The End to Peeping Toms

Since 5 December 2011, the Protection from Harassment Act, 2011 (“the Act”) has been tested throughout South African Magisterial Courts within the civil context. Apart from some fine-tuned housekeeping by these Courts, the orders emanating from this Act have some far-reaching consequences. Regardless, it has seen to the end of the archaic Peace Orders which, in practice, served very little (if any) purpose in the way of protecting victims of harassment, civil abuse, and intimidation.

How does one know if conduct to which he/she is being subjected would fall under the protection offered by the Act? Essentially, the Act authorises the Courts to conduct two enquiries into each application: is there harassment, and if the answer to this question is in the affirmative, does the harassment cause harm? As it is with all spheres of law, the answers to these questions are far from simple.

Section 1 of the Act defines both “Harassment” and “harm”. Harassment has been attributed the following legal definition: It refers to “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 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;

(b)   amounts to sexual harassment of the complainant or a related person;

The definition of harassment is self-explanatory however the same cannot be said for the manner in which “harm” has been defined. Section 1 of the Act defines “harm” as “any mental, psychological, physical or economic harm.” There is dearth of authority on the interpretation of this definition however suffice to say that Courts have often resorted to the definitions of “economic abuse” as well as “emotional, verbal and psychological abuse” as encompassed in the Domestic Violence Act, 116 of 1998. The latter piece of legislation applies only to persons who are in a “domestic relationship” which roughly translates into persons who are related through romantic or familial connections.

The difficulty comes in the vast difference in how each Magisterial Court has concluded the existence and extent of abuse that a particular Complainant has suffered (if any). As it stands, there is little scope for interpretation by the Magistrates hearing these applications. Courts are still testing the waters. What is very interesting and provides assistance to Magistrates and attorneys alike is the decision of Mnayndu v Padayachi [2016] 4 All SA 110 (KZP) which dealt with the Act directly.

The Court placed the Act under a microscope and gave some insight into what a Complainant is required to prove before a Protection Order can be granted at the hearing of an Application. The Court held that the first onus rests on the Complainant to prove that the Respondent knew or ought to have known that the conduct in question would cause harm (or inspire the reasonable belief that harm would be inflicted) to the former. If this is proven, it is then up to the Respondent to show that his conduct was reasonable and thus could not have caused or inspired harm.

Thereafter, the Court attempted to set boundaries on the interpretation of the primary elements of a successful Application. In this sense, the Court made the following important observations:

(1)    A Magistrate must apply a “consistent approach” to the “evaluation of conduct complained of, although the factual determination will depend on the circumstances under or context within which the alleged ‘harassment’ occurred”;

(2)    A Magistrate must not apply a definition of ‘harassment’ and ‘harm’ that is “too widely or too narrowly defined”

After the Court considered related local and international authorities, the Court held that the conduct complained of must have the following characteristics in order for it to be considered ‘harassment’:

(1)    It must be “a course of conduct (two or more acts) which is oppressive ad unreasonable” in nature i.e. “have a repetitive element which makes it oppressive and unreasonable” OR

(2)    the conduct must be of such an “overwhelmingly oppressive nature” that a single act would cause the same harm as that of repetitive acts;

AND

(3)    The conduct complained of must also have the effect (as of consequence) of “causing serious fear, alarm, and distress thus tormenting or inculcating serious fear or distress in the victim”

What this Court has done is essentially equate the definitions of harm as encompassed in the Domestic Violence Act, 116 of 1998 with that of harassment and harm in the Protection from Harassment Act 2011. In the former piece of legislation, a repetitive element was required whereas the same was lacking in the latter piece of legislation. Of course, the Court did qualify its ruling by allowing for single acts but the ultimate test appears to be that of “seriousness” i.e. the consequences of the acts as opposed to the acts themselves.

It is therefore beneficial for a citizen to consult with an attorney before launching an application in terms of the Protection from Harassment Act, and to do so almost immediately after the conduct arises.

17 July 2017