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.

 

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.

 Image