PROTECTION FROM

HARASSMENT ACT

17 OF 2011

GENERAL

• Act came into operation on 27 April 2013 ( National Freedom Day)

• Does not apply retrospectively

• Enforceable throughout the Country

• Similar procedure as per the DV Act

• Has not done away with Peace Orders

• Allows for side Applications for identity of Respondent – ESP and SAPS

• Allows for cost order to be made iro frivolous applications

• Issue of confidentiality

• Very wide jurisdiction ( S14)

• Seizure of weapons

• Issue of bullying and cyber – stalking can be addressed within this Act

• This Act does not prevent a person who may apply for relief against harassment or stalking ito DV Act from applying for relief ito this Act

• Witnesses can be subpoenaed - Failure to appear or provide evidence is an offence - DV ACT DOES

NOT CONTAIN A SIMILAR PROVISION

DEFINITION OF HARASSMENT UNDER THE PROTECTION FROM HARASSMENT ACT

• Harassment under the Act includes both direct and indirect conduct that either causes harm or that inspires the person complaining of harassment (“the complainant”) to reasonably believe that harm may be caused.

• Such conduct includes following, watching, pursuing or accosting of the complainant or someone in a close relationship with the complainant such as a spouse or family member.

• Harassment also includes contact through verbal communication aimed at the complainant

• The Act also recognises electronic communication that causes harm or makes the complainant feel in danger of being harmed as harassment

• The Act mentions several forms of written communication as capable of being contact for the purposes of harassment, such as letters, packages and e-mails

• It also includes SEXUAL HARASSMENT, which means “any unwelcome sexual attention from a person who knows or who reasonably knows that such attention is unwelcome”.

- Such sexual attention includes unwelcome behaviour, suggestions, messages or remarks of a sexual nature that have the effect of “offending, intimidating or humiliating” the complainant or a person who has a close relationship with the complainant.

WHO CAN APPLY FOR A PROTECTION ORDER

• All persons who are the victims of harassing behaviour and whose rights are infringed upon by harassing conduct

• Anyone who believes they are being harassed by another person can apply for a protection order under the Protection from Harassment Act

• A child under the age of 18, or a person on behalf of a child, may apply for a protection order. This can be done without the assistance of the child’s parents

JURISDICTION

• Any court

• In area

Where complainant / respondent

- Permanently/temporarily reside

- Carries on business

- Employed

• Cause of action arose

• No minimum period of stay required

WIDE JURISDICTION

PROCEDURE

• Complainant may apply for an order ( Form 2) ito Section 2 of PHA even if the facts presented allow for an order to be made ito the DV Act

CLERK CANNOT REFUSE TO ACCEPT THE APPLICATION AND REFER COMPLAINANT TO THE DV COURT-COURT WILL HAVE TO MAKE A FINDING ON THIS ISSUE

• Another person can bring the application –requires consent

• Child - can bring without parents assistance

• Application may be brought outside ordinary court hours and days

• Similar procedure like in DV Act – Court can grant an Interim Protection Order, Notice to show cause or dismiss the Application

FORM 5 DIRECTION TO ECSP

• If Court is satisfied that an IPO should be issued ( harassment by electronic communications) and the identity and address of respondent is unknown – adjourn proceedings and issue a Direction ( Form 5) directing the electronic communications service provider to provide the Court with this information within 5 days after service of the direction

NEW – NOT IN DV ACT

PLEASE NOTE:

ALL FORMS HERE ARE MARKED

“CONFIDENTIAL” AND DO NOT BECOME

PUBLIC DOCUMENTS ONCE PLACED IN THE COURT FILE.

THEY ARE NOT OPEN FOR PUBLIC PERUSAL

• ECSP – can either:-

* supply information within the 5 days

* apply for an extension

* apply for cancellation of Direction

All this done via the COC – personally or via fax

• ECSP MUST inform the respondent of the Direction – 48 hours before providing information to Court – reference number of Direction, name and address of Court

FORM 11 DIRECTION TO SAPS

• If name and address of respondent is unknown, Court may adjourn and issue a Direction ( Form 11) directing the station commander to investigate the matter

• Original direction to be served on station commander

THIS IS ALSO A “CONFIDENTIAL” DOCUMENT

NEW – NOT IN DV ACT

• Station Commander can follow the same process as the ECSP

NB:-

Please note the different forms used for SAPS

FINAL PROTECTION ORDER

• COC must also IMMEDIATELY fax certified

copies of the PO and the WOA to the Police

Station of the complainant’s choice

• When a PO or IPO is issued, the Court must

make an Order authorizing the issue of a WOA (

Form 20) and suspend the execution of that

Warrant subject to certain conditions being met

• Complainant may obtain further WOA using

Form 21 - file an Affidavit stating what

happened to other WOA

VARYING OR SETTING ASIDE OF A PO

• The only Court that has jurisdiction to hear this application is the Court where the application was issued

• Court may order SAPS to seize any weapon -discretion lies with Magistrate

DV ACT DEALS IN MORE DETAIL WITH THE SEIZURE OF WEAPONS -COURT MUST ORDER THE SEIZURE IF SATISFIED THAT THE RESPONDENT HAS THREATENED TO INJURE OR KILL HIMSELF OR SOMEONE ELSE

• Can make Cost Order ( S 16)

• Matter can be taken on appeal and review ( S 17)

OFFENCES

• (a) contravenes prohibition/condition/obligation/order or

• (b) in affidavit makes a false statement in a material respect

= guilty of an offence

Fine/imprisonment - not exceeding 5 years .

• Any person - reveals identity/address of any person or publishes any information

= fine/imprisonment - not exceeding 2 years

• Subpoena – fails to attend

= fine/imprisonment - 3 months

ECSP OR SAPS

• Fails to furnish info within time limits

• Makes false statement in affidavit in a material respect

• Fails to notify respondent within 48 hours of giving court info

ECSP = Fine exceeding R10,000

Employee = fine/prison not exceeding 6 months

• Any person requested to furnish his name and address etc to SAPS and fails to do so or furnishes a false/incorrect name etc

= guilty of an offence

Fine or imprisonment not exceeding 6 months

DIFFERENCES BETWEEN DVA AND PHA

DVA

• Domestic or perceived relationship required

• Order is indefinite –or until set aside

• SAPS role excluded

• Identity of respondent required

PHA

• No relationship required

• Valid for five years only

• Role of SAPS clearly defined

• Identity of respondent not required

• No side applications for ECSP or SAPS to do investigations

• Allows for a referral to the Family Advocate if children are involved

• Allows for eviction

• Allows for emergency monetary relief

• Side applications for the identity or address of respondent to be obtained

• Does not mention the Family Advocate

• Does not allow for eviction

• Does not allow for emergency monetary relief

• Requires a pattern of behaviour of harassment and stalking

• Limited to domestic relationships

• No such provision

• Does not require a pattern of behaviour. A single incident could suffice

• Includes harassment in the workplace and bullying

• CC, peace officer or Sheriff who will serve documents MUST be identified

THANK YOU