Following, watching, and pursuing someone are only some of the examples of harassment in terms of the Protection from Harassment Act, 2011 (Act No 17 of 2011). Does legislation ensure that you have an effective remedy for protection? For this discussion, it is important to refer to the definition of harassment in terms of the act:
“Harassment” means directly or indirectly engaging in conduct that the respondent knows or ought to know—
- causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably—
- following, watching, pursuing or accosting of the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be;
- engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues; or
- sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or leaving them where they will be found by, given to, or brought to the attention of, the complainant or a related person; or
- amounts to sexual harassment of the complainant or a related person;
“Sexual harassment” means any—
- unwelcome sexual attention from a person who knows or ought reasonably to know that such attention is unwelcome;
- unwelcome explicit or implicit behaviour, suggestions, messages or remarks of a sexual nature that have the effect of offending, intimidating or humiliating the complainant or a related person in circumstances, which a reasonable person having regard to all the circumstances would have anticipated that the complainant or related person would be offended, humiliated or intimidated;
- implied or expressed promise of reward for complying with a sexually- oriented request; or
- implied or expressed threat of reprisal or actual reprisal for refusal to comply with a sexually oriented request;
You can read the Act here: www.justice.gov.za/legislation/acts/2011-017.pdf.
Your 12-step plan of action:
- If your set of facts adheres the above-mentioned definitions, you are most probably a victim of harassment and must enjoy the remedies to your disposal. The first step would be to contact your attorney and request an urgent consultation with them. It is not a requirement to first consult with an attorney, because you can apply for a protection order yourself at your local Magistrate’s Court. This is not advisable, however, especially if the harasser in the matter appoints an attorney to represent them in the matter.
- During your first consultation with your attorney, they will take instructions on your version of the events and draft the necessary application with your supporting affidavit stating the facts of the matter, which must include supporting documentation, e.g. WhatsApp messages, SMSs, etc.
- Your attorney will then, in the prescribed manner and form, attend to Court and issue an application with the Clerk of the Court, who deals with this matters at your local Magistrate’s Court. You are also entitled to lodge criminal complaints at the South African Police Service against the party for crimen injuria, assault, extortion and trespassing, whatever is applicable.
- Once the application it issued by the Clerk of the Court, it must immediately be submitted to the relevant Court and/or Magistrate, who must as soon as reasonably possibly consider the application for a protection order against the harasser and hear the legal arguments of your attorney.
- If there is prima face evidence that the harasser is engaged in acts of harassment or has engaged in such acts, the Court can issue an interim protection order after hearing the arguments from your attorney on record.
- After the interim order is granted, it will have immediate effect and protection, even though the harasser have not yet received notice of the application. This interim protection order must then be served on the harasser by the Sheriff of the Court and/or SAPS.
- In terms of the interim protection order, the Court will give the harasser a return date on which they must, with or without an attorney, provide reasons to the Court as to why the interim protection order must not be made a final order of Court.
- If the harasser does not attend Court on the return date, a final order will be granted upon request of your attorney.
- The court will, in the interim as well as the final protection order, state explicitly the conduct and acts of harassment that the harasser must immediately stop, or any behaviour that is prohibited in terms of the order.
- The court will also issue a warrant of arrest for enforcement by yourself if necessary.
- If the harasser, despite the court order, continues to harassment you, you as the victim are entitled to enforce the warrant of arrest by taking it immediately to the nearest police station. The police station will assist you with the drafting of an affidavit regarding the alleged contravention of the court order, in which event the harasser may be arrested and also criminally charged for contravening a court order.
If you cannot afford an attorney, kindly visit the following website to assist you in setting the process in motion: www.justice.gov.za/forms/form_pha.html.
It is important to take note that this legislation is gender neutral and may therefore be used by male or female victims. Remedies and mechanisms in terms of this Act is powerful and no-one should abuse it. If you would like to consult with an attorney regarding any dispute, please send an email to firstname.lastname@example.org.
(This article is an information piece and not a formal legal opinion. HFG Attorneys accepts no liability for damages caused by errors and omissions)
HFG Attorneys // Prokureurs in die Paarl
Criminal Law / Family Law / Civil Litigation / Fire Arms Control Act Specialist
Protection from Harassment Act, 2011 (Act No 17 of 2011)
Matrimonial Matters 2018 (LEAD)