South Africa champions law on sexual harassment

The South African Protection from Harassment Act 2011 is the first specific legislation to address sexual harassment in the SADC region. The essence of the Act is to provide a quick, easy and affordable civil remedy in the form of a protection order for incidences of stalking. It expands on the harm caused to include not only physical harm but also mental, psychological and economic harm.

The legislation arose out of a South African Law Reform Commission investigation into the legal framework governing stalking and domestic violence. The commission recommended that the law on stalking had to be tightened up. A key component of the act is that it seeks to cover all forms of stalking, not just that involving people engaged in a relationship.

A protection order can now be issued instructing the harasser to cease harassment. If the harasser contravenes this order, he or she will be guilty of an offence. The act sets out how a complainant is to apply for a protection order and the procedure to be followed in granting one. The legislation also provides for the issuing of an interim protection order without the knowledge of the respondent, given certain conditions.

A warrant of arrest will also be issued for the harasser when an interim or final protection order is granted. This warrant will only be enforced if the respondent does not comply with a condition of the order. A victim of cyber stalking can apply to a court for an interim protection order even when the identity of the alleged stalker is unknown.

The law will also empower the police to investigate a stalker in order to identify the perpetrator even before a victim launches an application for a protection order.

The Act provides an example that may be used to develop similar legislation in other countries. One of the key challenges was whether sexual harassment would constitute a criminal or civil offence. The South African government has classified it as a civil offence. The challenge that any government is what constitutes evidence in a sexual harassment case if it was as a crime. SADC member states should engage with this discussion as part of a process to develop specific legislation on sexual harassment.

In the next year it will be important to track the success of the law. In the DRC sexual harassment has been illegal for several years. Women are reluctant to bring cases to court because of the difficulty in proving sexual harassment.