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Before the commencement of the Protection from Harassment Act 17 of 2011 which came into operation on 27 April 2013, obtaining an order for protection from harassment was lengthy and costly. The position has changed drastically since then.
The main idea and purpose behind the Act is to provide some form of relief to the needy and poor – those who are not able to afford a hotshot lawyer and those who are not in the fortunate financial position to make a change.
In one of the first cases in which an order was granted in terms of the provisions of the Act, it took only five hours to obtain the order, with minimal effort and cost. However, before an application for an order is considered it must be established what kind of conduct qualifies as harassment.
Harassment is most generally described as action/conduct which, according to a reasonable person, is considered to be offensive and harmful in all or one of the following ways: psychologically, physically, economically or intellectually. This would most probably result in damage being suffered by the victim. Furthermore, harassment would include acts such as spying on the person, following the person or even sending continuous SMSs, emails and letters which have the effect of duress or of blackmailing another person.
A fine distinction has to be made between messages sent during the midnight hours that would merely be indicative of a confession of love, and messages sent during the midnight hours which amount to sexual harassment that causes embarrassment.
The commencement of the new Act also ensures that “cyberbullies” can be charged and brought to book before causing harm to others. Cyberbullies are considered to be those who place explicit videos or photos of others on social networks without their permission.
This brings us to the most feared form of harassment, namely the harassment of your child. This can occur by way of threats against your child, or even confrontations which place the child in uncomfortable situations and which can be traumatising to the child. The Act provides that the parent of such a child may now obtain a protection order against the wrongdoer in order to ensure the general wellbeing of the child.
The Act even makes it possible to obtain a protection order against harassment where the wrongdoer is unknown. The Police will be ordered by the court to conduct an investigation into the matter in an attempt to ascertain the identity of the wrongdoer. This is a vital part of the Act and is indicative of the other very important driving force behind the enactment of the Act.
Due to the fact that technology is developing so rapidly, electronic harassment has become very popular, especially with schoolchildren. It is a powerful way of causing duress and intimidating another person. In this case, where the identity is not known, the court will also order the service provider to reveal the identity of the wrongdoer.
The new Act was designed to also target electronic harassment by means of the same quick application for an order that applies to general harassment.
The procedure to obtain a protection order is as follows:
1. When a person is being harassed, the victim must merely go to the nearest magistrate’s court (it must be in the vicinity in which the act of harassment took place or in the vicinity of the wrongdoer’s residential address), and complete an affidavit under oath.
2. Important to note is that the order will only be a temporary order and it will only be granted should the action cause the victim to suffer damages or harm.
3. An application for a final protection order will be the next step. It will be served on the wrongdoer, notifying him/her of the date on which the application for the final order will be heard.
4. Should such an order be made final and the wrongdoer fails to comply with the provisions thereof, the police may be called upon for help. In this case the wrongdoer will be arrested and will be punished with a fine and/or imprisonment not exceeding 5 years.
Should a person lay a false charge of harassment, such a person may be charged in the same way as set out above.
In conclusion …
The purpose of the new Act is to stop harassment. In most of the cases until 27 April 2013, the victims were left with no options, but now the Act makes provision for anyone who cannot afford legal assistance to seek an order for protection from harassment for himself/herself and his/her children.
Our Constitution exemplifies that the child’s best interest is of utmost importance in any matter, and therefore harassment of any child will be considered to be serious.
It is the duty of every person to protect himself/herself as well as his/her child from harassment by simply reporting to the clerk of the nearest magistrate’s court in order to obtain a protection order.
The new Act strives to make protection from harassment a reality through a process that is much faster and easier than in the past.
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