Until the 5th of December 2011 protection orders (the American term for these is "restraining order") other than interdicts obtained from a civil court were available only in instances of domestic violence.
While in legal terms an interdict and a protection order may appear the same one major difference is that a protection order is issued by a Magistrate after a specialised Clerk at the Court has helped an unrepresented applicant free of charge to fill out the necessary forms. The protection order is further served by a member of the Police Service at not cost whatsoever.
Interdicts require the help of a legal practitioner to draw up court papers and it is often necessary for a legal practitioner to appear before the Court on a motion court day to have the application argued and considered.
On the 5th of December 2011, however, the Protection from Harassment Act 17 of 2011 was promulgated.
This Act provides for a protection order to be granted by a Magistrate and also a Clerk at the Court who helps applicants free of charge to fill out the prescribed forms.
Since the promulgation of this Act protection from harassment is now available to anyone in South Africa regardless of whether they have a lawyer or not.
"Against what kinds of harassment does this Act protect me?" you might ask...
The definition of harassment is wide enough to include every form of communication and interation with a person that can be abused to cause that person harm. That includes the sending of electronic messages such as Whatsapp messages and also annoying behavious like following and watching.
The court has to consider this type of behaviour if it causes you harm or if one is to reasonably know that it can cause you harm, The type of harm against which you are to be protected may be mental, psychological, physical or economic harm.
An Applicant who meets the above requirements gets issued with an interim protection order with a return date on which the Respondent (that is the person against whom the complaint is made) is to explain why it is not necessary to make the order final.
As is the case with interdicts a Respondent may after having received an interim protection order give the Applicant and the Court 24 hours notice of his/ her intention to oppose the matter and have it argued before the Court from which it was issued.
One would expect that with harassment being defined widely enough and that even your mental wellbeing is taken into account that you will not get sent away if you approach the Harassment Court Clerk with your complaint about being pestered by that particular person who insists on sending you Whatsapps and who even phones your workplace to reach you after you have made it clear that he is to leave you alone. The truth, however, is that Harassment Court Clerks have devised a way of screening applications that are solely intended to lighten their workload.
Applicants who approach these Courts without a legal representative are not supposed to be sent away if the conduct of which they complain fall within the definition of harassment as explained above. In many instances your Attorney can prevent you from being sent away and he can also ensure that your application is heard.
This Act was promulgated before our public had become aware of cyber-bullying on the level that it is now. The inclusion of electronic communication, however, means that social media and online chats also qualify as types of communication that the Court has to consider.
Nobody in South Africa has to endure being harassed by any person. If you find yourself being stalked, bullied, pestered with unwanted text messages- get a protection order. If the Court appears unhelpful to you- contact us!
