Before the commencement of the Protection against Harassment Act 17 of 2011 came into operation on 27 April 2013, an order for the protection against harassment was lengthy and costly.
The position drastically took a change since.
The main idea and purpose behind the Act was to provide some form of ease to the needy and poor – those who are not able to afford a hot-shot lawyer and those who are not in a fortunate financial position to make a change.
According to a previous recorded case, one of the first cases in which the order was granted, it only took 5 hours to obtain the temporary protection order but with minimal effort and cost.
However, before the question of how the application can be made is answered it must be established what conduct qualifies as harassment.
Harassment is most generally described as an action/ conduct which is according to the reasonable person considered to be offensive and harmful in all or one of the following ways : psychologically, physically, economically or intellectually. This would most probably result in damage being suffered as a result of the above mentioned by the victim.
Furthermore, harassment would include act such as spying on the person, following the person or even sending continuous Sims’s, emails and letters which has the effect of duress or blackmailing another.
A fine distinction has to be made between messages sent during the midnight hours which would merely be indicative of a confession of love and messages sent during the midnight hours which amount to sexual harassment which causes embarrassment.
The enactment of the new Act also ensures that “cyberbullies” will be stopped before causing harm to another. These people are those considered to placing explicit videos or photos of others on the social networks without their permission.
This brings us to the most feared form of harassment, being the harassment of your child. This can occur by way of threats against your child, or even confrontations which places the child in uncomfortable situations and which pose to be traumatising to such a child. The Act now provides that the parent of such a child may now obtain a protection order against the wrongdoer in order to ensure the general wellbeing of the child.
The new Act even makes it possible to obtain a protection order against harassment where the wrongdoer is unknown. The Police will be ordered by the court to conduct an investigation into the matter in an attempt to ascertain the identity of the wrongdoer. This is a vital part of the Act as it is indicative of the other very important driving force behind the enactment of the Act.
Due to the fact that technology is developing so rapidly, electronic harassment has become very popular especially with the schoolchildren. It’s a powerful way of causing duress and intimidating another.
In this case, where the identity is not known, again, the court will order the service provider to reveal the identity of such a wrongdoer.
The new Act was designed to target electronic harassment in the same quick application for an order as general harassment.
The form is as follows:
- When a person is being harassed, such a victim must merely go to the closest Magistrates Court , however it must be within the vicinity in which the act of harassment took place or within the vicinity of the wrongdoers residential address, and complete a Affidavit under Oath.
- Important to take note of is that the order will only be a temporary order and it will only be granted should the action cause the victim to suffer damages or harm.
- An application for the final protection order will be the next step. It will be served on the wrongdoer, notifying him/her of the date on which the application for the final order will be heard.
- Should such an order be made final a wrongdoer fails to comply with the provisions therein, the Police may be called upon for help. In this case such a wrongdoer will be arrested and will be punished with a fine and/or imprisonment not exceeding 5 years.
Should a person lay a false charge of harassment, such a person may be charged in the same way as set out above.
The purpose of the new Act is to stop general harassment which mostly leads to damages cause. In most of these cases, up until 27 April 2013, these victims were left with no option, but now the Act makes provision for anyone who cannot afford legal assistance to seek a order for Protection against Harassment for him/herself and his/her children.
Our Constitution exemplifies that the child’s best interest is of utmost importance in any matter concerning a child therefore harassment of any child will be considered as serious in nature.
There exists a duty on every person to protect him/herself as well as his/her child by simply reporting to the clerk of the civil court in the closest Magistrate Court in order to obtain such an order.
The new Act hopes to make this a reality and hereby decreasing the counts of reported harassment through a process considered to be much faster and easier.
This article is a general information sheet and should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice.