By Franaaz Khan
Johannesburg - In recent years, the media in South Africa has been awash with stories of incidents of bullying at schools. As early as February this year, Willowmoore High School on the East Rand held an anti-bullying awareness day on February 25 following a bulling incident on Valentine’s Day.
Earlier on February 14, Fleurhof Primary School in Johannesburg encouraged learners to wear blue and white on Valentine’s Day to promote anti-bullying.
Bullying, as we have known in South Africa and internationally, is not a new phenomenon. It’s only that as society, we have now become more aware of its harmful effects. Covid-19 saw individuals, especially children, spending more time engaging in online social interaction, as most private schools were resorting to online teaching and learning. This resulted in a further increase of incidents of online bullying, or cyberbullying.
Victims of both physical bullying and cyberbullying reported a range of forms of psychological harm. Some have even committed suicide. Lufuno Mavhunga, a Grade 12 pupil from Nzhele in Limpopo, earlier in 2021 committed suicide after a video of her being bullied by her fellow pupils went viral. Despite schools now having returned to contact face-to-face learning and not online, it does not preclude bullying from still occurring on a digital platform. What many do not know, though, is that delictually victims can claim compensation for injury and harm sustained.
Delict is a civil remedy offered to a victim who has suffered harm or injury at the hands of another person. Victims of cyberbullying can claim for defamation. In addition to this remedy, I am of the view that victims of cyberbullying should also explore the claim of emotional harm that he or she has suffered by the culpable conduct of the bully.
According to researcher Mariette Reneke, cyberbullying is when the perpetrator uses information and computer technology to bully another person or persons who in turn finds it difficult to defend or protect themselves. Electronic bullying includes sending text messages to the victim or posting humiliating or threatening messages, rumours, etc., of the victim. Unlike bullying that occurs in school or at after-school activities, cyberbullying follows children home with their phones and other devices.
Covid -19 saw an increase in children using digital platforms for personal as well as educational purposes. The consequences of cyberbullying can be catastrophic, and they range from depression, anxiety, panic attacks, insecurity, low self-esteem, unassertiveness, poor academic performance, aggression, high truancy rates, school drop-out and in severe cases, antisocial personality disorders, substance use and suicide.
What is the law regarding cyberbullying in South Africa?
In terms of Sections 9, 10, 14 and 28 of the Constitution, a person may not be discriminated by another; or have their dignity impaired. Everyone is protected from harm or abuse and their identity is protected from the invasion of another. While the Electronic Communications and Transactions Act regulates electronic communication and prevents abuse of information systems, Section 86 to 88 deals with cybercrime. In terms of the Cybercrimes Act, the disclosure of harmful data messages and provides interim protection orders for its victims is a criminal offence. The Promotion of Equality and Prevention of Unfair Discrimination Act prohibits instances where a person may publish, propagate, or advocate words that have the intention to be hurtful or harmful. In respect of the Protection from Harassment Act, harassment includes bullying, and a victim of bullying can apply for a protection order.
Although welcoming, criminal reliefs cannot compensate those who have been wrongfully harmed by the culpable conduct of others. However, the civil remedy of delict offers such relief.
It also expresses society’s views on what it considers acceptable behaviour and what it does not. Researcher, Phumelele Jabavu posits that at the heart of the delictual principles lie society’s legal convictions, or boni mores, which include legal and public policy considerations as well as constitutional rights and norms. Public policy considerations are not static and continue to develop over time.
Defamation
Defamation is concerned with protecting the fama (the good name or reputation) of both natural and juristic persons. A victim would have to prove that the defamation was (i) wrongful and (ii) intentional and (iii) publication of (iv) defamatory material that (v) refers to the plaintiff.
Although this remedy is available for some victims of cyberbullying, it can be onerous to prove at times, as there is the additional requirement of publication. If nothing has been published, the plaintiff will not succeed in such a claim. Majority of cyberbullying cases takes place in a private dwelling and often, the attack is only between the bully and the victim.
Can emotional harm and shock in South Africa be an additional remedy?
A plaintiff can institute a claim for emotional harm and shock in South Africa. The definition of emotional shock and harm can include various meanings. To date no claim for emotional harm and shock based on cyberbullying has been instituted. An example where a person could suffer “emotional shock” would be because of a motor vehicle accident. The person could either have been involved in an accident or a witness to the accident.
The causing of actual emotional shock is treated in practice as a specific form of delict which may result in patrimonial loss. For non-patrimonial loss suffered due to the infringement of the personality right to physical-mental integrity, general damages may be claimed with the action for pain and suffering.
An injury to the brain or nervous system that results from nervous or emotional shock is also a form of physical or bodily injury because the nervous system is as much a part of the body as bones and muscles.
The landmark decision pertaining to emotional shock was the case of Bester v Commercial Union. Since then, terminology relating to emotional shock has developed to include: “shock”, “nervous shock”, “psychological lesion”, “psychological trauma”, “psychological disorder”, and “psychiatric injury”.
All five elements of delict must be present, namely conduct, wrongfulness, fault, causation and harm or loss for a claim of emotional shock to be successful.
The current global pandemic saw a rise in cyberbullying cases, and it has left a trail of victims.
The criminal reliefs available provide ventilation but not compensation. In addition to defamation, the current remedy of emotional shock and harm should be explored by a victim whether they have suffered by the hands of the perpetrator during Covid-19 or not. Undoubtedly, the plaintiff would have to successfully prove all the delictual elements on a balance of probabilities.
A claim where there is only psychological harm suffered, there is no closed list of cases and courts can impose liability for any conduct that either intentionally or negligently causes psychological harm. Undoubtedly the victim must prove a detectable and recognised psychiatric injury or lesion that is not passing or trivial. This recourse will provide a victim with the necessary psychological help and solace that his aggressor would not be let off easily.
Dr Franaaz Khan is Senior Lecturer, Department of Private Law, University of Johannesburg.