Law Clinix

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Harassment Act Matters


Harassment covers a wide range of behaviors of an offensive nature , intentional behaviour intended to disturb,upset, threatening or disturbing.

Types of Harassment

 

Sexual Harassment

Sexual harassment refers to persistent and unwanted sexual advances, typically in the workplace, where the consequences of refusing are potentially very disadvantageous to the victim.

Workplace Harassment

Workplace harassment is the odious dealing through pitiless, malevolent, hurtful or embarrassing attempts to undermine an individual worker or groups of workers.

Psychological Harassment

This is humiliating, intimidating or abusive behavior which is often difficult to detect leaving no evidence other than victim reports or complaints. This characteristically lowers a person’s self-esteem or causes them torment. This can take the form of verbal comments, aggressive actions or repeated gestures.

Racial Harassment

The targeting of an individual because of their race or ethnicity. The harassment may include words, deeds, and actions that are specifically designed to make the target feel degraded due to their race or ethnicity.

Religious Harassment

Verbal, psychological or physical harassment is used against targets because they choose to practice a specific religion.

Sexual Harassment

Harassment that can happen anywhere but is most common in the workplace, and schools. It involves unwanted and unwelcome words, deeds, actions, gestures, symbols, or behaviour of a sexual nature that make the target feel uncomfortable.

Protection from Harassment Act, No. 17 of 2011:

 PURPOSE OF ACT:

(a) Afford victims of harassment an effective remedy against such behaviour; and

(b) Introduce measures which seek to enable the relevant organs of state to give full effect to the provisions of this Act,

DEFINITION OF HARASSMENT I.T.O ACT

"Harassment" means 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.

 "Sexual harassment" means any-

 (a)  Unwelcome sexual attention from a person who knows or ought reasonably to know that such attention is unwelcome.

(b)  Unwelcome explicit or implicit behaviour, suggestions, messages or remarks of a sexual nature that have the effect of offending, intimidating or humiliating the complainant or a related person in circumstances, which a reasonable person having regard to all the circumstances would have anticipated that the complainant or related person would be offended, humiliated or intimidated;

(c)  Implied or expressed promise of reward for complying with a sexually oriented request; or

(d)  Implied or expressed threat of reprisal or actual reprisal for refusal to comply with a sexually oriented request;

 

 FAQ

WHAT IS MY RIGHTS WHEN I AM BEING HARASSED?

Any victim who is a complainant/applicant (that is the person who is being harassed) may on any day and at any time, in the prescribed manner apply for a protection order against harassment at the Magistrate`s Court in whose area -

(a)  The complainant permanently or temporarily resides, carries on business or is employed; 

(b)  The respondent (that is the person who commits an act of harassment) permanently or temporarily resides, carries on business or is employed; or

(c)  The act of harassment occurred.

A person commits an act of harassment (respondent) if he or she directly or indirectly engages in conduct which he or she 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 following, watching or pursuing the complainant or a related person, or 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 sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person; or

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

Harm is defined to mean any mental, psychological, physical or economic harm.

An application for a protection order against harassment may be made by another person on behalf of the complainant if the person who intends to apply for the protection order has a material interest in the well-being of the complainant or related person. However, such application must be brought with the written consent of the complainant, except in circumstances where the complainant is a person who, in the opinion of the court, is unable to do so.

 Any child, or person on behalf of a child, may apply to the court for a protection order.

The victim complainant/applicant of harassment have the right lay a criminal charge against the person who committed the act of harassment if the conduct of the respondent constitutes a criminal offence which will be investigated by the police.

The application for a protection order a Form 2 must be completed and signed by the victim and commissioned by a commissioner of oaths. Make use of the (J88) and attach it to the application as supporting evidence.


WHAT IS THE STEPS AND HOW LONG WILL IT TAKE TO OBTAIN THE ORDER?

 STEP 1

The clerk of the court hand in the application for a protection order (Form 2) with a case number and supporting affidavit(s) to the Magistrate/Court.

In your application you may request the magistrate/court to prohibit the respondent from

 

  • Committing any act of harassment;
  • Getting the help of another to commit any act of harassment;
  • Entering your workplace, home or the shared residence or any part thereof;
  • Preventing the respondent from entering or remaining in the residence or any part thereof;
  • Committing any other act determined by the court.

 

You may request the magistrate/court not to disclose your physical address to the respondent. The court may also, in order to protect you and to provide for your safety, health and well-being –

The court will consider the application of the complainant or person referred to in section 2(3)(a) of the Protection from Harassment Act, 2011, and may, if the evidence substantiates the fact that —

(a)  The respondent is engaging or has engaged in harassment;

(b)  Harm is being or may be suffered by the complainant or a related person as a result of that conduct if a protection order is not issued immediately; and

(c)  The protection to be accorded by the interim protection order is likely not to be achieved if prior notice of the application is given to the respondent, issue an interim protection order against the respondent.

 The Magistrate will consider your application and have three options;

  • Granting the interim ex parte protection order (Form 4) and the clerk of the court is ordered to serve the respondent with the (Form 4) the application/supporting affidavit(s) calling on the respondent to appear;
  • Not Granted the interim order;
  • An interim order referred to in Sec 3(4) is not issued and the clerk of the court is ordered to serve the respondent with a (Form 4) application/supporting affidavit(s) calling on the respondent to appear Notice to show cause why a protection order should not be issued;

 

In not granting the order means that there is no eminent harm in the application or that there is no case made out.

In not granting the order but instruct the clerk of the court to issue a (Form 4) a Notice to Show cause  is ordered to serve the respondent with a (Form 4) by South African Police Service member calling on the respondent to appear and explain why a protection order should not be issued. This means a case was made out but explanation is needed from the (Respondent).

Granting the interim ex parte protection order (Form 3) the magistrate will seal it with his/her official magistrate stamp ,with a return date,which is immediately valid.The magistrate simultaneously will, issue a warrant of arrest (Form 8) for the respondent.


 STEP 2:

The clerk of the court will provide the applicant/victim with the original and copy of the order and a blank return of service which have to be taken by the applicant to the South African Police Service.

The  temporary/interim order will ONLY come into effect after it has been delivered to the respondent by the South African Police Service member or the Sheriff.The South African Police Service member will complete the return of service as proof of service on the respondent and hand it back to the applicant.

This means that the respondent may be arrested if he or she fails to comply with any provision of the temporary/interim protection order and after you have given the police the warrant (Form 20) and an affidavit explaining that the respondent has breached the order AFTER the (Form 3) was served on the respondent.

Go back to the clerk of the court hand in the completed return of service that they can file this on the case file.


 STEP 3:

On the the return date where the applicant MUST appear in court.Failure to appear means this order will be cancelled.

Or

When the respondent is present to oppose means the magistrate MUST hear the case and make a decision. The purpose of the return date on the temporary/interim order is to give the respondent a chance to oppose the application if the victim of domestic violence (applicant) might have made a false protection order.

Or

On the the return date where the respondents fails to appear this interim order can be made a final order (default order) means either the respondent admits committing a act of harassment  

Both the applicant and respondent have a right to a legal representative. Both the applicant and respondent can ;

(a)  Conducts his own defence;

(b)  Appoint his own legal representative;

(c)  Apply for legal aid

 

The magistrate/court will give the following explanations to the parties who are not legally represented.

1. In terms of section 17 of the Harassment Act, No. 17 of 2011, the provisions of appeal and review contemplated in the Magistrate’s Court Act, 1994 (Act 32 of 1994) apply to any proceedings in terms of this Act.

2. The protection order is enforceable in the entire Republic of South Africa.

3. The protection order remains effective for a period of 5(five) years in terms of section 9(8) until it is set aside and the execution thereof is not automatically suspended with filing of an appeal.

 4. Any contravention of a prohibition, condition, obligation or order contained in the protection order will result in the warrant of arrest for the respondent being executed and the prosecution of the respondent.

Upon conviction of a contravention of any prohibition, condition, obligation or order contained in the protection order, the respondent will be liable to a fine or imprisonment for a maximum period of five (5) years or both such fine and such imprisonment.

The interim protection order is made final and (Form 19) signed by the magistrate and simultaneously also sign a warrant for arrest (Form 20).

WARNING:

It is a criminal offence to make a false statement in an affidavit- 

(a)  for the application for a protection order; or

(b)  to the effect that the respondent has contravened a protection order.

The court may make an order as to costs against a party if it is satisfied that the party in question has acted frivolously, vexatiously or unreasonably.

 

CAN THE RESPONDENT OPPOSE THE APPLICATION FOR HARASSMENT?

Yes if the respondent wish to approach the court for an earlier date, because of the effect and consequences of the protection order. The condition is that the respondent must give a written notice to the applicant and the court. 

FORM DOWNLOAD FOR APPLICANTS AND RESPONDENTS 

The Harassment Act
ACT 17 of 2011 Harassment Act.pdf (2.5MB)
The Harassment Act
ACT 17 of 2011 Harassment Act.pdf (2.5MB)


 

Form 2: Application for protection order (Regulation 3)


 Form 4: Notice to respondent to show cause (Regulation 5)

 

Notice to Show Cause to Respondent
Form 4 Notice to Show Cause Har Act.pdf (24.1KB)
Notice to Show Cause to Respondent
Form 4 Notice to Show Cause Har Act.pdf (24.1KB)


 

Form 21: Affidavit for purposes of further warrant of arrest (Regulation 24) 

Affidavit for Warrant of Arrest
Form 21 Affidavit for Warrant of Arrest.pdf (25.33KB)
Affidavit for Warrant of Arrest
Form 21 Affidavit for Warrant of Arrest.pdf (25.33KB)


 

Form 22: Affidavit regarding contravention of protection order                            (Regulation 25) 


 Form 23: Notice to appear before court (Regulation 26(1)) 

Notice to Appear before Court
Form 23 Notice to appear before court.pdf (28.8KB)
Notice to Appear before Court
Form 23 Notice to appear before court.pdf (28.8KB)


 Form 24: Application for variation or setting aside of protection order              (Regulation 27) 

Application for Variation or Setting aside of Order
Form 24 Application for variation or setting aside of protection order.pdf (30.05KB)
Application for Variation or Setting aside of Order
Form 24 Application for variation or setting aside of protection order.pdf (30.05KB)


 Form J88: Medical Assessment form.

J 88 Medical Assessment Form
J088.pdf (132.7KB)
J 88 Medical Assessment Form
J088.pdf (132.7KB)


 

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