Family Law: Harassment: Is the Definition Changing in the New Harassment Bill?
The Domestic Violence Act 116 of 1998 (“the Act”) was enacted to recognise that domestic violence is a serious social evil. Because there is a high incidence rate of domestic violence within South Africa and victims of domestic violence are among the most vulnerable members of society, the Act seeks to afford the maximum protection from domestic abuse that the law can provide.
The Domestic Violence Amendment Bill (“the Bill”) was introduced to Parliament in September 2020.
The Bill amends and inserts certain definitions, and further provides for the manner in which acts of domestic violence and matters related thereto must be dealt with by certain functionaries, persons and Governmental departments.
The definition of “harassment” in the Act and in the Bill differ significantly.
The definition of “harassment” in the Act is as follows:
‘“harassment” means engaging in a pattern of conduct that induces the fear of harm to a complainant including—
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;
repeatedly making telephone calls or inducing another person to make telephone calls to the complainant, whether or not conversation ensues;
repeatedly sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant’.
In terms of the Bill, “harassment” now means—
‘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 [a] the complainant or a related person by unreasonably—(i) following, watching, pursuing or accosting the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be;
(ii) engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means whether or not conversation ensues; or
(iii) sending, delivering or causing the delivery of letters, packages, facsimiles, electronic mail, texts, photos, videos, recordings or other objects to the complainant or a related person, or leaving them where they may be found by, given to, or brought to the attention of, the complainant or a related person; or
amounts to sexual harassment of the complainant or a related person’.
The most prominent changes in the definition of “harassment” are as set out below.
Harassment now includes both direct and indirect conduct. This assists a court that is grappling with a harassment application where the conduct of the perpetrator does not technically fall within the ambit of direct harassment.
In terms of the Bill, the definition of harassment is now extended to include conduct that the perpetrator knows or ought to know causes harm or inspires the reasonable belief that harm may be caused. Therefore, a perpetrator can no longer hide behind the guise that he or she did not know that the conduct causes harm or inspires the reasonable belief that harm may be caused.
The word ‘repeatedly’ is removed in the Bill. This means that a perpetrator need not repeatedly engage in conduct that falls within the definition of harassment. This change can, therefore, be interpreted to mean that a single act could fall within the ambit of ‘harassment’ in terms of the Bill.
The Bill includes as ‘harassment’ conduct that causes harm or inspires the reasonable belief that harm may be caused to the victim or a related person. Therefore, if a perpetrator harasses someone related to the victim, this will also constitute harassment of the victim.
To summarise, the Bill introduces several changes to the definition of ‘harassment’ in the Act. These changes are positive, as they widen the ambit of ‘harassment’ to cover more situations where conduct could amount to harassment, thereby allowing a court to adequately deal with a perpetrator.
This article is for general information purposes and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us At DKVG Attorneys for specific and detailed advice.