Swemmer & Levin

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In recent years, reports of bullying incidents have been on the increase in schools and have reached a point where some have tragically resulted in loss of life, causing a growing concern amongst parents. Bullying can take many forms, some more severe than others, and affects victims in various ways. Sadly, due to technological advancements, many of these incidents are captured on video and shared on all social media platforms. This often leads to the issue exceeding beyond the school environment into the wider community, which can have repercussions for perpetrators, victims, parents, and educators. The complexity, magnitude, and severity of the forms of bullying that we are now witnessing have raised many legal questions. But what does the law in South Africa say regarding this issue? 

The laws and legal principles applied to children take into account their age, their level of maturity, and their ability to fully appreciate and understand the seriousness of the consequences of their actions. A distinction is made between the following: 

  • Children under the age of lack the legal capacity, meaning they can’t be held legally liable for their actions. 
  • A child who is 7 years and older lack the legal capacity; however, this presumption can be rebutted, resulting in legal accountability. 
  • A minor between the ages of 15 and 18 may be held legally accountable. 

Children share the same human rights enlisted in the Constitution of the Republic of South Africa as adults, and in addition to these, enjoy additional rights explicated in Section 28 of the Children’s Act (2005), which allows a child or a guardian to bring a case of bullying to court. It safeguards and protects children’s rights and, for this reason, does not aim to punish the bully, but rather rehabilitate him/her through appropriate programmes and processes. 

Regarding the regulation of incidents in schools, the South African Schools Act (1996) requires schools to adopt a code of conduct or a set of rules around learner behaviour and enforce appropriate disciplinary measures where necessary. According to the Act, it is the school’s responsibility to take appropriate action and if it fails to do so, the school can be held liable for damage, injury, or loss suffered by a learner. 

Furthermore, the Child Justice Act (2008) recognises the criminal element of bullying and provides a separate criminal justice system for children – with a focus on restorative justice (rehabilitation). If there is proof of criminal intent, a child may be held criminally liable from as young as ten years old. 

The Protection from Harassment Act 17 of 2011 brought some balance of power by granting a victim permission to apply for a protection order against their bully. 

The provisions contained in these statutes serve to offer protection to children in cases of bullying, as each child has a responsibility to respect and promote the rights afforded to them and to not deprive anyone else from enjoying them. Failure to observe these rights attracts legal accountability. 

In terms of criminal law, depending on the nature and extent of the act of bullying, a perpetrator may face charges of assault with or without the intent to inflict serious bodily harm, intimidation, crimen injuria, etc. In terms of civil law, claims for damages may arise against the school and/or the Department of Education and/or the bully. The facts of each case determine the route it will take legally. 

In the more extreme cases, where a minor dies as a result of the bullying act, the deceased’s family may still claim for emotional shock, trauma, grief and/or constitutional damages (if circumstances permit). 

To prevent bullying from escalating to a criminal level in schools, educators and parents must take proactive measures, such as implementing an anti-bullying policy. Every learner should recognise the harm bullying can have on his/her peers, as well as understand the consequences that come with this behaviour. Educators and parents must cultivate an environment of mutual respect, non-judgement, and active listening to model the kind of behaviour children must emulate. 

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This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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Jan Fourie

Director |  Attorney, Notary & Conveyancer | BA. LLB

Jan graduated in 1974 with a five-year BA LLB degree from the University of Stellenbosch, whereafter he was admitted as an advocate and prosecuted as such in the Cape Town and Wynberg Courts. In 1974, he joined Swemmer & Levin as the Candidate Attorney of Mr Levin (founding member) and was admitted as an attorney on 7 April 1976, as a conveyancer on 11 January 1978, and as a Notary on 19 December 1984. Since 1974, he has served in various committees, including the West Coast Chamber of Commerce, the Vredenburg School Committee, and the Malgas Lions Club. 

Furthermore, Jan was the author of the first bilingual law book, The New Debt Collecting Procedures (Die Nuwe Skuldinvorderingsprosedures), which was used by all the Magistrate Courts throughout South Africa. With the founding of the Small Claims Court in Vredenburg, Jan served as one of the first Commissioners. He is currently based at Swemmer & Levin’s Vredenburg office and has been with our firm for more than 47 years.

Pieter Smit

Director | Attorney & Conveyancer | BA. LLB

Pieter obtained his BA Law degree from Stellenbosch University in 1995 and his LLB degree from the North-West University in Potchefstroom in 1998. He served his articles at Marais Muller Attorneys from 1998 to 1999 and was admitted as an attorney in 2000 and as a conveyancer in 2002. Pieter is the founder of PP Smit Attorneys, which opened its doors in 2004. He also became a director of Swemmer & Levin in 2006. Pieter loves the outdoors and participating in all forms of sport, including tennis, golf, fishing, spearfishing, scuba diving, and hiking. 

Johann Maree

Director | Attorney | BA. LLB

Johann matriculated at Oudtshoorn High School and attended Stellenbosch University, where he obtained his BA Law and LLB degrees. Following his studies, he worked for three years as State Prosecutor at the Magistrate’s Court in Cape Town. Johann completed his legal training with the State Attorney in Pretoria and then moved to his hometown, Oudtshoorn, where he worked as a lawyer for a year. In 1983, he finally moved to Vredenburg and joined Swemmer & Levin, where he is still practising as a director. When he is not in the office, Johann enjoys cycling and in his earlier days, he used to be a long-distance junkie.

Richard Phillips

Director | Attorney | Bcom & BProc

After matriculating at Paarl Boys’ High School, Richard completed his BCom and BProc degrees at the University of Port Elizabeth. He served his articles with Van Wyk Fouchee in Paarl and quickly developed an affinity for litigation. Richard has always had a deep love for the ocean and when he was presented with an opportunity to join Swemmer & Levin on the West Coast, he agreed without hesitation and has been with our firm since 1997. Richard specialises in general litigation and divorces. When he is not in the office or with his family, he tries to spend as much time as possible in or on the water.

Jandré Smith

Director | Attorney | LLB

Jandré grew up and matriculated in the small Klein Karoo town of Oudtshoorn. He furthered his studies at the North-West University in Potchefstroom, obtaining his LLB degree during 2015. He completed his articles at Swemmer & Levin in 2017 and was subsequently appointed as a professional assistant. In 2020, Jandré was promoted to the position of director at the firm, where he practises in the Litigation department at our Langebaan office. When not practising law, Jandré is an avid sports fan. He has a passion for nature and enjoys camping, trail running, and mountain biking with his family.

Andre van der Walt

Director | Attorney | LLB

Andre graduated in 2015 with an LLB degree from the University of Pretoria. He later went on to obtain his NQF 7 Certificate in the Administration of Deceased Estates from the University of South Africa, which allowed him to further his career in deceased estates and the drafting of wills and trusts. Andre served his articles at Barnard & Patel Attorneys under the supervision of Mr YAS Patel. After being admitted as an attorney in 2016, he continued working at Barnard & Patel Attorneys as a professional assistant in the deceased estates department.

Andre joined Van Rensburg Attorneys in 2019 and was head of the deceased estates department until 2021. He then received the opportunity to move to the West Coast, where he joined Swemmer & Levin Attorneys. Andre loves travelling and enjoys the beauty that our country has to offer with his friends, family, and loved ones.

Harmann Potgieter

Attorney | LLB

Harmann graduated in 2018 with an LLB degree from the North-West University’s Potchefstroom Campus. He went on to study and grow in various fields, including doing a course on the Consumer Protection Act and a course at the University of South Africa where he obtained his NQF 7 Certificate in the Administration of Deceased Estates.

Harmann completed his articles of clerkship at Swemmer & Levin under the supervision of Mr Richard Phillips. After being admitted as an attorney in 2020, Harmann continued with Swemmer & Levin as a professional assistant in the deceased estates department as well as the litigation department. He loves to study, possesses a deep curiosity about the world, and is dedicated to giving back to the community.

Carla Cloete

Attorney, Conveyancer & Notary | LLB

Carla obtained her LLB at the North West University, Potchefstroom Campus in 2015. She completed her articles in 2017 with Brits Dreyer Inc in Bellville. She is an admitted Attorney, Notary and Conveyancer. After her articles she relocated to Kimberley where she worked as a professional assistant in the Conveyancing department of Van de Wall Inc. Coming back to her Western Cape roots, she now joins the Swemmer & Levin team as a professional assistant.