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Additional duties

June 2014

The preamble says the purpose of the Protection from Harassment Act is to "afford victims of harassment an effective remedy against such behaviour; and introduce measures which seek to enable the relevant organs of state to give full effect to the provisions of this Act".

Regulations dealing with a number of processes and procedures were published in Government Gazette (36357 of April 12 2013). In addition to this, directives were issued in the same Government Gazette.

In order to give effect to the preamble of the Act, Regulation 2 of the Regulations and Directives impose heavy duties on the clerk of the Magistrates' Court if the applicant is not represented.

At the outset, the clerk is to hand the unrepresented complainant an information sheet; if the complainant cannot read, the clerk is to read the information to the complainant. The clerk is then obliged to ascertain whether the person understands the information, if necessary explain it and then obtain written confirmation that the duties have been complied with.

The information to which this refers includes:

  • Advice on the relief available to the complainant, including the right to lodge a criminal complaint against the respondent and an explanation of what harassment means. In terms of the Directives, the clerks of the court are to obtain a working knowledge of the Act and Regulations to the extent that they can apply these in practice.
  • Confirmation that the complainant can approach the Magistrates' Court for an order protecting them from the harassment "on any day and at any time". In terms of the Directives, a clerk of the court is to be available to receive applications outside ordinary court hours and on days that are not ordinarily court days. In order for this to happen, the court manager must make a roster with which the clerks must comply.
  • An explanation as to the process.
  • Confirmation that the physical, home and work address of the complainant or related persons must be omitted from the protection order.
  • A warning that it is a criminal offence to make a false statement in an affidavit for the application of a protection order or to the effect that the respondent has breached an order.
  • A warning that a cost order may be made against a party if that person has behaved frivolously, vexatiously or unreasonably.

Where a complainant is a child, illiterate or cannot complete the application form for a protection order, the clerk of the court is to complete the application form on that person's behalf. The contents of the application form must be read back to the applicant so that they can confirm its correctness.

In terms of the Regulations, service of any document includes service by the clerk of the court. This can be either by the clerk handing the document to the person on whom service is to be effected or sending a certified copy to that person by registered post. This is in all situations where alternative service is not specifically provided for by the Act or Regulations.

Similarly, it is the duty of the clerk of the court to ensure that any directions issued to electronic service providers or station commanders of police stations are served upon them. The Regulation goes so far as to specify the documents which the clerk is required to file following service on the electronic service providers.

Once a protection order has been granted, the clerk of the court is required to forward certified copies of the protection order and warrant of arrest to the police station of the complainant's choice.

Failure on the part of the clerk of the court to comply with the Directives constitutes an act of misconduct.

Will the clerks be able to cope with this or is the result going to be even more chaos around these important orders? - Editor

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