Protection from harassment act finally offers a safeguard to more victims
On 27 April 2013, the long-awaited Protection from Harassment Act 17 of 2011 came into effect. This Act sets out the processes to be followed in applying for a protection order to safeguard victims of any type of harassment.
- Harassment includes any activity that causes mental, psychological, physical or economic harm, or is intended to cause such harm, including:
- Following, watching, pursuing or accosting a person, or loitering outside their house or place of work;
- Any kind of uninvited communication with that person, including electronic communication;
- Sending letters, packages or faxes to that person; and
- Sexual harassment.
The act allows a person who has been harassed to apply for a protection order, which instructs the person guilty of harassment to stop that conduct. The guilty party may also be prohibited from engaging in any other conduct that may constitute harassment. For example, if the person was following the victim in a way that made the victim feel intimidated, they may be prohibited from doing so and from trying to make contact with the victim.
A protection order has a built-in warrant of arrest. This means that if the terms of the protection order are breached, then the holder of the protection order may report this to the police. The police are required to arrest the person against whom the protection order has been granted if they find that this person continued to harass the victim in breach of the protection order.
Previously, a protection order could only be granted in the context of a domestic relationship under the Domestic Violence Act 116 of 1998. This meant that a victim of violence or harassment could only apply for a protection order in the context of the following specific relationships:
- Marriage, or a relationship similar to marriage;
- Parents of a child, who have both held responsibility for looking after that child (not necessarily at the same time);
- Family relationships, whether these arise out of birth, marriage, adoption or any other circumstances;
- Engagement, customary or dating relationships, including romantic and/or sexual relationships; and
- People who live in the same house.
Numerous abusive relationships do not fit into these categories, for example, the high levels of violence against homosexual men and women. This category of violence is not limited to a domestic relationship. It can occur in many circumstances, even where the perpetrator and the victim do not know each other. Protection orders under the Domestic Violence Act could therefore not be granted in such cases. The Protection from Harassment Act now allows a protection order to be granted, offering an equal safeguard to all victims of violence or harassment, regardless of the existence of a domestic relationship.
Another example of the limitations of the Domestic Violence Act is violence in a teacher-learner relationship. In 2012, SECTION27 applied for a protection order on behalf of a primary school learner against her teacher who had kidnapped, drugged and brutally raped her. We succeeded in securing a protection order after complex legal arguments that the relationship between a teacher and a learner is similar to that between a parent and a child. However, the process of applying for a protection order will now be simpler and less traumatic under the Protection from Harassment Act.
Not only does the Protection from Harassment Act allow an order to be granted against anyone demonstrated to have harassed a victim, but it places obligations on the courts and the police to assist a victim of harassment in identifying the person that harassed them, if this person is not known to the victim.
The act was passed on 5 December 2011. The delay in its implementation was caused by the need for regulations, including the prescribed forms to be completed in applying for a protection order. These forms have now been finalised.
The commencement of the act means widespread protection for all victims of violence or harassment, regardless of whether they have a pre-existing relationship with the person who harassed them. It also simplifies the process of applying for a protection order, having removed the need to prove the existence of a domestic relationship.
How do I get a protection order?
To secure a protection order you need to fill in forms at a magistrates’ court. Court officials then call the respondent to come to court (typically about two weeks after submission of the forms) to prove to the magistrate why a protection order should not be granted. The magistrate will then decide whether or not to grant a final protection order.
If a threat is imminent and you cannot wait two weeks for effective protection, an interim protection order may be granted to safeguard you until a final protection order can be made.[/box]
By Nikki Stein