Mary, like many others in a similar situation, often feel helpless and without protection or the means to defend themselves. However, in the Protection from Harassment Act 17 of 2011 (“the Act”) which came into operation on 27 April 2013, there is now very specific legislation aimed at providing legal remedies to people like Mary.
In terms of the Act, harassment includes both direct and indirect conduct that the offender knows or ought to know causes mental, psychological, physical or economic harm or inspires the reasonable belief that such harm may be caused to the complainant (i.e. the person who is being harassed) or a related person (i.e. any member of the family or household of a complainant, or any other person in a close relationship to the complainant). Harassment includes:
- Following, watching, pursuing or accosting a complainant, or loitering outside or near the 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;
- 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, given to, or brought to the attention of, the complainant or a related person; or
- Any conduct that amounts to sexual harassment of the complainant or a related person.
The Act further specifically defines sexual harassment as 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 promises of reward for complying with sexually oriented requests; or
- Implied or expressed threats of reprisal or actual reprisals for refusal to comply with sexually oriented requests.
The Act affords protection by enabling the complainant to apply for a protection order against any form of harassment. The Act does not differentiate between different complainants and any person who believes that they are being harassed can apply for a protection order under the Act. If the court is satisfied that a case of harassment has been made, it will order that the offender be served with the application advising them of the date on which the matter will be heard. An interim order can also be made without the knowledge of the alleged offender wherein the court, if satisfied that the complainant is being harmed or will be harmed if the protection order is not granted immediately or the protection will not be achieved if notice is given to the offender, may grant an interim order in favour of the complainant.
The protection order will be forwarded to the relevant police station of the complainant’s choice together with a warrant of arrest. The protection order will remain in force for five years (or longer if the court so determines). In the protection order the court can prohibit the offender from –
- engaging in or attempting to engage in harassment;
- enlisting the help of another person to engage in harassment; or
- committing any other act as specified in the protection order.
The court can impose any additional conditions which it deems reasonably necessary to protect and provide for the safety or well-being of the complainant or related person and may even order the SAPS to seize any weapon in the possession or under the control of the offender or to accompany the complainant to assist with the collection of his/her personal property.
The SAPS must immediately arrest an offender if there are reasonable grounds to suspect that the complainant is suffering harm or may suffer imminent harm as a result of the alleged breach of the protection order by the offender. The complainant can also lodge a criminal complaint against the offender of crimen injuria, assault, trespass, extortion or any other offence which has a bearing on the person or property of the complainant or a related person.
The complainant may on any day and at any time, in the prescribed manner, apply for a protection order at the Magistrate’s Court where the complainant or the offender resides, or where the act of harassment occurred. A legal professional can also be consulted to assist in bringing the necessary applications on behalf of the complainant.