The Protection from Harassment Act (Act 17 of 2011) aims to address harassment and stalking behaviours which violate Constitutional provisions of right to privacy and dignity of individual persons.
The Act provides for inexpensive civil remedy to protect a person from behaviour which may not constitute a crime but may impact negatively on various rights of an individual.
The Act has the intention of providing a remedy in the form of protection which would prohibit a person from harassing another person. If the harasser breaches a protection order he or she commits an offence which is punishable with a fine or a period of imprisonment. It aims to address harassing behaviour by means of a court order, in terms of which the harasser is prohibited from continuing with the act of harassment.
The Act provides recourse for victims of harassment and stalking in both domestic and non-domestic relationships. It also broadens the categories of harassment to include bullying at schools and cyber-stalking. Harassment under the Act includes both direct and indirect conduct that either causes harm or that inspires the person complaining of harassment (“the complainant”) to reasonably believe that harm may be caused. Such conduct includes following, watching, pursuing or accosting of the complainant or someone in a close relationship with the complainant such as a spouse or family member.
Harassment also includes contact through verbal communication aimed at the complainant. The Act also recognises electronic communication that causes harm or makes the complainant feel in danger of being harmed as harassment. The Act mentions several forms of written communication as capable of being contact for the purposes of harassment, such as letters, packages and e-mails.
It also includes sexual harassment, which means “any unwelcome sexual attention from a person who knows or who reasonably knows that such attention is unwelcome”. Such sexual attention includes unwelcome behaviour, suggestions, messages or remarks of a sexual nature that have the effect of “offending, intimidating or humiliating” the complainant or a person who has a close relationship with the complainant.
Procedures for applying for a protection order
If a person is being harassed, he or she may apply for a protection order against such conduct at a magistrate's court. Legal representation is not necessary.The process for applying for a protection order is by completing an application form, where the complainant is required to set out the reasons why a protection from harassment order is required and listing full details of all incidents of harassment they have experienced.
The complainant is also able to include the specific acts committed by the person causing the harassment to be listed in the protection order, as well as request the court to impose any additional conditions necessary to protect the complainant and provide for the safety and well-being of that person.
The court may, after considering the application from the complainant, issue an interim protection order against the respondent notwithstanding the fact that the respondent has not been given notice of the proceedings.
The court must, however, be satisfied that there is evidence that:
1. the respondent is engaging, or has engaged in harassment;
2. harm is or may be suffered by the complainant as a result of such conduct if a protection order is not issued immediately; and
3. 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.
This interim protection order, together with the record of evidence, must be served on the respondent and must call on the respondent to show cause on the return date why a final protection order should not be issued against him or her. An interim protection order takes effect.
The protection order will prevent the respondent from committing any specified act of domestic violence or sexual harassment; entering the joint residence or entering a specific part of the residence; entering the victim’s residence if they are not living together; entering the victim’s place of employment or office; having contact with a child or children, if it is in the best interest of the child.
Applying for protection order
Protection from Harassment Act, 2011 (Act 17 of 2011)