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RESPONSE TO REMARKS AND QUESTIONS BY THE PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT ON THE PROTECTION FROM HARASSMENT BILL

1.Will the Protection from Harassment Bill (the Bill) not adversely affect investigative journalism? What is the effect of the Bill on industrial action or protests, inter alia, against an abortion clinic?/ Is the definition of “harassment”perhaps too wide? Will the actions of investigative journalists, unionists and protesters picketing outside abortion clinics fall in the definition of “harassment” and consequently fall foul of the law?

The South African National Editor's Forum and Print Media South Africa argued that the overbroad definition of "harassment" puts journalists engaged in legitimate newsgathering activities at risk of arrest or imprisonment.

Various constitutional rights maybe relevant here, for instancethe right to freedom of expression, the right to freedom and security of the person,the right to privacy and the right to dignitywhich need to be balanced. The most appropriate step was to introduce a procedure through which these conflicting rights could be judged and measured in relation to each other. Of particular importance in this regard are the following remarks in S v Makwanyane 1995 (3) SA 391 (CC) at paragraph 102, which deals with the principle of proportionality:

The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality………..The fact that different rights have different implications for democracy and, in the case of our Constitution, for 'an open and democratic society based on freedom and equality', means that there is no absolute standard which can be laid down for determining reasonableness and necessity. Principles can be established, but the application of those principles to particular circumstances can only be done on a case-by-case basis. This is inherent in the requirement of proportionality, which calls for the balancing of different interests. In the balancing process the relevant considerations will include the nature of the right that is limited and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy and, particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question…".

The procedure which was decided upon was to subject these competing rights to judicial scrutiny. A particular feature of the definition of harassment is that the conduct complained of must be unreasonable. The effect thereof is that before a court can grant an interim or final protection order the reasonableness of the actions complained against must be considered in light of all the circumstances. This investigation may include the balancing of constitutionally entrenched rights and freedoms.

In order for journalists to do their work, it can be accepted that they may have to call a particular person frequently or in some instances confront him or her with questions in public and in some instances even to follow a person. If this is done in a reasonable manner, a court may come to the conclusion that the so called harassing conduct is justified. However, it is easy to perceive instances and even refer to incidents where journalists have overstepped the boundaries of reasonableness in order to get a story and their behaviour could in those circumstances be curtailed by way of a protection order against harassment in terms of the Bill. The same would apply to industrial action and protests.

2.The use of the terms "harassment" vis-à-vis the term "stalking". Why was the term of "harassment" chosen over that of "stalking"?

No dictionary definition of stalking in relation to persons exists. However, internationally the legal understanding of stalking of a person has evolved from thedictionary definition of pursuing or approaching a wild animal stealthily to take on an artificial meaning with harassment of another person as its form. Harassment is essentially an umbrella term which includes stalking behaviour. According to Wikipedia stalking means the unauthorised following and surveillance of an individual, to the extent that the person's privacy is unacceptably intruded upon, and the victim may fear for his or her safety. It has takenon an artificial meaning, with harassment of another person as its form. The term “stalking” was coined by the tabloid press in the United States (see Wikipedia whichrefers to Lawson-Cruttenden, 1996, Is there a law against stalking?, New Law Journal/6736 pp.418-420).On the other hand, the word "harassment" is based in English since circa 1618 as a loan word from the French harassement, which was in turn already attested in 1572 meaning torment, annoyance, bother, trouble and later as of 1609 was also referred to the condition of being exhausted, overtired (Wikipedia).Although internationally, legislation may sometimes informally be called "stalking legislation" most of these laws use other terminology, most notably harassment, to prescribe this kind of behaviour. Legislation from the various Australian stateson the subject matter sanction behaviour calculated to harass, threaten or intimidate. Also in the United Kingdom and Canada "harassment" is used as the preferred terminology for this kind of conduct (See the Protection from Harassment Act,1997,which prohibits harassment andputting people in fear of violence in England and Wales and prohibits harassment inScotland and Ireland,as well as section 264 of the Canadian Criminal Code.).

Section 1 of the South African Domestic Violence Act, 1998 (Act No 116 of 1998), includes a definition of both “harassment and “stalking”. “Harassment” is defined as "engaging in a pattern of conduct that induces the fear of harm to a complainant”by, inter alia, “repeatedly watching, or loitering outside of or near the building or place where the complainant resides, works, carries on business, studies or happens to be" and “stalking”is defined as “repeatedly following, pursuing, or accosting the complainant”. The opinion is held that the separation of the one concept of harassment into “stalking” and“harassment” is unnecessarily complicating. The term“harassment” is more inclusive of a wider understanding of stalking.

After an extensive investigation of the matter, in which the SALRC took various foreign legal systems as well as the comments of lay persons and persons from various academic disciplines into account, it recommended thatthe broader term "harassment" should be used instead of “stalking”, as has been done in the United Kingdom andCanada,.

3.What was the process that was followed by the South African Law Reform Commission during its investigation of the matter?

In January 2003 the Minister of Justice and Constitutional Development approved the inclusion of an investigation into stalking in the programme of the SALRC. This approval was granted pursuant to a recommendation by the SALRC, contained in the Research Paper on Domestic Violence and the Discussion Paper on Sexual Offences: The Substantive Law, that in keeping with numerous foreign jurisdictions, a separate investigation be conducted to ascertain the need to enact comprehensive legislation prohibiting stalking.

The SALRC appointed Ms Seedat, in her capacity as a member of the Commission, as Project Leader of the investigation and assigned the research to an SALRC researcher.

An issue paper (Issue Paper 22, Project 130) and a discussion paper (Discussion Paper 108, Project 130) were published for information and comments in 2003 and 2004, respectively.

A draft Bill, entitled the “Stalking Bill” was included in the Discussion paper as an Annexure. The draft Bill embodied a civil and a criminal remedy to address stalking behaviour.

A series of workshops and a number of expert meetings were held to discuss the findings of the report and the draft Bill. Oral and written submissions on the Bill were collated. Submissions were received from the following stakeholders:

a) Government and related departments

The Sexual Offences and Community Affairs Unit in the National Prosecuting Authority and countrywide from a number of public prosecutors in the National Prosecuting Authority, numerous magistrates, the Branch: Court Services, the State Attorneys, the South African Police Services (legal services and line function), Department of Correctional Services, Department of Social Development and the Commission on Gender Equality.

b) Private sector

Submissions were received from:

  • victims of stalking themselves and family members;
  • the Society of Advocates,
  • various attorneys’ firms;
  • private investigators;
  • NGO’s such as Rape Crisis Cape Town, Operation Bobbi Bear, NISAA institute, Lifeline, NICRO, FAMSA, WAWA, O.V.V. Welfare, Southern Exposure, SANGOCO, Lesbian and Gay Equality Group, ATKV, Childline, KZN Network on Violence Against Women;
  • Professionals versed in psychiatric medicine such as Dr Armstrong from Sterkfontein Hospital, Prof Schlebusch, the Head of Behavioural Medicine, Nelson R Mandela School of Medicine, University of Kwazulu-Natal; Pearce Mokoena of Botshabelo Hospital and Dr Kauski of Valkenberg Hospital;
  • Legal academics such as Devina Perumal, University of Kwazulu Natal; Prof Burchell, Department of Criminal Justice, UCT; Prof Palmer, University of Kwazulu Natal; Beaty Naude, Department of Criminology, UNISA; Ria Smuts of RAU, Prof Davis, Kloppers and Booyens of the Department of Criminology, UP and Heather Douglas, Griffith University & Part-time Commissioner, Queensland Law Reform Commission, Australia.

At the request of the Commission Professor Burchell was requested to prepare a paper on the adequacy of our existing law in response to the collation of submissions contained in a draft report. Although the majority of the respondents were in favour of the creation of a specific offence of stalking/harassment, Professor Burchell cogently argued against this. The Commission was inclined to his view and decided to only proceed with proposals for a civil remedy.

A report with draft legislation providing a civil remedy to victims of harassment was approved by the previous Commission and was submitted to Minister Mabandla in November 2006 requesting her approval for publication of the report.

The Report on Stalking was approved by then Minister Surty for publication on the 27 October 2008.

4.What is the legal position in other jurisdictions?

Comprehensive “anti-stalking” legislation (providing civil and criminal remedies) has been enacted inthe Australian jurisdictions, Canada, New Zealand, Italy, Japan, the United Kingdom and the 50 states in the United States of America. Worldwide, stalking laws roughly can be divided into the “US” model andthe “non-US” model. Under the US model, followed in Australia, New Zealand,and Canada, the law responds, in part, to the problem of “celebrity stalking,” and thus these laws require that the behaviour must cause fear in the victim. This requirement excludes “paparazzi” activities undertaken in the normal course of their employment and places the focus on the reaction of the victim. By contrast, in the non-US model (followed in the Netherlands and Norway for example), the state of mind of the victim is irrelevant. Some laws attempt to combine these two approaches as alternatives (such as the UK’s Protection against Harassment Act, 1997).

Stalking laws across the world take a variety of forms. The area of law under which stalking is penalised differs from country to country. Some countries have specific stalking laws, some include stalking under domestic violence acts and some cover stalking in their general penal codes. The content of these laws differ in three principal ways, namely-

(a)whether a reaction of fear on the part of the victim isrequired;

(b)the scope and pattern of behaviour which is criminalised; and

(c)thelevel of intent required of the perpetrator.

Furthermore where specific legislation has been in place for some time, debate still centres on the framing and effectiveness of anti-stalking statutes. The most common opinion in countries which have not enacted a criminal remedy about the appropriateness of introducing a statutory offence of stalking is that such an offence would not make dealing with this type of behaviour any easier, and that the difficulties of framing legislation to encompass the myriad potential ways of stalking and harassing victims would be counter-productive.

Laws also differ in respect of the type of behaviour covered. Some countries, such asIran, only criminalise behaviour that contains threats, while other countries’ lawsapply primarily to public behaviour, with the focus on maintaining public order (Honduras).

In terms of scope, while some more expansive laws cover “stranger” stalking,some laws apply only to domestic relationships (Bosnia-Herzegovina) or to the workplace (Egypt). Japan’s law only covers behaviour related to a romantic relationship.

The laws also differ as to the amount of behaviour that is criminalised. Mostanti-stalking laws criminalise only repetitive stalking or a “pattern of behaviour” (New Zealand) which must involve a series of acts over time that evidence a continuity of purpose. A few stalking laws specify the number of acts and the time period required. Some laws do not specify the extent of harassment that will be covered by the law, leaving open the possibility that a single instance could constitute a crime.

Furthermore, the laws demonstrate a range of specificity in their language. Somelaws are relatively vague, broadly covering behaviour that disturbs the victim’s“tranquillity” (Belgium), while some are more specific, enumerating specific activities as criminal (Australia). Israel’s statute is an example of a middle ground;it defines stalking as “a repeated or suspected repeated harassment of another

person in any way including by means of surveillance, invasion of privacy, threats, contact either orally or in writing, or by causing damage to the victim’s property,reputation, or freedom of movement.”.

Finally, the laws differ as to the level of intent required. Some laws includea component which requires a certain degree of intention on the part of the perpetrator (such as Kuwait) while other laws do not. There is also sometimes adistinction between “specific intent” (the stalker must have intended to cause fearor some other reaction on the part of the victim) and “general intent” (the stalker must have intended to commit the acts which are being complained of, with some laws adding the element that the stalker should reasonably have known that these acts could cause the reaction in question).

The US was among the first jurisdictions to give attention to this phenomenon.California was the first state to criminalise harassment (California Penal Code Section 646.9) due to several high profile stalking cases, including the 1982 attempted murder of actress Theresa Saldana, the 1988 massacre by Richard Farley, the 1989 murder of actress Rebecca Schaeffer, and five Orange County stalking murders also in 1989. Stalking is a specific crime in all 50 states of the Unit States of America, where it is classified as either a felony (serious crime) or misdemeanour.The updated US Model Stalking Code aims for a middle ground by suggesting that the offence of stalking should apply to a situation where the stalker “by any action, method, device, or means, follows, monitors, observes, surveys, threatens, or communicates to or about, aperson, or interferes with a person’s property”. Furthermore, on 3 June 2010 the California Assembly voted 41-12 in favour of a new anti-paparazzi bill that seeks to amend the stalking law to make “surveillance” actionable.

The UK Protection from Harassment Act was passed in 1997. It contains one sectionwhich is applicable in England and Wales and another similar section which isapplicable in Scotland. The statute creates two new criminal offences, one which is independent of the victim’s reaction, and one which requires an element of fear on the part of the victim. In this sense, it combines the US and the non-US models. The two offences are:

(a)Harassment, a course of conduct which amounts to harassment of another and which the offender knows or reasonably ought to have known amounts to harassment of another; and

(b)putting people in fear of violence, a course of conduct which causes another to fear that violence will be used against him or her, where the offender knows or reasonably ought to have known that theconduct would inspire fear (this offence does not require that the offender intended to cause fear).

For both offences, a course of conduct must involve at least two occasions, and conduct is defined to include speech. The concept of harassing another person includes causing alarm or distress. Harassment is a less serious crime, punishable by a maximum of 6 months’ imprisonment, while putting people in fear of violence is punishable by a maximum of 5 years’ imprisonment. The statute also empowers the court to issue a restraining order prohibitingthe defendant from pursuing the offending course of conduct. The Prohibition of Harassment Act, 1997, is supplemented by the Malicious Communications Act, 1998, which makes it an offence to send an indecent, offensive or threatening letter, electronic communication or other article to another person and by a provision of the Telecommunications Act, 1984, which makes it an offence to send a telephone message which is indecent, offensive or threatening. Both of these offences are punishable with up to six months’ imprisonment.

In Scotland, provision is made under the UK Protection from Harassment Act against stalking. It is not a criminal offence, however, but falls under the law of delict. Victims of stalking may sue for an interdict against an alleged stalker, or a non-harassment order, the breach of which is an offence.

In Canada, harassment is addressed by section 264 of the Criminal Code of Canada, titled "criminal harassment". The provision concerning criminal harassment was added to Canada’sCriminal Code in 1993. The Canadian legislation follows the US model by requiringfear on the part of the victim. The offender must know that that the victim was harassed,or be reckless or wilfully blind as to whether the victim was harassed.

A Canadian Handbook for Police and Crown Prosecutors on Criminal Harassment elaborateson the requirement that the complainant must feel fear:

(a)The victim must actually fear for her/his safety or that of someone knownto her/him as a result of the defendant’s conduct.

(b)The victim’s fear for her/his “safety” or that of someone known to her/himis not restricted to fear of physical harm but rather, includes fear for her/his mental, psychological and emotional safety.