Protection from harasment
The preamble says that 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".
Harassment itself is defined in the Act as engaging in conduct that is known or ought to be known to cause harm or fear of harm or amounts to sexual harassment of a person. Harm includes mental, psychological, physical and economic harm.
The legislature has included the following in the type of conduct that can cause harm or fear of harm:
"(i) Following, watching, pursuing or accosting... loitering outside of or near the building or place with the complainant or the person resides, works, carries on business, studies or happens to be;
(ii) Engaging in verbal, electronic or any other communication aimed at the complainant or a related person...;
(iii) Sending, delivering or causing the delivery of letters ... packages, electronic mails or other objects ...or leaving them where they will be found by, given to, or brought to the attention of the complainant or a related person..."
Sexual harassment has also been elaborated on and includes the occurrence of any of the following:
"(a) unwelcome sexual attention from a person who knows such attention is unwelcome;
(b) unwelcome explicit or implicit behaviour, suggestions, messages or remarks of a sexual nature that have the effect of offending, intimidating or humiliating which a reasonable person would think have the effect of offending, intimidating or humiliating;
(c) implied or expressed threat of reprisal or actual reprisal for refusal to comply with a sexually orientated request."
(It is interesting that this Act does not prevent a person applying for relief under the Domestic Violence Act.)
According to the Act, where a person is being subjected to harassment, he or his representative may attend at the Magistrates' Court and apply for a protection order against harassment. Anyone who has a "material interest in the well-being" of the person can bring an application on their behalf. However, this person must have the consent of the person affected by the harassment, unless that person is unable to give consent. Further, any child, or person acting on behalf of a child, may bring an application in terms of this Act for a protection order without the assistance of a parent, guardian or other person. The application must be in the prescribed form and be accompanied by an affidavit. In order to give effect to the preamble of the Act, Regulation 2 of the Regulations, effective April 27 2013 (the 2013 Regulations), requires that the clerk of the court assist an applicant who is not represented by providing them with an information sheet that details the relief available to him or her and further requires that the clerk obtain written proof from the complainant that there has been compliance with this regulation. The additional obligations on clerks of the court are in themselves an interesting development and should be addressed on their own.
Interestingly, the contents of the Act suggest that an application may be made where the person subjected to the harassment is not even aware of the identity of the "harasser" or where they live. It makes provision for the court to issue a direction to the South African Police Service (SAPS) to investigate the matter and find the "harasser". Should such an investigation be necessary, the court will give the SAPS a time frame within which they are to provide the requisite information. The SAPS is afforded the power to elicit any information from any person in respect of whom a complaint has been received.
When considering an application for a protection order, the court may consider any other evidence including other affidavits or even oral evi¬dence. It may either find that there is need for an interim protection order to be issued, in which case it will direct the manner of service. Alternatively, it will find that there is no prima facie proof of harassment, in which case it will call the alleged harasser to court to show reasons why a protection order should not be issued. The court will only issue an interim protection order where it is satisfied that there is evidence of harm and that prior notice to the "harasser" will not prevent the protection of the victim. Where these elements exist, the magistrates' court must issue an interim protection order; it does not have any discretion in this regard.
As with a Domestic Violence Act protection order, the court must direct the manner of service of the protection order, which will be served on the respondent together with a copy of the application. The record of the proceeding is also to be served on the person. The interim protection order will contain a date on which the respondent must come to court to show why the interim protection order should not be made final. In terms of Regulation 28 of the 2013 Regulations service can be effected by the clerk of the court by registered post, as long as the clerk obtains proof of receipt. Regulation 28 further provides that the court may make an order relating to service where it is satisfied that service cannot be effected in the manner prescribed by the 2013 Regulations.
An interim protection order is of force and effect from the time that it is issued by the court and its existence is brought to the attention of the respondent concerned.
If the respondent does not appear on the return date contained in the interim protection order and the court is satisfied that there is prima facie proof of harassment and proper service on the respondent, the court must issue a protection order. Again, there is no discretion given to the magistrate.
If the respondent appears on the return date and opposes the interim protection order being finalised, the court will hear the arguments and witnesses from both sides to determine whether, on a balance of probabili¬ties, the respondent is harassing the complainant. In determining the issues before it, the court is called upon to consider specifically whether the conduct engaged in was:
"(a) for the purpose of detecting or preventing an offence;
(b) to reveal a threat to public safety or the environment;
(c) to reveal that an undue advantage is being given or was given to a person in the competitive bidding process; or
(d) to comply with a legal duty."
In relation to the proceedings, special consideration has been given to the nature of such complaints. The Act not only provides for the proceedings to be held in camera but also allows the court to conceal the identity or address of any person involved. Before making a decision for the proceedings to be held in camera, publication of any material to be prohibited or a class of persons being prohibited from attending the proceedings, the court may give notice of its intention to any person who has an interest in the matter and give them an opportunity to apply to court to be present during the proceedings or to publish information relating to the proceedings.
The Magistrates' Court has wide powers in respect of what can be contained in the protection order including:
- Incorporating any conditions into the protection order that may be necessary in order to protect the complainant.
- Ordering the SAPS to go with the complainant to collect any items from the respondent.
- Ordering the station commander of a SAPS police station to investigate the matter to ascertain whether criminal proceedings can be instituted.
A protection order, having been finally granted, will be valid for five years or a further period as the court may determine, unless it is set aside. Notably, the order itself is not suspended upon the noting of an appeal.