The Department of Justice and Constitutional Development (the Department) presented a working draft of the Protection from Harassment Bill (the Bill), which incorporated options and amendments resulting from public submissions, requests from the South African Police Service (SAPS) and the Committee. New definitions were outlined for “harassment” and “sexual harassment”, as well as for “respondent” to cater for the different scenarios under which a person could be a respondent. Clause 4(3) had a mistake rectified, and a five-year time limit had been placed on the need to keep protection orders. Clause 5(4) accommodated a proposal from Avusa that a party should be able to argue that court proceedings could be held in the open. Clause 7 was amended to allow police officers to assist a complainant in collecting belongings identified in the application for a protection order. A new Clause 3A now provided for the identification of a harasser via electronic media, and the necessary definitions for this had also been included, whilst Clause 3C was inserted in line with a request from SAPS that allowed for SAPS to ascertain a name and address of a suspect before the offence was committed, where there might be preliminary indications of harassment.
The Committee discussed at length the issue of anonymous cyber stalkers and the technological mechanisms that could facilitate stalkers in this domain being untraceable. It was suggested that where cyber stalking was involved, the Bill should preferably require the aggrieved party to carry the burden of identifying the harasser, with assistance from the police. The onus should be stricter on applicants in instances involving cyber stalking. Members asked whether failure to comply with a court order was criminalised, questioned the clause relating to “reasonable suspicion of harassment” and noted that technological advances could well defeat what the Bill was trying to achieve. Members asked if the Department was in favour of the submissions of SAPS about identifying property, and suggested that perhaps only interim orders should be allowed in respect of property, pointing out that this situation was different from the Domestic Violence Act provisions, which contemplated a shared home and property, although they accepted that this could apply to work premises. Members suggested that the separate processes might need to be clarified. They suggested that further input was required from service providers. The Department clarified that the information being sought would all be archived, and easy to retrieve, although some Members felt that the requirement of affidavits was too onerous. One Member was adamant that the identity of an alleged harasser, who maintained his or her innocence, ought to be protected, and that the accused should be able to bring application, in camera, to halt the proceedings, or that applicants should at least be required to corroborate their allegations. The Department countered that the drafters were faced with trying to balance the right to privacy against the danger of harassment, but that additional safeguards could be considered, if Members required. In relation to media exemption, one Member believed that actions done in the public interest should be exempted, whilst others were not in favour of exemptions. The submissions from Avusa would be considered further.
Protection from Harassment Bill (the Bill): Department of Justice and Constitutional Development (DOJ & CD or the Department) briefing
Mr Sarel Robbertse, Senior State Law Advisor, Department of Justice and Constitutional Development tabled Working Draft I of the Protection from Harassment Bill (the Bill), which incorporated issues raised by the Committee and during the public hearings. He clarified that these were preliminary drafts that included some options. The South African Police Services (SAPS) had also made submissions, which were incorporated in amendments to the Bill.
Mr Robbertse noted, in respect of Clause 1, that there was now a new definition of harassment, which also included sexual harassment, and so a definition for sexual harassment was also needed. The South African National Editor’s Forum (SANEF) and Avusa had proposed that a requirement of culpability should be inserted in the definition of harassment. They had also requested that certain conduct should be exempted from the definition of harassment. The definition of ‘respondent’ was amended in order to make provision for the different ways in which a person could be a respondent.
Mr Robbertse indicated that the original wording of Clause 4(3) contained a mistake by the Department, which had been rectified.
The SAPS had indicated that its experience with the Domestic Violence Act 116 of 1998 required that protection orders remain indefinitely, and this had resulted in a huge administrative burden, since all these orders had to be kept in storage. An insertion was now made placing a time limit on protection orders, for a period of five years.
Clause 5(4) accommodated a proposal from Avusa to the effect that the court should grant an interested party the opportunity to be argue that court proceedings should be held in the open, where the court decided otherwise.
Clause 7 was amended to allow police officers to assist a complainant to collect his or her belongings at a specific place, in accordance with the property identified in the application for a protection order.
Mr Robbertse then moved to the new Clause 3A. This provided for the identification of a harasser via electronic media. A process has been devised that prescribed how this should be handled. A complainant had to make an application to court. If there was sufficient evidence of harassment, the court could adjourn the proceedings to a future date and then issue a direction to the electronic communications service provider (who would include an internet service provider, fixed line operator or mobile cellular service provider) to identify the person who had made contact with the complainant. The Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) made provision for all electronic communication service providers to collect certain information from their clients, which must then be stored in a database. In line with the Committee’s request for corroboration of communication, the court could require information – which might include the address of the harasser, and other information relevant to the proceedings - that would establish the fact of communication between complainant and the respondent. This information had to be provided to the court within a period of 96 hours. Service providers could approach a court for an extension or cancellation of the order if they could not provide the information on time or at all.
Mr Robbertse added that He pointed out that new definitions had also been inserted in the Bill to cover this new clause. One related to”electronic communications identity number” and another was “electronic communications service licensee”.
Mr Robbertse noted that the Department was also requested to draft a clause to cater for instances where a complainant had experienced harassment but no electronic communication had occurred. In these circumstances the court was given wide powers to request SAPS to investigate the matter and obtain the particulars of the harasser. Such an order would be served to the station commander and time frames would be specified.
Mr Robbertse then outlined the new Clause 3C, which was inserted in line with a request from SAPS. SAPS had specifically also requested that this should make reference to Section 41 of the Criminal Procedure Act, because in some instances harassment could occur that was not so serious as to constitute an offence. Clause 3C provided for the SAPS to be able to ascertain a name and address before an offence was actually committed by a person suspected of an offence.
Ms D Schaefer (DA) asked the Department to consider the situation where a harasser might use different electronic devices to communicate with a victim, which she thought might not be covered in the Bill. was not covered in the Bill, could the Department apply its mind to this issue.
Mr Robbertse replied that it was not always possible to trace an offender where electronic communication was concerned. The electronic communications service provider could at least identify the number from which the communication had emanated, and the police could investigate this.
Ms Schaefer asked if it would be a criminal offence for a SAPS member to refuse to comply with a court order.
Mr Robbertse said that the Bill already created an offence where a court order was not adhered to. He referred to Clause 15(1), pointing out that this was a serious offence.
Dr Oriani-Ambrosini (IFP) said that in the world of electronic communication, a person could participate in communication without using an identity, including Skype, which was transnational. It would be preferable for this Bill to adopt a provision that the aggrieved party should identify the harasser and could enlist the assistance of SAPS. This would also alleviate the financial burden that the electronic service providers would carry under the Bill. The requirement that a person must identify himself or herself to law enforcement, if required, was a throwback to the past that had no place in a democratic setting.
Mr Robbertse replied that the Criminal Procedure Act (CPA) already had provisions for the purpose of detecting a crime, similar to those contained in this Bill. These provisions could well come down to a Constitutional challenge. DOJ & CD was of the view that a strong case could be made out in favour of the provisions, but ultimately the Committee must decide whether they were to be included.
Dr Oriani-Ambrosini followed up by saying that no crime was being created, yet an onerous burden was being placed on an individual to disclose his or her identity.
Mr Robbertse said that this was correct, but that Section 41 of the Criminal Procedure Act made provision for a police officer to act on the mere suspicion that a crime has occurred.
Dr Oriani-Ambrosini pointed out that in this instance there was no suspicion of a crime.
Mr Robbertse replied that at this stage SAPS would be investigating an allegation of harassment, and the relevant clause referred to “a reasonable suspicion of harassment”. The information sought by the court was already stored in line with the requirements of RICA. In some instances it would not be possible to trace the origin of communication received by a complainant, especially where international service providers were involved.
Dr Oriani-Ambrosini interrupted to point out that the world was changing, and this attempt to control the world would be defeated by technology. There were numerous Wi-Fi hotspots, which meant that there would no longer be internet service providers.
Mr Robbertse said that the authorities would still be able to track the enabling device inserted in the computer.
Dr Oriani-Ambrosini countered that only the IP address would be tracked, but not the person, unless there was a requirement to register every single computer.
Adv S Swart (ACDP) said that he was in favour of using the second option for the definition of harassment. The amendments could be adding additional burdens, and these might still need to be costed.
Adv Swart asked if police officers were allowed to bring applications to court. He also asked whether the Department agreed with the SAPS submission on the issue of identified property on an application order for the complainant. He said that there could be problems, such as a complainant listing an entire household as the property that should be removed.
Mr Lawrence Bassett, Principal State Law Advisor, Department of Justice and Constitutional Development, reminded the Committee that this request from SAPS was included in the Working Draft I for debate.
Mr Robbertse said that all service providers had databases where information was stored. The cost implication could merely be akin to an ordinary request fed into a computer to obtain information. Before a court order could be granted, a complainant had to come to court and prove ownership of property. This could potentially frustrate proceedings, and he confirmed that for this reason the Department was opposed to it.
Adv Swart suggested that, in regard to the property, an insertion could be made that would only allow for the granting of an interim order, which would allow parties to contest it at a later stage.
The Chairperson said that he understood the reasons behind the SAPS submission, as SAPS clearly did not want to have to adjudicate on which property belonged to which party, in the event of a dispute.
Ms Schaefer said that the party claiming the property could simply sign an affidavit listing the property that was claimed to belong to that person.
Mr J Jeffery (ANC) indicated that this Bill differed from the Domestic Violence Act, as it aimed to deal with outsiders. He thought that Clause 7(2)(b) would be relevant to a situation such as the Domestic Violence Act, where people lived together.
Mr Robbertse said that this might be necessary where, for example, individuals worked together.
Dr Oriani-Ambrosini said that the Bill was meant to protect against certain conduct. He wondered why it was protecting property.
Mr Robbertse said that there were instances where the provisions might be applicable to property, especially in the work place.
Mr Jeffery said that the provision was wide and the SAPS request was plausible.
Ms Schaefer expressed concern that this clause had the potential to frustrate the whole process, and asked whether it was possible to circumvent this procedure.
Mr Robbertse said that this clause could be brought in under ancillary matters, but the Committee would eventually have to decide on the issue.
Ms Schaefer thought that the Committee must ensure a quick remedy by way of a Special Order, with a longer process to be followed for ancillary matters.
Mr Jeffery cautioned that there was a danger of confusion between the two processes and there might be need to incorporate a further proviso to clarify them. Alternatively, provision could be made that the person who was in possession of the property should not delay the process under Clause 7(1).
Ms Schaefer suggested that the Committee needed input from the service providers regarding their ability to comply with the requirements of the Bill.
The Chairperson was concerned whether reference would have to be made all the time to the Directing Judge under the RICA.
Mr Robbertse assured the Chairperson that the information required by this Bill was all archived information. He pointed out that Clause 3A made provision for sidestepping the requirements included under RICA. It was quick and easy to retrieve this information, and the Internet Service Providers would not have a problem accessing archived information.
Dr Oriani-Ambrosini commented that the requirements of the Bill for a written affidavit were an additional and unnecessary burden.
Mr Robbertse said that most of the procedures in the Bill already existed in other laws.
Dr Oriani-Ambrosini made the point that information was archived, and was not in the public domain, because it should not be made known in the first place.
Ms Schaefer said that harassment was an important and serious crime and should be treated as such before it turned into something more serious. She asked Dr Oriani-Ambrosini how he would suggest ascertaining the identity of a person who was continuously harassing somebody else.
Dr Oriani-Ambrosini replied that it was impossible to micro-chip individuals and monitor their movements. One solution might be to install cameras. However, he suggested that this provision could be set aside for the moment, until the Committee had consulted more stakeholders.
The Chairperson said that the Committee would deliberate further and take the necessary decisions.
Dr Oriani-Ambrosini said that the Committee would have to consider the issue of how to ensure that the identity of a person who was accused of harassment, but contended that he or she had not committed this offence, remained hidden.
Mr Robbertse said that the information would be provided to the courts. It was possible to stay proceedings by way of an interdict from the High Court.
Dr Oriani-Ambrosini said that all documentation would be filed with the Clerk of the Court, which meant that the identity would already be revealed. He wanted to know how this could be prevented.
Mr Robbertse agreed that the documents would become public when filed at court.
Dr Oriani-Ambrosini said that there had to be some provision that would allow an accused the opportunity to halt the proceedings, so that his or her identity would not be revealed, and that this process would then have to be held in camera.
Mr Robbertse said that this could enable the harasser to delay the proceedings endlessly, and asked why Dr Oriani-Ambrosini felt that there was a need to protect the identity of an alleged harasser.
Dr Oriani-Ambrosini said that there should at least be a burden of corroboration imposed on the applicants, rather than merely relying on their testimony.
Mr Robbertse said that it was easy to corroborate, as the complainant could, for instance, take computer records to the court hearing.
Dr Oriani-Ambrosini interjected that this Bill was contemplating ex parte proceedings, which meant that nothing should move until somebody stepped forward to progress them. The provisions in the Bill were effectively ignoring this, and allowing for the identity of the alleged perpetrator to be revealed.
Mr Robbertse replied that at the end of the day it would depend on what the legislature was seeking to do, and whether it wanted to protect personal information or guard against harassment. When drafting legislation, there was a need to weigh up qualification of one right against protection of another. The Department would attempt to look into additional safeguards, if the Committee wanted to protect the identity of alleged harassers.
Ms Schaefer said that she did not agree with the argument of Dr Oriani-Ambrosini, as this could allow for the protection of harassers. The Committee faced a far bigger problem if it was feared that a court would not properly apply its mind to the evidence before it, when deciding whether a protection order ought to be issued.
Mr Robbertse said that, in order to accommodate the points raised by Dr Oriani-Ambrosini, something could be inserted to the effect that the information from a service provider could be made available to the court only, and not the applicant.
The Chairperson said that the Committee would have to apply its mind on this matter.
Mr Jeffery believed that more attention would be paid to physical stalkers, as there was greater proximity and potential for danger. The identity of cyber stalkers was of less concern in the sense that their correspondence could be deleted. In order to ensure that the process could not be abused, perhaps a stricter onus should apply to applicants seeking relief on cyber-stalking.
The Chairperson asked if Committee Members had applied their minds to the request for the exemption of the media.
Dr Oriani-Ambrosini said that if harassment was done in the public interest then it should be exempted.
Ms S Shope-Sithole (ANC) said that individuals had been unduly victimised by the media, and she was not in favour of an exemption.
Mr Jeffery said that there had to be freedom of the press. However, the submission from South African National Editors Forum seemed to imply that it was acceptable to harass until a response was obtained, whereas people had a right to silence. If this Bill were to be challenged on constitutional grounds, the courts would look at how the Bill was being used, and not whether it infringed on the freedom of the press. He commented that the submission from Avusa contained more nuances and was worthy of further investigation. He stressed that the same rules should apply to journalists as to other people.
The meeting was adjourned.
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