ZELDA VENTER

THE Gauteng High Court, Johannesburg, overturned a final protection order granted by a magistrate in terms of the Protection from Harassment Act, following claims that a 9-year-old boy squeezed his friend's testicles and thus harassed him.

The central characters are two boys, M and C. They are represented by their parents. C’s father is the appellant, while M’s mother serves as the respondent in the appeal.

At the time of the alleged harassment, both boys were at the same school in grade 3. Both were 9 years old. They had been firm friends since grade R and regularly visited each other outside of school, even after the alleged incidents which are the subject of the harassment claim.

At the time, C’s father was a deputy principal and director of boarding at a high school situated on the same campus as the boys’ primary school.

Towards mid-September 2022, M complained to his mother that C had been “bullying” him and ‘squeezed his private parts’. M’s mother initially reported matters 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 sent an email to the principal, and the parties met up.

The school followed an informal internal investigation, and 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.

M’s mother was aggrieved by the manner in which the school handled her complaint and was not satisfied that enough had been done to protect M. She approached the magistrate’s court for a protection order.

Although C was identified as the alleged perpetrator, the order was sought against the father due to his child’s young age.

The mother complained to the magistrate that C was squeezing her son’s testicles and “touched his bum” and that subsequently the school is “forcing a relationship” with the boys as it did not intervene in the matter.

She wanted a final protection order through the father, on behalf of his son, preventing the latter from harassing her child.

C’s father denied any untoward acts against M and explained that C was, at best, guilty of ‘rough play’.

Without hearing any evidence on the matter and simply relying on the mother’s word, the magistrate issued a final order preventing C or his father (as the latter was stated as the respondent) from harassing her child. The order only lapses in September 2028.

Acting Judge Sarita Liebenberg - after C’s father now appealed that order - asked the magistrate for his reasons in issuing the order. The magistrate remained silent, which the judge found concerning.

She heavily criticised the magistrate for simply relying on the mother’s hearsay evidence as to what her child told her. None of the children were called in camera to explain what had happened. The magistrate also simply rejected the father’s version of rough play, which the judge said is not far-fetched.

Judge Liebenberg said even if she did accept the mother’s evidence, it did not fall within the ambit of the Sexual Harassment Act.

She also referred to the children’s ages and said C, as a 9-year-old, can in law not be capable of legal wrongdoing as he has no idea what he had allegedly done amounted to harassment.

“In the context of this matter, I emphasise that the conduct is unacceptable and required censure, but there is no suggestion on the affidavits filed that the alleged “squeezing” was sexually motivated conduct.”

“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,” the judge said.

She subsequently overturned the interdict.

zelda.venter@inl.co.za