What Is Harassment in South African Law?
The Protection from Harassment Act defines harassment broadly. In general terms, it involves direct or indirect conduct which the respondent knows or ought to know causes harm, or inspires a reasonable belief that harm may be caused to the complainant or a related person, through conduct contemplated by the Act.
The enquiry therefore extends beyond whether the respondent intended the conduct to be harmless. The nature of the conduct, its reasonableness, its effect and the surrounding circumstances can all be relevant.
A disagreement, unpleasant message or isolated argument does not automatically satisfy the statutory requirements for harassment. The conduct must be assessed against the requirements of the Protection from Harassment Act and the evidence of the particular matter.
What Can Harassment Look Like?
Harassment can take many different forms. The Act is broad enough to address both physical conduct and certain forms of communication.
Following or Watching
Repeatedly following, watching or pursuing a person can potentially constitute harassment.
Accosting a Person
Repeated or unreasonable unwanted approaches may fall within the protection provided by the Act.
Loitering Near Important Places
Conduct may include loitering near a person's home, workplace, business, place of study or another place where the person happens to be.
Calls & Messages
Verbal, electronic or other communications directed at a complainant may constitute harassment in appropriate circumstances.
Social Media & Electronic Harassment
Electronic communications can fall within the Act where they satisfy the statutory requirements for harassment.
Letters, Packages & Objects
Sending or causing letters, packages, electronic mail or other objects to be delivered to or brought to a person's attention may also be relevant.
Can WhatsApp or Social Media Messages Amount to Harassment?
Potentially, yes.
The Act expressly recognises electronic communication as a possible means through which harassment can occur. This means that conduct does not become legally irrelevant merely because it happens through a phone, email account or online platform rather than in person.
A court will still consider the content, frequency, context and effect of the communications together with the other evidence before it.
If the harassment is electronic, preserve screenshots, messages, emails, usernames, telephone numbers, dates and times. Do not rely solely on your ability to retrieve the material later.
What if You Do Not Know Who Is Harassing You Online?
Anonymous electronic harassment can create an obvious practical problem: a complainant may know that they are being harassed without knowing the identity or physical address of the person responsible.
The Protection from Harassment Act contains mechanisms that may assist in these circumstances.
Where the statutory requirements are satisfied, the court may issue a direction requiring an electronic communications service provider to furnish specified information that may assist the court in identifying the respondent or determining the source of the communications.
The Act specifically anticipates circumstances in which electronic harassment occurs but the identity or address of the respondent is unknown.
Who Can Apply for a Harassment Protection Order?
A person who alleges that they are being or have been harassed can apply for protection under the Act.
The legislation also makes provision for another person with a material interest in the wellbeing of the complainant to apply on the complainant's behalf, subject to the statutory requirements regarding consent.
Importantly, a child may apply for a protection order without the assistance of a parent or guardian. A person may also apply on behalf of a child.
Where Do You Apply for a Protection Order?
An application is made in the Magistrate's Court with jurisdiction. This is not necessarily limited to whichever court happens to be physically closest to the complainant.
Depending on the circumstances, jurisdiction may exist in the area where the complainant permanently or temporarily resides, carries on business or is employed, where the respondent resides, carries on business or is employed, or where the cause of action arose.
The clerk of the relevant court can provide the prescribed application documents. A complainant is not legally required to have an attorney in order to apply for a protection order.
How Does the Protection Order Process Work?
The process begins with an application setting out the alleged harassment and the protection sought from the court.
Prepare the Application
The complainant completes the prescribed application and provides details of the harassing conduct, relevant history and the protection required.
Attach Supporting Evidence
Relevant messages, emails, photographs, witness statements and other available evidence can be placed before the court.
The Court Considers the Application
The court considers the allegations and evidence and determines whether the statutory requirements for further relief have been established.
Interim Protection Where Appropriate
Where the requirements of the Act are met, the court may issue an interim protection order before the respondent has been given prior notice.
Service on the Respondent
The relevant documents are served on the respondent, who is informed of the order and the return date.
The Return Date
The respondent is given an opportunity to show cause why the interim protection order should not be made final.
When Can an Interim Protection Order Be Granted?
An interim protection order is not automatically granted simply because an application has been filed.
The court must consider whether the statutory requirements have been established. These include evidence that the respondent is engaging or has engaged in harassment, that harm is or may be suffered if a protection order is not issued immediately, and that the required protection is unlikely to be achieved if prior notice is first given to the respondent.
An interim order provides protection pending the further court process where waiting until the respondent has first been heard may undermine the protection required.
What Happens on the Return Date?
An interim protection order is not necessarily the end of the matter. The respondent must be given an opportunity to oppose the granting of a final order.
If the matter is opposed, the court considers the evidence presented by the parties and determines whether a final protection order should be granted.
The outcome therefore depends on the evidence and whether the legal requirements for a final order have been established.
The granting of interim protection does not mean that every allegation has already been finally determined. The respondent has an opportunity to oppose the final order.
What Can a Final Protection Order Do?
A protection order is intended to prevent further harassment.
Depending on the circumstances, the court can prohibit the respondent from engaging in specified acts of harassment and can impose appropriate conditions designed to protect the complainant or a related person.
The precise terms of the order will depend on the conduct complained of and the protection that the court considers appropriate.
What Happens if a Protection Order Is Breached?
A protection order is a court order. It is not simply a warning or a request that the respondent stop making contact.
Contravening a protection order can have criminal consequences. The legislation provides mechanisms through which enforcement can be sought where the respondent breaches the order.
If an order has been granted against you, comply with its terms unless and until it is lawfully varied or set aside. Believing that the allegations are false does not entitle a respondent simply to disregard the court order.
Is a Protection Order the Same as Opening a Criminal Case?
No. An application for a harassment protection order is a protective civil remedy.
The conduct giving rise to harassment may, however, also constitute a criminal offence depending on what occurred. A complainant may therefore in appropriate circumstances also approach the South African Police Service regarding criminal conduct.
A complainant does not have to lay a criminal charge merely in order to apply for a protection order under the Protection from Harassment Act.
Harassment or Domestic Violence?
The Protection from Harassment Act and the Domestic Violence Act provide different statutory frameworks, and the appropriate procedure can depend on the relationship between the parties and the conduct involved.
Where the parties are or were in a domestic relationship, conduct may fall within the domestic violence framework. Harassment protection is particularly important because it can also provide recourse where the parties do not have the type of domestic relationship contemplated by domestic violence legislation.
Friends, neighbours, colleagues, acquaintances and strangers can therefore potentially fall within harassment proceedings where the requirements of the Act are met.
What Evidence Should You Keep?
Harassment proceedings are evidence-based. A clear record can therefore be extremely important, particularly where the conduct has taken place over a period of time.
WhatsApp & Text Messages
Preserve the complete conversations where possible, including dates, times and identifying information.
Social Media Evidence
Keep screenshots of relevant posts, comments, messages, profiles, usernames and links.
Emails & Call Records
Retain emails and relevant call histories showing repeated or unwanted contact.
Independent Evidence
Record the details of witnesses who saw or heard relevant incidents.
Incident Timeline
Keep a chronological record of incidents, including dates, places and what occurred.
Letters, Gifts & Deliveries
Preserve unwanted letters, packages, photographs or other objects where they form part of the alleged harassment.
What if a Harassment Order Has Been Brought Against You?
A respondent is entitled to oppose the granting of a final protection order and place their version and evidence before the court.
If you believe the allegations are false, exaggerated, taken out of context or do not satisfy the legal definition of harassment, those issues should be addressed through the court process.
Relevant communications and other evidence should be preserved rather than deleted merely because proceedings have been instituted.
Do not attempt to resolve the dispute by repeatedly contacting the complainant after proceedings have started, particularly where an interim order restricts contact. Place your defence before the court through the proper process.
Do You Need an Attorney?
A complainant does not need an attorney in order to approach the court for a protection order. The clerk of the court can assist with the prescribed process.
Legal representation may nevertheless be useful where the facts are complicated, the application is opposed, extensive electronic evidence is involved, allegations are disputed or the respondent wishes to oppose an order.
An attorney can assist in identifying the relevant evidence, preparing the case, advising on the applicable legislation and representing a party during opposed proceedings.
The Key Takeaway
Harassment can occur physically, verbally or electronically. South African law recognises that repeated unwanted conduct does not need to involve physical violence before legal protection may become available.
The Protection from Harassment Act provides a mechanism through which a complainant can seek a court order aimed at preventing further harassment.
At the same time, a respondent against whom an order is sought is entitled to place their evidence before the court and oppose a final protection order where there are proper grounds to do so.
Whether you are applying for an order or opposing one, preserve the messages, documents and other evidence. What can be proved to the court matters considerably more than what either party simply alleges.
Need Assistance With a Harassment Protection Order?
Danel Campbell Attorneys assists clients with applications for protection orders and with opposing protection orders where the allegations are disputed. We can assess the evidence, advise on the applicable legal process and assist with representation where required.
Explore Family Law Services →This article provides general legal information regarding harassment and protection orders in South Africa and does not constitute legal advice. Whether particular conduct constitutes harassment depends on the facts, evidence and applicable legislation. Where there is an immediate threat to safety or criminal conduct is taking place, appropriate emergency or police assistance should be sought.