A recent legal tangle at the Gauteng High Court saw a surprising twist in a case involving two young schoolmates, M and C, aged just 9, over what some might call playground antics gone wrong. Once “firm friends” since Grade R, the boys’ bond hit rocky terrain in mid-September 2022 when M complained to his mother that C had been “bullying” him and had “squeezed his private parts”.
M’s mother initially reported the matter to the boys’ class teacher through a note in M’s homework book. When the class teacher allegedly did not act with the necessary haste, M’s mother addressed an email to the principal of the primary school, and a meeting followed between the deputy principal of the primary school and M’s mother in mid-October 2022.
It appears the school followed an informal internal investigation. C was interviewed by the principal of the primary school (without his parents being present). The internal process resulted in C being asked to remain at home for three days. The principal advised M’s mother of the outcome of the informal investigation by email dated 1 November 2022. Dissatisfied with the school’s response, M’s mother sought a protection order against C’s father, who, at the time, was deputy principal and director of boarding at a high school situated on the same campus as the boys’ primary school.
The magistrate, swayed by M’s mum’s account, issued the order without hearing from the boys or considering C’s dad’s explanation of innocent “rough play”. Enter Acting Judge Sarita Liebenberg, who, upon appeal, delivered a masterclass in common sense.
Judge Liebenberg stressed that, despite the seriousness of the allegations, the boys’ age and the nature of their long-standing friendship should have been considered. She noted that nine-year-olds legally lack the mens rea (or, in layman’s terms, the criminal intent) to orchestrate harassment.
The judge lambasted the magistrate for relying on hearsay and ignoring C’s dad’s defence. In her words, “the magistrate did not display the requisite sensitivity to the age of the children involved and the nature of the allegations by adopting an inquisitorial approach. He did not allow or call for oral evidence, nor did he seek to involve the children themselves in an appropriate manner.”
She overturned the order, criticising the failure to establish any sexual motive or true harassment. The judge further remarked, “I am not satisfied that by seeking out his friend of many years, or sitting close to M on the pavilion at a sports event, amounted to C perpetrating acts of harassment against M.”
With the order now overturned, the boys are free to reconcile (or not) without the somewhat overzealous legal oversight, because some squabbles just require a time-out, not a courtroom.
You can read the full L.H obo C.H v R.A obo M.A judgement here.
Written by Theo Tembo
The Legal Desk 
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