Are you being harassed?

The Protection Against Harassment Act of 2011 is there to help

Attention is sharply focused on violence against women right now, as the world observes 16 Days of Activism for No Violence Against Women and Children. This campaign has its roots in protests about the use of physical violence against women. But violence and abuse take multiple forms, and harassment, a type of emotional violence, is one of them. Furthermore, harassment can happen in many different ways and women are not the only victims. Unfortunately, many individuals will experience harassment throughout their lives. The Protection Against Harassment Act 17 of 2011 was enacted to provide a remedy for victims of harassment. The law offers the means to seek relief from harassment through a protection order. This article describes the different types of harassment and the process for securing protection through the law.

What is harassment?

Section 1 of the Act defines “harassment” as “directly or indirectly engaging in conduct that the respondent knows or ought to know — 

(a) causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably:

(i) following, watching, pursuing or accosting the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be

(ii) engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues 

(iii) 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 by, given to, or brought to the attention of, the complainant or a related person 

(b) amounts to sexual harassment of the complainant or related person.”

Harassment occurs when someone’s behaviour is so extreme, abusive or rude that it causes harm to another person or makes another person believe they will suffer harm, and this includes mental, psychological, physical or financial harm. 

Types of harassment

“Harassment” is often accompanied by the word “sexual”, and sexual harassment is indeed a common form of harassment. It includes unwelcome sexual advances, requests for sexual favours and other verbal or physical harassment of a sexual nature in the workplace or other social setting. It is not always specifically about sexual behaviour or directed at an individual. Negative comments about women as a group may be a form of sexual harassment. 

However, sexual harassment is only one type of harassment. Behaviour that is considered harassment can be verbal, physical, or psychological in nature. Bullying at school is personal harassment. People with disabilities may experience harassment in the form of mockery or teasing. Older people are sometimes harassed purely for being a bit slower. Harassment may also include stalking, watching, pursuing or accosting the complainant or related person, or sending electronic communications that cause harm or makes the complainant feel fearful (called cyber harassment). 

Cyber harassment

It’s worth saying a bit more about cyber harassment, which is on the increase as social media and electronic messaging platforms become more and more influential parts of our lives. What is the difference between cyber harassment and cyberbullying? Are they just different terms for the same behaviour? There are many definitions of cyber harassment to be found in any online search. The following distinction, while arguably not definitive, may be helpful in understanding the difference between cyber harassment and the other terms.

Cyberstalking may go on in an abusive relationship, but whether or not the victim feels threatened, any type of inappropriate online behaviour is cyber harassment and does not have to be tolerated.

Protection order application process

If you are being harassed, you can apply for a Harassment Protection Order in court. If you are being harassed by in a domestic relationship and/or by an intimate partner, you should apply instead for a Domestic Violence Protection Order. 

The application process for a Harassment Protection Order is similar to that for a Domestic Violence Protection Order. The main difference is the governing acts.  

To apply for a Harassment Protection Order you must lodge the application form together with a supporting affidavit and all relevant annexures with the clerk of the Magistrate Court, who must immediately submit the application and affidavits to the court. Upon application to court, an interim order is issued and will become effective from the date of service on the respondent.

If the court is satisfied that there is prima facie evidence that the respondent is engaging in or has engaged in harassment; harm is being or may be suffered by the complainant or a related person as a result of that conduct if a protection order is not issued immediately; and the protection to be accorded by the interim protection order is likely not to be achieved if prior notice of the application is given to the respondent, the court must issue an interim protection order against the respondent in the prescribed manner. The respondent does not need to be given prior notice.

Once the interim order is granted, it must be served via the SAPS process register and a return of service must be provided by the SAPS official who served the relevant documentation on the respondent for the order to become effective.

A return date will be noted on the application form, at which time the complainant and the respondent must both appear in court. This allows the respondent to give the court their side of the story. They must show cause as to why the order should not be made final. At the hearing, the interim protection order is either finalised or dismissed. 

Provisions of the Act to note

The Act introduces some important and progressive provisions worth highlighting. 

Electronic communications – unlike previous legislation, the Act covers not only physical stalking but also harassment through electronic communications. 

Harassment by non-domestic parties – the Act expands the scope of protection beyond domestic relationships, providing remedies to victims harassed by persons outside of their home or family.

Police obligations – the Act obliges police officers to assist complainants in a manner that avoids secondary victimisation. Police officers must also explain the recourse available to victims and their right to apply for a protection order.

Warrant of arrest – alongside the protection order, the court may issue a suspended warrant of arrest against the respondent. If the respondent breaches the protection order, the warrant can be executed.

No pattern needs to be demonstrated for you to apply for a harassment protection order, and a first offence is sufficient. There is no need to provide evidence that violence has occurred. No relationship is required, and the order can be made against someone you don’t personally know. Supporting affidavits by persons who have knowledge of the matter concerned may accompany your application.

The Act signifies a strong commitment to protecting individuals from all forms of harassment, including cyber harassment. Because the Act is not limited to protecting victims in domestic situations or familial relationships, and extends to protecting individuals from harassment by any person, regardless of their relationship, it is a comprehensive piece of legislation for the protection of personal rights and dignity. 

SD Law can help

If you are a victim of harassment, the law is there to protect you. If you need professional assistance to determine if the behaviour you are experiencing is harassment, or help with your application for a protection order, SD Law is in your corner. 

We are experts in family law with deep experience of helping both women and men escape abuse and harassment. We understand how distressing harassment can be. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Further reading:

• Understanding the dynamics of an abusive relationship
• Signs you are dealing with a narcissist
• Cyberbullying – it’s time to fight back
• Cybercrimes Act 2020

Simon Dippenaar

https://www.sdlaw.co.za

Cape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

View more posts from this author