Halting the harassment: the scope of protection available under the Protection from Harassment Act of 2011

The Protection from Harassment Act became law four years ago. In The new Protection from Harassment Act we examined the new Act, which vastly strengthened the capacity of magistrates to bring harassment to a decisive halt, by means of a cost-effective and user-friendly process.

In the intervening period, very little jurisprudence has developed to guide the future interpretation and application of the Act. One judgment emerged in 2016, from the KZN High Court, however, and has significant implications for the scope of protection available under the Act.

In Mnyandu versus Padayachi, the complainant and respondent were colleagues. The respondent was aggrieved by the conduct of the complainant (her immediate senior) and others at a meeting. As a result, she sent a single email to various people in the workplace, in which she accused the complainant and others of verbally and emotionally abusing her in the meeting. The complainant was in turn aggrieved that the allegations were untrue, and approached the magistrates court for a protection order in terms of the Act. The magistrate found that the respondent’s allegations of abuse were wholly untrue, and issued a protection order as requested, restraining the complainant from defaming the complainant or sending further malicious emails. The respondent appealed the order to the High Court.

The High Court found no basis to interfere with the magistrate’s assessment of the evidence. An email had been sent, which had contained malicious falsehoods about the complainant. For the High Court, however, this was not the end of the story.

The High Court reflected that the ambit of the Act is comprehensive. On the face of it, it covers all sorts of conduct causing all sorts of harm. The court was concerned that too wide a construction of the term “harassment” would result in a flood of applications arising from conduct that the Act was simply not intended to cover. On the other hand, the Act could not be interpreted too restrictively, or the Act would fail to meet its objectives.

The court considered a Law Reform Commission discussion paper on stalking, which contributed to the development of the Act, as well as the wording and interpretation of similar laws in other countries around the world. It then formulated the following test for harassment in terms of the Act:

1. the conduct complained of had to be “oppressive and unreasonable” in order to qualify as harassment under the Act;
2. this was to be assessed objectively, by considering the qualities of the respondent’s conduct rather than the subjective impact on the complainant, although the social context could be relevant; and
3. such conduct had to be sufficiently serious that it was objectively likely to cause not merely a degree of alarm, but serious fear, alarm and distress.

The court further expressed a non-binding view that, while the Act does not refer in its definition of harassment to a “course of conduct”, the conduct complained of should probably:

1. Have a repetitive element that made it oppressive and unreasonable, tormenting or inculcating serious fear or distress in the victim; or
2. Be of such an overwhelmingly oppressive nature that a single act had the same consequences.

The court found that the respondent’s conduct in sending the untrue email was unreasonable, but not objectively oppressive or of sufficient gravity. It therefore did not constitute harassment for the purposes of the Act. The final protection order was set aside on appeal.

This judgment indicates that, while the Act itself is incredibly broad and seems to encompass a huge range of misdemeanours, it will be interpreted on narrower grounds. Protection orders are likely to be refused when the incidents complained of are deemed minor, or unreasonable but not oppressive. The conduct must be such that it would cause a reasonable person serious fear or distress, and not merely annoyance or mild alarm.