Highly anticipated and long overdue, April 2013 at very last saw the Protection from Harassment Act of 2011 come into operation to provide a vast protection for a range of common law infringements and acts of harassment against the rights of persons and children, who are not family or in a “family relationship” to one another.
Recently also under the spotlight by the likes of Oprah Winfrey and a wide range of documentaries from England and America, bullying and also cyber bullying has become a cult phenomenon in desperate need of address in the form of legal protection and strict preventative measures.
This article is not intended to only cover the effects and preventative measures now available from the Act, but does the writer also wish to draw attention to the great tragedies and undue hardship caused by bullying, which may now be addressed and prevented.
Recent studies have shown that suicide is the third leading cause of death among young people, resulting in about 4 400 deaths per year, according to CDC. For every suicide among young people there are at least 100 suicide attempts. Over 14 percent of high school students have considered suicide and almost 7 percent have attempted it. Bully victims are between 2 to 9 times more likely to consider suicide than non-victims, according to studies by Yale University.
It is important to remember that bullying has traditionally shown its colors through the uttering of diminutive words or the actions aimed at the belittlement of the receiver, in person. As we have already entered the age of technology, bullying now has no face, but may be characterized also by an unknown or faceless infringer whose sole purpose is to “stalk”, harass or break down the very thing which we value most, our joy of life!
The greatest obstacle we were faced with was that there was little, if any, preventative measures against such harassment and it was often extremely difficult to hold those offenders accountable for their actions. The Protection from Domestic Violence Act only provided protection against people in a domestic environment and there was no equivalent to obtain protection against people not in such a domestic environment.
Now that we understand the great importance of protective measures, how does the act address the issue of bullying and/or cyber bullying?
Harassment has been greatly defined in the Act to include a vast amount of actions and will be described in greater detail below. For purposes of bullying or cyber bullying it is important to note that the definition specifically refers to engaging in verbal, electronic or any other communication aimed at the complainant whether or not conversation ensues. It further includes sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or leaving them where they will be found by, given to, or brought to the attention of the complainant.
From the aforementioned it is clear that the offender cannot escape the definition of this Act by alleging that he/she was not directly responsible. The clearest example here would be that even a “post” on the offenders own personal facebook “wall”, aimed at the complainant, would render such conduct as harassment under this act.
Should the identity of the offender not be known to the complainant, the court may issue an order directing the service provider to provide detailed information regarding such offender, which will include their name, surname, identity number and address! The service provider may further be ordered to provide any information which the court might deem necessary to consider or which may be of assistance to the court. In other words the court may order the service provider to make thorough investigation on the internet history of the offender and could his/her e-mails, search history etc be brought before court!
The court may further, after receipt of such information by the service provider or in the event that the information so received is insufficient, order the station commander of the relevant police station, to investigate the matter with the view of determining the name and address of the respondent or obtaining any further information which the court may require to identify the offender.
The court may issue a protection order in terms of this act ordering an offender to refrain from committing a wide variety of acts, which will even include enlisting the help of another person to engage in harassment and may impose any such further conditions, which the court deems necessary to protect and provide for the safety or well-being of the complainant.
When the court issues an interim protection order the court will simultaneously issue a warrant of arrest, and the execution of the warrant is suspended pending compliance with the protection order.
Should the interim protection order be served upon the respondent and he/she has contravened such an order, the complainant may hand the warrant of arrest along with an affidavit showing in which manner the order has been contravened to any member of the South African Police Service. If it appears that there are reasonable grounds to suspect that the complainant is suffering harm of may suffer imminent harm, the member MUST IMMEDIATELY ARREST THE RESPONDENT.
It should be clear that this act provides extreme preventative measure against a range of forms of harassment, but is not intended to provide a civil remedy to claim for compensation for infringement of dignitas or fama (dignity and respect and good name and reputation). There are other remedies, which should be followed in those cases.
SHORT SUMMARY OF THE ACT:
What is harassment?
– Direct or indirect conduct that either causes harm or inspires belief 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;
– Includes contact through verbal communication, electronic information and other forms of communication;
– Includes sexual harassment and unwelcome behavior, which means “any unwelcome sexual attention from a person who knows or who reasonably knows that such attention is unwelcome – This will include suggestions, messages or remarks of a sexual nature that have the effect of “offending, intimidating or humiliating” the complainant or person who has a close relationship with the complainant. Also includes promises of reward for sexual request or punishment for refusing a sexual request;
What type of harm does the act intent to prevent?
This act is aimed at a great number of harassing situations and includes mental, psychological, physical AND economic harm.
Economic harm? Yes, strikers should beware not to exceed their rights when taking part in a protected strike. Should you exceed what the law allows you to do when taking part in a protected strike, you may find yourself on the other side of the law and may your actions be defined as harassment AND the cause of economic harm!
Who is protected and who may bring such an application?
Anyone who believes that they are being harassed by another person can apply for a protection order under the act.
A child under the age of 18, or a person on behalf of a child, may apply for a protection order. This means that the child MAY APPLY without the assistance of his/her parents.
If a person is not able to apply for a protection order by himself, another person who has a real interest in preventing or stopping the harassment can apply on his/her behalf. This is important in the context of people with certain disabilities.
What protection is provided?
The Act makes provision for a special process where an initial court order is made without the immediate knowledge of the person who is harassing the complainant, which order is made on the strength of the affidavit of the complainant. The court should be satisfied that there is prima facie evidence that the complainant is being or may be harassed and that harm is or may be suffered.
The court shall then immediately issue and interim protection order and shall simultaneously issue a warrant, which warrant’s execution shall be suspended pending compliance with the protection order.
The protection order shall be served on the Respondent in the prescribed manner and this order shall call upon the Respondent to appear before the court on a specified date in order for the court to consider whether the order shall be made final.
Should the Respondent harass the Complainant after the interim protection order was served upon him/her the Complainant may approach the relevant SAPS and provide an affidavit showing the alleged harassment along with the warrant. If it appears that there are reasonable grounds to suspect that the complainant is suffering harm or may suffer imminent harm, the member MUST IMMEDIATELY ARREST THE RESPONDENT.
Failure to comply with the final protection order is a criminal offence and the person may be liable on conviction to a fine or IMPRISONMENT not exceeding FIVE YEARS.
Where do I apply for such an order?
A complainant may apply to any Magistrate’s court where they live or work or any Magistrate’s Court where the person who is causing the harassment lives or works. You may even apply to the Magistrate’s Court where the harassment took place if it is necessary.
How do I apply?
The process for applying has been concluded to show great similarities with the manner in which you applied for a protection order under the Domestic Violence Act.
There is an application form to be completed, held by the clerk of the court, wherein you will set out the reasons why a protection order is required and listing the full details of all incidents of harassment, which you may have experienced.
The complainant shall also include specified acts committed by the Respondent and the court will then consider to list those specified acts as acts which the Respondent is ordered from conducting. The court may also impose additional conditions necessary to protect the complainant and to ensure that he/she shall not be harassed.
All these measures are taken to protect the complainant and to provide for the safety and well being of such a person.
In addition and finally, the court may order that the physical home address or work address of the complainant be omitted from the protection order in order to ensure that the offender/perpetrator shall not obtain such information, if unknown to him/her.
This act is intended to provide protection under circumstances of harassment and is intended to provide a “simple” yet efficient remedy.
As with any Act this Act too may be abused if not applied correctly and there may therefore also be a downside to this wonderful act.
If you intend to make such an application or even in the event that you have received an order in terms of this act, it is advisable to obtain good legal advice from your Attorney first before making such an application or opposing any order made in terms of this Act.