Protection from Harassment Bill: deliberations

Meeting report

Department Response to Remarks and Questions by the Committee
Mr Sarel Robbertse, Principal State Law Advisor: Department of Justice and Constitutional Development (DOJ&CD), said that some of the responses to the queries raised by the Committee had been given effect in the Bill via the 1 March Working Document.

1. The cost issue was raised during the last meeting. This related to compliance with clause 3A by service providers. Section 28 of the Regulation of Interception of Communications and Provision of Communication-related Information Act (RICA) already made provision for costing. Service providers who furnished information to law enforcement were compensated. It was the Department’s view that there was not going to be any costs for the implementation of clause 3A.
2. The Department had circulated the Bill for comment to electronic communication service providers. It seemed that all the electronic communication service providers could comply with the provisions of the Bill. An official comment had not been received from Cell C and Vodacom. There was a meeting with electronic communication service providers where the provisions of the Bill were raised; they indicated that they could comply with the provisions.
3. Dr Oriani-Ambrosini was correct at the last meeting that there would be anonymity where a person was using SKYPE or Wi-Fi.  In China it was possible to intercept communication via SKYPE, as there was software that one had to have before using SKYPE. At a later stage the Bill could be amended to accommodate this if such communication methods posed a major problem for law enforcement.
4. A new option under clause 3A(5) of the working draft had been inserted to accommodate the objection from Dr Oriani-Ambrosini against revealing the identity of a person who communicated electronically with a complainant. The new option provided that an electronic communication service provider had to inform persons that their particulars would be made available to a court at least 24 hours before the court proceedings. However, it should be borne in mind that if an electronic communication service provider informed persons that their information was going to be released for the purposes of a protection order against them, such persons could approach a court and request to have their rights protected indefinitely. Such persons might then increase their harassing behaviour. 
Every electronic communication service provider was opposed to the option and Telkom stated that it would place a great administrative burden on it to have to inform individuals that their information was going to be released. MTN indicated that they would inform a person via sms.  Cell C also objected to this clause even though they had not responded in writing. 
5. Safeguards were built into clause 3A to ensure that harassment had occurred before a court dealt with a matter. Clause 3(2) also obliged a court to establish that the respondent had engaged in harassment and that harm was or may be suffered.
6. A court would ordinarily grant an order for the removal of property if it had been proven on a balance of probabilities that the property belonged to a particular person, otherwise the court could not make such an order. The Department had indicated that it would pursue the route that was established in the Domestic Violence Act. There was no need to have an additional procedure to determine ownership of property.
7. It was not necessarily the case that cyber stalking was less serious or threatening than real time (physical stalking). The Department was of the view that the seriousness of cyber harassment was more or less the same as real time (physical stalking). There might not be corroborative evidence where real time (physical stalking) was alleged to have taken place but in the case of cyber harassment there would always be evidence obtained from the electronic device where material was sent. Therefore there should not be higher onus of proof where cyber harassment was concerned.
8. The definition of “harm” was amended to read ‘any mental, psychological, physical or economic detriment. Another option was to leave it out. The effect of this was that the ordinary dictionary meaning would be used subject to the court’s interpretation. The implication might be a narrow interpretation, which was not originally intended in the Bill.
9. A new option in the Bill was inserted so that children could no longer apply to a court on their own. Section 14 of the Children’s Act must be kept in mind however as it stated that ‘every child has the right to bring a matter to court provided that the matter fell within the jurisdiction of that court’. This matter actually required a policy decision. The courts were also not inundated with applications from children under the Domestic Violence Act, which had a similar provision.
10. A new option had been drafted to provide for the service of documents to be via the Bill and not subordinate legislation. A slight modification was that the words in brackets and the comments under the paragraph should be deleted. The Department was of the view that procedural issues should be dealt with by means of subordinate legislation, this was also the process followed in the Domestic Violence Act under Regulation 15. The advantage was that subordinate legislation could be altered easily should there be problems. The general principle in civil law was that an interdict operated from the moment it was granted and a respondent received information, which he or she had no reasonable ground for disbelieving, that such an order had been granted.  An option had been inserted that provided for this general principle.
11. There were concerns that there may be a flurry of applications by the South African Police Service (SAPS) for an extension of the period to determine the identity of a harasser. It was in the discretion of the court as to when to grant an extension, this discretion must be exercised in a judicial manner. There was a request to compel SAPS to provide valid reasons for the request for an application. An offence was created for SAPS members who willfully / negligently ignored order of the court.
13. In order to prevent the abuse of the proposed clause 3C, a further amendment was proposed which would make it an offence for a member of SAPS to use clause 3C to obtain particulars from any person for any purpose than to comply with clause 3C.  Clause 3C was similar to Section 41 of the Criminal Procedure Act and to date it had not been constitutionally challenged.
17. A clause had been inserted for consideration as the Committee had requested that clauses 16 and 17, which related to the regulations and policy directives, should be flagged.

Discussion
Dr M Oriani-Ambrosini (IFP) said that legislation should at times be written with the perpetrator in mind as at any time it could be any one of us. A provision in the Bill that could be construed as meaning that a service provider was entitled to keep personal records of calls made via cellular phone would be a concern. There had to be a reaction to things that were socially unacceptable.

Mr Robbertse replied that the concept of harassment was based on the principle that it should be reasonable. If conduct was reasonable, it would not amount to harassment. It did happen that some conduct was outside the boundaries of reasonableness and caused harm to the complainant. The Department was of the view that in such instances a complainant had to be protected. If a person engaged in harmful conduct, it was not clear why their anonymity had to be protected. The boni mores of society would demand that a person’s identity in such circumstances ought to be revealed so that the appropriate steps could be taken against them and further harm could be prohibited.  Stored information was provided for under the RICA legislation. Clause 15(3) of the Protection of Personal Information Bill provided that certain information pertinent to court proceedings was exempted from the application of the Bill.

Mr Lawrence Basset, Chief Director: Legislative Development, DOJ&CD, added that there was consensus by the South African Law Reform Commission (SALRC) for a need to protect society when one dealt with conduct of this kind. Stalking involved the right to privacy, dignity and bodily security. The state under Section 7(2) of the Constitution was obliged to respect, promote, protect and fulfill the rights in the Bill of Rights. The proposals from the Department were in this context.

Ms D Schafer (DA) said that the revised proposals had a few extra safeguards regarding identity.

Dr Oriani-Ambrosini said that the interest the legislature was trying to protect was for a citizen to be free from mental and psychological detriment. It was not the “harasser” whose identity was going to be revealed but the “alleged harasser”. Since the proceedings were Ex Parte, the other party did not have an opportunity to respond. Courts constantly got it wrong as they departed from the principle of audi alteram partem.

Ms Schafer said that she did not envisage that the majority of cases would have the identity of the perpetrator being revealed as an issue. How was one to find out the identity of the harasser, what other options were there?

Dr Oriani-Ambrosini said that if one sent flowers to a person every day who then complained, there was no legislation that compelled the florist to keep a record of the customer’s details. The usual police investigation would have to happen.

The Chairperson said that the question posed was how the identity of the harasser would be revealed; Dr Oriani-Ambrosini had previously said that the onus of proof should reside with the complainant.

Dr Oriani-Ambrosini said that usually the harasser was somebody from work, friends, acquaintances etc. Circumstantial evidence could be obtained from what one said or did. If they were confronted with a court order, most people would stop.

Mr Robbertse said that in the cyber world it was difficult to trace the origins of a call. The only assistance one could receive was from the service providers. Service providers would never release information unless they faced a court order.  The risk they carried was civil litigation from the person whose information they released.  A complainant had to be assisted in their case via legislation and that was why clause 3A was inserted. There was no other method of investigation where electronic communication was involved. One would never know where unsolicited smses came from unless the service provider was approached.

Mr Basset added that the Bill was dealing with stalking outside of a domestic situation where one might not know who the harasser was.

Ms S Sithole (ANC) said that she was worried about the seemingly generous sympathy that was being proposed for the concealment of the harasser’s identity. This might cause a lot of women not to complain as there might be a view that the harasser would receive sympathy in the courts and police stations. More sympathy should be afforded to the complainant rather than the perpetrator.

Dr Oriani-Ambrosini said that he had a concern, the Bill was dealing with Internet and mobile phone service providers and yet these were not the only avenues for communication. Communication happened on Facebook, Twitter etc and the service providers merely provided the means for there to be such communication.  The problem was that the software developer was not available to assist. It was difficult to find a way around this.

The Chairperson said he recalled that it was Dr Oriani-Ambrosini who had said that the perpetrator should be informed before there were proceedings and the provision in the Bill had merely tried to do that by placing that obligation on the service providers.

Dr Oriani-Ambrosini said that he agreed with that but the sentence he was looking at was the one that said ‘electronic communication service providers must compile and maintain a list of other electronic communication service providers’ This meant that MWeb or Telkom should maintain a list of software applications that were mechanisms for communication.

Mr Robbertse said that the Bill did not compel electronic communication service providers to do anything other than what was already in other pieces of legislation. There were no additional obligations on electronic communication service providers.

The Chairperson asked how the service provider would have to inform potential harassers about releasing their information, would it be via a court order.

Mr Robbertse replied that the Bill imposed the obligation and it would not be from a court.

Ms Schafer asked if the alleged perpetrator would be informed of the location of the proceedings and if they would also be provided with a court or case number?

Mr Robbertse replied that this had been provided for under clause 3A(5).

Adv S Swart (ACDP) asked what was the remedy provided in the Domestic Violence Act on the issue of property, surely a similar remedy could be added in the Bill? How would a third party be protected?

Mr Robbertse replied that there was no provision in the Domestic Violence Act that allowed a party to contest the ownership of the attached property. There were other remedies available in civil litigation. The Department was of the view that if such a provision were allowed in the Bill then it would frustrate proceedings. This should rather be dealt with in terms of other legislation.

Ms Schafer asked what the difference was between mental and psychological harm, should it not be just psychological and physical harm?

Ms Dellene Clark, SALRC Researcher, replied that the definition might be wide enough to only include psychological harm.

Ms Schaefer said that what was concerning was what the court’s interpretation might be? A wider meaning was preferable to a narrower meaning. Was the new option on a child approaching a court with assistance consistent with the Children’s Act?

Mr Robbertse said “yes, to an extent” and he was of the view that the new option complied.

Ms Clark commented on the Committee’s concern that there may be a flurry of applications by SAPS for an extension of the period to determine the identity of a harasser, the Department was not in favour of criminalising the actions of the police. This would be the discretion of the Committee whether it wanted to do so. National Instructions would render such police action to fall under misconduct. This would thus be dealt with by the police internally.

Ms Schafer said that this had not been effective at all under the Domestic Violence Act. The concern was that the police would come with requests time after time only for the courts to not want to deal with the matter. There should be a provision stating that the courts should not entertain frivolous requests for extensions.

Dr Oriani-Ambrosini asked what physical detriment in the definition of “harm” in the Bill meant. Physical detriment would mean contact, which was usually present in assault and battery cases. What was physical detriment?

Mr Robbertse replied that the Department would look at it further. In South African law there was a principle where certain action of a physical nature, which a reasonable person would not interpret as amounting to assault (for example if someone kept shooting another with a pea shooter). This would be irritating but not prosecutable. The principle allowed for there to be some remedy at least.

The Chairperson reminded Dr Oriani-Ambrosini that the Committee would ultimately decide on the provisions of the Bill.

Meeting Adjourned.