Response to Comment Received from the SAPS

Response to comment received from the SAPS

1.In order for complainant to obtain a protection order, the complainant must be able to provide the name and address of the harasser. In many instances the name and address of the harasser wil be unknown to the complainant and no protection order can be issued.

The remarks are equally applicable to all civil litigation. If a defendant or respondent is not identifiable and his or her whereabouts is not known it is difficult to proceed against such a person. This is especially true in cases of cyberstalking. It is intended to introduce, during the parliamentary process, a specific clause that deals with the determination of the identity and other particulars of a cyberstalker.

2.The Bill does not create an offence of harassment with the resultant effect that the SAPS do not have the necessary power provided for in section 41 of the Criminal Procedure Act, 1977, to request the name and address of certain persons.

Stalking is a specific crime in all 50 US States where it is classified as either a felony(serious crime) or misdemeanour, and in most parts of Australia. However, where specific legislation has been inplace for some time, the debate still centres on the framing and effectiveness of antistalkingstatutes. The most common opinion about the appropriateness ofintroducing a statutory offence of stalking in Scotland is that such an offence wouldnot make dealing with this type of behaviour any easier, and that the difficulties offraming legislation toencompass the myriad potential ways of stalking and harassingvictims would be counter-productive.It could be argued that enacting legislation which specifically criminalisesstalking behaviour would make the law easier for the general public to access.However the defining character of stalking and harassment in policing terms is itsperceived complexity. In an attempt to retain some modicum of flexibility someforeign jurisdictions have criminalised stalking in such an open ended way that it isnot clear what exactly is criminalised. In Queensland, contrary to the intention of thelegislator, charges of stalking are mostly brought to address disputes or altercations between neighbours. Furthemore,Legislatively defining a crime binds the state to proving theexact elements of the crime. Where the behaviour does not fit the definition and theconduct consequently does not satisfy the elements of the crime, the state will beunable to prove the crime.

In Scotland it was found that opposition to the creation of a statutory offenceof stalking was generally on the grounds that it is unnecessary; that it would proveinsufficiently flexible; and that offenders would inevitably find ways of working aroundit.Those who did support the introduction of new legislation tended to do so notbecause they believed that the current law is flawed but because they felt that such amove would increase the visibility and heighten awareness of the offence.

In most instances stalking behavior may also amount to a crime and the usual criminal remedies are available to the complainant. In this regard clause 2(2) of the Bill expressly provides that the unrepresented complainant must be informed of the right to also lodge a criminal complaint against the respondent of crimen injuria, assault, trespass, extortion or any other offence which has a bearing on the persona or property of the complainant or related person.

Where harassing behaviour constitutes a crime, an arrest without a warrant for such crime would be allowed in terms of section 40(1)(a) of the Criminal Procedure Act where a person has committed the crime or is attempting to commit the crime in the presence of the person effecting the arrest. Where the stalking or harassing behaviour constitutes a crime but is not committed in the presence of a peace officer, the peace officer may effect an arrest if he or she reasonably suspects that the crime is an offence referred to in Schedule 1 of the Criminal Procedure Act or given the seriousness of the behaviour may take the complainant’s statement and based on the circumstances of the case apply for a warrant to effect an arrest. Section 41 of the Criminal Procedure Act, will then apply.

Harassment was purposely not criminalized. In light of the fact that various legitimate actions may amount to harassment and it would be difficult to demarked the ambit of such an offence. To determine whether certain conduct may amount to harassment a value judgement as to the reasonableness of the actions of the harasser needs to be made. Furthermore, the harm that the complainant may suffer is also subject to a reasonableness test. As such even constitutional issues may need to be decided upon, more specifically the proportional force of various rights enshrined in the Bill of Rights.

3.Extending the operation of the Bill to an unrelated person

This will make the provisions of the Bill too wide. Take for instance a blog where a person make certain threats or commit other harassing behaviour against an unknown person. Surely, one cannot afford every over sensitive reader of the blog standing to apply for a protection order.

4.Practical difficulties experienced with the protection orders:

(a)How should the SAPS deal with protection orders issued in terms of the Domestic Violence Act that is in conflict with protection orders issued in terms of the Bill or a protection orders issued in terms of the Bill that is in conflict with one another? There should be duty to disclosure all protection orders issued against and for the applicant when an application is made for a protection order.

If this is a general occurrence attention may be given to the request.

(b)The order in terms of the Bill that a court may order a peace officer to accompany a complainant or related person to a place to assist with the arrangements regarding the collection of personal property creates a problem in that a dispute usually arises between the parties as to what personal property is. Provision should be made that the court must specify the "personal property" that must be collected.

It will be improper for a court to order that specific property be removed unless it is proven to be the property of the complainant. This is a matter between the parties and other legal remedies are available for the aggrieved party. The duty of a member of the SAPS is merely to accompany the complainant to the place and to ensure her safety. The member is under no obligation to participate in the selection process of personal belongings.

(c)The serving of protection orders by the police is burdensome and provision should be made that the SAPS should only serve protection orders if there is a specific need.

This can be address through practical arrangements in the various magisterial districts.

(d)The fact that protection orders does not expire creates an administrative nightmare for police in that police must indefinitely keep copies of protection orders. Protection orders should rather be given a certain period of validity.

I agree with this proposal and suggest a period of 5 years.

5.Provision should be made for a phased-in implementation of the Bill in order to afford the SAPS time for training.

It is submitted that this is not necessary. The obligations that are placed on the SAPS are similar to that that has already been implemented by the SAPS in respect of the Domestic Violence Act. It is therefore submitted that only minimum training should be necessary.

6.The discretion afforded to the SAPS to arrest or not to arrest a person if a condition of the court order is contravened creates difficulties in its application. The discretionary power should either be removed or drafted in a way that limits the discretion afforded to the SAPS.

The Bill as well as the Domestic Violence Act provides adequate guidelines to be followed by a member of the SAPS in the exercise of his or her discretion either to arrest a person or to secure the attendance of such a person through the written notice procedure. In any event this may be supplemented by directives that need to be issued in terms of clause 17(2) of the Bill. If no discretion is afforded to the SAPS, it will have the effect that a person that contravenes a protection order need to be arrested in every instance, irrespective of the seriousness of such a contravention. The arrest of a person for a mere technical contravention of a protection order will make serious and unjustifiable inroads on the rights of the transgressor.

7.The penalty clause should be amended, in accordance with the Domestic Violence Act, to ensure that it is included in Schedule 1 of the Criminal Procedure Act, 1977, to afford the SAPS to arrest a person for breach of a protection order although the complainant is not in possession of a warrant of arrest, which may have been lost.

This offence created by the Domestic Violence Act is not a Schedule 1 offence and there is no substance to elevate the offence created in either the Domestic Violence Act or the Bill to the status of a Schedule 1 offence.

8.Clause 8(1) of the Bill and section 8(1) of the Domestic Violence Act, empowers the court to "authorise the issue of a warrant". It is unclear who should be authorised by the court and why the court itself is not empowered to issue the warrant.

Clause 8(1) of the Bill relates to an order that is made by the court. Clause 8(1)(a) requires that the warrant of arrest be in a prescribed form. Subordinate legislation will provide for the functionary that should issue the warrant. In this regard see the regulations made in terms of the Domestic Violence Act which contains similar provisions.

9.The clause that requires instructions by the National Commissioner to provide that adequate disciplinary steps be taken against a police official contravening these instructions is already covered by the SAPS Discipline regulations and should therefore be omitted.

Although the submission is correct it is submitted that other disciplinary steps may be considered to ensure compliance with the Bill, which may differ from the South African Police Service Disciplinary Regulations. Furthermore, the clause serves to sensitise the mentioned functionaries to consider the roles of their respective Departments in terms of the Bill and to ensure that general prescripts, already issued, need to be made specific to cater for new and changing circumstances.

10.A clause should be inserted in the Bill to criminalise the making of harassing phone calls or sending SMS's.

This may be problematic in light of the fact that harassment per se is not made an offence.