalance. The behaviour is repeated, or has the potential to be repeated, over time.
  • Broadly speaking, Bullying is:
    • any behaviour, whether an act or an omission, initiated by one or more persons against another which is deliberate and executed with malicious intent.
    • repeatedly using physical, verbal, psychological or exclusionary means to hurt, oppress or persecute another person or group of people.
  • Bullying entails the exploitation of an imbalance of power. Bullies use their power, whether physical strength, access to embarrassing information or popularity, to coerce or harm others. Bullying can take many forms, whether direct or indirect, physical or intimidation, and of course by electronic means, known as cyber Bullying.
  • In any of its forms, Bullying usually involves an intention to cause distress. The manner in which Bullying takes place is therefore difficult to demarcate. Nevertheless, we consider the following to be examples of Bullying:
    • Direct Physical:
      • hitting, kicking, punching, pushing, shoving, spitting and other instances of direct assault;
      • taking, hiding or damaging property that belongs to someone else;
      • forcing others to hand over food, money or something which belongs to them;
      • coercing a person to do something or engage in any conduct against their will;
    • Verbal:
      • name calling and teasing;
      • engaging in conduct which is intended to threaten, ridicule or humiliate a person or group of people;
      • making fun of a person or group of people because of their appearance, physical characteristics or cultural background;
      • making fun of someone’s actions or making inappropriate sexual comments;
      • spreading rumours;
    • Social / Emotional Relational Bullyingimpairing someone’s reputation or relationships;
      • intentional exclusion;
      • causing children to exclude other children or avoid befriending them;
      • spreading rumours or embarrassing information about someone;
      • encouraging or inciting taunting and teasing;
      • causing a someone to feel socially isolated;
      • making rude gestures.
    • Cyber-Bullying includes:
      • using the internet and/or mobile devises as a mechanism to taunt, tease, threaten or humiliate a student, whether by the use of images, direct messages, reported messages or comments posted on a media platforms;
      • online impersonation, identity theft or fraud, where a student pretends to be someone else to gain access to resources or uses personal information without consent, to open accounts or engage in fraudulent online activity.

3.  [School]'s Obligations

  • [School] bears a regulatory duty and a contractual obligation to protect students in its care. In addition, [School] undertakes in terms of the [Parent School Agreement] to exercise reasonable skill and care in respect of students' education and welfare. These duties and obligations are owed by [School] to all of the parents and students at the school.
  • Similarly, each parent is bound by the [Parent School Agreement] in terms of which the head may, in his discretion require the parent to remove or expel the student if he considers that the student's attendance or behaviour at the school is seriously unsatisfactory and that the students removal is in the schools best interests or those of other children or the wider school community.
  • In terms of the [Parent School Agreement], it is clear that [School] has an overriding discretion to deviate from this Policy as it may be required to do, from time to time. Nevertheless, this is not a discretion that should be exercised lightly. The circumstances of each incidence of Bullying, the circumstances of the students involved ought to be seriously considered before such a discretion is exercised.
  • In exercising this discretion, [School] ought to consider at least the following factors:the regulations applicable to it;
    • the contractual duties owed to the other students and the parents;
    • the safety and welfare of the wider school community;
    • the previous conduct of the Student that has been sanctioned;
    • the nature of the incident in question; and
    • the likely success of the remedial effects of the prescribed sanction in the context of the success of previous sanctions.
Adam Pike
Author: Adam Pike
Adam Pike holds BA, LLB and LLM degrees from the University of Cape Town. His LLM, attained from the School of Advanced Legal Studies at the University of Cape Town, focused on commercial and corporate law, particularly corporate governance and securities. Adam specialises in the implementation of corporate actions and transactions.

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