Protection from Harassment Bill: Deliberations

Meeting report

Mr Sarel Robbertse, Senior State Law Advisor, Department of Justice and Constitutional Development, noted that he was intending to refer to the new Working Draft document, which incorporated changes and options requested by the Committee to the Protection from Harassment Bill (the Bill), during pervious meeting.

Long Title
Mr Robbertse noted that a phrase was inserted, on page 2, reading ‘and to provide a mechanism to subpoena witnesses in terms of that Act.’

At the bottom of page 2, under paragraph A, the words 'harassing behaviour’ were substituted with 'harassment'.

Definitions (and consequential amendments)
Mr Robbertse pointed out that the Committee had expressed concern over the word 'arm' during the last meeting, and this had been substituted with 'weapon'. A definition of ‘dangerous weapon’ was now also included under the definition of weapon. This definition would mean that everything considered as a dangerous weapon under the Firearms Control Act would also be considered as a dangerous weapon for purposes of this Bill. This required consequential amendments, to clause 2(a), the option under clause 7(2), and clause 9. At the bottom of page 3 the definition of ‘dangerous weapon’ should be deleted.

Mr J Jeffery (ANC) suggested that the Committee should perhaps indicate, as Mr Robbertse went through the Working Draft, whether they were happy with the wording, to try to reach consensus where possible.

Mr Robbertse continued to page 4 where two definitions were inserted for 'electronic communications identity number' and 'electronic communications service provider'. This would correlate with the new clause 3(a).  

Mr Jeffery suggested that the State Law Advisors should take the Committee through the clauses where there were outstanding issues. It would be preferable for the previous version of the Working Draft also to be used so that Members could see what had been included previously and how it had been changed to address Members’ concerns.

Mr Robbertse then proceeded to inform the Committee of the changes that had been made from that draft.

The definition of ‘court day’ was deleted and court day, when used in the Bill, would carry the ordinary meaning, which meant any day excluding Saturday, Sunday and a public holiday.

The definition of ‘sexual harassment’ was on page 7, and this included the proposals made by the boy Avusa. He specifically noted that there was now a requirement around guilt, and the proposal from the Committee that sexual harassment should be included.

Mr Jeffery asked why a 'related person' was included in the definition.

Mr Robbertse replied that, in terms of the definition of harassment, a ‘related person’ was someone who was close to the complainant, and who could apply for a protective order. This would cover the situation where harassment was performed against the ‘related person’ as a means of getting indirectly to the complainant.

Mr Jeffery thanked him for this explanation.

Clause 2
Mr Robbertse proceeded to page 11, and pointed out that clause 2 had been amended, by inserting the words 'subject to sub-section 3(a)'. That sub-section would contain a reference to the defences. Therefore, in terms of clause 2, a court could consider the issuing of an interim protection order, but the defences could be raised at that time and taken into account.

He pointed out that the defences to harassment were provided for on page 12, and here the wording remained substantially the same, reading: ‘A court may, in its discretion, refuse to issue an interim protection order pending a hearing in terms of Section 6(2), if the court is of the opinion that the conduct in question might, on a balance of probabilities, be reasonable or have been engaged in or have taken place..’ and then the defences, as included in the original version of the Bill, were listed.

He pointed out that this must be read in conjunction with clause 6(4). He further stated that if the defences portion of the Bill was moved to clause 3, this could be problematic, because the application would then be done as an ex parte application. The court could find it difficult to arrive at a decision to grant an interim protection order where there was evidence from only one party. This was the reason why the court was given a discretion to refuse the interim protection order. Mr Robbertse submitted that the defences should be listed in clause 6 of the Bill, which dealt with the hearing of an application by the court, when the court would come to a conclusion, after hearing both parties argue on the defences.

Mr Jeffery agreed with what was stated in the footnote. He agreed that the defences should not be listed in clause 3. However, he was concerned that the defences might make it difficult for an interim protection order to be obtained, and this might defeat the whole purpose of the Bill. A person who was being harassed should be able to obtain an interim protection order. All the rights would be balanced later, at the stage where there was a full hearing. He suggested that clause 3(a) was unnecessary.

Ms D Schäfer (DA) agreed. She further questioned why the words ‘if it is reasonable’ were included under 3(a), when the very definition of harassment was that conduct was unreasonable.

Mr Robbertse said that he agreed, but what was currently contained in the wording was what had been proposed by Avusa.

Ms Schäfer requested that this be removed, and the Chairperson agreed that it should be.

Ms Dellene Clark, Principal State Law Advisor / Researcher, South African Law Reform Commission,  Department of Justice and Constitutional Development, said that the drafters were not in agreement with the defences at all. A defence had been provided already, in the test for what was ‘unreasonable’.

Mr Jeffery clarified that the agreement on the wording related only to the interim order. He noted that the Committee would still need to deal with the defences as raised under consideration of the final order, when the Committee moved on to those clauses.

Mr Robbertse noted that options had been inserted in relation to the serving of documents, under clause 2(4). The first option was that documents would be sent in the prescribed manner. The second option was that the Rules of Court would be applicable, and that Rule 9 of the Magistrate’s Court Act would apply.

Mr Jeffery requested more information on Rule 9

Mr Robbertse said that Rule 9 provided for the serving of documents by the sheriff in various manners.

Mr Jeffery said that he preferred to use ‘in the prescribed manner’ as it was more flexible, and provided for special service if necessary.

Mr Lawrence Bassett, Chief Director: Legislative Development, Department of Justice and Constitutional Development, said that he agreed with Mr Jeffery. Other legislation, including the Domestic Violence Act, had used ‘in the prescribed manner’.

Defences: clauses 3 or 6
Mr Robbertse outlined that on page 13, the previous option had been deleted, following the Committee's request. He pointed out that the Committee’s new option, to have an interim protection order taking effect from the moment it was issued, had now been incorporated. This interim order also had to be brought to the attention of the respondent.

He then pointed out that on page 14, there was an option of listing the defences separately elsewhere in the Bill. However, if this was done, then this would affect the proceedings from the start. He reminded Members that they were included currently as clause 3A(a) on page 14. On page 14 under clause 6 there was the option of having the defences as a separate loose body in the Bill. If the defences were separate, then they would affect proceedings from the start. The defences were included as clause 3A(a) on page 14.

Mr Jeffery requested that the defences should be dealt with under clause 6.

Clause 3A
Mr Jeffery noted that Dr M Oriani-Ambrosini (IFP) had raised an issue relating to the anonymity of a person in the cyber arena. He was also worried that the Internet Service Providers (ISPs) would incur more responsibilities. The question would be whether the Bill would require ISPs, in future, to keep records of information that they did not currently have to keep. If not, there were concerns that no provisions were included that would allow for the revealing of the identity of a cyber stalker.

Ms Schäfer said that Dr Oriani-Ambrosini's argument was that harassment was not a crime, and it would be an invasion of privacy to try to establish the identity of somebody via ISPs. She asked for the State Law Advisors’ comment.

Mr Jeffery said that Mr Robbertse had confirmed that greater responsibility was being put on ISPs. He thought that there was no need to have any further input from ISPs in relation to the Bill, particularly since the Committee was under time constraints to try to pass the Bill before going into recess.

The Chairperson noted that all Members agreed that there was no need for the ISPs to have further responsibility.

Mr Bassett said that when the original Bill was introduced in Parliament, it had made provision for cyber stalking. The ISPs were happy with the provision, as they would be paid according to the tariffs, but were opposed to the provisions around prior notice, which would effectively involve them in litigation.

Mr S Swart (ACDP) said that cyber stalking was very serious and the Committee had to consider it very carefully.

Mr Robbertse then continued to page 17, and clause 3A(6). He pointed out that the time period within which an ISP had to provide data was stated as ‘within four court days’.

Mr Jeffery asked why 24 hours was specified as the time period within which the respondent had to be informed of the disclosure of their information by the ISP.

Mr Robbertse replied that this was because only four days was provided to the ISPs. At times this information might not be readily available.

Mr Jeffery asked whether the Committee might want to improve the checks and balances, by increasing the time periods, for instance by requiring ISPs to provide the information within five court days, but then providing that the respondent must be notified within 48 hours.

Members agreed with this proposal.

Mr Robbertse pointed out a grammatical correction on page 19, in clause 3B(1)(b). This provided that the National Instructions (clause 3(c)(1)(a)) must provide for the manner in which the South African Police Services (SAPS) should investigate stalking cases.

Mr Jeffery said that he had a problem with the wording under subclause (1)(9)(a), stating that he would have preferred wording to the effect that the plaintiff stated under oath that he or she intended to apply for a protection order.

Mr Robbertse said that the word 'thing' was substituted with 'object'.

He pointed out that an option had been inserted on page 25, that provided for the defences. The defences were inserted as clause 4A.

Mr Jeffery said that the test must remain as one on a balance of probabilities. The issue was then whether to list the defences. He pointed out that the court would have to determine whether the conduct was unreasonable, and therefore what was included at the top of page 26 was not necessary. In addition, he thought that there was a problem with the Avusa / South African National Editors Forum (SANEF) defence, because it provided for a blanket exemption. This did not apply in other jurisdictions. The media itself, during the public hearings, had said that a journalist could keep asking questions, in the hope that a person might change his or her mind and override the right to remain silent. The media was not being prevented from conducting investigations, or even from camping outside someone's home to get a story. Only the court, when application was made, would be able to determine whether the conduct was regarded as ‘unreasonable’. Other safeguards had been included, as requested by the media, such as the definition of harassment and the issue of information in court. However, the media should not be excluded altogether from the application of the Bill. For this reason, he suggested that clause 4A should be deleted, so that it would simply be left to the court to decide the reasonableness or otherwise, on the balance of probabilities.

Ms Schäfer agreed that the media should not be exempt, as they had the potential to harass.  However the provisions seemed to be specific. The Committee had agreed that the media should be allowed to disclose crimes.

Mr Swart agreed with Ms Schäfer, and suggested that the Committee had to look carefully at this matter. The courts were only being afforded a very narrow ambit.

Mr Jeffery said that the paparazzi did not fit under this clause. Journalists would be exempt if they ‘harassed’ a person during their work to expose a crime, and would have the defence of a legal duty. Only a court would be able to determine if the particular journalist had gone beyond the bounds of reasonableness.

Ms Schäfer said that her understanding was that the defences were not to be seen in isolation of the requirement of reasonableness.

Mr Jeffery said that, in order to be sanctioned, the conduct had to be unreasonable. However, if the defence to the ‘unreasonableness’ element was that the conduct was required in order to detect an offence, then the court should be able to refuse to make the order.

Mr Robbertse agreed with Mr Jeffery that the media option was an absolute defence.

Ms Clark said that it was unnecessary to list defences in the Bill that could be absolute, because there was already a common law justification for acting to fulfil a legal duty, or acting to prevent or expose an offence.

Ms Schäfer asked if the reasonableness test was subjective.

Mr Jeffrey said that he presumed it was.

Mr Bassett said that a court, in considering the conduct of a journalist, would also keep in mind the right of media freedom. 

Mr Jeffery said that the matter could be flagged for further discussion. There was general consensus that reasonableness, as a defence, should not be included, as it was inconsistent with the requirement that the court had to enquire whether the conduct was unreasonable.

The Chairperson noted the Members’ consensus that the issue be flagged for further discussion.

Clause 7
Mr Robbertse continued to page 27. An option had been inserted that would exclude SAPS, in clause 15(1). However, if SAPS members contravened clause 7(2), then disciplinary steps could be taken against them.

Mr Jeffery said that clause 7 should remain, as now amended.

Mr Robbertse noted that the offences were listed from page 33, in clause 15. The option inserted under clause 15(1) only criminalised actions taken in terms of clauses 7(1) or (2).

Clause 8
Mr Robbertse noted that on page 29, under clause 8(2) the word ‘lapses’ was substituted with ‘expires’.

Clause 15
Mr Robbertse noted that the offences were listed from page 33.

Ms Schäfer asked why clause 8(4)(a) was mentioned under clause 15(1)(b).

Mr Robbertse said that the reference to this clause related to an affidavit made by a complainant.

Ms Clark said that clause 13 also made provision for a costs order to be awarded against a person making false statements.

Mr Jeffery said that the clause put the respondent back in the position he or she would have been in if the application had not been made. He wondered if this had been discussed by the South African Law Commission (SALRC) and the State Law Advisors.

Ms Clark said that this had been discussed. It was a mirror image of what was in the Domestic Violence Act.

Mr Jeffery said that this was a serious issue.

Mr Bassett said that the Department would flag this issue.

Dr M Oriani-Ambrosini (IFP) thought that the language of clause 15 was not sufficiently clear. It suggested that an ISP only committed an offence if the information was readily available, but was not provided. He wondered how an ISP could provide information if anyone could open a false account and start sending information.

The Chairperson said that in terms of the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA), it was necessary that people register their details correctly.

Dr M Oriani-Ambrosini countered that anybody could open an account on “Google” or “Yahoo” e-mail services, without having to disclose personal information.

The Chairperson asked how this allowed internet usage, if details were not required.

Dr Oriani-Ambrosini said that the advertisers carried the costs.

Mr Jeffery said that the Bill provided that if the information was not produced by an ISP because it was not available, then no sanctions would apply and the request would not be pursued further against the ISP.

Dr M Oriani-Ambrosini said that a private entity was being enlisted to do the job of the police. ISPs should not be subject to any criminal sanction for not being able to provide the information. This was an undue burden being placed upon the ISPs.

Mr Jeffery said that in order to stop cyber harassment, and apply for a protection order, the identity and address of the perpetrator had to be revealed. If the ISP did not have the details, then the protection order would be cancelled. It was most unusual that the ISPs were not being required to do anything extra, and this Bill placed no new obligations on them. One of the defences was that if no records were available, the ISP would not be sanctioned. There was no incentive for them to comply.

Mr Robbertse said that clause 15(5) dealt with the criminalisation of certain conduct of SAPS members.

Mr Jeffery agreed that the clause should be separate. However, he was unsure whether it should be included in the Bill.

Mr Robbertse pointed out that a SAPS member who failed to comply with a court order would in any event be guilty of an offence.

Mr Swart asked if there were any other precedents where the failure of the police to carry out administrative orders was criminalized.

Ms Schäfer said that perhaps misconduct under subclause (a) could not be criminalised. However, she believed that conduct falling under clause 15(5)(b) should still be criminalised and this Bill should specify that misconduct, under either clause 7 or this sub-clause, should be referred to the Civilian Secretariat for the Police Service.  

Mr Jeffery said that it would be interesting to know how this had been dealt with in the Domestic Violence Act. It might be better to allow the normal rules around contempt of court to apply, but he agreed that there should be a mechanism to ensure that the misconduct should be properly investigated.

Ms Schäfer said that the Domestic Violence Act had not been effective at all. It was necessary to try to avoid the same happening with this legislation.

Mr Swart said that if the Committee were to criminalise the misconduct of SAPS members in this Bill, then similar provisions should be done in other legislation. This was setting a new trend and standard, and the issue warranted further debate.

Mr Jeffery said that the rules around contempt of court would apply to both clauses 15(5)(a)(i) and (15(5)(a)(ii), as well as clause 7(3). In a sense misconduct was already covered. He reiterated that this Bill must be finalised before recess. If the Committee wanted to criminalise police misconduct, it should be discussing the issue both in principle and specifics, with the Portfolio Committee on Police.

The Chairperson suggested that clause 15(5) could be removed as it was unnecessary.

Instructions, Directives, Regulations
Mr Jeffery asked if the Committee wanted to have the power to approve the Instructions, Directives and Regulations. This was quite an onerous task, taking some considerable, as seen with the Child Justice Act. Before taking on a new responsibility, the Committee must satisfy itself as to the reasons for doing so. The Child Justice Act had ushered in a new regime that justified the regulations having to be approved. This was not so significant.

The Chairperson agreed that the mater of whether the Committee wanted to approve Regulations would be kept open for further debate.

Mr Jeffery said that he would caution against approving regulations, although he would be prepared to hear other Members’ arguments to the contrary. Otherwise, the clause concerning the regulations could be left as originally drafted.

The Chairperson noted that by Tuesday 14 June 2011, all amendments should be finalised, and the A list prepared, so that Members could vote on the Bill on Wednesday 15 June 2011.

The meeting was adjourned