Parliament has enacted the Protection from Harassment Act, 2011 (Act 17 of 2011), to protect persons against harassment. The Act aims to provide a remedy in the form of a protection order which would prohibit a person from harassing another person. If the alleged harasser breaches a protection order he or she commits an offence which is punishable with a fine or a period of imprisonment.

Definition of harassment

Section 1 of the Act defines harassment as directly or indirectly engaging in conduct that the respondent knows or ought to know-

(a) causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably-

(i) following, watching, pursuing or accosting of the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be;

(ii) engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues; or

(iii)  sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or leaving them where they will be found by, given to or brought to the attention of, the complainant or a related person; or

(b) amounts to sexual harassment of the complainant or a related person

The procedure

Harassment matters are handled by the domestic violence section of the magistrate’s court. The complainant is required to complete a dedicated form, which takes the form of an affidavit under oath and in which the complainant is required to set out the details of the alleged respondent/harasser and the alleged acts of harassment suffered by the complainant. If the court is satisfied that the complainant is in need of protection, an interim protection order will be granted. This must then be served on the Respondent by members of the South African Police Services. The complainant is required to accompany the SAPS and point out the respondent.

A return date will be set down in the interim protection order. On this date, the complainant and the respondent are required to appear at court, and the respondent is required to make out a case why the interim order should not be made final. This is done by way of affidavit.

In most harassment matters the magistrate will attempt to settle the matter between the parties, but where this is not possible, the complainant is afforded the opportunity to file a replying affidavit to the respondent’s answering affidavit, and once all the affidavits and relevant evidence has been filed, the matter is set down for argument. Generally, these matters are argued on the papers before the court, however, where the matter is complex, and the court deems it necessary, oral evidence may be heard.