Authored By: Ntombifuthi Precious Tlapu
University of South Africa
Abstract
This article examines the legal framework addressing cyberbullying involving minors in South Africa. It explores the challenges minors face as victims and the legal system’s response to juvenile perpetrators. The analysis covers relevant constitutional rights and specific legislation like the Electronic Communications and Transactions Act and the Child Justice Act. The article argues that while a legal structure exists, its application is often hindered by a lack of awareness, insufficient support from the Department of Basic Education, and the complex nature of online offences. It concludes by proposing recommendations for a more robust, victim-centred approach that also focuses on rehabilitating young offenders.
- Introduction
Cyberbullying, the use of digital platforms to harass, threaten, or demean, presents a significant challenge for minors in South Africa. Adolescents are increasingly exposed to technology, which, while a resource for learning, is also misused to cause profound harm.1 This issue is critical because cyberbullying has severe consequences for victims’ mental and emotional well being, leading to outcomes such as school dropout, substance abuse, and suicidal thoughts.2 The problem is exacerbated by a lack of reporting and visibility compared to traditional bullying.3In my view, this disparity in attention is a fundamental failure, as the digital footprint of cyberbullying can be even more permanent and damaging than physical altercations. This article analyses the applicable laws within the South African justice system that pertain to minors who are both victims and perpetrators of cyberbullying. It argues that despite a foundational legal framework rooted in the Constitution and specific statutes, systemic gaps in implementation, awareness, and support mechanisms prevent effective justice and protection for affected children.
- The Legal and Constitutional Framework
The South African legal system’s response to cyberbullying is anchored in the Constitution of the Republic of South Africa, 1996. The Bill of Rights enshrines fundamental rights that cyberbullying directly violates, including the right to human dignity,4 privacy,5and freedom from violence. 6 The state has a duty to respect, protect, promote, and fulfil these rights. 7 However, it is arguable that this duty is not fully met in the context of cyberbullying, as many victims do not see their grievances adequately addressed.8 From my perspective, the state’s passive approach effectively sidelines these young victims, contradicting the very active duties imposed by the Constitution. The laws exist on paper, but their spirit is not being actively enforced in the digital playground.
Specific legislation provides more direct remedies. The Electronic Communications and Transactions Act 25 of 2002 offers protection by criminalising certain online behaviours.9 More significantly, the Child Justice Act 75 of 2008 provides a specialised framework for dealing with children in conflict with the law, including young cyberbullies. 10 This Act emphasises restorative justice and diversion programmes over punitive measures, aiming to rehabilitate the child offender while acknowledging the harm caused to the victim.11 This dual focus is crucial for addressing the root causes of bullying behaviour. I believe this rehabilitative focus is the correct one, as many young perpetrators do not fully comprehend the real-world impact of their online actions and require guidance rather than pure punishment.
- Judicial Interpretation and Case Law
The case of Le Roux v Dey 2011 (3) SA 274 (CC) provides a crucial judicial perspective on the harm minors can cause through digital means. In this matter, minors who go to school created and distributed a defamatory photomontage of their school principal, which depicted him in a sexually compromising position.12 The Constitutional Court grappled with the balance between freedom of expression and the right to dignity in the context of youth and digital media. This case is pivotal as it demonstrates that the courts are willing to hold young individuals accountable for online misconduct that violates fundamental rights, establishing that the digital realm is not a law free space and that the right to dignity will often trump a right to engage in harmful speech.
- Critical Analysis and Challenges
Despite this legal framework, significant challenges persist. A primary issue is the lack of awareness and formal support structures within schools. Research indicates that only 20% of schools in Gauteng received cyber safety training from the Department of Basic Education, and a mere 56% had a formal cyber safety policy.13 This lack of institutional preparedness makes it difficult for victims to find support and for perpetrators to be appropriately corrected. I find this statistic alarming, it reveals a systemic failure to equip our schools for a defining challenge of this generation.
Furthermore, the nature of cyberbullying complicates legal responses. Its anonymity and the permanence of online content exacerbate the victim’s trauma. 14 The South African justice system struggles with the visibility of these crimes, cyberbullying is often underreported compared to traditional bullying.15 This creates a justice gap where the rights enshrined in the Bill of Rights are not practically upheld for many young victims, leaving them vulnerable and without recourse.
- Suggestions/Way Forward
To strengthen the legal response, a multi-faceted approach is necessary.
- Enhanced Awareness and Policy: The Department of Basic Education must mandate and support all schools in developing and implementing comprehensive cyber safety policies.16
- Proactive Justice System: The National Prosecuting Authority and the South African Police Service should develop specific protocols for handling cyberbullying complaints involving minors.
- Restorative Justice: The principles of the Child Justice Act should be fully leveraged. Diversion programmes should include mandatory digital citizenship and empathy training for perpetrators.¹⁹
- Victim Support: Victims need accessible channels for reporting, obtaining protection orders, and receiving psychological support. Public awareness campaigns should educate parents and guardians on recognising signs of cyberbullying and the legal remedies available.
- Conclusion
In conclusion, South Africa possesses a constitutional and legislative foundation to address cyberbullying among minors. The Constitution, the Electronic Communications and Transactions Act, and the Child Justice Act provide a platform for redress. However, the effectiveness of this framework is undermined by insufficient awareness, inadequate school policies, and the inherent challenges of policing online spaces. From my standpoint, the core issue is a lack of political and societal will to prioritise this issue. For the principles of justice and the rights in the Bill of Rights to be fulfilled, a concerted effort is required from the government, schools, and the justice system to protect victims, rehabilitate perpetrators, and ensure that the digital world becomes safer for all minors. The same serious attention given to traditional bullying must be extended to its digital counterpart.
- Bibliography
Journal Articles
Liezel Cilliers, Willie Chinyamurindi, ‘Perceptions of cyber bullying in primary and secondary schools among student teachers in the Eastern Cape Province of South Africa’ (2020) 86 The Electronic Journal of Information Systems in Developing Countries 1 Simangele Mkhize, Nirmala Gopal, ‘Cyberbullying Perpetration: Children and Youth at Risk of Victimization during Covid-19 Lockdown’ (2021) 10 International Journal of Criminology and Sociology 525
Books
Qing Li, Donna Cross, Peter K. Smith, Cyberbullying in the Global Playground (Blackwell Publishing 2012)
Legislation
Constitution of the Republic of South Africa, 1996
Child Justice Act 75 of 2008
Electronic Communications and Transactions Act 25 of 2002
Case Law
Le Roux v Dey 2011 (3) SA 274 (CC)
1 Simangele Mkhize, Nirmala Gopal, ‘Cyberbullying Perpetration: Children and Youth at Risk of Victimization during Covid-19 Lockdown’ (2021) 10 International Journal of Criminology and Sociology 525, 526.
2 Liezel Cilliers, Willie Chinyamurindi, ‘Perceptions of cyber bullying in primary and secondary schools among student teachers in the Eastern Cape Province of South Africa’ (2020) 86 The Electronic Journal of Information Systems in Developing Countries 1, 1.
3 Mkhize, Gopal, ‘Cyberbullying Perpetration: Children and Youth at Risk of Victimization during Covid-19 Lockdown’ 529.
4 Constitution of the Republic of South Africa Act 108 of 1996.
5 Constitution of the Republic of South Africa Act 108 of 1996.
6 Constitution of the Republic of South Africa Act 108 of 1996.
7 Constitution of the Republic of South Africa Act 108 of 1996.
8 Mkhize, Gopal, ‘Cyberbullying Perpetration: Children and Youth at Risk of Victimization during Covid-19 Lockdown’ 529.
9 Electronic Communications and Transaction Act 25 of 2002.
10 Child Justice Act 75 of 2008.
11 Child Justice Act 75 of 2008.
12 Le Roux v Dey 2011 (3) SA 274 (CC) [1].
13 Liezel Cilliers, Willie Chinyamurindi, ‘Perceptions of cyber bullying in primary and secondary schools among student teachers in the Eastern Cape Province of South Africa’ (2020) 86 The Electronic Journal of Information Systems in Developing Countries 1, 3.
14 Qing Li, Donna Cross, Peter K. Smith, Cyberbullying in the Global Playground (Blackwell Publishing 2012) 8.
15 Mkhize, Gopal, ‘Cyberbullying Perpetration: Children and Youth at Risk of Victimization during Covid-19 Lockdown’ 529.
16 Cilliers, Chinyamurindi, ‘Perceptions of cyber bullying in primary and secondary schools among student teachers in the Eastern Cape Province of South Africa’ 3.
