HARASSMENT AND STALKING EXPLAINED

The right to privacy as well as the right to dignity is constitutionally entrenched in the South African Bill of Rights. These rights are recognized as forming part of South Africa’s core democratic values and as such individuals are entitled to enjoy protection of these rights within the ambits of the law. The Protection from Harassment Act, No. 17 of 2011 (hereinafter referred to as “the Act”) is legislation which has been introduced to specifically address harassment and/or stalking behaviors which tend to violate individuals’ rights to privacy and dignity alike.

In order to understand the protection afforded by the aforesaid Act, it is important to firstly grasp what harassment and/or stalking behaviors entail. The purpose of this article is thus to shed some light on these behaviors in order for the reader to ultimately understand when his/her constitutional rights of privacy and dignity have been and/or are being infringed and what can be done when you find yourself in a situation where you are subjected to such harassment and/or stalking behaviors.

What constitutes harassment and stalking behaviors?

Harassment, on the one hand, can be defined in terms of the Act as conduct which directly or indirectly causes harm or inspires the reasonable belief that harm may be caused to a person (“the complainant”) or a related person (i.e. a family member, household member and/or a person with whom the complainant is in a close relationship with). Such harm relates to any mental, psychological, physical and economic harm that may be suffered by the complainant or a related person as a result of such harasser’s conduct.

Stalking, on the other hand, can best be described as the action of deliberately and continually pursuing a complainant against his/her will. This is done to ultimately control, intimidate and terrify the person being stalked.

What are the forms that harassment and stalking can take on?

Harassment and stalking can both involve the following conduct:

• The unreasonable following, watching, pursuing or accosting of the complainant or a related person.
• This can also involve loitering outside of or near the building or place where the complainant or related person resides, works, carries on business, studies or happens to be;
• Engaging in verbal, electronic or other communication which is aimed at the complainant or a related person;
• Sending, delivery or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or alternatively, leaving them where they will be found, given to or brought to the attention of the complainant or a related person.

From the above it is evident that harassment and stalking behaviors are intended to make the complainant or a related person feel uncomfortable, threatened and unsafe.

What remedies are available to a person who is being harassed and/or stalked?

The Act provides recourse for victims of harassment and stalking alike, in both domestic and non-domestic relationships.

The Act ultimately aims to provide a remedy to a complainant or a related person in the form of what is known as a Protection Order. A Protection Order is a Court Order, which can be obtained from one’s nearest Magistrate’s Court, which prohibits the harasser/stalker from harassing and/or stalking the complainant or a related person. Should the harasser/stalker contravene a Protection Order, he/she commits an offence which is punishable with a fine or alternatively a period of imprisonment up to 5 (FIVE) years.

In addition to the above, the complainant or a related person may also lay a criminal charge against the harasser/stalker at his/her nearest South African Police Station in the event that the harasser/stalker has committed offences such as crimen injuria, assault, trespassing, extortion or any other offence which has a bearing on the persona or property of the complainant or a related person.

Who can approach the Court for a Protection Order?

Any person who believes he/she is being harassed/stalked by another person may approach the Magistrate’s Court for a Protection Order in terms of Section 2 of the Act.

If for whatever reason a person whom is being harassed/stalked is unable to apply for a Protection Order him-/herself, another person may apply on his/her behalf, provided that such a person has a real interest in the well-being of the person whom is being harassed/stalked. This can only be done with the consent of the person being harassed/stalked, unless the Court is so satisfied that the person whom is being harassed/stalked is unable to provide such consent.

A child under 18 years of age may apply without assistance from his/her parents and or legal guardian.

Court process

Any person who is being harassed/stalked may apply for a Protection Order against such conduct at their nearest Magistrate’s Court with the Clerk of the Court. A legal representative may also be appointed to assist herewith.

One applies for a Protection Order by completing an Application Form together with a Written Affidavit. In terms of these documents the complainant is required to set out the reasons why a Protection Order is required. These documents should further list the full details of all incidents of harassment/stalking that the complainant or a related person has experienced. The Clerk of the Court, or alternatively a legal representative, may assist with the completion of the aforesaid Form and Affidavit. Thereafter, these documents will be presented to the Court for its consideration.

The Court may, after consideration of the evidence, issue an Interim Protection Order against the harasser/ stalker (“the respondent”) if the Court is satisfied that:

1. The respondent is engaging and/or has engaged in harassment or stalking behavior;
2. Harm is or may be suffered by the complainant or a related person as a result of the respondent’s conduct, if an Interim Protection Order is not issued immediately;
3. The protection to be afforded by the Interim Protection Order is likely to be achieved if prior notice of the Application is given to the respondent.

If the Court is satisfied that there is enough evidence before it to prove harassment/stalking, an Interim Protection Order will be issued by the Magistrate together with a Suspended Warrant of Arrest.

Thereafter the Interim Protection Order, together with the record of evidence (i.e. a copy of the duly completed Application Form and complainant’s Written Affidavit) must be formally served on the respondent.

The respondent will be informed to appear in Court on a certain set date in order to show cause as to why a Final Protection Order should not be issued against him/her. This date is known by the Court as the “return date”.

If the respondent fails to appear at Court on the return date, the Court may issue a Final Protection Order in favor of the complainant or a related person.

If the respondent appears at Court on the return date, he/she must provide good reasons to the Court as to why a Final Protection Order should not be issued. In such event, a Final Protection Order will only be issued if there is sufficient evidence to prove harassment. Therefore it is of the utmost importance that a qualified person assists you with the drafting of your Written Affidavit, as this is the main document the Court will assess in order to determine whether there are substantial grounds for the granting of such an Order.

If the Court is so satisfied that a Final Protection Order should be issued, such Order will contain certain conditions to ensure the safety of the complainant or a related person. If the respondent does not follow these conditions, the complainant or a related person may approach the Court to have the necessary Warrant of Arrest issued.

The Warrant of Arrest will remain valid until the Final Protection Order expires after a period of 5 (FIVE) years (or a time period stipulated by the Court) or is otherwise cancelled.

Conclusion

If you are the victim of harassment and/or stalking and you feel that your hands are tied, fear not for one of our qualified Attorneys will gladly assist you with the process of obtaining a Protection Order to ensure your safety and well-being.