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Protection from Harassment Act

Jan du Toit

Not many South Africans are aware of the fact that on the 12th of April 2013 a proclamation was published in the Government Gazette, whereby Pres. Zuma set 27 April 2013 as the date on which the Protection from Harassment Act (Act no. 17 of 2011) came into operation. The purpose of this act is to provide for the issuing of protection orders against harassment and to afford victims of harassment with an effective remedy against such behaviour.

In terms of this Act harassment is defined as either directly or indirectly engaging in conduct that the harasser 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.

The word "harm” I defined as any mental, psychological, physical or economic harm.

Sexual harassment is defined as 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;

In terms of the Employment Equity Act the harassment of an employee is a form of unfair discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination. Section 10(6) of the EEA provides remedies for victims of inter alia sexual harassment in the workplace.

Employers and employees should therefore take note provisions of this act since it could have far-reaching implications in the workplace. As a result of the Protection from Harassment Act it will now be possible for an employee to obtain, in addition to the provisions of the EEA, a protection order against an abusive employer or colleague. 

In terms of section 2 of the act a complainant may apply to a magistrates’ court for a protection order be issued against a harasser. The court must as soon as is reasonably possible consider such an application submitted to it.

If the court is satisfied that there is prima facie evidence that

(a) the respondent (harasser) 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 the court must, notwithstanding the fact that the respondent has not been given notice of the proceedings, issue an interim protection order against the respondent.

After the issuing of the interim order, there will be an opportunity at a later stage for the respondent to defend him or her before a final order is made. Such an order is made on the balance of probabilities that the respondent has engaged or is engaging in harassment. Such an order, including an interim protection order, may prohibit the respondent from

(a) engaging in or attempting to engage in harassment;

(b) enlisting the help of another person to engage in harassment; or

(c) committing any other act as specified in the protection order.

The court may also impose any additional conditions on the respondent which it deems reasonably necessary to protect and provide for the safety or well-being of the complainant. It is important to note that an “additional condition” may well be an order that the harasser may not be within a specific radius of the complainant.

Whenever a court issues a protection order, including an interim protection order, the court must make an order

(a) authorising the issue of a warrant for the arrest of the respondent, in the prescribed form; and

(b) suspending the execution of that warrant subject to compliance with any prohibition, condition, obligation or order imposed.

This means that the harasser may be “automatically” arrested without further proceedings if he / she fails to adhere to the requirements of such an order and may face prison time for up to five years.

Complainants must however take note that making false statements to a Magistrates’ Court may be on conviction fined or imprisoned for a period not exceeding five years.

Going forward employers may face some difficult situations in the workplace as a result of a protection order that was for instances issued in the favour of an employee against his / her supervisor, or another employee. Employers are advised to introduce harassment policies and awareness campaigns in the workplace and to deal with complaints in a swift but fair manner.

Jan du Toit can assist employers with IR and HR related services and can be contacted for a consultation at .

 

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