21st Century South Africa’s Lords and Ladies of the courtroom

Sitting in one of South Africa’s High Courts, one could be forgiven for wondering if one had been transported back in time and across the continents on hearing judges being addressed as “My Lord”, “My Lady”, “Your Lordship” and “Your Ladyship”. Are you in a courtroom or a castle, and is the speaker a lawyer or a squire?

These forms of address have their roots in the English institution of the aristocratic “peers of the realm” – one with no relevance whatsoever to 21st century, democratic South Africa. The High Courts’ judges have always been addressed as “My Lord” or “My Lady”, since the days of the Union of South Africa. The Magistrates of the lower courts are addressed as “Your Worship”. The writer has witnessed one layperson address a Magistrate as “Your Majesty”. While this raised a few sniggers in the courtroom, only lawyers immune from long exposure to the strangeness and grandiosity of these forms of address would have reason to laugh. Why is “Your Majesty” absurd but not “Your Worship”?

Some years ago, some of our courts began to move away from such outdated and highly deferential modes of address. The judges of the country’s highest courts, the Supreme Court of Appeal and Constitutional Court, have long preferred to be addressed as “Justice” or “the Court”.

The judges of the Labour Court have long been addressed as “Judge”, but have inexplicably indicated in their April 2013 practice manual that they now insist upon being addressed as “my Lord” or “my Lady”.  One can only assume that either they have come to feel demeaned by a less deferential form of address, or that the different forms of address in courts of the same status have led to such confusion that they have given up on their progressive intentions and resigned themselves to being addressed as if they were English aristocracy.

It goes without saying that a judge’s authority in his or her courtroom must be recognised, and that judges must enjoy respectful treatment. However holding on to outdated, colonial era forms of address seems both unnecessary and undesirable, and will no doubt one day seem as amusingly old-fashioned as the idea of wearing a powdered wig to court.

 

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The new Protection from Harassment Act

In today’s post we take a closer look at the new Protection from Harassment Act, which became effective as law on 27 April 2013.

The new law empowers any person who feels that they are being harassed, to apply to a district Magistrates Court for a protection order. Unlike the existing system of protection orders, there need not be any domestic relationship between a complainant and an alleged wrongdoer.

The new law defines harassment as meaning conduct, whether direct or indirect, falling within one of two very broad categories. First, conduct which the harasser knows or ought to know causes harm or a reasonable fear of harm through physical acts such as following, watching, accosting or loitering, or through communication whether verbal or electronic or by sending letters, emails or objects. The harm caused or threatened can be mental, physical or even economic. Second, sexual harassment which includes unwelcome sexual attention, unwelcome conduct, suggestions or remarks of a sexual nature which offend, intimidate or humiliate, as well as promise of reward or threat of reprisal for complying with a sexual request or refusing to, respectively.

The law clearly aims to remove as many obstacles to obtaining a protection order as possible, and to ensure the maximum safety of and assistance to a complainant or victim of harassment.

Applying for a protection order does not prevent the complainant from also laying criminal charges against the wrongdoer, and the new law requires the court to advise the complainant on this. The complainant need not be the actual victim of the harassment, but can be someone with a material interest and who has the victim’s written consent, if this can be given. A child younger than 18 years is allowed to approach the court for assistance without needing any assistance from a parent or guardian. The application can be made outside of normal court hours if there is sufficient urgency. The application is done on paper with written affidavits setting out the important facts.

The court receiving an application for a protection order against harassment is required to deal with it as quickly as possible. If, on the face of the facts presented, the complainant has made out a case, then an interim order must be granted, even if the alleged wrongdoer is not yet even aware of the application. The interim order as well as the papers filed by the complainant will then be served upon the alleged wrongdoer. A date will be set at least two weeks later, when the alleged wrongdoer has the opportunity to tell the court why s/he believes the interim protection order should fall away instead of being made a final order.

The law gives the courts wide powers to ensure that justice is done, including:

  • Where it is alleged that harassment is being done by email, the court can require an email service provider to provide it with relevant information on affidavit.
  • Where the complainant is unsure of the identity and/or whereabouts of the alleged wrongdoer, the court can direct the police to conduct an investigation to establish these details.
  • The court is further empowered to issue subpoenas compelling persons to give evidence before it.
  • It may also order that proceedings take place behind closed doors, or order that certain persons be excluded from the courtroom.
  • Where an alleged wrongdoer is not legally represented, the court may bar the person from directly questioning the complainant, and direct him or her to instead direct his or her questions via the court.

Once a protection order has been issued, it will ordinarily remain in force for five years, and the relevant police station will retain a certified copy in their possession. The court will also immediately issue a warrant of arrest which will be suspended pending any breach of the order by the wrongdoer, and the police will keep it in their possession so that they can act immediately when called upon to do so.

The court may order the police to seize any weapons in the possession of the wrongdoer, to investigate possible criminal charges against him or her, and also to assist the complainant in retrieving any personal property in the wrongdoer’s possession.

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