Kathleen Rice, director in the Technology, Media and Telecommunications Practice at Cliffe Dekker Hofmeyr says that the Act, in its preamble, states that the rights of children are of paramount importance. "Clearly, the drafters of the Act appreciated that, frequently, the victims of harassment are children. For this reason, the Act allows any child who is victim of harassment to apply to court for a protection order even in the absence of assistance from parent or guardian. A parent or guardian may also apply for a protection order on behalf of a child," she explains.
Rice says that children, in addition to being the victims of bullying, are also often the perpetrators of bullying: "In terms of the Act, an application for a protection order can be instituted against 'any person' who has engaged in harassment. It is therefore possible to obtain a protection order against a bully who is a child.
"A protection order will not be granted against any person, including a child, if the person did not know or cannot be expected to know that his/her conduct is causing harm. Whilst bullying itself may fall short of criminal conduct, the breach of a protection order that prohibits bullying behaviour is a criminal offence.
"Given that a protection order is enforced by the criminal courts, a court will be unlikely to grant a protection order against a child who is too young to face criminal charges," she explains.
"In criminal proceedings," notes Rice, "a child over the age of 14 is presumed to have criminal capacity in that he/she will have the ability to appreciate the difference between right and wrong and to act in accordance with this appreciation. A court should have no difficulty granting a protection order against a child who is over the age of 14 (who is capable of being criminally charged in the event of breach of the order) if the child knew or ought to have known that his/her bullying was harming another child.
"A child under the age of 10 is unlikely to fully appreciate that his/her conduct is harmful and application for an order against a child under the age of 10 would be unlikely to succeed as a result. Even if an order were to be granted, it would be incapable of enforcement because a child under the age of 10 has no criminal capacity and cannot be prosecuted for his/her failure to comply with the order," she says.
Rice explains that a child between the ages of 10 and 14 is presumed not to have criminal capacity but this presumption can be rebutted. Whilst a court may be persuaded that the child is engaging in harassment, it may nevertheless be reluctant to issue a protection order unless satisfied that the child has criminal capacity in that the child has sufficient maturity to know the difference between right and wrong.
"On a practical level, any child against whom an order is sought must be assisted by his/her parents or guardian in the proceedings. The child also has the right to legal representation," she notes.
Rice says that the bully who breaches a protection order may be criminally charged. "The Children's Justice Act is applicable where a child is alleged to have committed an offence. The Children's Justice Act requires the courts and prosecutors to treat a child in a manner that takes account of his/her age and emphasises the importance of rehabilitation of child offenders. For this reason, as an alternative to prosecution, a prosecutor has the option to divert a criminal matter against a child away from the criminal courts and a possible criminal conviction. In order for a child to qualify for diversion, he/she must however acknowledge responsibility for the offence and agree (together with his/her parents or guardian) to the diversion which will be made an order of court," she says.
"There are a number of diversion options that can be made an order of court, all of which are aimed at ensuring the child will not reoffend, will be rehabilitated and understand the impact of his/her behaviour. A court may, amongst other things, order that the child be referred to counselling or therapy, make an apology, or be placed under an order such as a good behaviour order, a family time order or a peer association order. If appropriate, a court may order that the child participate in a diversion programme and may, importantly, require that the parents of the child also participate so that they too can appreciate the reasons for, and the consequences of, their child's behaviour and assist in their child's rehabilitation," she notes.
Rice explains that a diversion order is not a criminal conviction. A child that fails to comply with a diversion order however may then be prosecuted and, if found guilty, be sentenced. "Each breach of a protection order constitutes a separate offence. A child that repeatedly breaches an order will be less likely to qualify for diversion and more likely to face criminal prosecution. There are a number of sentences that can be imposed if a child is convicted of a crime including restorative justice sentences and fines (which would be paid by the parents of the child). Conceivably, sentences involving correctional supervision or placement in a youth care centre can be imposed. These seem fairly unlikely for a breach of a court order, but they may become a consideration if the child repeatedly breaches an order or the consequences for the victim are particularly severe. A sentence of imprisonment will only be imposed if a child has a record of previous convictions and substantial and compelling reasons exist for imposing such a sentence," she notes.
"The message of the new Protection from Harassment Act is clear: if you are the perpetrator of harassing behaviour, this Act aims to stop you; and if you are a victim, the Act aims to provide you with the tools you need to protect yourself from any further harm," Rice adds.
