Protection from Harassment Act, 2011 (Act 17 of 2011)
The Protection from Harassment Act (Act 17 of 2011) came into effect on 27th April 2013 to address harassment and stalking behaviours which violate Constitutional provisions of right to privacy and dignity of individual persons.
The Act provides for inexpensive civil remedy to protect a person from behaviour which may not constitute a crime but may impact negatively on various rights of an individual.
The Act was promoted because the existing civil law framework and criminal law framework do not provide adequate recourse to victims of harassment who are not in a domestic relationship (the Domestic Violence Act, 1998 (Act 116 of 1998),
The Act aims to provide a remedy in the form of a protection which would prohibit aperson from harassing another person. If the harasser breaches a protection order he or she commits an offence which is punishable with a fine or a period of imprisonment. It aims to address harassing behavior by means of a court order, in terms of which the harasser is prohibited from continuing with the act of harassment.
Any person who contravenes such an order is guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding five years. The Act provides recourse for victims of harassment and stalking in both domestic non-domestic relationships. It also broadens the categories of harassment to include bullying at schools and cyber-stalking.
What is harassment?
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.
Persons who the Act seeks to protect
- 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.
- If a person is not able to apply for a protection order for himself, another person who has a real interest in stopping the harassment and the well-being of the person experiencing the harassment can apply for a protection order on that person’s behalf.
Procedures for applying a protection order
- If a person is being harassed he or she may apply for a protection order against such conduct at a magistrate’s court.
- Legal representation is not necessary.
- The process for applying for a protection order is by completing an application form, where the complainant is required to set out the reasons why a protection from harassment order is required and listing full details of all incidents of harassment they have experienced.
- The complainant is also able to include the specific acts committed by the person causing the harassment to be listed in the protection order, as well as request the court to impose any additional conditions necessary to protect the complainant and provide for the safety and wellbeing of that person.
- The court may, after considering the application from the complainant, issue an interim protection order against the respondent notwithstanding the fact that the respondent has not been given notice of the proceedings. The court must, however, be satisfied that there is evidence that –
- the respondent is engaging, or has engaged in harassment;
- harm is or may be suffered by the complainant as a result of such conduct if a protection order is not issued immediately; and
- 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.
- This interim protection order, together with the record of evidence, must be served on the respondent and must call on the respondent to show cause on the return date why a final protection order should not be issued against him or her. An interim protection order takes effect.
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- J37 – Form 1: Information notice to complainant or person who applies for protection order on behalf of complainant (Regulation 2)
Afrikaans – isiNdebele – isiXhosa – isiZulu – siSwati – Sepedi – Setswana – Shangaan – Tshivenda - J59 – Form 2: Application for protection order (Regulation 3)
- J62 – Form 3 : Interim protection order (Regulation 4)
- J72 – Form 4: Notice to respondent to show cause (Regulation 5)
- J74 – Form 5: Direction to electronic communications service provider to furnish information to court (Regulation 7)
- J75 – Form 6: Affidavit by electronic communications service provider to furnish information to court (Regulation 8(3))
- J77 – Form 7: Application by electronic communications service provider for extension of period within which information must be provided to court or cancellation of direction (Regulation 9)
- J80 – Form 8: Request for additional evidence by way of affidavit from electronic communications service provider (Regulation 10(1))
- J81 – Form 9: Affidavit by electronic communications service provider to furnish additional evidence to court (Regulation 10(4))
- J89 – Form 10: Decision of court (Regulation 11)
- J92 – Form 11: Direction to station commander to investigate complaint of harassment in order to determine name and address or any other information which may be required to identify or trace respondent (Regulation 13)
- J100 – Form 12: Affidavit by member of South African Police Service to furnish information to court (Regulation 14)
- J103 – Form13: Application by station commander for extension of period within which information must be provided to court or cancellation of direction (Regulation 15)
- J118 – Form 14: Request for additional evidence (Regulation 16(1))
- J120 – Form 15: Affidavit by station commander to furnish additional information to court (Regulation 16(4)
- J121 – Form 16: Decision of court (Regulation 17)
- J122 – Form 17: Affidavit by member of South African Police Service to furnish information to court (Regulation 18)
- J134 – Form 18: Subpoena (Regulation 19)
- J135 – Form 19: Final protection order (Regulation 20(1))
- J150 – Form 20: Warrant of arrest (Regulation 22) – Available from the Magistrates Court
- J154 – Form 21: Affidavit for purposes of further warrant of arrest (Regulation 23)
- J169 – Form 22: Affidavit regarding contravention of protection order (Regulation 24)
- J186 – Form 23: Written notice to appear before court (Regulation 25)
- J240 – Form 24: Application for variation or setting aside of protection order (Regulation 26)
- J309 – Form 25: Notice of variation or setting aside of protection order (Regulation 27)
- J311 – Form 26: Statement to be completed by person who serves, files or forwards document by facsimile (Regulation 29)
Enquiries can be directed to your nearest Magistrate Court.
Source: https://www.justice.gov.za/forms/form_pha.html
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