How to get a Harassment Interdict
How to Get a Harassment Interdict in South Africa: A Comprehensive Guide
Harassment is a serious issue that affects the safety and well-being of individuals across South Africa. Understanding how to get a harassment interdict is crucial for anyone experiencing unwanted behavior that threatens their peace of mind. This guide provides a detailed overview of the legal framework, processes, and support systems available to obtain a harassment interdict, supported by authoritative South African legal references.
Understanding Harassment and the Protection from Harassment Act
Definition of Harassment
Under the Protection from Harassment Act 17 of 2011 (“the Act”), harassment is defined as:
Direct or Indirect Conduct: Any behavior that causes harm or inspires the reasonable belief that harm may be caused.
Unreasonable Conduct: Actions that are unwarranted and repetitive, including following, watching, or accosting a person.
Communication: Unsolicited contact through various means, including electronic communication.
Types of Harassment Covered
Stalking: Repeatedly following or pursuing a person.
Cyber Harassment: Unwanted electronic communication, including emails, messages, or social media interactions.
Verbal Abuse: Offensive or threatening language directed at an individual.
Unwanted Gifts or Attention: Persistent offers or gifts that cause discomfort.
Legal Framework Governing Harassment Interdicts
The Protection from Harassment Act 17 of 2011
The Act provides a legal remedy for victims of harassment who are not in a domestic relationship with the perpetrator, filling a gap left by the Domestic Violence Act 116 of 1998.
Objectives of the Act
Accessible Legal Protection: Simplify the process of obtaining a protection order against harassment.
Broad Scope: Cover all forms of harassment, including cyber harassment.
Assistance from Police and Courts: Obligations on authorities to assist victims promptly.
Constitutional Rights
The Constitution of the Republic of South Africa, 1996 guarantees fundamental rights relevant to harassment:
Section 10: Right to human dignity.
Section 12(1)(c): Right to freedom from all forms of violence.
Section 14: Right to privacy.
Section 16: Freedom of expression, balanced against the rights of others.
Relevant Case Law
KS v AM 2018 (1) SACR 240 (GJ): Addressed the application of the Act in cases of cyber harassment.
Dendy v University of the Witwatersrand, Johannesburg (2018) ZAGPJHC 41: Explored the balance between freedom of expression and harassment.
The Process of How to Get a Harassment Interdict
Understanding how to get a harassment interdict involves several key steps:
Step 1: Application for a Protection Order
Where to Apply
Harassment Courts: Any of these courts within the jurisdiction where the complainant resides, works, or where the harassment occurred.
How to Apply
Complete Form 2 (Application for Protection Order): Available at the court or online.
Affidavit Detailing Harassment: Provide a detailed account of incidents, including dates, times, and nature of harassment.
Assistance from Clerk of the Court: Required to assist applicants in completing forms (Section 2(2) of the Act).
Step 2: Consideration by the Court
Ex Parte Hearing: The court may issue an interim protection order without the respondent’s presence if urgent.
Prima Facie Evidence: The court must be satisfied there’s sufficient evidence of harassment.
Step 3: Issuance of Interim Protection Order
Immediate Protection: Provides immediate relief pending a return date.
Service on Respondent: Order and notice to appear in court must be served by the sheriff or police officer (Section 3(3) of the Act).
Step 4: Return Date and Final Protection Order
Court Hearing: Both parties present evidence and may have legal representation.
Final Order Issuance: The court may confirm, amend, or set aside the interim order (Section 9 of the Act).
Conditions Imposed: May prohibit the respondent from engaging in or attempting to engage in harassment.
Step 5: Enforcement Mechanisms
Warrant of Arrest
Issuance with Final Order: A warrant is issued but suspended unless the order is breached (Section 11 of the Act).
Activation upon Breach: Immediate arrest upon violation of the order.
Criminal Proceedings
Breach as Offense: Violating a protection order is a criminal offense, punishable by fine or imprisonment (Section 18 of the Act).
Rights and Responsibilities Under the Harassment Interdict
Rights of the Complainant
Protection and Safety: Legal mechanisms to prevent further harassment.
Confidentiality: Protection of personal details and circumstances.
Support Services: Access to counseling and legal aid.
Responsibilities of the Respondent
Compliance: Must adhere strictly to the terms of the order.
Non-Retaliation: Prohibited from intimidating or retaliating against the complainant.
Attendance: Required to appear in court when summoned.
Legal Recourse
Variation or Setting Aside: Either party may apply to vary or set aside the order if circumstances change (Section 14 of the Act).
Challenges in Obtaining and Enforcing Harassment Interdicts
Accessibility Issues
Awareness: Lack of knowledge about the Act and legal remedies.
Resource Constraints: Limited access to legal aid and support services.
Systemic Challenges
Delays in Court Processes: Administrative backlogs can prolong the process.
Enforcement Difficulties: Challenges in enforcing orders, especially with cyber harassment.
Societal Factors
Stigma and Fear: Victims may fear not being taken seriously or retaliation.
Technological Complexity: Difficulty in tracing anonymous harassers online.
Case Law Highlighting Challenges
Karabus v Ferndale Clinical Laboratories (2014) ZAWCHC 134: Highlighted challenges in proving harassment in professional settings.
LT v TML (2018) ZAGPJHC 613: Addressed issues related to electronic harassment and evidence gathering.
Support Systems and Legal Aid
Legal Aid South Africa
Mandate: Provide legal assistance to those who cannot afford it (Legal Aid South Africa Act 39 of 2014).
Services: Legal representation and advice on obtaining harassment interdicts.
Non-Governmental Organizations
Women’s Legal Centre: Offers legal advice and representation.
Centre for Applied Legal Studies (CALS): Provides support and advocacy on human rights issues.
Government Initiatives
South African Police Service (SAPS): Obligated to assist in serving orders and enforcing compliance.
Cybercrime Units: Specialized units to address cyber harassment.
Practical Tips on How to Get a Harassment Interdict
Document Everything: Keep records of all incidents, including dates, times, and any communication.
Save Evidence: Preserve emails, messages, screenshots, and any other relevant material.
Report to the Police: File a complaint to establish an official record.
Seek Support: Reach out to support organizations for assistance.
Importance of Legal Representation
While not mandatory, obtaining legal counsel can help navigate the complexities of how to get a harassment interdict. Lawyers can assist in:
Preparing Documentation: Ensuring all evidence is properly presented.
Court Representation: Advocating on your behalf during hearings.
Understanding Legal Rights: Providing clarity on the implications of the interdict.
Impact of Harassment Interdicts
On Victims
Safety and Peace of Mind: Legal protection can reduce fear and anxiety.
Empowerment: Asserting legal rights can restore a sense of control.
Deterrence: Legal consequences may discourage the harasser from continuing their behavior.
On Society
Awareness: Encourages recognition of harassment as a serious issue.
Legal Precedent: Strengthens the legal framework through case law.
Protection of Rights: Upholds constitutional rights to dignity and safety.
Frequently Asked Questions
Who can apply for a harassment interdict?
Anyone who is a victim of harassment, regardless of their relationship with the harasser, can apply under the Protection from Harassment Act 17 of 2011.
Do I need legal representation to apply?
No, legal representation is not required. Court clerks are mandated to assist applicants. However, legal counsel may be beneficial.
Can I apply if I don’t know the identity of the harasser?
Yes, the Act allows for applications against unknown respondents, particularly in cases of cyber harassment (Section 4(1)(b) of the Act).
What evidence do I need to provide?
Detailed accounts of harassment incidents, including any physical evidence like messages, emails, or witness statements.
How long does it take to get an interim protection order?
An interim order can be granted on the same day if the court finds it necessary for immediate protection.
What happens if the harasser violates the interdict?
Violating a protection order is a criminal offense. The police can arrest the harasser upon breach (Section 11(4) of the Act).
Can the interdict be enforced if the harasser is anonymous online?
Yes, the court can order electronic service providers to furnish information to identify the harasser (Section 4(2) of the Act).
Is there a cost associated with applying for a harassment interdict?
There are no court fees for applying. However, costs may arise if you choose to hire legal representation.
Can the harasser challenge the interdict?
Yes, the respondent can oppose the interim order at the return date hearing and present their case.
How long does the protection order last?
A final protection order remains in effect until it is set aside by the court upon application by either party.
References
| Legal Authority | Citation |
|---|---|
| Protection from Harassment Act | Protection from Harassment Act 17 of 2011 |
| Constitution of South Africa | Constitution of the Republic of South Africa, 1996 |
| KS v AM | KS v AM 2018 (1) SACR 240 (GJ) |
| Dendy v University of the Witwatersrand | Dendy v University of the Witwatersrand, Johannesburg (2018) ZAGPJHC 41 |
| Karabus v Ferndale Clinical Laboratories | Karabus v Ferndale Clinical Laboratories (2014) ZAWCHC 134 |
| LT v TML | LT v TML (2018) ZAGPJHC 613 |
| Legal Aid South Africa Act | Legal Aid South Africa Act 39 of 2014 |
Useful Links
If you believe you have been unjustly accused of harassment click here.
If your query relates to harassment in the workplace click here.
If the harassment in question has caused you to resign from your employment click here.
If you are being defamed online and would like to take action click here.
If your query actually relates to domestic violence interdicts click here.
If you are being harassed by debt collectors click here.
If you are being harassed as part of an eviction proceeding click here.
If your query relates to public nuisance or noise complaints click here.
If you would like to know more about gender re-assignment and the law click here.
If you would like to know more about what to do if you are blacklisted click here.
This article is for general informational purposes only and should not be used or relied upon as legal or professional advice. Meyer and Partners Attorneys Incorporated accepts no liability for any errors, omissions, losses, or damages arising from reliance on the information provided. For specific and detailed advice, please don’t hesitate to contact us at Meyer and Partners Attorneys Incorporated. Errors and omissions excepted (E&OE).