The Protection from Harassment Act, 2011 (assented to on December 2011) (the Act) becomes effective on 27 April 2013. Kathleen Rice, Director in the Technology, Media and Telecommunications (TMT) practice at Cliffe Dekker Hofmeyr explains, “In terms of the Act, district magistrate’s courts may issue directives to electronic communications service providers to provide information regarding the perpetrators of harassment.
“The powers given to magistrates in terms of the Act supplement existing powers of the state to obtain information in terms of Criminal Procedure Act, 1977, and the Regulation of Interception and Provision of Communication Related Information Act, 2002 (RICA) from electronic communications service providers,” she says.
Rice says the purpose of the Act is to afford victims of harassment an effective remedy against harassing behaviour and introduce measures which seek to enable organs of state to give full effect to the provisions of the Act.
“Harassment” in terms of the Act is conduct that causes harm (whether it be mental, psychological, physical or economic) or the reasonable belief that harm may be caused to a person ( referred to as “the complainant” in the Act).
“The unreasonable exchange of electronic communication with the complainant or a related person (i.e. any member of the family or household of the complainant or any person in a close relationship to the complainant) or the sending of facsimiles or email to the complainant or a related person amounts to harassment under the Act,” Rice explains.
“The implementation of the provisions of the Act will be considerably facilitated by the Directives published with the regulations, which are clearly set out the duties of clerks of the court when processing applications for protection orders. The directives require clerks of the court to obtain a working knowledge of, and be able to apply, the Act and its regulations.”
Rice explains that clerks of the court must be available to receive applications for protection orders outside of ordinary court hours. A clerk of the court designated to perform duties in terms of the Act must be available telephonically and must be available at the court building within a reasonable time after being contacted outside court hours. The clerk of the court is responsible for contacting a magistrate who is designated to consider urgent applications for protection orders outside of court hours and for assisting complainants. Clerks of the court are required to adhere strictly to timeframes provided for in the Act for service or forwarding of documents and, where no timeframes provided for, documents must be served or forwarded without delay. The Directives expressly state that the failure of a clerk of the court to comply with the Directives will constitute an act of misconduct.
“In terms of the Act, a district magistrate’s court may issue a protection order to a complainant if it is satisfied that the respondent to the proceedings (whose identity may or may not be known) is engaged or has engaged in harassment and that harm is being or may be suffered by the complainant or a related person as a result,” says Rice.
Rice says, “What is noteworthy for electronic communication service providers is that if an interim protection order is issued as a result of harassment of the complainant or related persons by means of electronic communications or email and the identity or address of the respondent is not known, the magistrate’s court may issue a direction directing an electronic communications service provider (be it licensed or exempt) to furnish it with an affidavit containing the following information:
- the electronic communications identification number (such as a telephone number, email address, web address or subscriber number) from which the harassing electronic communications or email originated
- the name, surname, identity number and address of the respondent to whom the electronic communications identity number has been assigned
- any information which indicates the electronic communications or email were or were not sent from the electronic communications identity number of the respondent to the electronic communications identity number of the complainant; and
- any other information that is available to an electronic communications service provider which may be of assistance to the court to identify the respondent or the electronic communications service provider which provides a service to the respondent.
Rice says a direction from the magistrate’s court must be served on the electronic communications service provider and the electronic communications service provider has five ordinary court days within which to respond. The electronic communications service provider may apply for an extension of time or the cancellation of the direction on the grounds that it does not have the information sought by the court,” she explains.
“Simultaneously with the proclamation of the effective date of the Act, the Minister of Justice and Constitutional Development published regulations in terms of Act, prescribing the forms to be used in applying for a protection from harassment order. The Regulations also include the prescribed forms to be used by electronic communications service providers when providing requested information on affidavit,” she says.
Rice adds, “The Act streamlines the process to obtain information from electronic communications service providers to identify unknown perpetrators of harassment. The Act, particularly if the Directives are strictly applied, will play a decisive role in protecting the victims of harassment.