The long anticipated Protection from Harassment Act is due to come into operation on 27 April 2013.
This Act is a great advancement in the protection of victims of harassment (including sexual harassment), in order to enforce the right of all people in South Africa to be free from all forms of violence from either public or private sources.
The main object of the Act is to “afford victims of harassment an effective remedy against such behaviour”
It is a welcome addition to the Domestic Violence Act to achieve a reduction in the rampant abuse against vulnerable groups, including women, children and people with disabilities.
Louise Bick, Pro Bono head at Werksmans Attorneys, has prepared a simple, brief document guide in Q&A format which details how the Act works and how to apply it:
What is harassment under the Protection from Harassment Act?
1. Harassment under the Act includes both direct and indirect conduct that either causes harm or that inspires the person complaining of harassment (“the complainant”) to reasonably believe that harm may be caused.
Such conduct includes following, watching, pursuing or accosting of the complainant or someone in a close relationship with the complainant such as a spouse or family member.
Harassing conduct also includes loitering outside or near the building or place where the complainant or related person lives, works, studies or happens to be.
2. Harassment also includes contact through verbal communication aimed at the complainant. The Act also recognises electronic communication that causes harm or makes the complainant feel in danger of being harmed as harassment.
3. The Act mentions several forms of written communication as capable of being contact for the purposes of harassment, such as letters, packages and e-mails.
4. Finally, harassment includes sexual harassment, which means “any unwelcome sexual attention from a person who knows or who reasonably know 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 means promises of reward for fulfilling a sexual request or punishment for refusing a sexual request.
What kind of harm does the Protection from Harassment Act have in mind?
Harm under the Act includes an extremely wide range of categories being mental, psychological, physical and economic harm.
Who is protected under the Protection from Harassment Act?
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. This can be done without the assistance of the child’s parents.
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 wellbeing of the person experiencing the harassment can apply for a protection order on that person’s behalf.
This is particularly important in the context of protecting people with certain disabilities.
Before the Protection from Harassment Act, protection orders were only available to people experiencing physical, sexual, emotional, verbal, psychological, economic and other forms of abuse from a person with whom they had a domestic relationship.
This meant that one could only get a protection order against someone they were married or engaged to; in a romantic, intimate or sexual relationship with; their parent, child or family member, or someone they were living with.
A person wishing to obtain a protection order under this new Act does not have to prove the existence of a domestic relationship, which was often a hurdle to obtaining protection in certain situations, such as instances of abuse between an educator and a learner.
The Protection from Harassment Act does not prohibit a person from applying for a protection order under that Act if they may fall into the category of domestic relationship and apply for a protection order under the Domestic Violence Act.
If the person who is harassing you is doing so electronically over the internet or by email and as a result you don’t know who they are, the Act allows the court to request details of this person from the electronic communications service provider or may order an investigation by the police into the name and address of the person who is harassing you.
What protection is available under the Protection from Harassment Act?
The Protection from Harassment Act allows for a special process where an initial court order is made without the immediate knowledge of the person who is harassing the complainant, based only on the complainant’s side of the story, as long as the court is satisfied that there is prima facie evidence that the complainant is being or may be harassed and that harm is or may be suffered if the protection order isn’t granted immediately.
A future date is then arranged for the person against whom the protection order is sought to oppose the interim protection order being made a final court order.
The court has the powers to prohibit a person from engaging in or attempting to engage in harassment or enlisting the help of another person to engage in harassment or committing in any act specified in the protection order, which means that a protection order can be tailored to the needs of the complainant in his/her specific situation.
At the same time that the protection order is granted, a warrant of arrest may be issued. If the person contravenes the protection order by continuing to harass the complainant, the police may immediately arrest that person. Failure to comply with the final protection order is a criminal offence and the person may be liable on conduction to a fine or imprisonment for a period not exceeding five years.
Where do I go to get a protection order?
A complainant may apply to any magistrate’s court where they live or work or any magistrate’s court where the person who is causing the harassment lives or works or in the place where the harassment took place.
How do I apply for a protection order?
The process for applying for a protection order is by completing an application form, where the complainant is required to set out the reasons why a protection from harassment order is required and listing full details of all incidents of harassment they have experienced.
The complainant is also able to include the specific acts committed by the person causing the harassment to be listed in the protection order, as well as request the court to impose any additional conditions necessary to protect the complainant and provide for the safety and well
being of that person.
In addition, the physical home or work address of the complainant must be omitted from the protection order provided to the perpetrator in order to further protect the complainant.