Employers and schools can no longer claim ignorance of cyberbullying
In 2021, a video of 15-year-old Limpopo schoolgirl Lufuno Mavhunga's violent assault at the hands of a fellow learner went viral. Following the assault, Mavhunga took her own life.
An investigation by the South African Human Rights Commission found that the school had failed in its duty of care, ignoring pleas from her family and failing to act when alerted.
'We have very good laws,' said Dr Sershiv Reddy, senior lecturer in the department of mercantile law at the University of Johannesburg. 'But sometimes we are impeded by enforcement, maybe due to the lack of funding or other resources.'
South Africa's legislative toolkit, including the Protection from Harassment Act (2011) and the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda, 2000), offers remedies for victims of harassment and discrimination.
These protections often vanish in the policy void between written laws and day-to-day practice.
No adults in the room
'More than 95% of our children have access to the internet,' Reddy said 'The keyword is access. It doesn't mean that they may have a mobile device at home, but it means they have access via other means. That could be through a school computer, through the library, [or] an internet café.'
Seventy percent of children access the internet without their parents knowing, and more than half of South African schoolchildren have been victims of cyberbullying, Reddy said.
In 2018, the Ipsos Research Institute ranked South Africa fifth in a global survey of 28 countries measuring cyberbullying rates.
And it's not just children. Anli Bezuidenhout, employment law director at Cliffe Dekker Hofmeyr, pointed out that teachers and employees are also victims of online harassment.
WhatsApp and HR
While bullies have migrated to WhatsApp groups, Instagram direct messages (DMs) and Zoom calls, schools and workplaces seem stuck in a pre-digital era, failing to proactively update policies.
'Where in the past we may have had policies relating to sexual harassment, we now often see those policies haven't been broadened to also deal with issues such as cyberbullying,' Bezuidenhout said.
This is despite the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, which came into effect four years ago. It states that employers (including schools) should have anti-harassment policies that also cover digital spaces.
Bezuidenhout explained that the code introduces the requirement to review other policies, such as a company or school's social media policy.
Off the clock, still on the hook
Tim Fletcher, director and chair of dispute resolution at Cliffe Dekker Hofmeyr, describes the Protection from Harassment Act as 'a fairly draconian remedy', but one that is easily obtainable.
Victims can approach the magistrate's court, whether in their area, the perpetrator's, or where the incident happened, to secure an interim protection order, Fletcher said.
This order becomes effective the moment it is served, and if unchallenged, it converts into a final order with an attached warrant of arrest.
Pepuda, meanwhile, offers even broader powers through the Equality Court, allowing action on virtually any ground undermining dignity.
And critically, cyberbullying outside of working hours is still grounds for disciplinary action.
'It's off-duty misconduct, you're against the school conduct, against the company's conduct, bringing the company into disrepute. I would still be able to discipline such an individual,' Aadil Patel, head of employment law at Cliffe Dekker Hofmeyr, said.
How does this affect you?
The boundaries between public and private, workplace and home, have blurred. WhatsApp groups, private DMs and social media posts are not outside the law's reach.
Cyberbullying at school or at work is not something you have to endure quietly. The legal system offers tools for protection. But those tools only work if victims and communities know they exist, and use them.
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