Harrasment

What does harassment mean?

  • Unreasonable behaviour by the respondent ("the wrongdoer") who causes harm (mental, psychological, physical or financial harm) or makes the complainant (the victim, which includes a child) believe that harm may be caused by –
    • following, communicating with, watching, or bothering the complainant; or
    • sending letters, gifts, faxes, or emails to the complainant.
    • Harassment includes sexual harassment.
    • If there is harassment, a protection order may be granted.

Who can apply for a protection order?

  • Any person who is a victim of harassment ("the complainant").
  • Another person who acts on behalf of the complainant, if the complainant gives written consent and as long as the acting person has a material (real and serious, such as a child's mother) interest in the well-being of the complainant.

How does a complainant apply for a protection order?

  • Application is made with the clerk of a Magistrate's Court in the area where the complainant or respondent lives, works, or the harassment took place.
  • The clerk will help the complainant fill in the application for a protection order, together with a written affidavit, which will be given to the Magistrate for consideration.
  • A complainant may also lay a criminal complaint against the respondent for assault, trespassing, or other forms of criminal activity.

What happens if the respondent's identity is unknown?

  • The police may carry out an investigation to find the name, address or any other information of the respondent.
  • The court may order an employer to provide details of the respondent, if s/he is an employee.
  • A respondent who does not provide the information is guilty of a criminal offence and will be liable to a fine or imprisonment of 6 (six) months.

What is the procedure at court?

  • If there is enough evidence to prove harassment or there is harm (or a potential of harm) an interim protection order ("IPO") will be issued, with a suspended warrant of arrest. 
  • The IPO will tell the respondent when s/he must return to court to state his/her defense.
  • If the respondent does not appear on the return date, and the court is happy that the application has evidence of harassment, the court may issue a final protection order.
  • If the respondent does appear on the return date, s/he must give good reasons to the court why the IPO should not be made final.
  • A final protection order will be issued if the court finds that the respondent harassed, or will harass, the complainant.
  • The court will ensure the safety of the complainant, and it may order the police to remove a weapon in the possession of the complainant.
  • If the respondent does not follow the protection order s/he will be guilty of a criminal offence and will be liable for a fine or imprisonment of up to 5 (five) years.
  • The warrant remains valid until the protection order expires (after 5 (five) years or a time period as the court decides), or is set aside.

May the respondent be dismissed?

The Employment Equity Act 55 of 1998 ("EEA") deals with harassment or sexual harassment in the workplace. A single incident of unwelcome sexual conduct may constitute sexual harassment and must be brought to the attention of the employer immediately. If an employer fails to take immediate and appropriate action to prevent harassment in the workplace, the employer may become liable for damages due to unfair discrimination, and its failure to assist could lead to a claim for constructive dismissal. In terms of the Labour Relations Act 66 of 1995, sexual harassment is a form of misconduct, and the employer may take disciplinary steps against the respondent who may be fairly dismissed. 

Key.

  • CHILD: a person under the age of 18 years.
  • CONSTRUCTIVE DISMISSAL: when an employee resigns because their employer's behaviour becomes  intolerable which makes life difficult for the employee at work and the employee has no choice but to resign.
  • INTERIM PROTECTION ORDER: a temporary court order prohibiting one person (the respondent) from committing unreasonable acts against another person (the complainant). It is issued on the first day when the complainant applies for a protection order.
  • FINAL PROTECTION ORDER: a court order confirming an interim protection order, prohibiting one person from (the respondent) committing abusive acts against another person (the complainant). It is issued if the Magistrate has satisfied him/herself that harassment exists.
  • SUSPENDED WARRANT OF ARREST: the execution of an arrest is delayed until the respondent fails to comply with a condition, obligation or order granted by the court.
  • SEXUAL HARASSMENT: unwelcome sexual attention, behaviour, suggestions, messages, or remarks of a sexual nature that will offend, intimidate or humiliate the complainant; a promise or reward for sexual deeds; or a sexual threat.
  • UNREASONABLE: abusive, rude, extreme or excessive behaviour.

How can Legal Eagle help you? 

We will:

  • assist you with an application to court;
  • you on your rights and duties if you have been harassed, or will be harmed;
  • advise
  • subject to our terms and conditions, defend legal proceedings; and
  • subject to our terms and conditions, help you with your dismissal. 

COMMON LAW

LEGISLATION

JUDICIAL PRECEDENT

CUSTOM


Common law consists of Roman-Dutch law with a touch of English law.


Most of our common law has been changed by legislation.

For example: the law of contract says every contract must have an offer and acceptance, the parties must have an intention to enter into a contract and have contractual capacity, the rights and duties of the contract must be possible to perform, the purpose of the contract must be lawful, and formalities must be complied with (such as a written contract) where necessary.


Legislation is the most important source of law.

It is passed by government (parliament in particular) and signed by the President.


All legislation is subject to the Constitution.

For example: the Consumer Protection Act 68 of 2008, and the National Credit Act 34 of 2005 (legislation ends with the word “Act”).


Judicial precedent means courts pass judgements.

Lower courts are always bound by higher court decisions.

A court hears a civil matter or a criminal matter.

For example: a Magistrate’s Court is bound to the reason in law to a High Court, a High Court is bound to a decision in law of the Supreme Court of Appeal, and the Supreme Court of Appeal is bound to the Constitutional Court.

There are many Magistrate’s Courts and High Courts but there is only one Supreme Court of Appeal and one Constitutional Court.


Custom is the unwritten part of South African law.

It refers to the habits of communities that become law.

For example: a fisherman understands and acknowledges that once another fisherman has cast for fish, he/she cannot cast for the same fish.

Custom is seen as law ONLY IF the custom is reasonable; has existed for a long time; is generally recognised and followed by the community; and it does not contradict an existing rule of law.

 

 

How can Legal Eagle assist you?

Legal Eagle can assist you with the following:

  • explain your rights in law (whether your debt is based on a contract, delict or unjustified enrichment); and
  • what source of law applies to your legal dispute.

Key

  • LEGAL RELATIONSHIP – the law ensures all persons have rights and duties, which other people must respect; and a person can have a right to property. The law creates a relationship (a bond) between persons, and between persons and property
  • SOURCE OF LAW – the places from where the law can be found
  • LAW OF CONTRACT – two or more parties enter into an agreement (which is a contract) which includes lease agreements, partnership agreements, employment agreements, consumer agreements, and credit agreements
  • CONSTITUTION – a document that has rules which govern South Africa, for example, it has 36 basic rights for everyone such as the right to equality and the right to freedom of association. It is the highest law in South Africa
  • COURTS - a body of courts that resolve disputes involving people and/or property. A court differs to an ombudsman and alternative dispute resolution
  • CIVIL MATTER – arises when there is a dispute between people, or people and property. There is either an action procedure (where a summons is issued by the plaintiff (the aggrieved party) to the defendant, pleadings are filed and served (these are documents setting out the parties cases), once the pleading stage is closed (a few months) then the trial starts where evidence is given by both parties, and a judgement follows (in favour or against the plaintiff)); OR an application procedure (where the court’s judgement is based on papers - the parties (the applicant and the respondent) go to court and only the set of papers is considered, without evidence being delivered)
  • CRIMINAL MATTER – arises when there is criminal activity. The process is as follows: a crime is committed, the matter is reported to the police, investigations are carried out by an investigating officer, and the evidence is given to the National Prosecuting Authority who decides to proceed with or reject the case. If the case proceeds then an arrest or a summons is made to the accused to appear in court