In the case of MM v Kiewiet, the appellant in the court a quo alleged experiencing harassment from another resident, the respondent. The appellant obtained an interim protection order in the Magistrates’ Court against the respondent in terms of the Protection from Harassment Act 17 of 2011 (“the Harassment Act”). The respondent was restrained from verbally and physically abusing the appellant, threatening, harassing and contacting the appellant.
However, when the case reached the Magistrates’ Court for a final protection order, the court dismissed the application. According to the court a quo, the harassment application should have been made in terms of the Community Schemes Ombud Service Act 9 of 2011 (“CSOS Act”), as the said Act regulates disputes within community schemes. The appellant launched an appeal against the Magistrates’ Court’s decision in the High Court, where the appeal was upheld.
The Harassment Act defines harassment as directly and 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. The harmful conduct may include, inter alia, unreasonably following or watching the complainant, or unreasonably engaging in communication aimed at the complainant or a related person or conduct amounting to sexual harassment.
Within a community scheme space, harassment could include repeated verbal abuse, stalking, or other intrusive behaviours by a neighbour towards another resident in the community scheme. When such harassment occurs, the very sense of communal living that the scheme aims to foster may be destabilised, raising the question as to the correct forum a resident should approach to address harassment issues.
Although various forums exist that could potentially address harassment complaints within a community scheme, it is important to note that each forum has a unique approach, making the choice of forum key to achieving an effective resolution.
The first forum to note is the CSOS, which is designed to address disputes within community schemes. Under the CSOS Act, the CSOS has the authority to resolve issues that relate to the administration of schemes, including behavioural complaints. It serves as an alternative dispute resolution process, which will typically be more accessible and less formal than the courts. However, CSOS focuses on disputes relating to scheme rules and management issues, rather than interpersonal harassment cases.
Another forum is the Harassment Act, which applies to cases of harassment which are usually serious and ongoing. The Harassment Act allows you to apply directly to the Magistrates’ Court for a protection order. This route is best to follow when you feel a need for an immediate and enforceable order to prevent further harassment. As noted in MM v Kiewiet, this route provides you with a legally binding solution, but requires evidence to substantiate the harassment claim.
MM v Kiewiet reinforces the importance of maintaining safe and harmonious community schemes, where residents should be free from harassment. The case highlights that while the courts are ready to intervene in situations where harassment threatens a resident’s security, choosing the correct forum for resolution is crucial. Given the complexity of harassment disputes, it is advisable to seek legal guidance to ensure the most effective approach, whether through the CSOS for management-related issues or the Harassment Act for more immediate, personal protection.
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