When does flirting become harassment? At what stage does a passing pat on someone’s behind, or a look, or a text message from a jilted girlfriend, end up in the criminal courts?

The Protection from Harassment Act 20111 is, mostly, about the issuing of protection orders to restrain harassment, and thereby give the victims of harassment effective remedies. But, as will be seen, it is an Act with wide-ranging scope, and some pretty blurry edges.

First, let’s look at some definitions of terms used in the Act.

  • ‘complainant’ — any person who alleges that he is being subjected to harassment.
  • ‘respondent’ — the person who is reasonably suspected of harassing the complainant or a related person.2
  • ‘harassment’ — means directly or indirectly, engaging in conduct that the respondent knows or ought to know causes harm (or inspires the reasonable belief that harm may be caused) to the complainant by unreasonably:
    • following, watching, pursuing or accosting of the complainant;
    • loitering outside of, or near the building or place where the complainant resides, works, carries on business, studies or happens to be;
    • engaging in verbal, electronic or any other communication aimed at the complainant by any means, whether or not conversation ensues;
    • sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant;
    • leaving such things where they will be found by, given to, or brought to the attention of the complainant.
  • ‘harm’— means any mental, psychological, physical or economic harm.
  • ‘sexual harassment’ — is also harassment for the purposes of the Act. It means any:
    • unwelcome sexual attention from a person who knows, or ought reasonably to know that such attention is unwelcome;
    • unwelcome explicit or implicit behaviour, suggestions, messages or remarks of a sexual nature that have the effect of offending, intimidating or humiliating the complainant (provided that, objectively speaking, such offence, humiliation or intimidation is reasonable);
    • implied or expressed promise of reward for complying with a sexually-oriented request; or
    • implied or expressed threat of reprisal, or actual reprisal, for refusal to comply with a sexually oriented request.

A. Protection orders

  1. The court may, by means of a protection order (including an interim protection order) prohibit someone from:3
    • engaging in or attempting to engage in harassment;
    • enlisting the help of another person to engage in harassment; or
    • committing any other act as specified in the protection order.

    It is an offence to contravene any prohibition, condition or obligation imposed by such an order.4

  2. The court may impose any additional conditions to protect and provide for the safety or well-being of the complainant. It is a crime to contravene any of these conditions as well.5

  3. Whenever a court issues a protection order, it also issues a warrant for the arrest of the person who commits the harassment, but suspends it depending upon his compliance with the order. If the complainant in the case lodges an affidavit wherein it is stated that the order has been contravened, the arrest warrant will be activated (if SAPS considers that harm is likely to the complainant). Any person who, in such an affidavit, makes a false statement in a material respect is guilty of an offence.6

  4. Any person who is a respondent and is requested to furnish his name and address (or any other information) to a member of the South African Police Service and who fails to do so; or who furnishes a false or incorrect name and address, or false other information, is guilty of an offence.7

B. Proceedings for protection and other orders

  1. Any person who is subpoenaed by the court, or warned to attend proceedings in terms of the Act and who fails to:8
    • attend or to remain in attendance; or
    • appear at the place and on the date and at the time to which the proceedings in question may be adjourned; or
    • remain in attendance at those proceedings as so adjourned; or
    • produce any book, document or object specified in the subpoena,

    is guilty of an offence.9

  2. The court may direct that the identity or address of any person may not be revealed. It is an offence to contravene such a direction.10

  3. The court may also direct that no information relating to the proceedings may be published in any manner whatsoever. Any person who publishes any information in contravention of such a direction is guilty of an offence.11

C. E-harassment

  1. In the case of harassment by means of electronic communications, the court can direct any electronic communications service provider to furnish certain information on affidavit. Any service provider (or employee) who fails to furnish the required information within five ordinary court days (from the time that the direction is served) is guilty of an offence.12

  2. Any person who makes a false statement in such an affidavit (or in further affidavits for the same or other purposes) is guilty of an offence.13

  3. The service provider must, 48 hours before providing the information, inform the respondent of the information, the name and address of the court, and the reference number of the court’s directive in question. It is an offence not to do so.14

  1. The Act falls under the authority of the Minister of Justice. 

  2. A person related to the complainant features in all possible harassing conduct, but mention is not repeated here. 

  3. Section 10(1) read with section 18(1)(a). 

  4. Section 18(1)(a). 

  5. Section 10(2) read with section 18(1)(a). 

  6. Section 11(4)(a) read with section 18(1)(b). 

  7. Section 6(2) read with section 18(5). 

  8. Section 7(3). 

  9. Section 18(3). 

  10. Section 8(1)(b) read with section 18(2). 

  11. Section 8(1)(c) read with section 18(2). 

  12. Section 18(4)(a)(i), section 4(3)(a) read with section 4(1)(b). 

  13. Section 18(4)(a)(ii), section 4(1)(b). 

  14. Section 4(6) read with section 18(4)(iii).