Protection from Harassment Bill, 2010: Department of Justice briefing

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Justice and Correctional Services

03 August 2010
Chairperson: Mr M Gungubele (ANC)
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Meeting Summary

The Department of Justice and Constitutional Development (the Department) briefed the Committee on the Protection from Harassment Bill. This was initiated following an investigation by the South African Law Reform Commission into stalking and the recourse available to victims, which had found that the existing civil and criminal law framework did not adequately protect victims of stalking who were not in a domestic relationship with the stalker. It had many similarities with the Domestic Violence Act. The Department wished to keep the definitions and application of the Bill as wide as possible, with the focus being on the harm (mental, psychological, physical or economic) caused to victims of the stalker, rather than on the intentions of the stalker. Both the complainant and another person having a material interest in the complainant’s wellbeing could make application for a protection order. The person seeking the order from a Magistrate’s court did not need to be legally represented and a child could also apply without the need to be assisted by another person. Interim protection orders could be granted even where the respondent had not been given notice of the proceedings. Witnesses could be subpoenaed or warned to appear, and similar provisions were also to be inserted into the Domestic Violence Act. There was provision for hearings in camera. The Bill set out the Court’s powers in respect of protection orders, and the orders that a Court could give to  member of the South African Police Services to seize dangerous weapons. There was also provision for costs orders against any complainants who abused the provisions of the Bill. Clause 14 contained provisions for appeal and review, and the penalty clauses indicated the seriousness of the matters. Regulations would be issued after the Bill was enacted, and there was provision also for directives to be issued by the National Director of Public Prosecutions and for instructions by the National Police Commissioner. The Department noted that this Bill could have an impact upon investigative journalism, and noted that there would have to be a careful balancing of conflicting interests.

Members pondered whether the framing of the Bill in relation to investigative journalism was perhaps too wide, and whether it was perhaps too narrow in relation to cyber space. The Committee requested more information on comparative research with international and African precedents. Members questioned how the Bill would affect the activities of paparazzi, commented that perhaps electronic communication was not widely enough covered, and noted that there was a need to train magistrates and to consider who might be the best people to oversee the administration of protection orders. Members noted that it was necessary to discuss the issues with the National House of Traditional Leaders, particularly on the question of balancing the right to practice culture with the right to equality. Members discussed the types of remedies that were available in the past, and why these were no longer sufficient, and noted that the situation in cyber space mirrored what was happening on the ground. They also discussed the links between this Bill and the Domestic Violence Act.

Meeting report

The Protection from Harassment Bill, 2010: Department of Justice and Constitutional Development (DOJ or the Department) briefing
Mr Sarel Robbertse, Senior State Law Advisor, Department of Justice and Constitutional Development, tabled and explained the Protection from Harassment Bill (the Bill) to the Committee. He said that this Bill emanated from an investigation by the South African Law Reform Commission (SALRC) which had found that the existing civil and criminal law framework did not provide adequate recourse to victims of stalking, who were not in a domestic relationship. The Bill aimed to address this gap in the law.

Mr Robbertse described some of the key clauses in the Bill to the Committee.  

Clause 1
This Clause contained various definitions and also spelt out the application of the Bill in relation to the Domestic Violence Act of 1998. The definitions of “complainant”, “respondent”, “related person” and “harassment” were of particular importance. The concept of “harm” was also widely defined and meant any mental, psychological, physical or economic harm. 

Clause 2
This Clause set out how a person being harassed would go about applying for a protection order. It set out who could apply for such an order and the circumstances under which such an application could be brought. It was not necessary that a person making application for an order be legally represented. A person other than the complainant, who had a material interest in the well-being of the complainant or related person, could also bring an application for a protection order, provided that the written consent of the complainant had been obtained to another person bringing the application. A child, or a person acting on behalf of a child, could apply to the court for a protection order without the assistance of a parent, guardian or any other person.

Clause 3
This clause dealt with the consideration of the application by the court and the issuing of an interim protection order. A Magistrate’s court should consider the application for a protection order and must issue an interim protection order against the respondent, not withstanding the fact that the respondent had not been given notice of the proceedings.

Clause 4
This clause created a mechanism in terms of which witnesses could be subpoenaed or warned to attend court proceedings. Failure to comply could result in criminal sanctions. Similar provisions were being inserted into the Domestic Violence Act.

Clause 5
This clause allowed for proceedings to be held behind closed doors if so requested by the complainant, or ordered by the court on its own accord.

Clause 6
This clause provided for the issuing of a final protection order.

Clause 7
This clause set out the court’s powers in respect of a protection order.

Clause 8
This clause set out that an interim or final protection order resulted in a warrant of arrest being automatically issued for the respondent.

Clause 9
This clause allowed the court to order a member of the South African Police Services (SAPS) to seize any arm or dangerous weapon in the possession of or under the control of the respondent.

Clause 10
Clause 10 provided for how court orders were regulated and set aside.

Clause 11
Clause 11 set out provisions in relation to the Magistrate’s court where a person should bring an application for a protection order.

Clause 12
This clause provided that the service of documents should take place in a manner prescribed by regulation. Service would be done by a clerk of court, a sheriff or a peace officer, or in such manner as the court may direct.

Clause 13
Clause 13 allowed for cost orders against those complainants who abused the provisions in the Bill in order to unnecessarily punish another person.

Clause 14
Procedures for the appeal and review of proceedings were contained in this Clause.

Clause 15
This clause contained the penalties, which gave an indication of the seriousness of the issue at hand.

Clause 16
This clause provided for the Regulations, which would be issued after the Bill was enacted.

Clause 17
This clause provided for Directives, which would be issued by the National Director of Public Prosecutions and for the Instructions, which would come from the National Police Commissioner.

Mr Robbertse noted that the Bill amended various pieces of legislation and these amendments were set out in a Schedule contained in the Bill. The impact that the Bill could have on investigative journalism was widely considered. There had to be a balancing of conflicting interests. The process envisaged in the Bill was that a Court of law should decide, weighing up all relevant factors, whether certain conduct, which fell within the definition contained in the Bill, amounted to harassment.

Discussion
Mr S Swart (ACDP) said that the aim of the Bill was commendable. However, he questioned whether the framing of the Bill in relation to investigative journalism was not too wide. He also asked whether trade unions would also not be adversely affected by the Bill.

Mr Robbertse replied that investigative journalism had been fully considered by the SALRC. Stalking was a complex matter and even everyday legitimate actions could amount to stalking. It was hard to come up with a definition that would cover everything. The final decision was left up to the Courts, who would need to apply their minds as to whether certain conduct was reasonable or not.

Ms Dellene Clark, Researcher, South African Law Reform Commission, added that the Bill was intended to try to stop harm that resulted from unreasonable low-key conduct. Whether or not this conduct amounted to stalking would depend on the degree of unreasonableness of the action.

The Chairperson wanted clarity on whether harassment included stalking.

Ms Clark replied that stalking had been identified as a concern in a number of past investigations. Although the ordinary definition of stalking was “the stealthy pursuit of a person”, it had developed internationally into the harassment of a person. There were few international precedents where stalking was actually used to charge a person, as opposed to harassment

Mr J Jeffery (ANC) requested that the Report of the SALRC on the Bill should be given to the Committee. It would also be useful to receive input on the Law Commission process. He noted that it would be useful if the Committee could be provided also with international law precedents.

Mr Jeffery asked what the Bill had to say about the activities of the paparazzi. He commented that electronic communication did not seem to be covered completely. He also pointed out that Magistrates would also need to be trained. He wondered if clerks of the court would be the best people to oversee the administration of protection orders.

Mr Deon Rudman, Deputy Director General: Legislative Development, Department of Justice, replied that a copy of the Law Commission’s report had been sent to the Committee Secretary yesterday. He apologised for the late sending of this Report.

Mr Jeffery said that it was a pity that the Law Commission’s report was sent only yesterday.

Mr Vhonani Ramaano, Committee Secretary, said that he had circulated an electronic copy of the report to Committee Members and was in the process of preparing a hard copy version for them as well.

Ms Clark replied that the investigations by the SALRC began in January 2003, and there was a paper issued for comment as well. In 2004 a discussion paper was issued, and this was followed by a report on stalking in 2006. The Minister of Justice signed this in October 2008.

Mr Robbertse agreed that magistrates probably needed some training. This Bill set out a procedure similar to that in the Domestic Violence Act, and this included court proceedings. Certain legal points would need to be considered afresh. Most of the training for the Domestic Violence Act would equip magistrates also to deal with this Bill.

Mr S Holomisa (ANC) asked if the State Law Advisor had considered the applicability of this Bill in all areas, particularly the rural areas, where it might happen that young men pursued young woman who did not want to be pursued.

Ms Clark replied that this issue had been raised during the workshops of the SALRC. In subsequent workshops held with traditional leaders, it emerged that the traditional leaders had adopted a stance where they would not interfere where women were concerned, owing to the irreconcilable conflicts between the right to practice one’s culture and the right to equality. Harassment of women in the rural areas had an element of gender discrimination. However the right to equality and the right to practise one’s culture had to be balanced. The Commission was of the opinion that there had to be an effective remedy against stalking.

Mr Jeffery said that he wondered whether the intention of the respondent had been considered, as it did not seem to feature in the presentation.

Mr Robbertse repeated that harassment was a complex type of conduct. The position of the person being harassed was considered in the Bill. This was why the definition was as wide as possible.

The Acting Chairperson referred to Clause 9 and asked more clarity on the wording of “other than a firearm”.

Mr Robbertse noted that the Bill made provision for the seizure of arms and dangerous weapons.

The Acting Chairperson noted that most of the issues raised centred on the court’s function of balancing interests. He asked what had informed the SALRC that the Bill would not apply to traditional areas. He pointed out that some types of harassment had been practised for a long time, and asked how these were handled in the past.

Mr Robbertse replied that some of the types of conduct from the past that were included under harassment fell under the scope of crimen injuria. Times had changed, as well as societal attitudes, and all needs had to be catered for.

Ms Clark added that a number of people in the past were left without a remedy, and this was one of the reasons why the SALRC started investigating this area of law

Ms N Michael (DA) asked to what extent bullying had been considered, as well as social networking sites where harassment could also occurred.

Mr Robbertse replied that bullying had been thoroughly considered. The definition of harassment in the Bill was wide enough to cater for any aspects of bullying, through cyber space or otherwise.

Mr Jeffery said that matters such as bullying at school and FaceBook pages were not addressed by the Bill. Magistrates had to be given guidance, and he suggested that the Bill needed to contain more directions for the magistrates. It was bizarre that people understood the concept of stalking, and yet it was not clearly set out in the Bill. He repeated his concerns about the paparazzi behaviour.

Mr Swart said that it was necessary to examine how the Bill linked with and paralleled the Domestic Violence Act.

Mr Swart wondered whether it was desirable for a child to approach a court, unassisted.

Ms Clark replied that the Bill showed some liaison with the Domestic Violence Act in the sense that the two mirrored each other. She pointed out that a child could also approach a court under the Domestic Violence Act. A child who approached a court almost invariably had to have assistance; it was very rare to have a child approach a court on their own.

Mr Rudman added that the idea was that the Bill would be broad, as opposed to trying to mention specific instances individually. The whole issue of unreasonableness would depend on the facts of each case.

Mr J Sibanyoni (ANC) asked if there were any African comparisons that had been investigated by the Commission.

Mr Holomisa said that it seemed that the Bill had an impact on cultural practices, and that there would need to be engagement with the National House of Traditional Leaders on this Bill.

Mr Jeffery agreed.

Mr Rudman said the Committee could consult with the National House of Traditional Leaders. He said that the Department would provide further input to the Committee on some of the issues that could not be fully answered at this meeting and that the Department would report also on any changes that it had decided to make to the Bill. Input would be provided at a later stage to those questions, which were not answered fully.

Dr M Oriani-Ambrosini (IFP) asked if it would be possible to include something on sexual harassment in the Bill. This could be defined as unwelcome sexual advances, offers or remarks, especially in the workplace.

Ms Clark replied that the SALRC had considered the existing labour legislation, cyber-bullying and cyber-stalking. It had realised that whatever was happening in cyber space mimicked what happened in reality. The definition in the Bill covered both domains. The Bill looked at the effect of an action on the complainant, rather than the intention of the respondent.

The Chairperson said that the issues would be debated further by the Committee.

The meeting was adjourned.


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