Each of us at some stage has been subjected to harassment, whether directly or indirectly. When a person is subjected to harassment, the rights that are violated are our rights to privacy, dignity and physical integrity or a combination thereof.
On 27 April 2013, the Protection from Harassment Act 17 0f 2011 came into operation. In terms of the Act, harassment is defined as directly or indirectly engaging in conduct that the respondent knows or ought to know; and/or:
- 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 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 conversation ensues; or (iii) sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or the attention of, the complainant or a related person; and/or
- 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 reasonably should know that such attention is unwelcome.
The definition of harassment is clearly aimed at protecting the constitutional rights of the complainant. It is not necessary for the conduct to amount to actual harm. If a person feels that they are being harassed they are entitled to apply for an interim protection order in terms of Section 2 of the Protection from Harassment Act, this section enables anyone subject to harassment to approach their nearest Magistrates Court for a protection order. This order provides immediate protection to the complainant.
As the abovementioned order is only interim, Section 3(3) of the Act provides that the respondent 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)(b) of the Act provides that a warrant of arrest must be issued simultaneously once the final order is granted. The section further provides that the warrant of arrest is suspended pending non-compliance with the order by the respondent. It is essential to know that the Protection from Harassment Act cannot be misused, although the harassment can be indirectly a mere allegation by the complainant cannot constitute a fact and the complainant’s application needs to be motivated by facts.
In the case of De Buys Scott and Others v Scott (A100/2018) [2018] ZAFSHC 205 (22 November 2018) the Court explained the misuse of the Act as follows;
“One of the remedies afforded to a victim under the Act is the issue of a protection order by the Magistrates’ Court against the perpetrator of harassment. That said, it is the duty of the courts to prevent abuse and misuse of the justice system. It has often been stated in past judgments that our courts must jealously protect the virtue of the justice system and litigation must be with the utmost honour and responsibility. It must not be for the mere sake of litigation. Superfluous litigation in one matter obstructs the genuine want for access to: and justice in courts, for another. Misguided appropriation and reckless use of the law to avoid responsibility and blame the justice system for calamitous consequences, is offensive.”
Our justice system strives to protect the rights of everyone on a reasonable and fair foundation. Should you feel that you have been subjected to any form of harassment in any manner, please do not hesitate to contact us.
Charne Sebonka
charne@bbplaw.attorney
Associate
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