On 27 April 2013 the Protection from Harassment Act, 2011 was eventually brought into force after a long wait by those who need the protection it offers.  Previously, if they were, say, being subjected to stalking they had to rely upon the criminal sanctions under the 1998 Domestic Violence Act or else resort to the wholly ineffectual “peace order” process. 

Harassment is widely defined and will include what is commonly known as “stalking”, namely the actions of a person or persons who knowingly cause harm or the belief of harm by following, watching, pursuing or accosting a person or “related person” or loitering outside a place where such persons reside, work, carry on business, study or happen to be.  A related person means any member of the family or household of a complainant or a person in a close relationship to the complainant.  In addition, harassment can arise out of verbal and electronic communication or by sending or delivering letters, telegrams, packages, faxes, sms messages or electronic mail to the complainant or related person.

Protection against the type of harassment envisaged is, however, of little value unless it can be enforced and swift action taken against the harassing pest and in this regard the Act proposes encouraging steps to offer its protection to complainants.  No longer is it necessary to lodge formal charges of intimidation or crimen injuria with the South African Police Services nor to bring expensive High Court proceedings for interdicts.  Now, in terms of section 2 of the Act, any complainant may simply apply to a magistrate’s court for a protection order against harassment.  The complainant may be female or male and any child or someone on behalf of the child may apply for the order without the assistance of a parent or guardian and the application may be lodged with the clerk of the court at any time, even outside ordinary court hours or on a day which is not an ordinary court day.  This means, of course, that the necessary court officials will have to be available to receive and deal with complaints at, literally, any time of the day or night.

The court to which the complaint is submitted must as soon as is reasonably possible consider the application and, if it is satisfied that there is prima facie evidence of harassment, may issue an interim protection order calling upon the respondent to show cause on a specified date why the interim order should not be made final.  The court may issue a warrant of arrest which allows the arrest of the person engaging in harassment if the complainant suffers, or may suffer, imminent harm should the protection order be breached.

Written by Bianca Bernardis-Larratt a Director in the Litigation Department at Garlicke & Bousfield Inc.

NOTE: This information should not be regarded as legal advice and is merely provided for information purposes on various aspects of litigation.