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.]