Protection against harassment in South Africa

The Bill of Rights in the Constitution of the RSA enshrines the rights of all people in the Republic of South Africa, including the right to equality, the right to privacy, the right to dignity, the right to freedom and security of the person, which incorporates the right to be free from all forms of violence from either public or private sources

The Protection from Harassment Act, Act No. 17 of 2011 (“the Act”) was enacted to provide victims of Harassment an effective remedy against behaviour that violates their right to equality, privacy, dignity, freedom and security of the person and further introduces measures which seek to enable the relevant organs of state to give full effect to the provisions of the Act.

One of the ways in which the Act seeks to achieve this is through the prompt and expedited issuing of protection orders for victims subjected to acts of harassment and/or threats of harassment.

The Act defines harassment as directly or indirectly engaging in conduct that causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably-

  • following, watching, pursuing or accosting of the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be;
  • engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues; or
  • sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or leaving them where they will be found by, given to, or brought to the attention of the complainant or a related person; or

(b) amounts to sexual harassment of the complainant or a related person.

 

This definition is very wide and provides that harm or harassment may follow from various acts. It further states that even the mere reasonable belief that harm will follow is enough to conclude that a person may have been harassed. The concept of “harm” includes (but is not limited to) mental, psychological, physical or financial harm.

What can a person do if he/she is being harassed?

If a person experiences harassment, the Magistrates’ Court (“the Court”) may be approached for a protection order.

Ä complainant may apply on his own behalf, but the application may also be brought by any person who has an interest in the wellbeing of the complainant. If the complainant is older than 18 years (i.e. a major person), the complainant must provide written consent to the application being made on his/her behalf. The Court may however dispense with the requirement of consent where it believes that the complainant is not able to provide consent.

A minor does not need the assistance of a parent or guardian to bring an application for a protection order.

What process will be followed by Court?

The Application will be lodged with the clerk of the Court in the area where the complainant or respondent lives, or where the harassment took place. A written affidavit by the complainant will form part of the application. Affidavits from others, who bear personal knowledge of the issue, may also be added to substantiate the application.

Once the application is completed, the clerk of the Court will immediately submit the application to the Court to be considered. An interim (temporary) protection order will be granted in the absence of the respondent’s knowledge, if the court is satisfied that clear evidence exists that the respondent is engaging in or has engaged in an act of harassment and that harm is being suffered, or may be suffered by the complainant (or related person) as a result of the respondent’s conduct if the protection order is not issued immediately.

The Court may also find that no immediate order is warranted. In that case, the complainant and respondent will be called upon to appear in Court to state their respective cases, whereafter a determination will be made.

An interim protection order will be issued together with a suspended warrant of arrest. Arrest will only follow if the respondent fails to comply with the order.

The order, once issued, will then be served on the respondent, advising him/her of a date on which he/she must be present at court in order to give reasons as to why the interim protection order should not be made a final order. Should the respondent fail to appear, a final order may be issued in his/her absence.

On the return day after the interim protection order has been issued and served on the respondent, the Court will hear evidence from both complainant and respondent and that of any witnesses that they may call to present their respective cases. Based on this evidence, the court may decide whether a final protection order is to be granted or not.

The Court has wide powers to include any such conditions in the final order to ensure the safety of the complainant. If the respondent does not follow these conditions, he/she will be guilty of an offence and a fine and/or imprisonment may be imposed.

A final protection order will remain in force for a period of five years or any further period as the Court may determine. The order may also be set aside by the court.

If the respondent violates any conditions of the protection order during the period of validity, it must be reported to authorities immediately together with a copy of the protection order, whereafter the respondent will be arrested.

For further assistance, contact Dewald Steenkamp on 011 675 2881 or dewald@ottokrause.co.za.

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