PERSONS & FAMILY

TAKING A STAND AGAINST STALKING


Written by: Peter SA Hendricks
05 March 2010



Concerned with the protection of every individual’s constitutional right to dignity, privacy, freedom of movement and freedom of association, the state is contemplating a law to protect against stalking.


The Domestic Violence Act No. 116 of 1998 was established to protect individuals against abuse by persons with whom they have a relationship. This did not protect anyone from harassing-behaviour by, for example, complete strangers. The Protection from Harassment Bill (the Bill) published in the government gazette of 1 February 2010 is a welcoming step in the right direction.


Stalking is not a crime in South Africa. But there are certain stalking behaviour that does fall within the ambit of some criminal offences. Such behaviour can, depending on the circumstances, constitute trespassing, assault, crimen iniuria (a severe unlawful infringement of someone’s dignity and privacy) and/or malicious damage to property. Only in such cases one would be entitled to lay a criminal charge.


Unlike the Domestic Violence Act this proposed new law is aimed at intrusions (directly or indirectly) that are non-physical and low key but causes harm to someone, or , causes him/her to reasonably believe that the perpetrator will cause harm. For example stalking or harassment, in terms of the bill will include acts such as:


1. following, watching, pursuing, or, limiting movement by obstruction with the view sometimes to provoke, intimidate or merely to confront the complainant.


2. loitering outside or near a building/place used by the complainant, whether for work, living, business, studying, or, where the complainant just simply happens to be.


3. engaging in verbal, electronic or any other communication aimed at the complainant. This does not require that there is an exchange of communication.


4. sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant


5. sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects or leaving it where it could be found by/given to, or, brought to the attention of the complainant.


These acts are not prohibited only in relation to the complainant, but also in respect of any of his/her “member of the family, household” and someone that is in close relationship.


The protection offered are similar to that of the Domestic Violence Act, where one would obtain an interdict to prevent the perpetrator from continuing to behave in this manner. After having obtained the interdict, and, should the offending behaviour continue, the perpetrator can be arrested and brought by the police to a criminal court. There a charge of contempt of court will be considered against him/her.


So if you are in love, or you are a debt collector mind your behaviour to ensure that it does not constitute harassment for purposes of the contemplated law, when it comes into operation. Also, there are certain South African cultural practices that may stand in contravention of the provisions of the proposed bill.


Presently it is not yet law. Although it is not clear when it will become law, at present it is before parliament for contemplation. As soon as we receive any news on the development of the proposed law, we will be sure to post further updates.


PUBLISHED BY:
PSA HENDRICKS & ASSOCIATES - Attorneys & Administrators of Estates
122 Frankfort Street, Churchill Estate, Parow West, 7500, Cape Town, South Africa
PO Box 12459, N1 City Goodwood, 7463, Cape Town, South Africa
Tel. No.: 021 911 3497
Fax No.: 086 6544322
Cell: 084 559 9920
Website: www.PSAHENDRICKS.yolasite.com