Pretoria - The Centre for Child Law this week set the record straight regarding media reports that “any minor above the age of 10 who is found guilty of bullying a peer at school can be sentenced to imprisonment”.
The centre’s director, Karabo Ozah, said it was not correct to state that a child could be imprisoned. “Children in conflict with the law, who have criminal capacity and are found guilty of offences, may be sent to a Child and Youth Care Centre, depending on the nature of their offence.”
In referring to the media reports which stated that the minimum age of criminal capacity was 10, Ozah said this was incorrect.
She said the Child Justice Act of 2008 made provision for three age-groups in relation to criminal capacity.
In the case of children under the age of 12, these children did not have criminal capacity and may not be arrested. Thus they could not be prosecuted.
That meant that the child did not understand the difference between right and wrong and could not act accordingly.
A child falling into that category would be dealt with extra-judicially.
In the case of children who were 12 or older but younger than 14, these children were presumed to lack criminal capacity, unless the State could prove otherwise.
The third category were children between 14 and 17, who were presumed to have criminal capacity and could be prosecuted. That meant the child understood the difference between right and wrong and could act accordingly.
Commenting on media reports that a child may be imprisoned (sent to a prison operated by Correctional Services) for bullying, Ozah said: “This is highly improbable.”
She said the Child Justice Act provided that no child under the age of 14 may be sentenced to a term of imprisonment. It also provided that, and in respect of children over 14 who committed a schedule 2 offence, imprisonment may be considered only as a matter of last resort and where substantial and compelling reasons existed to justify the sentence.
The Centre for Child Law also noted that some reports conflated the provisions of the Child Justice Act and the Children’s Act.
“It is very important that reporting on matters such as these, and particularly when it affects children, is accurate.
“The relevant legislation that covers incidences of bullying in all forms is the Protection of Harassment Act 17 of 2011. It provides for children who are being subject to any forms of harassment, as defined in this act, to apply for a protection order.”
Ozah said the centre, as a child rights organisation, was equally concerned about the increased rates of all forms of bullying among children and the need for more robust responses by parents, schools and society as a whole.
“However, such responses must clearly be guided by existing laws and policies. Schools are encouraged to have policies in line with these laws.
“They must also educate learners about these and how to enforce the policies to ensure that children are protected in the schooling environment.”
Pretoria News