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Durban - The very first working day after the Protection from Harassment Act came into operation, staff at the Durban Magistrate’s Court had their first customer - a young woman who was being sexually harassed by a work colleague.
That was at the end of April this year, and since then the specially trained staff at the “harassment court” have dealt with an average of 50 to 60 cases every month.
The act has been hailed as a great advancement in the protection of victims of harassment in that it gives them a swift, cheap and effective remedy in the form of a “protection order” or interdict, which was previously only available either through expensive high court litigation or the domestic violence court.
The significant difference between this and domestic violence legislation is that a person does not have to be involved in a domestic relationship in order to apply for an order.
“In fact, the victim may not even know who is behind the harassment,” says senior magistrate Mahomed Motala, who supervised the opening of the “harassment courts”.
The act defines harassment as direct and indirect conduct which causes harm. This includes “following, watching or accosting” someone, loitering near someone’s workplace or home, contact through verbal communication, letters or emails, and sexual harassment, including “unwelcome behaviour”, suggestions or remarks.
Unlike domestic violence legislation, there need not be a pattern of behaviour - it can be a one-off comment, touch, or SMS.
The initial process is quick.
The complainant fills in an affidavit detailing what has occurred and a magistrate considers this in chambers and decides whether or not to grant an interim order ex parte - without the knowledge of the alleged harasser.
He or she only becomes aware of the order once it is served on him or her by the police or the sheriff.
A return date is set when the alleged harasser can come to court and state his or her side of the story. The matter can be referred to “trial”, where it can be dealt with in argument or by calling witnesses, with or without lawyers. Proceedings can be open or closed to the public, depending on the sensitivity of the allegations.
Ultimately, a successful complainant obtains an order which authorises the issue of a warrant of arrest should it not be complied with.
Motala says the initial paperwork is voluminous “because all the safeguards need to be there”.
“The act tramples and trumps the audi alteram partem (let the other side be heard) rule by authorising an interim order only on the say-so of the complainant… and the issue of a warrant of arrest is a powerful weapon. These matters have to be handled carefully,” he said.
Just as someone who breaches the order can be fined R60 000 or jailed for five years, there are also fines and possible imprisonment for anyone making a false declaration in the founding affidavit.
Magistrate Ferial Seedat, a presiding magistrate, said the order had “far more teeth” than peace orders (which are still available), which were really just warning notices to desist certain behaviour, rather than orders of court.
More tricky are the electronic communication cases, because often the person on the receiving end has no idea of the true identity of the sender.
The act empowers the court to ask for assistance from email and cellphone service providers in identifying the harasser at an agreed fee of R80 to be paid by the complainant and, if that fails, to order the police to investigate further.
Motala says he foresees the court will also be dealing with cases of bullying at schools because the act allows a child under 18 to apply for a protection order, even without parental assistance.