How scary (and fortuitous) is this?
I was today threatened over the phone by an irate person – see: You catch more bees with honey than vinegar – and not 10 minutes later this guide by Kathleen Rice, Director, Technology, Media and Telecommunications Practice at Cliffe Dekker Hofmeyr, landed in my inbox – God works in mysterious ways!
The Protection from Harassment Act affords the victims of harassment an effective remedy against harassment.
If you are a victim of harassment, you may approach the magistrates’ courts in terms of this Act to obtain a protection order against any person who is harassing you. A person who breaches a protection order may be criminally charged and, if found guilty, held liable to a fine or imprisonment.
WHAT IS HARASSMENT ?
Harassment is any conduct (whether it be direct or indirect) that the perpetrator knows or ought to know will cause mental, psychological, physical or economic harm or inspires the reasonable belief on the part of the victim and that harm will be caused to a person (referred to in the Act as the “complainant”) or any member of the family or household of the complainant or any other person in a close relationship with the complainant. The Act refers to any member of the family, household of the complainant or any person in a close relationship with the complainant as a “related person”.
- unreasonably following, watching, pursuing or accosting a person (or related person) or loitering outside of or near a building or place where a person (or related person) resides, works, carries on business, studies or happens to be
- unreasonable verbal, electronic or other communication (regardless of whether or not conversation ensues)
- unreasonable sending or delivery of letters, telegrams, packages, faxes, email to a person (or related person)
- sexual harassment
Bullying (including cyber bullying) is a form of harassment covered by the Act.
WHAT IS A PROTECTION ORDER?
A protection order is a court order granted by the magistrates’ court prohibiting the perpetrator from engaging in or attempting to engage in harassment or enlisting the help of another person to do so. A protection order may contain a list of specific acts which the perpetrator may not commit.
When granting a court order, the court may also order the South African police to seize any weapon in the possession of the perpetrator and/or to accompany you to collect any belongings which you may have identified in the application for the order.
If court is of the view that a criminal act has been committed, it may also require the South African police to investigate with a view to the possible institution of a criminal prosecution.
HOW SERIOUS MUST THE HARASSMENT BE IN ORDER TO APPLY FOR A PROTECTION ORDER?
Although the Act does not specify how serious the conduct must be in order to apply for a protection order, as a general rule South African courts will not concern themselves with minor or frivolous matters. The court will only issue a protection order if it is the perpetrator’s behaviour is unreasonable.
If a person acts frivolously, maliciously or unreasonably when applying for a protection order, the court may order that costs be awarded against that person.
WHO MAY APPLY FOR A PROTECTION ORDER?
Any person who is the victim of harassment may approach the court for a protection order. A child may apply for a protection order with or without the assistance of his/her parents or guardian. You may also apply for a court order our behalf of another person if you have a material interest in the well-being of that person. You will however need the written consent of the person who is the victim of harassment except in circumstances where that person is unable to provide written consent.
AGAINST WHOM CAN PROTECTION ORDERS BE GRANTED?
You can obtain a protection order against any person who perpetrates harassment even if the perpetrator is a child (i.e. a person under the age of 18) who is old enough to appreciate the consequences of his/her actions and who knew or ought to have known that the conduct was harmful.
You do not have to be in any form of a domestic relationship with the perpetrator in order to apply for a protection order.
Children over the age of 14 are legally regarded as being mature enough to understand the difference between right and wrong and can be criminally charged if they committed a criminal act such as breaching a protection order. A court may be reluctant to grant an order against a child under the age of 14 as a child under the age of 14 might not necessarily understand the difference between right and wrong.
If a child is the respondent in an application for a protection order, the child would need to be assisted by his/her parents or guardian.
WHAT IF I DON’T KNOW WHO IS HARASSING ME?
If you do not know the identity of the person harassing you, you may still apply for a protection order. If the court is satisfied that you are being harassed it may issue a directive directing the South African police to investigate the matter and identify the perpetrator.
If you are being harassed by a person who is using electronic communications such as email, text or telephone or harmful content is being posted on a website, the court may direct the electronic communications service provider concerned to provide details of the perpetrator.
MUST I SUFFER HARM BEFORE I CAN APPLY FOR A PROTECTION ORDER?
No. You may apply for a protection order if you fear that you may be harmed (mentally, psychologically, physically or economically) in future. Your fear that you may suffer harm in future must be reasonable in order for the court to issue an order.
DO I NEED A LAWYER TO APPLY FOR A PROTECTION ORDER?
No. The process for applying for a protection order is intended to be uncomplicated and inexpensive.
The clerks of the court are obliged to explain the procedure to all applicants and are trained to assist applicants and guide them through the process.
WHERE CAN I APPLY FOR A PROTECTION ORDER?
You can apply for a protection order at a magistrates court:
- in the area where you live;
- in the area where the harassment occurred; or
- in the area with the perpetrator lives.
WHAT IS THE PROCESS FOR GETTING A PROTECTION ORDER?
Step 1 – Statement under oath
At the magistrates court you will be given a standard form by the clerk of the court to complete under oath. The clerk of the court will assist you and explain the process and remind you of your right to lay criminal charges. You should support your application with evidence of the harassment as well as affidavits from other people who have knowledge of the harassment.
It is important to note that making a false statement when applying for a protection order is a criminal offence.
Your application, once completed, will be submitted to the court.
If you do not know who is harassing you, the court will, at this stage, direct the police to investigate and, if the harassment has occurred electronically, direct the service provider concerned to provide details of the perpetrator.
The court may at this stage or at any stage of proceedings subpoena witnesses to come to court together with any documentation or objects that the court regards as being essential for its decision.
Step 2A- An interim order may be granted
If you believe that the perpetrator (whose identity is known to you) will attempt to avoid service of your application and if you are suffering harm or may suffer harm if an order is not granted immediately, the court will issue an interim order.
If you are granted an interim order, the order will be served on the perpetrator by the clerk of the court, a sheriff or peace officer who will be informed of a day (not less than 10 days from the date of the order) when he/she may come to court to give reasons why the interim order should not be made a final order. The perpetrator may however come to court sooner to set aside the interim order if he/she gives you and the court twenty-four hours’ notice.
An interim order comes into effect as soon as it is brought to the attention of the perpetrator.
Step 2B – Service of the application (if an interim order is not granted)
Once your application has been submitted to the court and the identity and whereabouts of the perpetrator has been established, the court will direct that certified copies of your application be served on the perpetrator by the clerk of the court, a sheriff or peace officer. The perpetrator will be informed of a date when he/she may come to court and give reasons why a protection order should not be granted.
Step 3 – Issuing of a protection order and a warrant of arrest
If the perpetrator does not come to court on the date specified in the notice served on him/her a protection order will be granted if the court is satisfied that there is enough evidence that harassment has occurred.
If the perpetrator comes to court to oppose the issuing of the protection order a hearing will be held and the court will consider any further affidavits as well as any oral evidence.
The perpetrator can be prevented from cross-examining you directly during the hearing.
The court will grant a protection order to you after the hearing if it finds, on a balance of probabilities, that you have been harassed or are being harassed by the person named in your application.
A warrant of arrest will be issued at the same time as the protection order. The warrant can be executed if the perpetrator breaches the court order.
You will be given a certified copy of the order and the original warrant of arrest. The clerk of the court will forward certified copies of the order and of the warrant of arrest to the police station of your choice.
The protection order and the warrant remain in force for a period of five years.
CAN A PROTECTION ORDER BE GRANTED URGENTLY OR AFTER HOURS?
Yes. A clerk of the court and a magistrate will be available to deal with urgent applications.
WHAT HAPPENS IF I AM HARASSED EVEN AFTER A PROTECTION ORDER HAS BEEN GRANTED?
If the person against whom you have a protection order contravenes that order you may hand the warrant of arrest together with an affidavit to any member of the South African police service.
If it appears to the police officer that you (or a related person) are suffering harm or may suffer imminent harm as a result of the alleged breach of the order he/she must immediately arrest the perpetrator.
If it does not appear to the police officer that you are suffering harm or that you may suffer imminent harm, the perpetrator will be handed a notice to appear in court on a charge of contravening a protection order.
In considering whether or not you are suffering harm or may suffer imminent harm the police officer will take into account the risks to your safety or well-being, the seriousness of the conduct, the length of time since the breach occurred and the nature and extent of harm that you have previously suffered as a result of the actions of the perpetrator.
In addition to reporting the breach of the protection order, you may lay criminal charges if the perpetrator has committed any other crimes.
A person who contravenes a protection order may be held liable on conviction to a fine or imprisonment of a period not exceeding five years. Each instance of breach of the protection order can give rise to a separate charge. If the person has committed other criminal acts in addition to breaching the protection order he or she may face additional fines or a longer period of imprisonment.
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