Parliament has enacted the Protection from Harassment Act, 17 of 2011 (“the Act”), to protect persons against harassment. The Act aims to provide a remedy, in the form of a protection order, to 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 (the person committing the act of harassment) 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 legal procedure
Harassment matters are handled by the domestic violence section of the Magistrate’s court. The complainant is required to complete a specified 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 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. 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, where there are disputes of fact and if the court deems it necessary, oral evidence may be heard.

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