The past two decades have witnessed a concerted effort being made by the South African Government to provide mechanism for the protection of vulnerable members of society from acts of violence, intimidation and harassment. One such effort is apparent from the recent enactment of the Protection from Harassment Act which was signed into operation on the 27 April 2013. The primary purpose of the Protection from Harassment Act is to provide victims of alleged harassment with an effective remedy against harassment. This is done by making provision for the prompt and expedited issuing of Protection Orders for victims subjected to acts of harassment and/or threats of harassment.
WHAT IS HARASSMENT – PROTECTION FROM HARASSMENT ACT
Harassment under the Protection from Harassment Act includes both direct and indirect conduct that either causes harm or inspires a person complaining of harassment (“the Complainant”) to reasonably believe that harm may be caused to them. Such conduct includes following, watching, pursuing or the accosting of the Complainant or someone in a close relationship with the Complainant such as spouse or family member. It also includes a Respondent loitering outside of or near the building or place where the Complainant or the related person lives, works, studies or happens to be.
Additionally it includes contact through verbal, written and electric communication aimed at the Complainant which causes harm or makes the Complainant feel in danger or being harmed.
The Act stipulates that the word “harm” includes any mental, psychological, physical or economic harm to the Complainant.
DEFINITION OF SEXUAL HARASSMENT
The Protection from Harassment Act makes provision for sexual harassment which is defined as any unwelcome sexual attention from a person who knows or who reasonably knows that such attention is unwelcome. Such sexual attention includes unwelcome behaviour, suggestions, messages or remarks of a sexual nature that have the effect of “offending, intimidating or humiliating” the Complainant or a person who has a close relationship with the Complainant. Sexual harassment also includes the promise of reward for fulfilling a sexual request and/or punishment for refusing a sexual request.
WHO MAY APPLY FOR A PROTECTION ORDER
In terms of Section 2 of the Protection from Harassment Act any person who is being subjected to harassment can apply to a Magistrate’s Court for the issuing of a Protection Order against the harasser. The application for the Protection Order may be brought by the Complainant themselves or by another person acting on behalf of the Complainant but with the Complainant’s written consent. A Court determining whether a Protection Order should be issued, is permitted in terms of the Act to dispense with the aforesaid written consent where in its opinion the Complainant is unable to give such consent.
A child below 18 years of age or a person acting on behalf of the child may also make an application for a Protection Order. It would not be necessary for the child or the party assisting the child to have parental assistance or consent for the bringing of the application.
INTERIM PROTECTION ORDERS
In bringing the application, a Complainant would be required to complete a standard form attaching where applicable, any supporting affidavits of persons who have knowledge of the matter. Once the standard application form has been completed the Clerk of the Court is required to immediately submit the application and affidavits to the Court for its consideration. A Court will grant an Interim (temporary) Protection Order against a Respondent in the absence of the Respondent’s knowledge where it is satisfied that there is:
- prima facie evidence that the Respondent is engaging in or has engaged in an act of harassment (as defined here-above)
- harm is being or may be suffered by the Complainant or a related person as a result of the conduct if a protection order is not issued immediately; and
- the protection that would be given to the Complainant through the issuing of the Interim Protection Order would not be achieved if the Respondent were to be given prior notice of the application.
Once the Interim Protection Order has been ordered, a copy of the Interim Order must be served on the Respondent who is given a date on which to come to Court to argue why the Interim Protection Order should not be made a Final Order.
In the event of the Court being of the opinion that the application before it does not warrant the issuing of an immediate Interim Protection Order against the Respondent, the Court will direct that certified copies of the Complainant’s affidavit be served on the Respondent and that both the Complainant and the Respondent are called upon to appear in Court on a specified date for the Court’s determination of the matter.
ISSUING OF PROTECTION ORDERS
In those instances where an Interim Protection Order has been granted by the Court, the Court will on the return date consider whether or not to make the Interim Order a final order. If the Respondent appears on the return date and opposes the issuing of a Final Protection Order, the Court will hear the matter, considering all the evidence before it including any affidavits, expert reports as well as any oral evidence which the Court may require.
When determining a matter, the Court is required to decide on whether the conduct complained of was unreasonable in particular the Court would determine whether the Respondent’s conduct was committed :
- for the purpose of detecting or preventing an offence;
- to reveal a threat to public safety or the environment;
- to reveal that an undue advantage was being or was given to a person in a competitive bidding process; or
- to comply with a legal duty.
COURT’S POWERS IN RESPECT OF A PROTECTION ORDER
The Courts powers in respect of making Protection Orders under the Protection from harassment Act are relatively wide and include the making of an Order prohibiting the Respondent from:
- Engaging in or attempting to engage in an act of harassment of the Complainant ;
- Enlisting the help of another person to engage in an act of harassment against the Complainant ; or
- Committing any other act as specified in the Protection Order.
Additionally, where an harassment or threat of harassment is apparent on a balance of probability, the Court may impose any additional conditions on the Respondent which it deems reasonably necessary to protect and provide for the safety or well-being of the Complainant or a related person. This includes the right to make an Order directing a member of the South African Police Service to seize any weapon in the possession or under the control of the Respondent, as well as directing a member of the police services to accompany the Complainant or the related person to a specified place to assist with arrangements regarding the collection of any personal property identified in the Protection Order and the directing of the police services to investigate whether the Respondent should be prosecuted for a criminal act.
FURTHER PROTECTION OF THE COMPLAINANT
The Act provides that the physical, home and work address of the Complainant or related person must be omitted from the Protection Order, unless the nature of the terms of the Order necessitates the inclusion of the address and that the Court may issue any directions it deems necessary to ensure that the Complainant or related person’s physical address is not disclosed in any manner which may endanger the safety or well-being of the Complainant or related person.
THE DURATION OF A FINAL PROTECTION ORDER
Unless set aside by the Court, a Final Protection Order issued in terms of the Act remains in force for a period of five years or such further period as the Court may determine on good cause shown.
The Protection from Harassment Act can be accessed here-below: