What is harassment?
- When a person’s behaviour is so extreme, abusive or rude that it causes harm to another person or makes another person believe that s/he will suffer harm. This may include mental, psychological, physical or financial harm.
- Harassment may be caused, for example, by a person:
- following, communicating with, watching, or bothering another person; or
- sending letters, gifts, faxes, or emails to such a person.
What can a person do if s/he is being harassed?
- If a person (“complainant”) believes that s/he is being harassed by someone (“respondent”), s/he may apply for a protection order in the Magistrate’s Court (“court”).
- If the complainant is a child, s/he can apply for a protection order on his/her own and does not have to be assisted by a parent or a guardian.
- It is also possible for a person to make an application for a protection order on behalf of the complainant. This means that, any person who has an interest in the wellbeing and safety of the complainant can make an application. If the complainant is older than 18 years of age, the written consent of the complainant is required to make an application on his/her behalf.
- It is not a requirement for the complainant to be in some sort of a relationship with the respondent. This means that the respondent can be any person, for example, a stranger to, a friend of or someone working with the complainant.
How can a person apply for a protection order?
- A complainant can apply with the clerk of the court in the area where the complainant or respondent lives, works, or where the harassment took place.
- The clerk will help the complainant to complete the application for a protection order in South Africa, together with a written affidavit, which will be given to the court for consideration.
- A complainant can also lay a criminal charge against the respondent at the Police Station in the event of an assault, trespassing, and so on.
What happens if a person does not know who is harassing him/her?
- The police may carry out an investigation to find the name, address or any other information of the unknown respondent. For example, if the complainant suspects that the respondent is working with him/her, the police may request the complainant’s employer to provide them with access to the information of the respondent.
- Any person who does not provide the police with the requested information, is guilty of a criminal offence and will be liable to a fine or imprisonment of up to six months.
What will happen after an application for a protection order was filed at court?
- If there is enough evidence to prove harassment, an interim protection order will be issued, together with a suspended warrant of arrest.
- The interim protection order must be delivered to the respondent. It will tell the respondent when s/he must be at court to defend him/herself (“return date”).
- If the respondent does not appear at court on the return date, the court may issue a final protection order.
- If the respondent appears at court on the return date, s/he must provide the court with good reasons why a final protection order must not be issued.
- A final protection order will only be issued if there is enough evidence to prove harassment.
- The final protection order will contain certain conditions to ensure the safety of the complainant. If the respondent does not follow these conditions, s/he will be guilty of an offence and will be liable for a fine or imprisonment of up to five years.
- The suspended warrant of arrest remains valid until the protection order expires (after five years or a time period decided by the court), or is cancelled.
May a person be dismissed for harassing someone at work?
- Harassment includes sexual harassment in the workplace.
- Unwelcome sexual gestures may constitute sexual harassment and the complainant must bring these gestures to the attention of his/her employer immediately.
- If the employer fails to take immediate and appropriate steps to prevent the sexual harassment, the employer may be held liable for damages, and its failure to assist the complainant may lead to a claim for constructive dismissal.
- Sexual harassment is also a form of misconduct, this means that the employer must take disciplinary steps against the respondent, which may result in his/her dismissal.
Glossary of terms:
CHILD: a person under the age of 18 years.
FINAL PROTECTION ORDER: is a court order confirming an interim protection order, preventing the respondent from harassing the complainant. It will be issued if the court is satisfied that the harassment exists.
INTERIM PROTECTION ORDER: is a court order confirming temporary protection, prohibiting the respondent from harassing the complainant. It is generally issued on the first day when the complainant applies for a protection order.
SEXUAL HARASSMENT: unwelcome sexual attention, behaviour, suggestions, messages, or remarks of a sexual nature that offends, intimidates or humiliates the complainant; a promise or reward for sexual deeds; or a sexual threat.
SUSPENDED WARRANT OF ARREST: a document issued by the court, authorising the police to arrest the respondent. The actual arrest is delayed until the respondent fails to comply with a condition ordered by the court.
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