Domestic Violence is regarded as a serious social evil and South Africa is one of the countries with high incidences of domestic violence. The Domestic Violence Act, 1998 (Act 116 of 1998) was enacted with the main purpose to afford the victims of domestic violence maximum protection from domestic abuse that the law can provide. The Act further introduced measures which seek to ensure that relevant organs of state give full effect to the provisions of this Act, and thereby to convey a message that the State is committed to the elimination of domestic violence.
HARASSED, BULLIED OR ABUSED ONLINE?
KNOW YOUR RIGHTS.
The Harassment E-Book
COMPILED BY BERTUS PRELLER
Everything you need to know about harassment and stalking.
KNOW YOUR RIGHTS.
The Harassment E-Book
COMPILED BY BERTUS PRELLER
Everything you need to know about harassment and stalking.
ARASSMENT IS WHERE ONE PERSON ENGAGES IN ANY UNREASONABLE CONDUCT WHETHER ONLINE OR OTHERWISE WHICH CAUSES MENTAL, PSYCHOLOGICAL, PHYSICAL OR ECONOMIC HARM TO ANOTHER PERSON. HARASSMENT INCLUDES CYBER STALKING AND ONLINE BULLYING.
Parliament has enacted the Protection from Harassment Act, 2011 (Act 17 of 2011), to protect persons against harassment. The Act aims to provide a remedy in the form of a protection which would prohibit a person from harassing another person. If the harasser breaches a protection order he or she commits an offence which is punishable with a fine or a period of imprisonment. The Protection from Harassment Act offers a special process where an court order can be made without the immediate knowledge of the person who is harassing the complainant, based only on the complainant’s side of the story, as long as the court is satisfied that there is real evidence that the complainant is being or may be harassed and that harm is or may be suffered if the protection order isn’t granted immediately.
WHAT FORMS OF HARASSMENT ARE PROTECTED?
Following, watching, pursuing or accosting of the complainant or someone in a close relationship with the complainant such as a spouse or family member. Loitering outside or near the building or place where the complainant or related person lives, works, studies or happens to be. Contact through verbal
communication aimed at the complainant. The Act also recognises electronic communication that causes harm or makes the complainant feel in danger of being harmed as harassment. Several forms of written communication as capable of being contact for the purposes of harassment, such as letters, packages and e-mails. Sexual harassment, which means “any unwelcome sexual attention from a person who knows or who reasonably knows that such attention is unwelcome”. Such sexual attention includes unwelcome behaviour, suggestions, messages or remarks of a sexual nature that have the effect of “offending, intimidating or humiliating” the complainant or a person who has a close relationship with the complainant.
Sexual harassment also means promises of reward for fulfilling a sexual request or punishment for refusing a sexual request. Bullying and Cyber bullying. Downloading spyware on someone's mobile phone.
WHAT IS A PROTECTION ORDER?
If you are a victim of harassment, you may approach the magistrates' courts in terms of this Act to obtain a protection order against any person who is harassing you. A person who breaches a protection order may be criminally charged and, if found guilty, held liable to a fine or imprisonment. A protection order is a court order granted by the magistrates' court prohibiting the perpetrator from engaging in or attempting
to engage in harassment or enlisting the help of another person to do so. A protection order may contain a list of specific acts which the perpetrator may not commit. When granting a court order, the court may also order the South African police to seize any weapon in the possession of the perpetrator and/or to accompany you to collect any belongings which you may have identified in the application for the order. If court is of the view that a criminal act has been committed, it may also require the South African police to investigate with a view to the possible institution of a criminal prosecution. A protection order is a court order that sets out the things that the person who is harassing you may or may not do to stop that person from harassing you.
AGAINST WHOM CAN YOU OBTAIN A PROTECTION ORDER?
You can obtain a protection order against any person who perpetrates harassment even if the perpetrator is a child (i.e. a person under the age of 18) who is old enough to appreciate the consequences of his/her actions and who knew or ought to have known that the conduct was harmful. You do not have to be in any form of a domestic relationship with the perpetrator in order to apply for a protection order. Children over the age of 14 are legally regarded as being mature enough to understand the difference between right and wrong and can be criminally charged if they committed a criminal act such as breaching a protection order. A court may be reluctant to grant an order against a child under the age of 14 as a child under the age of 14 might not necessarily understand the difference between right and wrong. If a child is the respondent in an application for a protection order, the child would need to be assisted by his/her parents or guardian. You can also obtain a protection order against someone who's identity is unknown.
WHAT IF I DO NOT KNOW WHO THE HARASSER IS?
If you do not know the identity of the person harassing you, you may still apply for a protection order. If the court is satisfied that you are being harassed it may issue a directive directing the South African police to investigate the matter and identify the perpetrator.
If you are being harassed by a person who is using electronic communications such as email, text or telephone or harmful content is being posted on a website, the court may direct the electronic communications service provider concerned to provide details of the perpetrator. If you are being harassed through electronic communications and you do not know the identity of the person who is harassing you, you will need to provide the following information:
The name of the service provider of the service over which the electronic communication was sent.
The identity number that is linked with the service to which the communication was sent.
The identity number that is linked with the service from which the communication was received.
The date, time and duration of the communication.
MUST I SUFFER HARM BEFORE I CAN APPLY FOR A PROTECTION ORDER?
No. You may apply for a protection order if you fear that you may be harmed (mentally, psychologically, physically or economically) in future. Your fear that you may suffer harm in future must be reasonable in order for the court to issue an order.
DO I NEED A LAWYER TO APPLY FOR A PROTECTION ORDER?
No. The process for applying for a protection order is intended to be uncomplicated and inexpensive. The clerks of the court are obliged to explain the procedure to all applicants and are trained to assist applicants and guide them through the process.
WHAT IS THE PROCESS FOR OBTAINING A PROTECTION ORDER?
At the magistrate’s court, you will be given a form by the clerk of the court to complete under oath. The clerk of the court will assist you and explain the process and remind you of your right to also lodge a criminal complaint against the respondent of crimen injuria, assault, trespass, extortion or any other offence which has a bearing on the persona or property of the complainant or related person. The application may be brought outside ordinary court hours or on a day which is not an ordinary court day, if the court has a reasonable belief that the complainant or a related person is suffering or may suffer harm if the application is not dealt with immediately. Supporting affidavits by other persons who have knowledge of the matter concerned may accompany the application. It is important to note that making a false statement when applying for a protection order is a criminal offence. The application and affidavits must be lodged with the clerk of the court who must immediately submit the application and affidavits to the court.
The application form will require the following information:
You will need to provide your personal details including your name, ID number, home address, work address and your contact numbers.
If you are making the application on behalf of another person, you must have the written permission of that person. You will not need the person’s written permission if the person that you are applying for is a child or if you can show that the person is not able to provide written permission.
Making a false statement when applying for a protection order is a criminal offence.
Parliament has enacted the Protection from Harassment Act, 2011 (Act 17 of 2011), to protect persons against harassment. The Act aims to provide a remedy in the form of a protection which would prohibit a person from harassing another person. If the harasser breaches a protection order he or she commits an offence which is punishable with a fine or a period of imprisonment. The Protection from Harassment Act offers a special process where an court order can be made without the immediate knowledge of the person who is harassing the complainant, based only on the complainant’s side of the story, as long as the court is satisfied that there is real evidence that the complainant is being or may be harassed and that harm is or may be suffered if the protection order isn’t granted immediately.
WHAT FORMS OF HARASSMENT ARE PROTECTED?
Following, watching, pursuing or accosting of the complainant or someone in a close relationship with the complainant such as a spouse or family member. Loitering outside or near the building or place where the complainant or related person lives, works, studies or happens to be. Contact through verbal
communication aimed at the complainant. The Act also recognises electronic communication that causes harm or makes the complainant feel in danger of being harmed as harassment. Several forms of written communication as capable of being contact for the purposes of harassment, such as letters, packages and e-mails. Sexual harassment, which means “any unwelcome sexual attention from a person who knows or who reasonably knows that such attention is unwelcome”. Such sexual attention includes unwelcome behaviour, suggestions, messages or remarks of a sexual nature that have the effect of “offending, intimidating or humiliating” the complainant or a person who has a close relationship with the complainant.
Sexual harassment also means promises of reward for fulfilling a sexual request or punishment for refusing a sexual request. Bullying and Cyber bullying. Downloading spyware on someone's mobile phone.
WHAT IS A PROTECTION ORDER?
If you are a victim of harassment, you may approach the magistrates' courts in terms of this Act to obtain a protection order against any person who is harassing you. A person who breaches a protection order may be criminally charged and, if found guilty, held liable to a fine or imprisonment. A protection order is a court order granted by the magistrates' court prohibiting the perpetrator from engaging in or attempting
to engage in harassment or enlisting the help of another person to do so. A protection order may contain a list of specific acts which the perpetrator may not commit. When granting a court order, the court may also order the South African police to seize any weapon in the possession of the perpetrator and/or to accompany you to collect any belongings which you may have identified in the application for the order. If court is of the view that a criminal act has been committed, it may also require the South African police to investigate with a view to the possible institution of a criminal prosecution. A protection order is a court order that sets out the things that the person who is harassing you may or may not do to stop that person from harassing you.
AGAINST WHOM CAN YOU OBTAIN A PROTECTION ORDER?
You can obtain a protection order against any person who perpetrates harassment even if the perpetrator is a child (i.e. a person under the age of 18) who is old enough to appreciate the consequences of his/her actions and who knew or ought to have known that the conduct was harmful. You do not have to be in any form of a domestic relationship with the perpetrator in order to apply for a protection order. Children over the age of 14 are legally regarded as being mature enough to understand the difference between right and wrong and can be criminally charged if they committed a criminal act such as breaching a protection order. A court may be reluctant to grant an order against a child under the age of 14 as a child under the age of 14 might not necessarily understand the difference between right and wrong. If a child is the respondent in an application for a protection order, the child would need to be assisted by his/her parents or guardian. You can also obtain a protection order against someone who's identity is unknown.
WHAT IF I DO NOT KNOW WHO THE HARASSER IS?
If you do not know the identity of the person harassing you, you may still apply for a protection order. If the court is satisfied that you are being harassed it may issue a directive directing the South African police to investigate the matter and identify the perpetrator.
If you are being harassed by a person who is using electronic communications such as email, text or telephone or harmful content is being posted on a website, the court may direct the electronic communications service provider concerned to provide details of the perpetrator. If you are being harassed through electronic communications and you do not know the identity of the person who is harassing you, you will need to provide the following information:
The name of the service provider of the service over which the electronic communication was sent.
The identity number that is linked with the service to which the communication was sent.
The identity number that is linked with the service from which the communication was received.
The date, time and duration of the communication.
MUST I SUFFER HARM BEFORE I CAN APPLY FOR A PROTECTION ORDER?
No. You may apply for a protection order if you fear that you may be harmed (mentally, psychologically, physically or economically) in future. Your fear that you may suffer harm in future must be reasonable in order for the court to issue an order.
DO I NEED A LAWYER TO APPLY FOR A PROTECTION ORDER?
No. The process for applying for a protection order is intended to be uncomplicated and inexpensive. The clerks of the court are obliged to explain the procedure to all applicants and are trained to assist applicants and guide them through the process.
WHAT IS THE PROCESS FOR OBTAINING A PROTECTION ORDER?
At the magistrate’s court, you will be given a form by the clerk of the court to complete under oath. The clerk of the court will assist you and explain the process and remind you of your right to also lodge a criminal complaint against the respondent of crimen injuria, assault, trespass, extortion or any other offence which has a bearing on the persona or property of the complainant or related person. The application may be brought outside ordinary court hours or on a day which is not an ordinary court day, if the court has a reasonable belief that the complainant or a related person is suffering or may suffer harm if the application is not dealt with immediately. Supporting affidavits by other persons who have knowledge of the matter concerned may accompany the application. It is important to note that making a false statement when applying for a protection order is a criminal offence. The application and affidavits must be lodged with the clerk of the court who must immediately submit the application and affidavits to the court.
The application form will require the following information:
You will need to provide your personal details including your name, ID number, home address, work address and your contact numbers.
If you are making the application on behalf of another person, you must have the written permission of that person. You will not need the person’s written permission if the person that you are applying for is a child or if you can show that the person is not able to provide written permission.
Making a false statement when applying for a protection order is a criminal offence.
If an application for a protection order is made and the court is satisfied that a protection order must be
issued as a result of the harassment of the complainant or a related person by means of electronic communications or electronic mail over an electronic communications system of an electronic
communications service provider and the identity or address of the respondent is not known, the court
may:
1. adjourn the proceedings to any time and date on the terms and conditions which the court deems
appropriate; and
2. issue a direction in the prescribed form directing an electronic communications service provider to furnish the court in the prescribed manner by means of an affidavit in the prescribed form with:
(a) the electronic communications identity number from where the harassing electronic communications or electronic mail originated;
(b) the name, surname, identity number and address of the respondent to whom the electronic
communications has been assigned;
(c) any information which indicates that electronic communications or electronic mail were or were not
sent from the electronic communications identity number of the respondent to the electronic
communications identity number of the complainant;
(d) and any other information that is available to an electronic communications service provider which may be of assistance to the court to identify the respondent or the electronic communications service provider which provides a service to the respondent. The court may at this stage or at any stage of proceedings subpoena witnesses to come to court together with any documentation or objects that the court regards as being essential for its decision.
issued as a result of the harassment of the complainant or a related person by means of electronic communications or electronic mail over an electronic communications system of an electronic
communications service provider and the identity or address of the respondent is not known, the court
may:
1. adjourn the proceedings to any time and date on the terms and conditions which the court deems
appropriate; and
2. issue a direction in the prescribed form directing an electronic communications service provider to furnish the court in the prescribed manner by means of an affidavit in the prescribed form with:
(a) the electronic communications identity number from where the harassing electronic communications or electronic mail originated;
(b) the name, surname, identity number and address of the respondent to whom the electronic
communications has been assigned;
(c) any information which indicates that electronic communications or electronic mail were or were not
sent from the electronic communications identity number of the respondent to the electronic
communications identity number of the complainant;
(d) and any other information that is available to an electronic communications service provider which may be of assistance to the court to identify the respondent or the electronic communications service provider which provides a service to the respondent. The court may at this stage or at any stage of proceedings subpoena witnesses to come to court together with any documentation or objects that the court regards as being essential for its decision.
Subpoena Section 205
Section 205 allows investigators the right to access information which is not in the public domain and which can often be classified as confidential such as banking records and cellular phone information.
Section 205 in The Code Of Criminal Procedure, 1973. 205.
Magistrate may dispense with personal attendance of accused. (1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.
Below is a Diagram of what they are able to give access to via this court order.
Illustration designed by Bertus Preller
Section 205 in The Code Of Criminal Procedure, 1973. 205.
Magistrate may dispense with personal attendance of accused. (1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.
Below is a Diagram of what they are able to give access to via this court order.
Illustration designed by Bertus Preller
Application for Protection Order
Domestic Violence is regarded as a serious social evil and South Africa is one of the countries with high incidences of domestic violence.
Domestic Violence is regarded as a serious social evil and South Africa is one of the countries with high incidences of domestic violence.
Download a copy of a Protection Order here.
protection_order_application.pdf
protection_order_application.pdf
How Protection Orders work: A protection order aims at preventing the reoccurrence of domestic violence or sexual harassment by stating what conduct the alleged offender must refrain from doing. As long as he/she complies with the protection order, the complainant will be safe. If the respondent contravenes any stipulation of the protection order, he/she may be arrested. Once a protection order is granted, it is enforceable throughout the country.
The procedure to apply for a protection order is as follows:
When applying for a protection order, the complainant may request for the removal of the respondent’s firearm or other dangerous weapon. If the Magistrate orders the police to remove the firearm, the police will keep the firearm until the case has been finalized. The firearm can only be returned to the respondent by order of the court, and the court may add conditions. The court may also order the State to keep the firearm if it is in the best interest of the victim’s safety.
It is important to remember that criminal charges may be laid in cases where acts of domestic Violence/sexual harassment constitute an offence, such as assault or rape. It does not mean that one must first exhaust the remedies available under the protection order before laying the criminal charges, if this offence was committed. One can register the criminal charge with or without a protection order.
The court may order a police officer to accompany a complainant to retrieve his/her property from a specified place to ensure the safety of the complainant.
Important: If one disobeys the protection order, it must be reported to the police immediately with the copy of the protection order so that the respondent can be arrested and be brought before court. Only the Magistrate may release the arrested person as the Magistrate issues the warrant.
Source: https://www.saps.gov.za/services/protection_order.php
The procedure to apply for a protection order is as follows:
- The complainant must make an affidavit and complete an application form at a police station. Please read the document "Notice to complainant in a case of domestic violence" before completing the application form. Click here to download the document. This explains your rights and the steps you may take to protect yourself, your children and other members of the shared household.
- Supporting affidavits by persons who have knowledge of the matter in question, may accompany the application.
- These documents must be handed to the clerk of the nearest court. The court will consider the application immediately.
- The application for a protection order is not limited to the complainant. An application for a protection order may be brought on behalf of the complainant by any other person who has an interest in the well-being of the complainant. This includes a counsellor, a health service provider, a social worker, a teacher or a member of the SAPS.
- If the court is satisfied that there is sufficient evidence that the suspect is committing or has committed an act of domestic violence/harassment and unnecessary hardship may be suffered by the complainant as a result of the act, the court will issue an interim protection order against the respondent.
- The application for an interim protection order may be brought at any time and not only during office hours or on court days.
- The purpose of this interim protection order is to provide immediate protection to the complainant.
- The interim protection order has no force or effect until it has been served on the respondent.
- The court is also required to issue a suspended warrant of arrest for the respondent. A breach of the protection order requires that the respondent must be arrested by the police immediately.
- The interim protection order is not a final order from the court, but a temporary order which grants immediate relief until the return date (the date on which the applicant and the respondent, after being given due notice, are to appear before court to have the protection order made a final order). On this return date, the respondent is afforded the opportunity to present to the court reasons why the protection order should not be made final.
- If the respondent does not appear in court on the return date, but the court is satisfied that proper notice has been given to the respondent and that there is sufficient evidence that the respondent has committed or is committing an act of domestic violence/sexual harassment, the court may make a final order on the return date.
- committing any specified act of domestic violence/sexual harassment
- entering the joint residence or entering a specific part of the residence
- entering the victim’s residence if they are not living together
- entering the victim’s place of employment/office
- having contact with a child or children, if it is in the best interest of the child.
When applying for a protection order, the complainant may request for the removal of the respondent’s firearm or other dangerous weapon. If the Magistrate orders the police to remove the firearm, the police will keep the firearm until the case has been finalized. The firearm can only be returned to the respondent by order of the court, and the court may add conditions. The court may also order the State to keep the firearm if it is in the best interest of the victim’s safety.
It is important to remember that criminal charges may be laid in cases where acts of domestic Violence/sexual harassment constitute an offence, such as assault or rape. It does not mean that one must first exhaust the remedies available under the protection order before laying the criminal charges, if this offence was committed. One can register the criminal charge with or without a protection order.
The court may order a police officer to accompany a complainant to retrieve his/her property from a specified place to ensure the safety of the complainant.
Important: If one disobeys the protection order, it must be reported to the police immediately with the copy of the protection order so that the respondent can be arrested and be brought before court. Only the Magistrate may release the arrested person as the Magistrate issues the warrant.
Source: https://www.saps.gov.za/services/protection_order.php
