Although the legislation took seven years in the making, it was tabled in Parliament in February 2010, approved in August 2011 and published in Government Gazette 34818 on 5 December 2011 (Republic of South Africa, Protection from Harassment Act 17 of 2011). The Protection from Harassment Act was purposively designed to address harassment and stalking incidences whereby the assailant and victim do not have a domestic relationship. This includes stalkers who are neighbours, friends or even strangers (Wyndham, 2010). It has been drafted by the South African Law Reform
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Commission to bring it in line with existing norms (Hartley, 2010; Anon, Anti-stalking bill …2011; Anon, President gives nod …2011).
In terms of Section 1 of Act 17 of 2011, "harassment" means directly or indirectly engaging in conduct that the respondent knows or ought to know:
(a) causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably-
(i) following, watching, pursuing or accosting of the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be;
(ii) engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues; or
(iii) sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or leaving them where they will be found by, given to, or brought to the attention of, the complainant or a related person;
(b) amounts to sexual harassment of the complainant or a related person.
In terms of the same section, "harm" is defined as any mental, psychological, physical or economic harm.
"Sexual harassment" in turn is defined as any-
(a) unwelcome sexual attention from a person who knows or ought reasonably to know that such attention is unwelcome;
(b) unwelcome explicit or implicit behaviour, suggestions, messages or remarks of a sexual nature that have the effect of offending, intimidating or humiliating the complainant or a related person in circumstances, which a reasonable person having regard to all the circumstances would have anticipated that the complainant or related person would be offended, humiliated or intimidated;
(c) implied or expressed promise of reward for complying with a sexually oriented request; or
(d) implied or expressed threat of reprisal or actual reprisal for refusal to comply with a sexually oriented request.
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As conveyed by Radebe (2010), the Act intends on dealing with stalking by means of a swift, easy and affordable civil remedy in the form of a protection order.
A key component of the Act is that it attempts to cover all forms of harassment (Anon, President gives nod … 2011). Although the concept “stalking” is not defined in this Act, it is acknowledged in terms of the Domestic Violence Act (Republic of South Africa, Domestic Violence Act 116 of1998). Section 1(2) of the Protection from Harassment Act (Republic of South Africa, Protection from Harassment Act 17 of2011) states that “This Act does not prevent a person who may apply for relief against harassment or stalking in terms of the Domestic Violence Act, 1998 (Act No. 116 of 1998), from applying for relief in terms of this Act”, while Section 10(5) (a) of the same Act reads that with regard to a complainant who is not in possession of or not in the process of applying for a protection order against harassment or stalking (as provided for in the Domestic Violence Act 116 of 1998), a court may not refuse to issue a protection order or impose any condition or make any order which it is competent to impose or make in terms of this section, merely on the grounds that other legal remedies are available to the complainant. It is the contention of the researcher that a similar meaning should be attached to the concepts harassment and stalking in terms of the Protection from Harassment Act 17 of 2011 and the Domestic Violence Act 116 of 1998 respectively. The social construct of “stalking” is preferred for the purposes of this study and to equate the behaviour previously explained with that of cyber stalking described in international and local literature.
The Act, therefore, recognises that former legislation regarding stalking does not make provision for cyber stalking; thus going largely without censure or sanction. Alternatively, the Act includes cyber stalking as a criminal offence making it easier to prosecute. Courts now have the authority to consider whether reporting or posting damaging content online can be constituted as harassment (Anon, New anti-stalking Bill … 2009) The Act contains a mechanism in which a victim of cyber stalking can apply to the court for an interim protection order against harassment even if perpetrated by a stranger. In addition, the courts are allowed to issue instructions to the South African Police Service
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(SAPS) to assist applicants in tracing the identity of the cyber stalker (Anon, Anti- stalking … 2011). Radebe (2010) elaborates on this by explaining that not only does the Act permit the assistance of the SAPS in determining the identity of the perpetrator but also makes provisions in the form of a discretion in terms of which police officials can assist victims of stalking to trace and identify their harassers even before they launch an application for a protection order. Previously, the police were restricted as they did not have the powers to investigate complaints of stalking if no criminal action can be proven. This Act now creates liberty for this investigation to be undertaken.
The protective measures involved in the legislation maintain that a protection order can be issued instructing the harasser to end the harassment. If the harasser breaches the order, he or she will be guilty of an offence. The legislation also provides, in certain circumstances as judged by the courts, for the issuing of an interim order without the knowledge of the harasser. A victim of cyber stalking is allowed to apply to a court for an interim protection order even if the harasser is unknown. Persons going against a condition of a protection order may be convicted of an offence, and a fine or a period of imprisonment not exceeding five years (Anon, President gives nod …2011).