By Aphiwe Nonyukela
The Protection from Harassment Act No. 17 of 2011 was introduced to try to reduce the incidence of harassment in South Africa. The Act provides for a civil remedy in the form of a protection order from behaviour which may not constitute a crime but which impacts negatively on various rights of an individual.
What is Harassment?
In terms of the Act, harassment includes conduct, both direct and indirect, that causes harm or that inspires the person complaining of harassment (“the complainant”) to reasonably believe that harm may be caused. Harassment can include physical, emotional, financial, or psychological harm. Therefore, harassment happens when a person does something that makes another person feel uncomfortable, threatened or unsafe.
Harassment also includes sexual harassment. This means any unwelcome sexual attention from a person who knows or who ought reasonably to know that such attention is unwelcome. Such sexual attention could include unwelcome behaviour, suggestions, messages or remarks of a sexual nature that have the effect of offending, intimidating or humiliating another. Some examples of sexual harassment are:
- Sexually explicit jokes by email or text.
- Inappropriate touching.
- Unashamed demands for sex.
- Persistent requests for dates.
- Sexual suggestions.
- Unnecessary touching.
Stalking is another form of harassment. It refers to persistent and unwanted attention directed at or towards the complainant by another person that makes the complainant feel pestered and harassed and causes alarm or distress or fear that violence might be used. Stalking often continues for a long period of time, making the complainant constantly anxious and afraid. Social media and the internet can be used for stalking and harassment. This is known as cyber-stalking, and this form of harassment can also cause alarm and distress.
Who does the Act seek to protect?
- The Act seeks to protect everyone who may find themselves as a victim of harassment and whose rights are infringed upon by an act of harassment.
- Anyone who believes they are being harassed by another person can apply for a protection order under the Protection from Harassment Act.
- A child under the age of 18 or a person on behalf of a child may apply for a protection order.
- If a person is not able to apply for a protection order for himself, another person who has a real interest in stopping the harassment and the well-being of the person experiencing the harassment can apply for a protection order on that person’s behalf.
Procedure for a Protection Order:
If a person believes that they are a victim of harassment, they may seek protection from the court by making an application for a protection order.
- A complainant can apply with the clerk of the harassment section at the Magistrate’s Court in the area where the complainant or respondent lives, works, or where the harassment took place.
- The clerk will assist the complainant in filling in the application form for the protection order, which is in the form of a written affidavit. If a complainant has evidence in the form of video footage or images of the harassment, these may also be submitted together with the application. A complainant may also submit supporting affidavits by witnesses.
- The application will then be submitted to the court for consideration.
What happens after you have submitted the application?
After the complaint has submitted the application for a protection order, the court will consider the application, and one of two things can happen. An interim protection order may be granted (together with a suspended warrant of arrest) where there is enough evidence before the court that the complainant is being harassed. The interim protection order will then be served on the respondent. It will inform the respondent when they must appear in court to defend themselves (“return date”). If an interim protection order is not granted, then a notice to show cause will be granted, and the respondent will be given a return date to show good reasons to the court why a final protection order should not be granted against them.
If the court is convinced that there is harassment and there is enough evidence before it that proves harassment, then a final protection order will be granted. The main purpose of the protection order is to prevent future harassment. The respondent will be prohibited from committing acts of harassment and may be ordered to refrain from doing certain acts or not have any contact with the complainant. A final protection order is valid for 5 years.
