Madam Deputy Speaker and hon members, 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 her 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 very dangerous. Growing every day, stalking is also prevalent as a precursor to many other violent crimes, 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. These are: section 10 of the Constitution, which refers to the right of all citizens 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 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, in 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. Hon 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 this 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.
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 to issue him or her a notice to appear in court on a date specified in the notice to face criminal charges of contravening a protection order.
Public hearings conducted by the portfolio committee led to many important insertions which enhance the Bill's effectiveness. The last insertion in the Bill relates to concerns raised by the media during the public hearings, as I have already indicated. The view was expressed that the Bill might have unintended consequences and impact negatively on press freedom, particularly in the case of the investigative journalist. That is why the portfolio committee inserted the amendment. We are of the view that the compromise that has been made has found its way into the Bill in the form of factors to be considered by the courts, which constitutes an acceptable balance.
With those few words I plead for this House to accept this Bill. [Applause.]
Deputy Speaker, the Bill of Rights in our Constitution provides for, among others, the right to dignity, privacy, freedom, and security of person, including the right to be free from any form of violence. Realising the prevalence of stalking and harassment in our society, the SA Law Commission undertook an investigation into the matter. The investigation culminated in a report that set out suggestions as to how stalking could be addressed.
In an effort to prevent infringements on the rights that both I and the hon Minister have referred to, the SA Law Commission's report has resulted in the drafting of a Bill by the Department of Justice and Constitutional Development which is the subject of this debate. As the hon Minister has pointed out, the Bill seeks to prevent stalking or harassing behaviour by any person against another. This is done by providing the victim of harassment the right to approach a court for an order of that court that prohibits the respondent or harasser from continuing with his or her harassing behaviour. Contravention of the court's order is criminalised. The Bill defines harassment as:
Directly or indirectly engaging in conduct that the respondent knows or ought to know causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person.
Conduct that falls within the definition of harassment includes following, watching, or accosting the victim, and communicating by any form of communication. The harm caused is also not restricted to physical harm. It is sufficient for the complainant to experience psychological harm or to have the belief that actual harm may occur.
In terms of the Bill, a complainant may apply for a protection order by lodging an application in a magistrate's court. In the event that the applicant or complainant is not represented, the clerk of that court must inform him or her of the relief available and the right to lodge a criminal case.
Conversely, any person with material interest in the welfare of the complainant may bring the application on that complainant's behalf with the complainant's written consent. However, the written consent is not required where the complainant is a minor. Provision is also made for applications to be lodged outside normal working hours where a court is satisfied that the complainant could suffer harm if the application is not heard urgently. Provision is also made in clause 3 for the court to issue an interim protection order if the court believes there is sufficient evidence that the respondent is harassing the complainant, that harm may be suffered by the complainant if the order is not issued immediately, and that the consequent protection will not be effective if prior notice is given to the respondent. The interim order must be served by the clerk of the court, a sheriff or a peace officer on the respondent. This should be accompanied by a copy of the application and the respondent must provide reasons to the court as to why the interim protection order should not be made a final order.
I am going to deal with an aspect that was introduced into the Bill by the committee and that is the initiative found in the Bill dealing with harassment by means of electronic communication or electronic mail over an electronic communication system of a service provider.
Clause 4 provides that if a court is considering an application where harassment took place using electronic communications, all the details of the alleged harasser, including his or her electronic communications, identity number, names, surname and address must be provided to that court within five days. This will enable the court and law enforcement agencies to trace such perpetrators.
The committee also considered a situation where complainants may bring to the court complaints that are not true or factual, and it seriously considered whether this should be criminalised. However, the committee thought better of it and, in its report, has asked for the Ministry to give serious consideration to this matter with the view to bringing it back to this Parliament for further amendments to the law. [Applause.]
Deputy Speaker, in passing this Bill today, we are addressing an important vacuum in the fight against harassment. The current legal status only provides for remedies in respect of people who are or who have been in a domestic relationship. This Bill provides for a quick and inexpensive remedy in the magistrate's court for anybody who is being harassed. The harm inflicted may be mental, psychological, physical or economic. Sexual harassment has now also been specifically included.
The category of electronic harassment or cyber-bullying has also needed attention for some time, and this Bill will now provide remedies for obtaining a court order prohibiting same. Of particular significance is the provision that it enables the court to compel an electronic communications service provider to divulge the identity of a person who is anonymously harassing a complainant.
We have been mindful of concerns regarding people's right to privacy and their right to retain their anonymity on the Internet. To cater for this, we have specifically provided that a service provider, before furnishing the details of an alleged harasser to a court, must advise the individual whose details are to be disclosed, no less than 48 hours before the details are to be given to the court. In this way, if a complainant is abusing the system to obtain the details of an individual without good reason, they may approach a competent court for an interdict prohibiting the disclosure. If a person is in fact harassing somebody and trying to hide behind an anonymous Internet or cellphone identity, they should not be allowed to do so.
The media had some concerns that this Bill may interfere with their freedom to conduct investigative in particular. We fully support freedom of the press and understand their concerns in the light of recent events. However, journalists also do not have the right - to coin a pun - to have carte blanche in the way in which they collect their information. Their behaviour will still have to be reasonable, and we accordingly did not assent to a complete public interest defence.
We have, however, taken their concerns seriously and believe that the final Bill is a very satisfactory balance between the rights of individuals and the rights of people, such as journalists, to do their jobs. There are a number of safeguards for journalists in particular. Firstly, nobody will be prohibited in any way from performing their day-to-day activities. If someone believes that their behaviour amounts to harassment, they must approach a court for an order. Before the court grants such an order, it will have to be satisfied that the conduct does in fact amount to harassment. An integral part of the definition of harassment is that the conduct must be unreasonable.
In order to protect people from being unfairly accused of harassment in the course of their work, such as may be the case in respect of journalists or police officers, the following factors have been included, which a court must take into account when determining whether conduct is unreasonable. These are whether the conduct is being engaged in for the purpose of detecting or preventing an offence, in order to reveal a threat to public safety or the environment, to reveal an undue advantage in a competitive bidding process, or to comply with a legal duty.
Given that the hon Jeffery is speaking after me, I feel obliged here to comply with his specific request to acknowledge that this was in fact his idea, and I hereby do so. [Interjections.] It was a good idea, and we agreed with that fully. [Interjections.] When a court determines whether the conduct is unreasonable, all these factors, as well as any others the court considers relevant, must be taken into account. These must all be considered against the Constitution which places a high value on freedom of speech. We are thus quite comfortable that there are sufficient safeguards to ensure that only extreme behaviour by journalists and the like would possibly be affected by this Bill, and that if the behaviour is that extreme, the person suffering as a result of that behaviour should be entitled to an order restraining it.
Secondly, if an order is obtained without the respondent having notice thereof, there is the option that the return date may be anticipated by 48 hours' notice, so that anyone who wishes to challenge the granting of the order will be able to get back to court within a few days of the order being granted. This is an additional safeguard to protect legitimate interests from being thwarted by the complainants under the guise of a harassment complaint.
There are times when a person is harassed by someone whose identity is unknown to them. This can be as simple as someone following a person, or loitering where they happen to be. Too often in cases like this, there are complaints that the police do not take that matter seriously. Unfortunately, given the high rate of violent crime in this country, the police often tend to regard this kind of matter as unimportant, as there is no blood involved. This Bill provides that a court may order the police to investigate a matter of harassment in order to ascertain the identity of the complainant.
We have also included an enabling provision for the police to empower them to investigate the identity of an alleged harasser who is not known to the complainant, if the complainant makes an affidavit to the effect that he or she intends applying for a protection order, and if it appears that there are reasonable grounds for believing that the person against whom the complaint has been made is engaging in harassment.
We thus believe that the Bill is an important step in combating all forms of harassment, and the interests of all parties have been taken into account in drafting a well-balanced piece of legislation that provides for a quick, effective and inexpensive remedy. The DA supports this Bill. [Applause.]
Hon Deputy Speaker, the intention of this Bill is to ensure that the harassment, better known as stalking, of any person will become an offence, even though no official South African statistics of stalking exist. But we all know that it is real.
Cope dedicates this speech to Shadi Rapitso, a young e.tv journalist who was killed by a stalker in 2009 simply because she was not in love with him. The stalker held her hostage before fatally stabbing her with a knife. Shadi never applied for a restraining order against him since he had not been violent.
This Bill will now allow victims of harassment to obtain a protection order irrespective of whether the stalker is violent or not. It is a pity, though, that we cannot prevent stalking but can only criminalise it. Would the world not have been a better place if men simply understood when women were not romantically interested in them, or vice versa? Even better, would the world not have been a safer place for our children if they were not harassed by paedophiles?
We also have to acknowledge that in one cultural community certain behaviour might be seen as normal whereas in another cultural community the very same behaviour might be seen as harassment. I know that at times mothers encourage their daughters not to be rude to men who show an interest in them. The daughter, on the other hand, might feel that this interested "partner" is harassing her.
Another example would be when a men chooses a woman whom he thinks should be his wife. If this woman does not agree with his proposal, the man may try against this woman's will to convince her otherwise. This scenario might be considered the norm in some rural areas as opposed to urban areas.
In urban areas, for example, different types of harassment also occur. A woman may continuously call a man she is interested in even though the man may have informed her that he is not interested in her. This scenario could be considered the norm because men are mostly seen as willing participants.
Once this Bill has been passed by this House, the responsibility now lies with us to teach South Africans in all the different cultural, urban and rural communities that there is a fine line between harassment and a choice regarding whom we associate with. The protection of women and children in South Africa must always remain a priority for all of us. Cope supports this Bill.
This is a good Bill and we support it. We worked hard on it and I think it came out fairly well. There are a couple of things which, perhaps, will be worthwhile to highlight, over and above what has been said thus far which aptly describe the Bill.
Hon Schfer referred to the provision relating to sexual harassment, and so did hon Adams. One thing that needs to be said is that this provision brings to fruition what was meant to be achieved by the Labour Relations Act, which somehow did not work. Effectively this will be the first time in South Africa that those impacted by sexual harassment will have an actual remedy against this practice, especially in the workplace. We are confident that it will be able to bring about what the Labour Relations Act wanted to bring about, but failed in in respect of sexual harassment.
There are a couple of minor concerns. The definition of "related person" and the effect that it carries in the Bill seem to remain contradictory. One would hope that that will be taken care of at the NCOP level.
The other concern is about the limitation of the space of freedom in terms of anonymity on the Internet. I'm satisfied that, through the amendments made in the committee, there are belts and braces to protect any abuse in respect of this Bill. Nonetheless, it is concerning that, for the first time, we are creating state powers in what was an area of freedom; where there was anonymity. A great deal of these things are done for the right reason but they remain wrong and intrusive.
We need to remain vigilant to make sure that this space and this new power will not be abused. We must keep in mind that what we are dealing with here is not a crime. We are dealing below the level of criminal activity. Harassment in this Bill is not a criminal harassment. In that respect the limitation on the space of anonymity on the Internet, in spite of the belts and braces built into this Bill, was a matter of concern that we raised.
With that qualification we support the Bill and recommend it to the National Assembly for approval.
The main aim of the Protection from Harassment Bill is to criminalise stalking behaviour, as has been alluded to by previous speakers, and clearly the ACDP supports this.
We initially expressed concern that this Bill will have a negative impact on investigative journalism, where journalists are often required to call people frequently or in some instances confront them with questions or even follow such persons. However, the Bill has now been amended and we welcome those amendments to deal with these concerns. The court is now required to consider a number of factors before it grants a protection order. These factors were alluded to by my colleague and I won't repeat them but they are very welcome. These factors will cover and protect investigative journalists as long as they satisfy those factors and act in a reasonable manner.
We as the ACDP believe that this Bill will go a long way in protecting vulnerable people from various unwanted and threatening behaviours. What is becoming more prevalent is stalking on social networking pages such as Facebook, particularly by paedophiles and sexual predators. A protection order will now be obtainable to stop this reprehensible conduct. The ACDP supports this Bill.
Thank you, Chair. One presumes that the intention behind the Bill is to strengthen the Domestic Violence Act and the Criminal Procedure Act as far as harassment is concerned. Of course, these pieces of legislation have been, for the most part, toothless. As a woman I would say that they failed too many of our women. In that context, anything that seeks to strengthen justice, especially as it relates more to women, is therefore welcomed.
However, I have been of the view that the failures attributed to the Criminal Procedure Act and the Domestic Violence Act were not necessarily inherent in the pieces of legislation themselves being vague in certain matters, but stemmed from officials who were not properly trained or are just unwilling to transform and apply the law as it should be applied.
How do we intend to curb that? We have seen too many victims of harassment and violence reluctant to apply for protection orders for economic and many other reasons. I therefore consider it good that there is a provision in which a third party can apply on behalf of the victim. However, I have serious concerns with the clause that suggests that in order to do so, one must have an interest in the safety of the victim and the victim must be considered in the eyes of the court to be unable to apply for himself or herself. I argue that interest may be difficult to establish and probably not necessary.
Secondly, proving the inability of the victim ... [Time expired.]
Mr Chairman, on behalf of the ANC, I rise at the end of this debate in support of the Bill. I think, as members would know or could see from the debate, that all the parties were supporting the Bill. Unfortunately the UCDP was not part of the committee deliberations but, generally, there was consensus and unanimity - with the possible exception of Dr Ambrosini's sometimes obscure points regarding the provisions of the Bill and the amendments made.
What I want to address, though, is the issue that other speakers have alluded to, namely concerns with the Bill from the media. We received written and oral submissions from both the SA National Editors' Forum, Sanef, and Avusa Limited, the owners of, among others, The Times, the Sunday Times, the Sowetan and the Business Day, that the Bill may be used against journalists who are legitimately and in good faith pursuing a story of public interest.
As the ANC, we support the right to freedom of expression and of the media. For that reason, we, as the ANC, proposed an amendment to the Bill, which is contained in section 9(5). Other colleagues - hon Schfer and hon Swart - have read it out or referred to it. In deciding whether to grant a final protection order and whether the conduct that is being complained of or the alleged harassment is unreasonable, the court must take into account the circumstances in which the conduct was engaged in - the reasons for that conduct. That covers the issue of the media. So, these are the factors that the court must consider with regard to whether the conduct amounted to harassment or not and should ensure that the work of journalists in conducting investigative work is not unreasonably restricted.
There was a grudging acceptance of the amendments by some sections of the media. Others, however, felt that the media should be exempt altogether. After this amendment was agreed to, a prominent media lawyer, Dario Milo, who appeared before the committee representing Avusa, was quoted in the media as saying:
The concession fell short of the ideal solution for reporters, but it was an attempt to take into account concerns about freedom of information and the media. Although it is a concession of sorts, it would have been preferable to have an exemption for journalistic inquiry in investigative reporting.
This exchange raises important issues about the often vexed relationship between Parliament - and government, more broadly - and the media. Sanef, for example, complained about not having been properly consulted on the Bill. This Bill was years in the making, as it originated from the SA Law Reform Commission, which commenced work in January 2003. The SA Law Reform Commission engaged in an extensive public consultation process which included the release of a discussion paper for public comment. Sanef, however, seems to feel that they need a special invitation to participate in these processes, and this cannot be correct. Therefore I would really urge Sanef to monitor general invitations to the public to make an input.
Sanef then also felt that journalists should be allowed to "push the envelope". They told us that journalists employ a myriad of techniques in the pursuit of public-interest news stories. In their oral submission they effectively told us that journalists should be allowed to pursue a person until he or she answers their questions. Effectively, what they seemed to be saying is that although everyone has a right to remain silent and not be compelled to speak, this right does not apply against journalists.
The fundamental question is: Can a journalist harass somebody? I think the answer is, very obviously, yes. Individuals need to be protected against this, if they want to be. Journalists are human beings like the rest of us; they are not paragons of virtue from some different spiritual plane. We have seen in the United Kingdom the hacking scandal that contained News of the World reporters who hacked into people's cellphone voice messages that "pushing the envelope" can strongly impinge on people's rights. In addition to the issues I have raised, if you have an exemption for journalists, how do you define a journalist without getting into the territory of registration, which is - not surprisingly - anathema to Sanef?
All the rights in Chapter 2 of the Constitution need to be balanced against each other. In his opening speech the Minister referred to some of those rights, as did the chairperson of the committee. The right to freedom of expression and the right to privacy need to be balanced against the freedom of the press.
I think by including this amendment, the one that I and other members referred to earlier, we as the ANC members of the Justice committee believe we have developed a good compromise in providing for the court to consider whether the allegedly harassing conduct was engaged in to investigate, among others, a news story in deciding whether, in effect, this amounted to harassment or not. Therefore, as the ANC, we support the Bill. [Applause.]
Chair, I would like to take this opportunity to thank all members who participated in this debate for their unanimous support for this Bill. I have noted the comments and the amendments that have been effected by the portfolio committee, which I embrace and support wholeheartedly. With those words ...
... ngiyabonga kakhulu ngosizo lwenu. [Ihlombe.] [... I thank you very much for your assistance. [Applause.]]
Debate concluded.
Bill read a second time.