Randomly selected real life experiences of victims of harassment, recorded by the South African Law Reform Commission reveal:
Silent and heavy breathing phone calls every hour throughout the night
Up to 300 abusive phone calls and text messages a day
A funeral parlour arriving to collect a prominent doctor’s supposed dead body from his house during his daughter’s wedding celebration and
Someone gaining undetected entry into a woman’s home, moving furniture and leaving glass shards in the food in her refrigerator.
Stalking, and stalkers who thrive on it, need to be taken seriously. Stalkers are, by their very nature, obsessive and often dangerous. Growing everyday, stalking is also prevalent as a precursor to many other violent crimes in the South African context, with most of the victims being women and children. In October 2009, a stalker gained access to e-TV journalist Shadi Rapitso’s house. When she rejected his declaration of love for her, he kidnapped her and fatally stabbed her in the neck. Her shocking murder alerts us to the fatal consequences of stalking.
Three rights contained in the Bill of Rights are particularly relevant to the Bill we are debating today.
Section 10 of the Constitution which refers to the rights of all citizen’s to have their dignity and rights respected and protected
Section 12 which gives citizens their freedom and security of the person, including their right to be free from all forms of violence and
Lastly, section 14 which gives every citizen the right to privacy.
The Bill also gives effect to section 7 of the Bill of Rights, which is a cornerstone of our democracy.
This section enshrines the rights of all our people by affirming the democratic values of human dignity, equality and freedom. In terms of this section, the State is enjoined to respect, protect, promote and fulfil the rights contained in the Bill of Rights. To deal with the concerns of media freedom, the Bill is also crafted in a manner that ensures that it does not affect the reasonable activities of investigative journalists who may, during the course of their duties, be accused of harassment.
This Bill is intended to address stalking by means of a quick, easy and affordable civil remedy in the form of a protection order. These provisions are not entirely new on our Statute Book. Honourable members will notice that many of the provisions in the Bill have resonance with the Domestic Violence Act of 1998. The current Bill deals with stalking when the stalker and the victim are not in a relationship, while the Domestic Violence Act deals with transgressions where the two are in a relationship.
In terms of the Bill, the harm caused is not limited to physical harm but is defined to include any mental, psychological or even economic harm. Unreasonableness forms the basis of stalking behaviour and the courts will have to consider each allegation of harassment on a case-by-case basis.
Mr Speaker, please permit me to briefly unpack the main parts of this Bill.
A victim of harassment may apply for a protection order against harassment at a magistrate’s court that is a designated district court. To increase access, an application for a protection order may also be brought outside ordinary court hours if the court is satisfied that the complainant may suffer harm if the matter is not dealt with expeditiously.
If the victim hands an affidavit to a member of the South African Police Service proving that the stalker has broken any term or condition contained in the order, the police official has discretion either to arrest the respondent or hand him or her or to issue a notice to appear in court on a date specified in the notice to face criminal charges of contravening a protection order. That, in a nutshell, is the main thrust of the Bill.
Public hearings conducted by the Portfolio Committeeled to four important insertions which enhance the Bill’s effectiveness.
(a) While the Bill, as introduced in Parliament, recognised the existence of cyber stalking, as per the definition of harassment in clause 1, it did not go far enough because victims of cyber stalking often do not know the identity of their stalkers. The Bill now contains a mechanism in terms of which a victim of cyber stalking can still apply to court for an interim protection order against harassment even if the perpetrator is unknown.
Mr Speaker, allow me to briefly elaborate on the seriousness of cyber stalking if only to illuminate the correctness of this Bill’s intervention:
(b) The Bill allows the courts to issue directions to the South African Police Service to assist applicants in determining the identity of real time or physical stalkers. In addition, provision has been made 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 hamstrung as they did not have the powers to investigate complaints of stalking if no criminal action can be proven. This Bill now creates space for this investigation to be undertaken.
(c) While victims of stalking under the Domestic Violence Act will, more often than not, have a good idea of who their stalkers are, there could well be instances where they do not. I am of the view that consideration should be given to bringing the Domestic Violence Act in line with the innovations created by this Bill. My department will undertake the necessary investigation in this regard.
(d) The last insertion in the Bill relates to the concerns raised by the media during the public hearings. A view was expressed that the Bill might have unintended consequences and impact negatively on press freedom, particularly in the case of investigative journalists who could fall foul of the proposed legislation when investigating issues of public interest. While the Bill correctly places a strong emphasis on the reasonableness or unreasonableness of a person’s actions in determining whether harassment has taken place or not, I note the inclusion of the new provision which will oblige courts to take into account certain specific factors when considering the reasonableness, or otherwise, of a person’s conduct. Although some representatives of the media advocated for a complete defence, I am of the view that the compromise which has found its way into the Bill, in the form of factors to be considered by the courts, constitutes an acceptable balance.
I thank you.
Minister’s closing remarks
I wish to thank all the members who participated in the debate. I also wish to thank members of the Portfolio Committee on Justice and Constitutional Development, under the leadership of Mr Lewellen Launders, for their stelling work in processing this Bill, as well as the members of the public who enriched the process by submitting comments.
I have listened carefully at the contributions made by the Honourable members and have taken note of the proposals contained in the Committee Report.
I thank you.
Issued by: Department of Justice and Constitutional Development
16 Aug 2011