The Department of Justice briefed the Committee on its responses to the public comments received on the Protection from Harassment Bill [B1 -2010] with particular reference to key issues, mainly the submissions from the press and especially on the definition of harassment and harassment through electronic media. The press had alleged that the Department, through the definition of harassment and the contravention of a protection order, was creating strict liability. A further important matter was how to deal with cyber-stalking. The Department also referred to circumstances in which proceedings might not take place in open court, and the training for the clerks of the courts.
An Inkatha Freedom Party Member asserted the need to identify the necessity for the Prevention of Harassment Bill. The Bill's definition of harassment was much wider than that in legislation on domestic and workplace violence. The South African National Editors' Forum should be taken very seriously, whether it was correct or not. A smaller bill was desirable that addressed the pain caused by stalking rather than went beyond what existed in the United Kingdom and most of the United States, where harassment was dealt with under common law. A criterion of reasonableness might be introduced so as to let the court balance interests to achieve a much simpler assessment.
An African National Congress Member said that this Bill was about the right of persons who felt that they were being harassed to apply to court for a protection order. The Bill, per se, did not stop any activity by journalists. The worst that could happen to a journalist was that the court could grant a protection order against them. Only if the journalist persisted would it amount to criminal conduct. The South African National Editors' Forum submission had been an embarrassment while any relevant issues that it had raised had been raised by AVUSA Limited, on the submission of which it would be more worthwhile to concentrate. The Bill should set out procedures clearly so that magistrates did not misunderstand them. Another African National Congress Member felt that rural women were being left out of the discussion on freedom of expression in the media, and noted that the behaviour of some journalists left much to be desired when they interacted with public figures. Another African National Congress Member suggested that the press would have the right to have a court order of protection set aside if it had a strong case that the protection order was inhibiting it from carrying out its work, and that all these matters were going to be handled by the courts. In as much as the person who claimed to be harassed had access to the courts, so too did the media, which was not in anyway prevented from challenging court orders. An African National Congress Member asked if there was no remedy for harassment and stalking in existing law. A Democratic Alliance Member asked for consultation with the Secretariat of Police on the Domestic Violence Act and on an African National Congress Member’s concern that the police should be obliged to act in the case of someone stalking a person. Members felt that input on the Bill should be requested from the National House of Traditional Leaders. The Committee agreed to approach the Secretariat of Police and the National House of Traditional Leaders for their views.
Election of Chairperson
Mr L Landers (ANC) was elected Chairperson. He thanked Members for their confidence in him. He said that the position had been wholly unexpected, but it was just a job of work that we all had to do.
The Chairperson welcomed Adv Johan de Lange, Principal State Law Advisor, Department of Justice and Constitutional Development. Adv De Lange had not personally drafted with the Bill but introduced Mr Sarel Robbertse, Senior State Law Advisor, who was the principal person from the Department who had drafted the Bill. He also introduced Ms Dellene Clark, Researcher, South African Law Reform Commission (SALRC). The SALRC had carried out many years of research and produced the report of which the Bill was the result. Adv De Lange apologised on behalf of Mr Lawrence Basset, Chief Director: Legislation, Department of Justice and Constitutional Development, a leading figure in work on the Bill, who was unwell.
Department of Justice response document briefing
Comments on the Bill in general
Mr Robbertse reported that University of the Witwatersrand (Wits) supported the Bill (Comment 1 in document).
The South African National Editors' Forum (SANEF) and Print Media South Africa (PMSA) were alarmed at the increasing number of Bills and other instruments which contained restrictions on the media in addition to those they perceived in the Protection from Harassment Bill. Neither SANEF nor PMSA was consulted on the proposed Bill at any stage prior to its publication on 8 May 2009. The media should have been consulted before submission of the Bill to Parliament. SANEF and the PMSA were prejudiced by having a little over a month to comment on the Bill, given that other interest groups had been participating in discussions with the Commission since 2003. The Bill was welcomed as an improvement on the legal protection available to stalking victims in that it closed a gap in the law that left stalking victims not in a domestic relationship with the perpetrator unprotected. The Bill might have unintended consequences which were likely to affect the media in carrying out its vital role as the 'eyes and ears of society' (Comment 2).
The Department had responded that the South African Law Reform Commission (SALRC) publicly requested comment on the Issue Paper on Stalking in 2003 and on the Discussion Paper on Stalking in 2004. Numerous reports in various publications reflected engagement with individual journalists. The SALRC actively engaged with the public at all stages of its investigations. All its documents were placed in the public arena by way of a press statement such as South African Press Agency (SAPA) “South Africa: Law Commission Issue Paper on Stalking” 28 August 2003 available on www.allAfrica.com. An open invitation was issued to all interested parties to engage with the SALRC on the content of its Issue and Discussion Papers and during its workshops on these documents. Besides reporting on the content of the investigation the media did not make a submission to the SALRC or raise concerns about the proposed legislation on its work. The Bill as amended by the Department of Justice was again published for public comment in 2009. At this point SANEF made submissions to the Department of Justice which were considered. The "unintended consequences" argument was dealt with under the definition of "harassment" (Response 2 in document).
The Triangle Project agreed with the broad aims of the Bill, which adequately addressed the gap in the legislation available to victims of harassment outside the context of a domestic relationship, and which addressed stalking within the broader concept of harassment. The provisions of the Bill were specific and provided for a remedy outside the current civil and criminal law. The remedy proposed by the Bill might also have the effect that matters might be finalized quicker than criminal or civil remedies currently available. Discrimination and inequality should not be confined only to legislation that was explicitly concerned with promoting equality and prohibiting discrimination but should be included in all relevant legislation. Harassment legislation should ensure that marginalized groups were not hampered by discrimination and prejudice of police and court officials who were responsible for implementing the legislation. It was necessary that the Bill should give more consideration to Section 9 of the Constitution, by explicitly including harassment based on discrimination and prejudice based on sexual orientation, gender and gender identity, race, nationality, socio-economic status/class; religion; age; disability; and health status. It was also suggested that the definition of harassment contained in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000), be incorporated in the definition of harassment. A monitoring mechanism should be put in place to monitor harassment cases, in general or based on discriminatory grounds. (Comment 3 in document).
The Women’s Legal Centre and Rural Education, Awareness and Community Health (WLC) supported the general purpose of the Bill. It was submitted that the Bill might also help to prevent harassment of sex workers. (Comment 4).
AVUSA Limited (AVUSA) had commented that although objects of the Bill were supported and there was a need that this area of the South African law needed to be reformed in order to protect victims of stalking, the Bill might have the unintended consequence of curtailing investigative reporting on matters of public interest, which would result in an infringement of rights to freedom of expression and might be used against journalists who, legitimately and in good faith, were pursuing a story of public interest. It was submitted that if a journalist, acting in his or her professional capacity, exceeded the bounds of reasonableness in gathering facts for a story, the law already provided remedies, for example, the right to privacy; the civil and criminal sanction available through crimen iniuria and possibly trespassing; and an interdict where the victim feared harm or the violation of his or her rights. Furthermore, the vast majority of newspapers were bound by the Press Code, and broadcasters by the Broadcasting Complaints Commission of South Africa’s Code, which policed ethical breaches by journalists, including in relation to news gathering (Comment 5).
The Department had responded that the "unintended consequences" argument was dealt with under the definition of "harassment" (Response 5 in document).
The Centre for Constitutional Rights (CCR) had commented that although the Bill might pass constitutional muster, a concern was raised that the Bill might have negative implications on the right to freedom of expression and the Centre requested that this right be expressly included in the Bill’s Preamble
(Comment 6 in document).
The Department referred to discussion of the comments of SANEF and AVUSA under the definition of 'harassment'.” (Response 6 in document)
Women’s Net had welcomed the Bill (Comment 7).
The Commission for Gender Equality had supported the Bill (Comment 8).
The Southern African Catholic Bishops’ Conference had supported the Bill. The many difficulties in both the implementation and enforcement of the Domestic Violence Act suggested that there was a need for training of members of the South African Police Service (SAPS) and officers of the courts (Comment 9).
The Department had responded that due to the similarity of the Bill with the Domestic Violence Act, 1998, it was submitted that minimum training for magistrates would be required regarding procedural aspects. This should also apply to clerks of the courts. Justice College had indicated that it did provide extensive training, on a centralised and decentralised basis, to magistrates and clerks of the courts on matters relating to the Domestic Violence Act, 1998. Justice College indicated that training on the Bill would be included in such training due to the similarity of the respective legislation, with minimal cost implications and would be covered by the existing budgetary framework of the Department. It could be assumed that the SAPS would employ a similar strategy in terms of training (Response 9 in document).
Mr J Jeffery (ANC) called for tissues for the Members on account of “such a sob story from SANEF”.
Dr M Oriani-Ambrosini (IFP) called Mr Jeffery's remark “a cavalier attitude to the freedom of the press”.
Dr Oriani-Ambrosini suggested that Members could read the comments and responses faster themselves.
Ms D Schafer (DA) suggested that Mr Robbertse should just summarise the comments and responses for the benefit of those who had not seen the document before.
Mr Jeffery said that it would be better to have discussion after each point. He had been unhappy that the news reports of the public hearings had covered only SANEF's input and had ignored the Committee's responses. This was “appalling journalism”. SANEF's complaint that it was not consulted was “off the wall”. The media were not above the law and the standards of common decency.
Dr Oriani-Ambrosini thought that it would be worthwhile to comment on this point. He apologised for his intermittent attendance at the Committee's meetings recently on account of his commitments to work on “the Secrecy Bill”. He asserted the need to identify the necessity for the Prevention of Harassment Bill. We were legislating within the dynamics of society and were trying to change behaviour. The Bill's definition of harassment was much wider than that in legislation on domestic and workplace violence. Dr Oriani-Ambrosini wanted to take the SANEF submission very seriously, whether it was correct or not. He wanted a smaller bill that addressed the pain caused by stalking rather than going beyond what existed in the United Kingdom and most of the United States, where harassment was dealt with under common law. However, California was a world of its own controlled by actors.
Ms Schafer said that the Committee could not dismiss SANEF's concerns out of hand. It would be more useful, however, to continue the discussion on harassment when the Committee reached its consideration of definitions.
Mr Jeffery said that this Bill was about protection orders – the right of persons who felt that they were being harassed to apply to court for a protection order. So the Bill, per se, did not stop any activity by journalists. So journalists did not have to be frightened that if they did something they would get into trouble. The worst that could happen to a journalist was that the court could grant a protection order against them. Only if the journalist persisted would it amount to criminal conduct. “So I am not quite sure what the chilling effect of this Bill is.” The SANEF submission had been an embarrassment. The AVUSA submission had merit and should be examined. Any issues raised by SANEF that had any relevance had been raised by AVUSA and It would be better to examine its submission.
Ms S Sithole (ANC) said that the women of the rural areas were being left out of the discussion of the freedom of expression of the media. Such women in many cases were unable buy a newspaper or even to read or write. The discussion on the freedom of the media was being led by the elite who could read, buy newspapers, and [afford to] communicate on their cell phones. She appealed that when discussing the freedom of expression of South Africans, one should consider those South Africans who were silent, not out of their own choice but because they had no access to be heard by the world. The world was listening to a few people who could really afford to [communicate], who could work and earn, and could speak English. In the rural areas those people did have their ideas, but it seemed that as rural women we were being left out.
Mr J Sibanyoni (ANC) suggested that the press would have the right to have a court order of protection set aside if it had a strong case that the protection order was inhibiting it from carrying out its work.
The Chairperson said that quite obviously all these matters were going to be handled by the courts, “not by you and me fortunately”. In as much as the person who claimed to be harassed had access to the courts, so too did the media, which was not in anyway prevented from challenging the orders of the courts.
Definition of harassment
Mr Robbertse said that he would concentrate on certain key issues, mainly the submissions through the Committee from the press on the Bill and especially on the definition of harassment; further that the press actually alleged that the Department through the definition of harassment and the contravention of a protection order was creating strict liability; a further matter that was very important in this aspect was how to deal with cyber-stalking. Other issues had been summarised with comprehensive responses to them.
The press submissions were dealt with under the heading of definitions of harassment (See document, pages 6-7 and following).
Mr Robbertse summarised the SANEF's comment that the over-broad definition of ‘harassment’ put journalists engaged in legitimate news gathering at risk of arrest or imprisonment. SANEF had noted that the exemption in the Bill for conduct which was not unreasonable might prove inadequate protection for investigative journalists whose profession often required them to 'push the envelope'. If these activities were deemed 'unreasonable', the fact that journalists were in pursuit of a legitimate public interest object would not be enough to escape from being caught in the 'harassment' net. Should the Bill be enacted without change, portions of the Bill might unreasonably and unjustifiably be held to infringe the right to freedom of expression, in particular, freedom of the press and other media and freedom to receive or impart information or ideas. (See document, page 7).
Adv De Lange asked Mr Robbertse to define ‘harassment’.
Mr Robbertse read the Bill's definition of harassment in Clause 1 - directly or indirectly engaging in conduct that caused harm or inspired the reasonable belief that harm might be caused to the complainant or a related person by unreasonably (a) 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 resided, worked, carried on business, studied or happened to be; (b) engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensued; or (c) 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 it where it will be found by or given to, or brought to the attention of, the complainant or a related person.
Mr Robbertse read the Bill's definition of’ harm’ - any mental, psychological, physical or economic harm. The comments of SANEF and the responses thereto were directed towards the alleged broadness of the above definitions.
Mr Robbertse read the comments of AVUSA. The Bill might have the unintended consequence of curtailing investigative reporting on matters of public interest, which would result in an infringement of rights to freedom of expression and might be used against journalists who, legitimately and in good faith, were pursuing a story of public interest. It was submitted that if a journalist, acting in his or her professional capacity, exceeded the bounds of reasonableness in gathering facts for a story, the law already provided remedies, for example, the right to privacy; the civil and criminal sanction available through crimen iniuria and possibly trespass; and an interdict where the victim feared harm or the violation of his or her rights. Furthermore, the vast majority of newspapers were bound by the Press Code, and broadcasters by the Broadcasting Complaints Commission of South Africa’s Code, which policed ethical breaches by journalists, including in relation to news gathering.
On the definition of harassment AVUSA feared that the broad definition of ‘harassment’ and the mechanics of the Act might be used to curb legitimate publishing and news gathering of journalists, in that if a person deliberately sought to avoid journalists who persisted in attempting to contact the person, the person might seek a protection order under the Bill. Published news articles that exposed a person for committing a crime might be regarded as harassment. The mechanics of the Bill were such that the complainant could approach the court with no notice to the journalist and, if he or she made out a prima facie case, would obtain a protection order which might well have the effect of stopping a news gathering activity. The court would typically not have had the opportunity at that stage to weigh this evidence against the evidence that the journalist might present (particularly as to whether the conduct was reasonable or unreasonable in the circumstances). Even if the journalist overturned the order on the return day, the story would have been delayed and the threat of such an order might well create a chilling effect on the publication of certain stories.
AVUSA submitted that it was not the intention of the Bill to frustrate legitimate news gathering activities and therefore the Bill should be amended to allow these activities.
AVUSA proposed in this regard that the definition of ‘harassment’ should be amended to require intention; and exclusion should be included in the definition of harassment in order to exclude legitimate and lawful action. (See document, pages 8-12)
Mr Robbertse said that the Department had responded as followed. (See document, pages 7-13 [in which the Department responded to SANEF and AVUSA together). No distinction should be drawn between the conduct of journalists and that of other persons or entities. The question might well be raised why the conduct of a journalist should be raised above the standards of reasonableness vis-à-vis other persons or entities, for example, the conduct of a police officer who questioned and otherwise harassed a person by following him or her around, making phone calls to and sending e-mails and SMSs to the person in order to try to force the person to divulge information about a crime that had been committed. One may argue that this conduct of the police officer was definitely in the public interest in that it might lead to the solving of a crime. However, this kind of conduct was frowned upon by courts (see inter alia, S v Hammer 1994 (2) SACR 496 (C), S v Hena & Another 2006 (2) SACR 33(SE)) and legislation (see inter alia, sections 217, 218, 219A of the Criminal Procedure Act (CPA) as well as Section 35(5) of the Constitution). In the aforementioned example, the boni mores [the standard of a reasonable person or the feelings of the community], dictated that the rights of the individual should rather be protected over whatever might be gained in the public interest if it infringed on vested or constitutionally entrenched rights of an individual.
Various constitutional rights might be relevant here, for instance, the right to freedom of expression, the right to freedom and security of the person, the right to privacy and the right to dignity, which all needed to be balanced. The most appropriate step was to introduce a procedure through which these conflicting rights could be judged and measured in relation to each other. Of particular importance in this regard were the following remarks in S v Makwanyane 1995 (3) SA 391 (Constitutional Court (CC)) at paragraph 102, which dealt with the principle of proportionality.
There was no absolute standard which could be laid down for determining reasonableness and necessity. Principles could be established, but the application of those principles to particular circumstances could only be done on a case-by-case basis. This was inherent in the requirement of proportionality, which called for the balancing of different interests. In the balancing process the relevant considerations would include the nature of the right that was limited and its importance to an open and democratic society based on freedom and equality.
The procedure which was decided upon was to subject these competing rights to judicial scrutiny. A particular feature of the definition of harassment was that the conduct complained of must be unreasonable. The effect thereof was that before a court could grant an interim or final protection order the reasonableness of the actions complained against must be considered in light of all the circumstances. This investigation might include the balancing of constitutionally entrenched rights and freedoms.
In order for journalists to do their work, it could be accepted that they might have to call a particular person frequently or in some instances confront him or her with questions in public and in some instances even to follow a person. If this was done in a reasonable manner, a court might come to the conclusion that the conduct of a journalist complained about did not amount to harassment. However, it was easy to perceive instances and even refer to incidents where journalists had overstepped the boundaries of reasonableness in order to get a story and their behaviour could in those circumstances be curtailed by way of a protection order against harassment in terms of the Bill. The same would apply to industrial action and protests.
To exempt the media from the Bill or to give them a specific defence might well have the effect that a carte blanche was given to media to harass at will without affording the victim of such harassment any recourse in terms of this Bill. With specific reference to the amendment proposed by AVUSA, paragraphs (a) to (d) of their exclusionary grounds were unlimited to the extent that if it was proved that the conduct fell within those exclusionary grounds the conduct of a journalist could never amount to harassment even though it might otherwise be regarded as a case of serious harassment, a delict or maybe even a crime.
It was acknowledged that the current position was that if the media exceeded the bounds of reasonableness in gathering facts for a story, the law already provided remedies in civil and criminal law, inter alia, delictual claims, interdicts and prosecutions for criminal offences. In general, however, very few persons could afford civil litigation especially if the respondent had unlimited resources and in general criminal cases did not afford immediate protection.
It was further acknowledged, as had been pointed out by AVUSA, that published news articles, might be regarded as harassment in terms of the Bill and might be prohibited by means of a protection order. The publication of a newspaper article was the same as any other conduct through which a person might be harassed. The question whether a news article related to harassment or not depended on the reasonableness of the article and whether the article caused harm or inspired a reasonable belief that harm might be caused to the complainant.
With reference to the comment that the mechanics of the Bill were such that it might stop news gathering activities the following should be considered. On receipt of an interim protection order the respondent might, in terms of Clause 3(5), anticipate the return date by written notice to the complainant and the court. This would have the result that the proceedings regarding the consideration of final protection order would be sped up and the validity of the harassment claims would be considered during a hearing.
An interim protection order, like an interim interdict, was a temporary and exceptional remedy which was available before the rights of the parties were fully determined by a court of law. In general, courts should be cautious in their approach whether to grant an interim protection order. Interim relief granted by a court was not subject to appeal unless it was final in effect - see Maccsand CC v Macassar Land Claims Committee and others  2 All South Africa (SA) 469 (Supreme Court of Appeal (SCA)) at paragraphs  to . Clause 14 of the Bill, however, made provision that all proceedings in terms of the Bill were subject to appeal or review. It was thus submitted that the respondent might take the interim protection order on appeal or review in certain circumstances. (See document, pages 8-13).
The Chairperson invited Members to comment on or question AVUSA's comments and the Department's response to them.
Dr Oriani-Ambrosini said that the crux of the entire issue was the concept of reasonableness. He recommended Herbert, A P. Uncommon Law. London: Methuen, 1935. ISBN 041338540. This was a collection of cases from the English jurisdiction. In particular, he recommended the chapter on the definition of reasonableness. In an English society there existed a common set of values – the values of the upper class which were imposed upon the lower class. Certain things were not done – one toed the line. Dr Oriani-Ambrosini said that this did not work in South Africa. He was very uncomfortable with these long expositions. The freedom of the press was something delicate and we were also dealing with the freedom of interpersonal relationships. We were all in agreement that we should stop the ex-boyfriend from harassing the ex-girlfriend. He pleaded that the SALRC find something more clearly definable than boni mores and social conventions as underpinning reasonableness.
Mr Robbertse responded that in South African law reasonableness was not an established principle. South African law preferred an objective test in the light of all the circumstances.
Dr Oriani-Ambrosini said that in an economic transaction, however, it was accepted that something might be “reasonable”.
Mr Robbertse referred Dr Oriani-Ambrosini to various decided cases in South African law. One could probably find hundreds of cases in which the general principle of “a reasonable man” or “reasonable conduct” had been applied. The reason for using the “reasonable test” was to make provision for circumstances that were not foreseen or to provide for some leeway in matters. The moment that you defined a certain thing on the statute book you were bound to that. It must be possible to develop something outside the applicable act to be applied in circumstances unforeseen by the act. There might be various circumstances that came to a court in a case of harassment; therefore it was essential that there were some malleable criteria against which one could actually determine or judge whether certain conduct was acceptable or not.
Ms Schafer accepted that one could anticipate the return date to speed up the process but asked if it was not possible to allow in the case of journalists a quicker form of notice than normal and allow them to come immediately to court and state their case. One did not know how long it would take them to appeal.
Mr Robbertse replied that when one made a law it must be generally applicable to all persons. It would be a little unfair to give the press a special status in this process.
Ms Schafer asked if perhaps an exception could be made, not necessarily in the case of the press, but in cases where the urgency of the publication of the activity was such that it would be prejudiced if the matter were not handled expeditiously.
Mr Robbertse asked the Chairperson if Ms Schafer's request could be considered later on.
Mr Jeffery asked the Department for its response to the English exclusions, some of which AVUSA had proposed, if the purpose of the conduct was preventing or averting a crime.
Mr Robbertse replied that the Department had addressed this issue to some extent in its submission (page 9). The problem with a blanket exemption was that the exclusionary rule might apply in a case of gross harassment, if the person concerned fell under this exclusionary rule. For this reason the Department was against an exclusionary rule.
Mr Jeffery said that Mr Robbertse was missing the point. There was sensitivity around the freedom of the media. The Department had mentioned in its submission that there were existing laws that could be used against the media. So it then became a question of why we needed this Bill. Another jurisdiction from which South Africa inherited many provisions had this exclusion not for journalists but in cases where exclusion was seen to be consistent with the public good – for example, people who were trying to detect or prevent a crime. If another jurisdiction was including it, why was South Africa saying that it should be excluded?
Ms Clark said that the reasons why exclusions were not built into the draft bill was that the common defence of a legal purpose was available to anyone who was faced with an application in terms of this bill. In the United Kingdom legislation there were three exemptions. The one that was applicable to the media, the particular circumstances in which the pursuit of the conduct was reasonable, was included in South Africa's definition of harassment. “They had to prove that their conduct was reasonable in terms of the exemption in their legislation.” If one looked at South Africa's definition of ‘harassment’ ….
Mr Jeffery interrupted to say that it did not exclude the common law defence. How could the Department say that? Statute law changed the common law, unless the statute law provided that this common law defence still existed. It did not exist, so how could Ms Clark substantiate that statement.
Ms Clark said that there was nothing to preclude a defence that they were acting for a legal purpose. The court could decide whether a person had been harassed on that basis.
Mr Jeffery found this quite strange. This was statute. That was a common law defence. Surely if one was going to be allowed to use that common law defence, it would have to be put in the statute.
Dr Oriani-Ambrosini understood that the common law defence was on the grounds of reasonableness.
Mr Robbertse took the example of some of the common law defences, inter alia, acting in self-defence.
Mr Jeffery found this a bad example that would be used in cases of murder or assault, which were essentially common law offences. So it was a common law defence. He was not sure why Ms Schafer was saying that it did not preclude it. If that defence was already there and could be used, would it not make it easier for everyone concerned to put that common law defence into the Bill? As Mr Robbertse had said, his example of self-defence was a very bad example, because mens rea was an essential element of any crime. That was part of our law. However, if the common law defences could be used, why could they not be put into the Bill? It would be easier for everybody to read.
Dr Oriani-Ambrosini said that Mr Jeffery had asked a valid conceptual question, which hinged on whether the concept of reasonableness would embody all the common law defences, privileges and exceptions. He could envisage the difficulty of listing all these things. He imagined that the conceptual answer was that the concept of reasonableness was the door into the common law through which all these things came into being.
Ms Schafer said that she understood that all defences applied unless excluded by statute. She would agree with Dr Oriani-Ambrosini on that score. On a lighter note, there was a substantial amount of doubt that such a thing as “a reasonable man” existed.
Dr Oriani-Ambrosini said that in the book to which he had referred it was argued that there was such a thing as “a reasonable man” but there was no such thing as “a reasonable woman”. It was “a wonderful book” that he highly recommended.
Adv De Lange said that there was a presumption in the production of statutes that the legislature never amended the common law.
Dr Oriani-Ambrosini said that the issue here was one of definition. The statutory definition would be over-riding. The common law definition could be turned upside down: all that was not reasonable was harassment.
Mr Jeffery said that the British law came from the other side of saying that the pursuit of the course of conduct was reasonable. Was not the pursuit of the course of conduct the reason for following that course of conduct rather than the conduct itself? If the reason that you were doing it was reasonable, that was a defence under English law, which has a similar common law to South Africa's and had seen fit to put it into its act, whereas the way in which South African law was phrased was that the unreasonableness had to relate to the conduct not the reason for the conduct.
Mr Robbertse said that he thought that one interpreted English law by the intention behind the conduct.
Mr Jeffery inferred that the intention behind the conduct was separate in South African law.
Ms Clark said that the English law referred to engaging in the conduct rather than the intention for the conduct. By virtue of engaging in the conduct a breach of the law was committed. If she understood it correctly, it did not really relate to the intention for the conduct.
Ms Schafer asked why the Department had not wanted to include intent to cause harm in the Bill, as suggested by AVUSA.
Mr Robbertse said that the reason was doubtless somewhere in the submission. The Department had concluded that in order adequately to address harassment the Department must not make provision for intentional conduct. He gave examples, such as a delusional harasser who was completely certifiable and could not, under the Criminal Procedure Act, form an intention to commit a crime or to harass. This was one of the instances where one would want to protect a complainant.
Ms Sithole wanted Dr Oriani-Ambrosini to withdraw his statement that there was no such thing as “a reasonable woman”. This was a dishonourable and unparliamentary remark. On his return, he should be given the chance humbly to apologise.
The Chairperson asked if Ms Sithole would do the same for Ms Schafer in connection with her remark about men. [Members laughed.] He thought it was being done in jest.
Adv Holomisa had been examining the purpose of the Bill as explained in its Memorandum on the Objects of the Protection from Harassment Bill. He noted that one of the objects was to contribute to the fight against violence against women and children. Nobody would fault any effort in that direction. The objects also referred to the need for the amendment of the Domestic Violence Act to provide for mechanisms to subpoena witnesses to attend proceedings in a case of violence. Why would it be necessary to facilitate such kind of amendment by means of a Bill such as the one under consideration, as well as the need to amend the Criminal Procedure Act to take into consideration matters relating to bail proceedings, and to improve the process of granting peace orders given by magistrates? What had prompted the SALRC to prepare this kind of legislation? Did this mean that there was no remedy for harassment and stalking in existing law?
Mr Robbertse replied that the SALRC had considered the need for the Bill on the basis that, inter alia, there was no existing law that catered for protection against harassment. The Domestic Violence Act applied only to domestic relationships. Outside that there was no law that really addressed this. Interdicts were an expensive remedy. Ordinary people in most instances would be unable to afford interdicts. In many instances harassment did not amount to crime on the statute book or to a common law crime. A person was thus without a remedy unless a crime had been committed against him.
Adv Holomisa asked if that applied if the harassment amounted to crime.
Mr Robbertse replied that it might amount to a delict, if it was civil in nature. However, a person could be stalked through legitimate actions; for example, sending flowers every day, which in the minds of some people might be a cause of fear. To protect against this it had been necessary to introduce this remedy.
Mr Jeffery had discovered the answer to his question as to why South Africa was not including the English law provision. If the English law was creating crimes, it was natural that one needed defences. In South Africa we were not creating crimes and this was the significant point, but it would be useful to get a copy of the English law.
Mr Jeffery wanted to raise the different proposals of Professor Dr Dario Milo, partner at Webber Wentzel and appearing on behalf of AVUSA in his oral presentation to the Committee on 19 October 2010. He had produced new proposals after preparing his written submission. Did anyone have a copy? The Department was responding only to his written submission.
The Chairperson said that quite obviously the Bill would hinge on the definition of harassment. Professor Milo's submission would be made available to all.
Mr Jeffery thought that it was a more refined aspect that would warrant a response. He now understood the reasons for not including the English provisions because it was not intended to create a crime.
Ms Clark referred to the three options suggested by Professor Milo on 19 October 2010. ['The first draft option should be the inclusion of the intent to harass: “Harassment means knowingly directly or indirectly engaging in conduct that causes harm or inspires the belief that harm may be caused.” Another approach would be to have a lawful excuse defence; this was similar to what happened in England and Canada: “Harassment is not present effectively where there is a lawful entitlement to engage in that conduct.” This would address the matter of a journalist investigating a matter that would be in the public interest. The last option would be to ensure that applications against a journalist could only happen when both parties were before the court. This would deal with the potential problem of an interim order as this would stop free speech in its tracks.' (Portfolio Committee on Justice Protection from Harassment Bill: public hearings 19 October 2010)
Mr Sibanyoni asked about the mischief of the evil against which the Committee was trying to legislate. The proposed legislation was to cover such a situation as a person persistently following another person in his car. Under present law the police would ask what offence had been committed.
The Chairperson asked Mr Sibanyoni if this would include a journalist.
Mr Sibanyoni said that it would; this was harassment.
Mr Jeffery asked how to distinguish the case of someone who by necessity was present in the same building, for example, to work.
Mr Robbertse said that one of the elements of harassment was that a reasonable belief must be created. This would be decided by the court. If one required proof of intention, it would be almost impossible for a complainant to apply for an interdict due to the fact that the complainant would have to proof that the alleged harasser intended to harass. This would be very problematic. This was why the Department had decided to leave out the element of intention.
Mr Jeffery said that surely the intention was easier to prove if you were being accosted or watched by this person; he acknowledged that following or loitering with intent to harass was more difficult to prove – it would be a grey area with possibility for misunderstanding.
Mr Robbertse said that it was indeed a grey area but a court would consider all the attendant circumstances. If harm was caused then it was obviously harassment.
Mr Jeffery asked the Department to bear in mind that one was dealing with magistrates.
Mr Robbertse said that the Department could examine the idea, but it was going to be problematic. There were various arguments why one should not, among other things, include intentional conduct in the definition.
Mr Jeffery said that the Department may have already examined the matter extensively, but it needed to convince Members, since they were the ones who were to pass the Bill.
Mr Robbertse said that the court would look at the conduct. The court would decide in the light of all the circumstances whether a reasonable person would come to the conclusion that the complainant was being harassed. He referred to instances of “gross” harassment, such as dropping off many letters or abusing pets.
In such cases one could probably infer intention to harass. However, in other situations it might not be so easy to prove intention to harass. So, in order to protect vulnerable groups, the Department had opted not to require intention.
Mr Jeffery said that in an ex parte case, where the complainant alleged that the respondent was loitering, there was a return date and the respondent had no right to defend himself the first time around. There could, for example, be a neighbourhood dispute in a block of flats. There were consequences once an interim protection order was granted. Mr Jeffery had not, however, thought it through; he had received his copy of the submission and responses only that morning. On the one hand one wanted to protect the vulnerable, but on the other one wanted to avoid harm where it was used maliciously.
Ms Schafer asked what the time period for anticipating the return date was 24 hours?
Ms Clark referred to Clause 15. It was an offence to make a false statement wilfully and bring a matter vexatiously. In the submissions the SALRC did encounter one or two people who were paranoid schizophrenics and thought everyone was harassing them. However, these were the exceptions to the rule.
Mr Robbertse replied that the return date was 10 days. It could be anticipated in 24 hours.
Dr Oriani-Ambrosini said that the Bill was a necessary piece of legislation with a huge amount of unintended consequences. In the United States as a result of legislative changes, there had been a transformation to a society that was “much more meek” and afraid to say anything. By protecting the more vulnerable, the whole society became much more dependent on legislated morality. This was a concern to Dr Oriani-Ambrosini. The criterion of harm was psychological and mental harm; it was subjective. The type of people who would use the legislation were those who wanted to complain about barking dogs. On the other hand there was a certain type of people who would not use it. He himself would not use the legislation, even though he received a large quantity of harassing mail every day. So we were empowering people who were often “borderline” over and above those who actually needed legislation for protection. So we needed to be careful.
Dr Oriani-Ambrosini's second consideration was that he felt very distressed - indeed seriously harassed, that Members had been presented with a Bill of five pages on harassment and a five page bill on amendments to the Criminal Procedure Act, which had nothing to do with it. He was all in favour of “the fast train” for urgent legislation but he did not see anything in the schedule that he saw as particularly urgent. He would have preferred rather to take theses provisions out of the Bill and include them in the Criminal Procedures Amendment Bill which the Committee could deal with later and separately.
Mr Robbertse replied that one was allowed to make consequential amendments to other legislation in the Bill. This was done regularly. The Department could wait until later, but in order to protect vulnerable groups, it was essential for the courts to have available a procedure to subpoena witnesses in a domestic violence case.
Mr Robbertse explained the consequent amendments. He referred to the Domestic Violence Act and amendments thereto, and to the Criminal Procedure Act. Certain other provisions had been included to make Section 3(8) (4) of the Criminal Procedure Act user friendly, for example, the procedure for interdicts.
Ms Schafer asked the Department please to engage with the Secretariat of Police to avoid conflict with its own work on amending the Domestic Violence Act. Also it was unnecessary to have two separate definitions of harassment and stalking.
Dr Oriani-Ambrosini said that the amendment to the Domestic Violence Act was not consequential but it was related.
Dr Oriani-Ambrosini said that there was an amendment to the Firearm Control Act but which was not consequential but was related.
Dr Oriani-Ambrosini had no problems with these, since they were not the issues that he had raised. He had raised issues with regard to the amendments to the Criminal Procedure Act, which amendments were neither consequential nor related, even though they might be desirable.
Circumstances in which proceedings might not take place in open court
Mr Robbertse referred to the Bill's Clause 5 concerning circumstances in which proceedings might not take place in open court and the publication of information. This had particular reference to child witnesses. AVUSA had considered Clause 5 problematic in that it failed to give proper recognition to the principle of open justice in South African common law and in the Constitution. (See document, page 36).
AVUSA had proposed an amendment (See document, pages 36-37).
The Department had responded that the general rule was that proceedings should be open (see in this regard sections 34 and 35(3) (c) of the Constitution which required that court proceedings in this country must be public. However, there were various enactments on the statute book that expressly provided that proceedings might under certain circumstances not take place in open court. In this regard the Department referred to Section 153 of the Criminal Procedure Act, 1977 which provided that if it appeared to any court that it would, in any criminal proceedings pending before that court, be in the interests of the security of the State or of good order or of public morals or of the administration of justice that such proceedings be held behind closed doors, it might direct that the public or any class thereof should not be present at such proceedings or any part thereof. In terms of this section proceedings might further be held in camera if harm might result to a person if he or she testified at such proceedings or if certain offences were the subject of the proceedings. It also referred to Section 5(2) of the Magistrates' Courts Act, 1944 which provided that a court might, in any case, in the interests of good order or public morals, direct that a civil trial should be held behind closed doors, or that (with such exceptions as the court may direct) minors or the public generally should not be permitted to be present thereat. It also referred to Section 56 of the Children's Act, 2005. The Department pointed out that enactments also existed on the Statute Book that prohibited the publication of certain information relating to court proceedings such as section 154 of the Criminal Procedure Act (See document, pages 36-41).
Mr Jeffery said that AVUSA was not trying to argue exceptional circumstances. Its concern was setting out a procedure that allowed it to be heard. The Department might argue that such was already there. However, a magistrates court might not be clear on the niceties of the law.
Mr Robbertse said that there were certain difficulties if you allowed a third party to approach the court in such proceedings. The whole Bill was meant to be an expeditious remedy to a person.
Dr Oriani-Ambrosini suggested introducing a criterion of reasonableness, so as to let the court balance interests to achieve a much simpler assessment. In this he agreed with Mr Jeffery.
Mr Jeffery asked if the Bill sought to set out procedures clearly so that magistrates did not misunderstand them.
Mr Robbertse said that this was so.
Harassment through electronic media
Mr Robbertse said that the Women's Net had submitted that the Bill assumed that the accused person was known to the person who was being harassed. This was often not the case, and must be accounted for in the Bill. In circumstances where a person was being harassed via electronic media and a protection order was being granted and needed to be served on a person whose whereabouts were not known, it was suggested that the Bill should include an emergency application which could be brought before a court that would compel an electronic communications provider to disclose the whereabouts of the harasser.
Mr Robbertse said that the Commission for Gender Equality had said that harassment via the electronic media had not been dealt with adequately and provisions should be included in the Bill to trace cyber stalkers.
Mr Robbertse reported that the Department's response was that in the event of harassing by means of electronic media, the Committee might consider introducing amendments to the Bill that specifically dealt with measures to determine the identity of the respondent. As had been indicated in the response, Section 205 of the Criminal Procedure Act 1977, and to an extent the RICA of 2002, might be used to determine the identity of a respondent. These two Acts might, however, generally only be used when a crime is or had been committed (RICA was only applicable to serious crimes - see the Schedule to the Act). It was submitted that a provision similar to section 205 of the CPA should be considered (see the attached proposed amendment). (See document, pages 53-55).
Mr Robbertse referred to the document 'Department of Justice and Constitutional Development: Electronic communications definitions'
Ms Schafer was uncomfortable that people could remain anonymous while they harassed others. How did this fit in with the Protection of Information Bill?
The Chairperson asked what informed the Department that there should be a 96 hours time frame for obtaining information from the communications service provider.
Ms Schafer agreed with Dr Oriani-Ambrosini that there must be more proof than one person's allegation.
Mr Robbertse said that the Department might return with a redraft.
Mr Robbertse said that “harassment” was defined broadly. A person who directly or indirectly engaged in conduct that caused harm or inspired the reasonable belief that harm might be caused to the complainant or a related person could be brought before court. The conduct complained of must be unreasonable in the circumstances. Unreasonableness featured strongly in the definition and catered for the following scenarios - firstly, if the perpetrator unreasonably followed, watched, pursued or accosted the complainant or a related person, or loitered outside of or near the building or place where the complainant or a related person resided, worked, carried on business, studied or happened to be; secondly, if the perpetrator unreasonably engaged in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether conversation ensued or not; and thirdly, if the perpetrator unreasonably sent, delivered or caused the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or left them where they would be found by, given to or brought to the attention of, the complainant or a related person.
The concept of "harm" was also widely defined and meant any mental, psychological, physical or economic harm.
With reference to photojournalists who specialised in candid photography of celebrities, politicians, and other prominent people (the so called the paparazzi), paragraph (a) and (b) of the definition covered conduct that might typically be associated with the paparazzi, inter alia, the unreasonable following, watching, pursuing or accosting of a person or the loitering outside of or near the building where a person resided. This conduct might be prohibited by means of a protection order as envisaged by the Bill. (See document, pages 13-15).
Ms Schafer noted that South Africa possessed no extra-territorial jurisdiction as regards electronic communications.
Mr Robbertse said that this was so.
Ms Schafer proposed discussion with the Portfolio Committee on Communications.
Mr Robbertse said that some of these aspects had come to light in the preparation of the Registration and Interception of Communications Act 2002 (RICA).
Dr Oriani-Ambrosini said that what had been said related to areas of conduct. There were two elements to harassment. Without the effect on the complainant there was no harassment. He argued that harassment constituted harm of a physical or psychological nature. Much of activity of the photographers fell under the heading of irritation rather than harm. He had a problem with the notion of harm. The definition was connotative. Physical harm and psychological harm had the same effect and amounted to bullying. In the situation of the photographers there was no harm but just irritation, unless the subject was the late Princess Diana. If you were a public figure you were not entitled to privacy.
Mr Robbertse said that in the United Kingdom to some extent protection orders were given against the photographers. It was a matter of unreasonable infringement versus reasonable infringement.
Ms Sithole said that one found that the behaviour of some journalists left much to be desired when they interacted with public figures. She asked if such journalists should not be subject to investigation.
The Chairperson advised Members that the Committee was not taking a decision, just asking the Department to make a draft which the Committee would examine. Thereafter it would be for the Members to make a decision.
Ms Schafer asked that the Committee request the Department to draft a clause to the effect that harassers could be identified in court privately.
Training for the clerks of the courts
Mr Robbertse explained that funds would be available for the training of clerks of the court. (Department of Justice and Constitutional Development. Response to remarks and questions by the Portfolio Committee on Justice and Constitutional Development on the Protection from Harassment Bill, page 20).
Question of referral to the National House of Traditional Leaders
Mr Robbertse said that when the Bill was certified by the State Law Advisers, they found that it was not necessary to refer the Bill to the National House of Traditional Leaders in terms of section 18(1) (a) of the Traditional Leaders and Governance Framework Act, 2003 (Act No. 41 of 2003), since it did not contain provisions pertaining to customary law or customs of traditional communities. The Bill had been introduced in Parliament and the decision was with the relevant house of Parliament to refer it to the National House of Traditional Leaders for its comments. This must be done by the Secretary to Parliament before it was passed by the house of Parliament where it was introduced. The opinion of the State Law Advisers was supported by the Department. (See document, page 23).
Adv Holomisa asked if this was not a contradiction.
The Chairperson concurred with Adv Holomisa. The Constitutional Court enjoined us to ensure that consultation was as broad as possible. The Committee had identified something in the Bill that affected customary law it might need an input from the National House of Traditional Leaders. Mr Robbertse could not disagree that there was a contradiction.
Dr Oriani-Ambrosini said that to a certain extent customary law was that which was recognised as such by those concerned.
The Office of the Senior State Law Advisor advised that the ultimate procedural decision was with those applying the joint tagging mechanism.
The Chairperson said that no one disagreed with the need to consult the National House of Traditional Leaders.
The Chairperson asked if there was anything else that Members wanted to raise.
Dr Oriani-Ambrosini said that he would like a frank discussion on whether these amendments to the Criminal Justice Act were necessary.
Mr Robbertse said that the amendments to the Criminal Procedure Act could be used in conjunction with the proposed Bill.
Ms Sithole said that in future it would be very important to consult widely to hear the voice of all South Africans including the traditional leaders and women.
Adv Holomisa recommended some reading on the relationship between African traditions and the Bill of Rights.
Ms Schafer asked for consultation with the Secretariat of Police on the Domestic Violence Act and on Mr Jeffery's concern that the police be obliged to act in the case of someone stalking a person.
The Chairperson asked Members if they agreed that the Committee approach the Secretariat of Police and the National House of Traditional Leaders for their views.
Members indicated their agreement.
The Chairperson thanked Adv De Lange and his colleagues.
The meting was adjourned.
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