INTERCEPTACIÓN POR COBERTURAS VEGETALES

The Child Justice Act will be relevant in all instances where children are in conflict with the law. It must be read with all the crimes discussed above, and must be taken into account in creating any law and policy for the regulation of cyber bullying. A few pertinent provisions are discussed below.

The preamble of the Act states that:

while envisaging the limitation of fundamental rights in certain circumstances, emphasises the best interests of children, and singles them out for special protection, affording children in conflict with the law specific safeguards, among others, the right –

* not to be detained, except as a measure of last resort, and if detained, only for the shortest appropriate period of time;

* to be treated in a manner and kept in conditions that take account of the child's age; * to be kept separately from adults, and to separate boys from girls, while in detention; * to family, parental or appropriate alternative care;

* to be protected from maltreatment, neglect, abuse or degradation; and

* not to be subjected to practices that could endanger the child's well-being, education, physical or mental health or spiritual, moral or social development;

Children in conflict with the law are provided special safeguards, and protection, and must only be detained as measure of last resort. The aims of the Act are to:

• expand and entrench the principles of restorative justice in the criminal justice system for children who are in conflict with the law, while ensuring their responsibility and accountability for crimes committed;

• recognise the present realities of crime in the country and the need to be proactive in crime prevention by placing increased emphasis on the effective rehabilitation and reintegration of children in order to minimise the potential for reoffending;

• balance the interests of children and those of society, with due regard to the rights of victims;

Most of the offences that can be instituted for cyber bullying, such as defamation and assault, falls under schedule 1 of the Child Justice Act. These are seen as less serious crimes. Because the crimes are seen as less serious, it should always be attempted to first deal with instances of cyber bullying as misconduct at school level. In instances where sexual assault of assault (schedule 2 crimes) take place, schools must call in the policy. Discipline and punishment for cyber bullies at school should be in line with the principles of restorative justice, teach the learners to take responsibility for their actions, protect the best interests of the bully and the victim, and focus on

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rehabilitation and integration. Reyneke identifies the principles of restorative justice as a victim centred approach, offender accountability, community involvement, reconciliation, the restoration of relationships, restitution, the making of amends, repairing harm, problem solving, dialogue, negotiation, reintegration, repentance and forgiveness.458 These principles are in line with the principles of a whole-schools

approach to cyber bullying in schools as discussed in chapter 2 (cf. section 2.4 Land can be included in any law and policy on cyber bullying in South African schools.

Section 3 of the Act makes provision for guiding principles on how children in conflict with the law should be treated. These guidelines adapted and applied in a school context are:

 When a learner is disciplined, the circumstances of the learner should be considered.

 The cultural values and beliefs of learners must be taken into account during proceedings. Discipline measures should relate to the seriousness of the misconduct. The best interests of the other learners (including the cyber bully) at the school should be taken into consideration.

 The learner must not be treated more severely than an adult would have been treated under similar circumstances. This in line with the statement made by the judge in Le Roux v Dey when he said that civil action should not be taken against learners to punish them. One should also consider the principle of the evolving capacities of the child here. An older child will be more aware of the consequences of his actions, and must thus be treated differently than a younger child who may be less aware that what he is doing is wrong.

 Learners should be treated and spoken to in accordance to their age. Educators must ensure that the learner understands the proceedings and is able to communicate properly. This guideline will once again relate to the evolving capacity of the child as mentioned in the previous guideline.

 There should be a fair disciplinary hearing, where the learner has the right to be heard. This will ensure the IHRL of the right to participation and expression of the child as contained in the CRC.

 Disciplinary proceedings against learners should not be delayed.

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 Parents and guardians should assist learners during the disciplinary proceedings, and should also be allowed to take part in the disciplinary proceedings.

 All learners should be treated equally in disciplinary proceedings, and this mean that a child without proper adult support should be provided with such support.  Meetings should be held between the victim, the bully, the parents, a

representative from the school and a school counsellor to facilitate understanding and reconciliation between the parties. This will also assist in creating awareness in the bully of the effect of cyber bullying victims.