By Sheethal Sewsunker

27 April 2013 marked more than just Freedom Day for South Africans, as the long-awaited Protection from Harassment Act 17 of 2011 (the Act) came into operation.

Victims of harassment by means of abusive electronic communication via social media platforms, such as Twitter, Facebook and Mxit; as well as sexual harassment; stalking; and school bullying, have greater protection following the enactment of the Act.

Mthunzi Mhaga, spokesperson for the Justice Department, is reported as stating that the legislation was introduced due to the significant increase in the number of harassment complaints (eNCA ‘New Act could protect youth from harassment on social media’ eNCA 30-4-2013 (www.enca.com, accessed 2-5-2013)).

The Act essentially provides protection in the form of an inexpensive civil remedy against harassment that may not amount to a crime but which affects a person’s rights to privacy and dignity.

The Act is said to give effect to the recommendations of the South African Law Reform Commission, which carried out an investigation into the legal framework governing stalking behaviour and domestic violence.

Application for a protection order

The application procedure is considered to be straightforward and no legal representation is required. Any person who feels that he or she is being harassed in any way is entitled to apply for an interim protection order in terms of s 2 of the Act, which enables anyone subject to harassment or any form of abuse to approach a magistrate’s court for a protection order. The order provides immediate protection as it comes into effect immediately.

According to s 2(6) of the Act, supporting affidavits by those who have knowledge of the harassment may accompany the application.

In terms of s 14 of the Act, the order is applied for and issued by the clerk of the local magistrate’s court where the applicant lives or works, or where the harasser lives or works, or where the harassment took place.

Luwellyn Landers, the chairperson of parliament’s Portfolio Committee on Justice and Constitutional Development, is reported as stating that the complainant is not required to wait for the order to be served on the harasser or for the harasser to acknowledge receipt of the order in order for it to come into operation (SAnews.gov.za ‘Anti-harassment law comes into effect’ South Africa.info 25-4-2013 (www.southafrica.info, accessed 1-5-2013)).

The order is to be served on the harasser by the sheriff or a peace officer and the onus to ensure that this is done is on the clerk of the magistrate’s court and not the complainant.

Section 10(1)(a) to (c) of the Act provides that the court has the power to prohibit the alleged harasser from engaging in or attempting to engage in harassment; enlisting the help of another individual to engage in the harassment; or committing any other act as specified in the protection order.

The court may further impose any additional conditions in the order that it deems reasonably necessary to protect and provide for the safety or well-being of the complainant. With the aim of further protecting the complainant or a related person (any member of the complainant’s family or household or any person in a close relationship with the complaint), the court may direct that the home or work address be omitted from the protection order.

Once the order is granted

As the order is of an interim nature, s 3(3)(c) of the Act provides that the harasser is afforded time to respond and show good cause and reason, on the specified return date, why the order should not be made permanent.

Section 11(1)(a) of the Act provides that a warrant of arrest must be issued at the same time the order is granted. Section 11(1)(b) provides that the execution of the warrant is suspended pending any non-compliance with the order by the harasser. Should the harasser contravene the protection order and continue to harass the complainant, he or she will be deemed to be guilty of an offence, in which event the South African Police Service (SAPS) may immediately arrest the individual, who is then liable on conviction to a fine or imprisonment for a period not exceeding five years.

Additional protection

Business Day Live reports that: ‘Implementation of the Act has been urgently needed to extend the protection of women, particularly those who are poor and cannot afford to take legal action to secure some level of protection from harassment’ (W Hartley ‘Harassment protection law finally put into effect’ Business Day Live 29-4-2013 (www.bdlive.co.za, accessed 26-5-2013)).

Before the promulgation of the Act, protection orders could only be obtained by those experiencing physical, sexual or emotional abuse from a person with whom they had a domestic relationship in terms of the Domestic Violence Act 116 of 1998. This shortcoming in the legislation left people who were not in a domestic relationship exposed and unprotected from harassment.

Harassment

Harassment is not restricted to physical or verbal abuse. The Act includes a wide definition of ‘harassment’ to mean:

• Any direct or indirect conduct that causes harm or causes the complainant or a related person to believe that harm may be caused to him or her by behaviour such as following, watching, accosting and loitering outside of or near the building where the complainant resides, studies, works or carries on business.
• Engaging in any verbal, electronic or other communication that is aimed at the complainant or a related person by any means, regardless if conversation ensues.
• The sending or delivery of written communication via letters, telegrams, packages, fax, e-mail; or the sending of other objects to the complainant or a related person; or leaving such written communication or objects in a place where they are likely to be found, given to or brought to the attention of the complainant.
• Any conduct that amounts to sexual harassment of the comp­lainant or a related person. ‘Sexual harassment’ is defined in the Act as any ‘unwelcome sexual attention from a person who knows or who reasonably should know that such attention is unwelcome’.

This may include unwanted sexual behaviour, suggestions, messages or re­marks of a sexual nature that have the effect of ‘offending, intimidating or humiliating the complainant or a related person’. Sexual harassment also includes the making of promises of reward for conforming to a sexual request or the punishment or threat of reprisal for re­fusing a sexual request.

The following people may apply for a protection order in terms of the Act:

• Anyone who believes he or she is being harassed by another individual.
• Any other person who has a material interest in the well-being of the complainant or a related person can apply for a protection order on his or her behalf. This must be done with the complainant’s consent, unless the court is satisfied that he or she is unable to provide such consent.
• A minor under the age of 18, or anyone on behalf of the minor, may make an application to the court for a protection order. It is unnecessary to gain consent or assistance from the minor’s parents or legal guardian(s).
• Anyone who is subject to harassment electronically, via the internet, social media sites, text messages or e-mail.
• Any individual who has applied for a protection order in terms of the Domestic Violence Act may also apply for protection from harassment under the Act.

Harassment in the digital age

The Act is sensitive to the differing requirements to combat harassment in the digital age. It caters for circumstances in which the complainant is unaware of the harasser’s personal details or where the complainant is being subjected to abuse via anonymous threatening or offensive smses, Twitter messages or e-mails.

Sections 4(1)(b), 5(1)(b) and 6(1)(b) of the Act empower the magistrate’s court to issue a directive and order electronic communications service providers to provide it with the full name, identity number and address of the harasser sending the text messages, tweets or e-mails. Further, it may order a member of the SAPS to carry out an investigation into the harassment, with the aim of obtaining the name and address of a harasser whose personal details are unknown to the complainant.

Conclusion

As with any new piece of legislation, the Act’s implementation remains key to its success. People need to be educated about their right to be free from all forms of abuse and violence.

The Act is said to primarily benefit those who cannot afford legal remedies that are expensive and vulnerable groups, such as women, children and people with disabilities.

It is fitting that the Act came into operation on Freedom Day. This day is remembered as the day that marks the liberation of South Africa from a period of oppression and imprisonment at the hands of the apartheid government.

The Act is a stark reminder to all that abuse, violence and harassment will not be tolerated, but will be valiantly opposed.

Sheethal Sewsunker LLM (UKZN) is a candidate attorney at Routledge Modise Inc in Johannesburg.

This article was first published in De Rebus in 2013 (July) DR 34.