Harassment

01. What is harassment?

Harassment refers to a person acting in a manner that causes the complainant to fear harm. Harm refers to any mental, psychological, physical or economic harm. A complainant may become ill, both mentally and physically, due to the harassment. Harassing conduct can lead to increased stress, insomnia, anxiety and depression, poor concentration and can affect self-confidence and self-respect.

The harassing conduct includes:

• Watching the complainant
• Pursuing (following) the complainant
• Accosting (confronting) the complainant
• Loitering (lingering) outside or near the place where the complainant lives, works, has a business, studies or happens to be
• Making telephone calls to the complainant
• Getting another person to make telephone calls to the complainant
• Verbal communication
• Other communication (hand signals, graffiti etc.)
• Making anonymous phone calls
• Sending anonymous text messages or emails
• Sending letters, packages, faxes, emails or other objects to the complainant
• Delivering  packages, faxes, emails or other objects to the complainant
• Leaving packages, faxes, emails or other objects where the complainant will find them

The unwanted behaviour can also be related to one of the following:

• age
• sex
• disability
• gender (including gender reassignment)
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sexual orientation

02. What is sexual harassment?

Sexual harassment is unwanted conduct of a sexual nature. The conduct is such that it violates the dignity of the complainant or creates an intimidating, hostile, degrading, humiliating or offensive environment.

Sexual harassment occurs if a reasonable person would find the conduct offensive and humiliating. If no reasonable person would be offended and the complainant is simply oversensitive, then it will not be sexual harassment.

Sexual harassment usually occurs in the workplace but it can also take place in a  social environment. It may be verbal, non-verbal or of a physical nature. There are various types of sexual harassment in the workplace. Some examples are:

• Sexually explicit jokes by email or text
• Inappropriate touching
• Unashamed demands for sex
• Persistent requests for dates
• Sexual suggestions
• Unnecessary touching
• Jokes of a sexual nature
• Inappropriate use of suggestive visual display unit material (computer/phone)
• Implied/express promise of reward for sexual favours
• Unwelcome explicit/implicit act
• Unwelcome messages
• Remarks that offend/intimidate or humiliate

03. What is stalking?

Stalking is a term used to define a type of harassment. It refers to persistent and unwanted attention directed at or towards the complainant by another person that makes the complainant feel pestered and harassed and causes alarm or distress or fear that violence might be used.

Stalking often continues for a long period of time, making the complainant constantly anxious and afraid. Social media and the internet can be used for stalking and harassment. This is known as ‘cyber-stalking’ or online threats and this form of harassment can also cause alarm and distress.  

04. Bullying and harassment

Bullying is a form of harassment. Some examples include:

• unfair treatment
• spreading malicious rumours
• picking on someone
• regularly undermining a competent worker
• denying someone training or promotion opportunities
• abuse of power or authority
• persistent unjustified criticism
• public humiliation
• the setting of impossible deadlines or intolerable workload
• having responsibilities or decision-making powers withdrawn without good reason or explanation
• unwarranted exclusions

Bullying can take place:

• face-to-face
• by letter
• by email
• by phone

05. Who is a complainant?

A complainant is the victim of harassment and the person needing protection. The complainant is also referred to as the applicant and is the person who brings the application for a protection order. The law makes provision for persons other than the complainant to seek a protection order provided that written consent is obtained from the complainant. A child or a person on behalf of a child may apply for a protection order without obtaining the assistance of anyone else.
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The law of South Africa that deals with harassment entitles everyone to be protected from harassment. This means that anyone can go to the court or the police for assistance and have the same right to assistance or protection regardless of whether you are a South African citizen, an asylum seeker or someone with leave to remain in South African as a spouse, student or worker.

06. Who is a respondent?

This is the harasser and the person from whom the complainant needs to be protected.

07. How does the law protect a victim from harassment?

The Protection from Harassment Act 17 of 2011 allows a complainant to obtain a  protection order from the court to protect her/him from future harassment. A protection order is a court order which forbids the harasser from continuing with the unwanted and harmful conduct.  

The Act provides the following:

1. The complainant may approach the court for a protection order.
   
2. The complainant does not need the services of an attorney as assistance is given throughout the process by the clerk of the court.
3. The court, by means of a protection order, is able to make a wide range of orders to ensure that the complainant is protected from further harassing conduct.

08. The purpose of the protection order

The main purpose of the protection order is to prevent future harassment. The respondent will be prohibited from committing acts of harassment and may be ordered to do certain acts or not have any contact with the complainant.

The overall purpose is to protect the complainant, uphold the respect for the law and show that society will not sit idly by in the face of harassment.

09. Will the protection order stop the harassing conduct?

In some cases the harassment will not cease. But the complainant can approach the police to have the respondent arrested if there is no compliance with the protection order. Very often the threat of arrest is enough to prevent further harassment.  

10. In an emergency

In an emergency the police can be approached for assistance. The complainant may also lay a criminal charge at the police station and/or approach the court for a protection order. The criminal offences that may be applicable under the Protection from Harassment Act include assault, crimen iniuria, trespassing and extortion.

A complainant does not have to lay a criminal charge to be able to apply for a protection order.

11. Who can a complainant obtain a protection order against?

The complainant may obtain a protection order against any person who commits an act of harassment.  

12. Which court can the complainant approach for a protection order?

The application is made at the court within the area in which:

• The complainant permanently or temporarily resides (even for one night)
• The complainant carries on a business or is employed
• The respondent resides or carries on a business or is employed
• The cause of action (the incident) arose

13. The application process

The complainant can approach the police station or the court for assistance. In most harassment cases the complainant seeks help from the court in the form of a protection order.

The police station

• A criminal charge can be laid against the respondent for criminal offences such as assault, crimen iniuria, extortion and trespassing.
• The police will provide the complainant with an INFORMATION NOTICE setting out all the information that is required to apply for a protection order at the court.  

The court

• If the complainant wishes to obtain a protection order then the clerk of the harassment court must be approached.
• The clerk of the court will provide the complainant with an INFORMATION NOTICE.  
• The clerk of the court will also provide the complainant with the application form (FORM 2) which is in the form of an affidavit (a sworn statement).
• In the application form the complainant will need to give details of the harassing conduct plus any past history of harassment and the events which led to the application.
• Any photos, witness statements or other evidence can be attached to the application form.

Harassment via electronic communication

• If the harassment was carried out via electronic communication then copies of such communication should be provided such as emails, texts messages, faxes etc.
• If the harassing communication was made anonymously via electronic communication then the complainant must provide the clerk of the court with the service provider of the complainant e.g. Vodacom, MTN.
• A directive (instruction) will be sent by the court to the service provider of the complainant to identify the person who made the anonymous calls, texts, emails etc.
• The service provider has 5 working days to provide the court with the information. An extension of a further 5 days may be granted by the court.

Harassment by persons unknown

• If the harassing conduct is being carried out by a person unknown (such as an unknown stalker) then the court will send a directive (instruction) to the station commander at the police station to instruct a member to investigate the matter to identify the unknown person.
• The complainant must provide the clerk of the court with as many details as possible to assist the police in tracing the unidentified person.

Urgent matters

• If the matter is urgent then the clerk of the court will mention this to the magistrate who can then make an interim protection order without notice to the respondent. This means that the court can consider the application without the respondent being present. There must be good reasons to make the order on an urgent basis and this must be explained in the application.
•  Although the application may be without notice, the court is likely to arrange another hearing to give the respondent an opportunity to put forward their side of the story.
• The complainant will have to attend this hearing and may have to give evidence.
• If the matter is not urgent then a date for a hearing (notice to show cause) will  be set for both the complainant and respondent to attend at court.
• The court will consider all the evidence and decide whether to grant a further and final order. If the order is granted, there are various remedies available to the complainant. These remedies will be set out in the protection order.

14. Remedies available to a complainant

Main orders prohibiting the respondent from:

• Committing or attempting to commit certain specified acts of harassment.
• These may include:
•  Stalking
• Communicating with the complainant in any form
• Enlisting the help of another person to engage in the harassment

Additional Orders.

• An order instructing a peace officer to accompany the complainant to the respondent’s residence to assist with arrangements regarding the collection of personal property.
•  An order obligating the SAPS to seize dangerous weapons.
• An order preventing disclosure of the complainant’s address.

15. How is the protection order served on the respondent?

The urgent (interim) protection order and the notice to show cause (where the matter is not urgent) is served on the respondent by the clerk of the court, the police or the sheriff of the court. Once the documents have been served the clerk of the court will receive proof of this fact and then must ensure that the complainant receives:

•  A certified copy of the interim protection order (urgent matters); and
• The original warrant of arrest; or
• Certified copy of notice to show cause (non-urgent matters) setting out the court date for both parties to attend.

A warrant of arrest must be authorised as soon as an interim or final protection order is granted. The warrant of arrest is suspended until proof of service is received.

A complainant is only protected once the interim protection order has been served on the respondent.

16. Difference between an interim and final protection order

An interim protection is an urgent order and only becomes effective when it is served on the respondent. Once the clerk of the court receives proof of service the complainant will obtain the warrant of arrest from the clerk of the court.

A final protection order becomes effective as soon as it is granted by the court. This normally takes place on the date of the hearing. The clerk of the court may immediately hand the complainant a warrant of arrest.

An interim protection order is a temporary order and if it is not extended on the return date (the date set down for the court hearing) it will lapse. A final protection order remains in force for a period of 5 years or such period as the court determines. It may however, on the request of one of the parties be set aside by the court.
Both types of protection orders offer the complainant protection from harassment. Once the complainant comes into possession of the warrant of arrest, he/she may hand it over to the police should the respondent breach any condition in the protection order.

17. What happens if the respondent breaches the protection order?

The interim and final protection orders contain the details of the conduct that the respondent is prohibited from doing or conduct that he/she is obliged to do. A respondent who breaches a protection order may be arrested and sentenced to a fine and/or imprisonment or both.

In the event that a respondent contravenes a prohibition, condition, obligation or order contained in a protection order the complainant may also:

•  Institute criminal proceedings (i.e. lay a criminal charge) ; and/or
•  Institute civil proceedings (i.e. for damages)

If the complainant alleges that the respondent has breached the terms of the protection order, then the complainant makes an affidavit at the police station. If any member of the SAPS is of the opinion that there are reasonable grounds to suspect that the complainant will suffer imminent harm due to the alleged breach, the respondent must be arrested. The harm suffered need not be physical harm. It can also be mental, psychological, physical or economic.

If the SAPS are of the opinion that the complainant will not suffer imminent harm as a result of an alleged breach, then the SAPS must serve a Notice on the respondent.  This Notice instructs the respondent to appear in court on the next court day on a charge of contravening the protection order.

18. What happens if the complainant loses the warrant of arrest?

The clerk of the court must issue the complainant with a second or further warrant of arrest if the complainant files an affidavit stating that the warrant is required for  protection and that the existing warrant of arrest has been executed and cancelled or lost or destroyed.