The Committee considered the amendments and options presented in the new draft of the Protection from Harassment Bill by the Department of Justice and Constitutional Development. The Committee reached consensus on the definition of ‘court day’ being removed. The original definition of ‘harm’ as introduced would remain in the Bill. Further definitions of ‘sexual harassment’ would be researched and compared to the current options in the Working Draft for the Committee to consider. The Committee decided that ‘know or ought to know’ in the definition for harassment should be retained. It was agreed that children could either be assisted by a grown up or they could apply for a protection order themselves. On the matter of electronic communications of a person being made available to the police by a mobile cellular or internet service operator, it was decided that the 24-hour rule option should be chosen rather than the person being told after the fact. Clause 3C would be further expanded in the National Instruction. It was decided by the Committee that a protection order would last for five years provided that good cause was shown for its extension. The more onerous ‘grossly negligent” was removed from 15(4)(a)(iii).
The Chairperson requested the state law advisors to take the Committee through the Bill and indicate the amendments that had been effected.
Mr J Jeffery (ANC) suggested that it would be better if the Committee made decisions now on whether there was consensus on a particular issue or matter so that there could be progress. If there was no consensus, then the option in the Working Draft of the Bill would remain.
The Committee agreed.
Clause 1 - Definitions
Mr Sarel Robbertse, Senior State Law Advisor for the Department of Justice and Constitutional Development (DOJ&CD), indicated that there was a new definition which read: “court day” means a day on which the court in question normally sits. Internet service providers and Telkom had requested this. Consequential amendments as a result of this amendment were effected to clause 3(a) and 15(4).
Mr Jeffery suggested that there was a generally accepted understanding of what a court day was and surely there were other Bills that made reference to “court day”. Should the definition of “arm” be not changed to “firearm” which would then be used throughout?
Mr Robbertse replied that the definition of “arm” was in accordance with that found in the Firearm Control Act. Arms could relate to something like a knife as well whilst a firearm would relate to a handgun. In terms of the Bill, a court heard applications for a protection order on any day of the week including public holidays.
Mr Jeffery said that he still did not understand, everybody knew what a court day was.
The Chairperson commented that the members were questioning the necessity of this definition.
Ms D Schaefer (DA) said that she was sure there was a definition of “court day” either in the Interpretation Act or Superior Courts Act. There was no reason why definitions from those Acts would not apply.
Mr Robbertse said that probably “day” was defined in the Interpretation Act but not a “court day”.
Mr Lawrence Bassett, DOJ&CD Chief Director: Legislative Drafting, proposed the possibility that the definition could be deleted and addressed in the body of the Bill rather.
Mr Jeffery said that if the definition was in the Superior Courts Act or Magistrates Court Act then there would be no reason to define it and the widely used and understood definition could be used in this Bill.
“harm” / “harassment”
Mr Robbertse pointed out to the Committee that there were two additional options to consider for this definition.
Mr Jeffery said that “harm” rather than “harassment” might be better in that it would leave the definition of harassment wider. What other harm would there be and would this definition be confused with physical harm? What was ‘detriment’ in the first option, this would have to be further defined, as it was another definition.
The Chairperson noted that it was the Committee that had had a problem with the definition that appeared in the original Bill.
Ms Schaefer said that the issue had been that definition was not adequate and amounted to 'harm means harm'.
Mr Jeffery said that a magistrate may define harm as physical and the definition took it one step further to mean that it could be economical, physical or psychological. The definition was fine the way it was. ‘Detriment’ was not necessary and the definition merely provided for the various types of harm, as everybody knew what harm was.
Adv B Holomisa (ANC) said that the definition should contain a reference to mental damage or detriment instead of saying that 'harm is harm'.
Mr Bassett agreed that the definition in the original Bill should remain because it also contained categories of the various types of harm.
Mr Robbertse noted that there were two options for this definition. The one option was proposed by AVUSA, which stated that there had to be a fault requirement for the definition of harassment. AVUSA had also stated that the definition of harassment had to have a defence in it.
Ms Schaefer asked if there was a definition of sexual harassment anywhere else as she was worried that it existed in other legislation, which the Committee might have to use.
Mr Robbertse replied that there was a reference to “sexual harassment” on page 8 of the Working Draft as well.
Ms Dellene Clark, State Law Advisor at the DOJ&CD, said that there was a definition of sexual harassment in the Employment Equity legislation.
Ms Schaefer said that it might be easier to refer to an existing definition of sexual harassment as opposed to defining it further.
Mr Robbertse said that the decision lay with the Committee but the definition in the Working Draft was tailor-made for purposes of the Bill.
Ms Clark said that the way it was defined in the labour code and Employment Equity Act was meant for the workplace, and it would have to be dealt with in terms of crimen injuria or Sexual Offences legislation.
Ms Schaefer requested to see the other definitions of sexual harassment in order to make sure that the definition in the Bill was not too wide.
Mr Jeffery suggested that there seemed to be consensus on the inclusion of a definition of “sexual harassment’ in the Bill. The outstanding issue would be the proposal from AVUSA and their requirement that instead of just only harassing, one would have to 'know or ought to have known' that their conduct would amount to harassment. This was more preferable than the requirement of 'intent or negligence'. Did the AVUSA requirement belong in a definition?
Mr Bassett replied that it did not since it was a proviso, which always made for cumbersome legislative drafting since it had a fault requirement. The entire Bill as introduced was based on reasonableness, which was a civil requirement and not a criminal one.
Ms Clark said that she was concerned about the ‘know or ought to know’ as one could deal with delusional stalkers who often caused the most harm. Adding the ‘know or ought to know' would exclude this category.
Mr Jeffery said that the choice was between the 'know or ought to know' or 'intent or negligence'. The 'know or ought to know' seemed more preferable as it was easier to understand. The delusional stalker would be covered, as they ought to know that their conduct was unacceptable. Intentionally or negligently should be deleted and the 'know or ought to know' should be kept in.
The Chairperson asked if there was agreement.
The Committee simultaneously replied yes.
Mr Jeffery said that the Committee should consider the proviso for the definition of harassment but it should not be in the section covering definitions; it should instead be inserted in Clause 3.
Mr Bassett said that the proviso referred to by Mr Jeffery would be a move away from easonableness, which was what the whole Bill was based on.
Mr Jeffery said that he was not sure if reasonableness was a defence. The question would be what kind of defence would have to be in the Bill? There perhaps was some merit to AVUSA and SANEF's concerns, however, what they wanted might go to far. The media and investigative journalists should not acquire more rights than the police; a person should be entitled to have a right to remain silent.
Mr Robbertse said that there was an option on page 10 of the Working Draft, which related to the right of a child to obtain harassment interdicts unassisted. He reminded the Committee that it had been concerned that children would obtain harassment interdicts against their parents frivolously.
Mr Jeffery said that there was a need for a child to be able to apply without the assistance of a parent as there may be a situation where a child was being harassed and the parents did not care.
The Chairperson asked if in that situation did the child go forward without the assistance or could they asked for assistance from another adult.
Mr Jeffery said that the previous wording allowed for that situation but not under the new one. This was problematic as one could find a situation where there was harassment especially in poor families.
Mr Robbertse said that this provision was also in the Domestic Violence Act, which had been in operation for along time, and there were no problems. Practically a child would almost always be assisted in obtaining an application.
Ms Schaefer agreed with inserting the original wording.
Mr Robbertse said that this clause was inserted in order to accommodate internet service providers.
The Chairperson asked if this clause would not be open to abuse and how effective would it be.
Mr Robbertse said that it could be abused but one would have to insert enough checks and balances.
Mr Robbertse said that this clause related to an internet service provider having to inform a person that that person’s information was going to be provided to a court. The first option provided for someone to be informed after the fact and the second option related to someone being informed 24 hours before the information was released.
Mr Jeffery said that the second option provided for those cases where a person could be wrongfully accused, and he was not opposed in principle to the second option.
Ms Schaefer held a similar view.
Mr Robbertse said that if the 24-hour rule option was followed then the alleged perpetrator might be given an opportunity to tamper with evidence.
Mr Jeffery said that he did not see the relevance of what Mr Robbertse was raising in terms of the 24-hour rule.
Mr Bassett said that the first option would be deleted and the option remaining would be the 24-hour rule where the alleged perpetrator would be given 24-hour notice. It was the internet service providers that were against this clause but even in the Promotion of Access to Information Act (PAIA), there was a provision that a person could request information from a private body provided they gave prior notice.
Mr Jeffery said that if Clause 3B already provided for someone who believed they were being stalked or harassed to actually force the police to assist, what would then be the point of 3C1(a)?
Mr Robbertse said that this was to give the police discretionary powers of investigation.
Mr Jeffery said that the police already had those powers and the necessity of 3C was questionable.
Mr Robbertse said that 3C was inserted at the insistence of the police to provide for scenarios where a person needed immediate assistance, instead of going the court route first in order to get assistance from the police.
Mr Jeffery said that the police already had the power to investigate a complaint of harassment, as this was a possible crimen injuria crime. The key question was did the police already have the power envisaged in 3C and if they did, it should be made clear in the National Instruction.
Ms Schaefer said that the discretionary power should be done without revealing the identity or address of the complainant.
Mr Robbertse said that the police had alerted the drafters to a scenario where somebody would loiter around a complainant’s house day after day. That person would not be committing an offence and the police would not be able to do anything even though that person would be causing the complainant distress.
Mr Jeffery said that the fact that the provision would be clarified in the National Instruction should make that self-evident.
Ms Clark said that some stalkers or harassers actually go out to get a profile of the person they want to harass. If the person receiving the unwelcome attention were to approach the police, they would not be able to do very much at that stage. Not revealing the identity of the complainant would prevent the stalker from having further information about the victim which they would not have had.
Mr Jeffery said that this was stuff for the National Instruction. The purpose of obtaining the information on the stalker or harasser was for the court order later on. All this detail was for the National Instruction however.
Mr Jeffery said that he preferred the maximum five-year period but it should be left as an option for now. The question for the committee would be: does it want the five-year period or should it leave the decision to the court?
Ms Schaefer said that if the courts felt that somebody was being harassed to such an extent that the five year period should be extended, why should the individual have to re-apply later on after the five year period had expired?
Mr Jeffery said that in that case he would withdraw his point, the second option would be used: “for a period of five years or such further period as the court may determine on good cause shown”.
Adv Holomisa said that he was for the first option of a fixed five-year period as he was not comfortable with magistrates having discretionary power on this matter.
Mr Robbertse said that in the Domestic Violence Act the period was longer in some instances and the police had volumes of interdicts at their stations, it was the South African Police Services (SAPS) that wanted the period to be shorter.
Ms Clark said that in some instances stalking continued for a number of years and the threats were of such a nature that a non-expiry protection order would be desirable.
Mr Jeffery said that the option was desirable as it had the five-year period and provided for the courts to extend it provided that good cause was shown.
Ms Schaefer agreed.
Ms Schaefer asked why there was a request for members of SAPS not to face criminal sanctions.
Mr Bassett said that it might be counter productive to criminalise some actions of SAPS members as it might make them not want to get involved in these issues. On the other hand if a police officer did not comply with a court order they would be in contempt of court and they would also face disciplinary charges. The worry was that the penalty clauses would be counter-productive, given that there were already laws and disciplinary rules in place.
Mr Jeffery asked what a peace officer was.
Mr Robbertse said that a peace officer was defined in the Criminal Procedure Act and was somebody that the Justice Minister may determine from time to time. A peace officer could also be a police officer in terms of the Act.
Mr Jeffery said the concern was that this section related to peace officers and the seizing of weapons. Now a peace officer may or may not be a police officer, the wording was problematic. Now that peace officers were mentioned, it would not be clear who would be penalised and who would escape sanctions in the criminal offences of the Bill. Due to the drafting it would also not be clear as to why one would need a peace officer for the seizing of weapons in terms of a court order.
Mr Robbertse said that this would be re-looked at.
Mr Bassett agreed.
Mr Jeffery asked why there was “grossly negligent” under clause 15(4)(a)(iii).
Mr Bassett replied that this could be taken out if the Committee felt it was going too far.
Mr Jeffery said that the concern was that it was more onerous to include grossly negligent. To willfully make a false statement would be sufficient for criminal sanctions. “Grossly negligent manner” should come out.
Mr Robbertse informed the Committee that the Department had inserted a clause, which gave the magistrates power of jurisdiction to propose penalties of up to five years, which departed from the current three years.
Mr Jeffery said that this clause should be removed and the powers of the magistrates should be in line with the current norm.
Mr Robbertse said that in terms of the Registration and Interception of Communications Act (RICA) a magistrate could impose sentences of up to 10 years.
Mr Bassett said that there were similar provisions in other pieces of legislation.
Mr Jeffery said that he was aware of this but insisted that the clause be taken out, as the norm should be the same across the board. Clause 15(7) would be affected by the amendments to Clause 3C and it was not desirable.
Mr Robbertse said that it was SAPS that had insisted on the provision, as they did not want their members to abuse the power in 3C. A police official could abuse their power and use 3C to gather information which they otherwise should not have had. In addition the powers therein had far reaching consequences for ordinary citizens, for example, a person could be detained.
Mr Jeffery said that the worry was that the police would be reluctant to use 3C given the wording in 15(7).
Ms Schaefer disagreed with Mr Jeffery and agreed with the state law advisors, it was also true that because of the amendments to 3C there would be a problem. This section should be flagged.
The Chairperson agreed.
Mr Robbertse continued to go through the Schedule where there were no amendments.
The Chairperson said that the Committee would probably pass the Bill the following week and thanked the Members for the progress being made.
The meeting was adjourned.
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