If Parties are not related to each other and a protection order is sought, the Domestic Violence Act 116 of 1998 (“the Act”) is used. The Act defines “domestic violence” in section 1 (definitions clause sub-section (f) specifically). The Act further says that “harassment” means the following – “…engaging in a pattern of conduct that includes the fear of harm to a complainant including –
- Repeatedly watching or loitering outside or near the building or place where the complainant resides, works, carried on business, studies or happens to be;
- Repeatedly making telephone calls or including another person to make telephone calls to the complainant, whether or not conversation ensues;
- Repeatedly sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant…”
It is commonplace for individuals to want to use a protection order and claim harassment after an altercation, however, as noted from the above definition, harassment requires the element of repetition. For instance, if one single email is sent to you which you believe infringes your good name and dignity, you would not likely succeed for an order to prevent “harassment” unless the threatening emails continue. What constitutes a pattern of oppressive behaviour would depend on the facts and the conduct in question.
This repetition element is noted in case law (Mnyandu v Padayachi 2017 (1) SA 151 (KZP)) further stating that the definition of harassment can include when the single act is of such an oppressive nature that would have the same effect as being physically stalked.
It is important for Parties to remember that the protection orders interdict future harm and is more solution-based than punishment-based as stated in S v Baloyi (Minister of Justice and Another Intervening) 2000 (2) SA 425 (CC).
If you need any help balancing the intricacies of freedom of speech and defamation, don’t hesitate to contact us.