Navigating the Nuances: A Dive into SA’s Protection from Harassment Act – Whether reporting rape allegations can amount to “harassment”.

L.W v K.C.A (A2023-013223) [2023] ZAGPJHC 1154 (13 October 2023)

Background:

• The appellant and respondent were in a consensual romantic relationship for a few months in 2018.
• Two specific incidents form the core of the case:
• 1. First Incident (February 2018): The respondent claimed accidental anal penetration during consensual sexual activity. The appellant initially accepted this explanation.
  2. Second Incident (November 2018): The appellant alleged that the respondent penetrated her without her consent while she was asleep.

After the end of their relationship, the appellant, following therapy and conversations with another individual, AS, began to believe that the first incident was not accidental. Notably, AS had a similar experience with the respondent years earlier.

Key Points:

1. Issue: The primary matter to be determined was whether reporting rape allegations can be considered as “harassment” under the Protection from Harassment Act 17 of 2011 (PHA). Furthermore, the case delved into the implications of non-disclosure when seeking an ex parte interim protection order.
2. Historical Context: The PHA was introduced on 27 April 2013, focusing on the fight against violence towards women and children. The appeal was heard during Women’s Month, a period dedicated to commemorating the courage of South African women.
3. Case Background: The respondent, a male, alleged harassment by the appellant, a female. The appellant claimed the respondent raped her and another woman, Ms AS. The respondent argued that by making these allegations public, the appellant harassed him. The magistrate initially sided with the respondent, preventing the appellant from publicising the allegations.
4. Respondent’s Allegations: The respondent, a professional musician, described a previous relationship with the appellant from January 2014 to September 2019. He alleged that the appellant made false accusations of gender-based violence against him to various institutions, affecting his professional and personal life. He emphasised that no legal action was pursued by the appellant regarding the rape allegations.
5. Appellant’s Counter: The appellant, in her response, denied the allegations of harassment. She detailed their tumultuous relationship, where she was subjected to various forms of abuse. She also highlighted her physical disability due to a large metal prosthesis in her leg. The appellant provided an account of two instances where she claimed she was raped by the respondent. She also referenced a third person, not AS, who confided in her about being sexually assaulted by the respondent in 2017.
6. Expert Opinion: Ms Ronel Koekemoer, a counseling coordinator, provided insights into rape trauma syndrome and the behaviour of survivors of sexual violence. She emphasised the common tendency for survivors, especially those previously in a relationship with the perpetrator, not to report their experiences.
7. Magistrate’s Decision: The magistrate determined that her jurisdiction did not extend to verifying the truth of the rape allegations. Her focus remained on the aspect of harassment as defined by the PHA. On 21 November 2022, she granted a final protection order against the appellant, prohibiting her from publicising the rape allegations and mentally or psychologically harassing the respondent. The respondent however failed to provide material information regarding a discussion between him and the Applicant regarding a sexual encounter and the fact that he caused her severe pain and bleeding. This incident was essential for the magistrate to understand the appellant’s perspective and to have made an informed decision on whether to grant an interim protection order. Additionally, the respondent did not disclose the nature of the complaints made against him by two other individuals.

This case brings to light the complexities surrounding allegations of rape, the definition of harassment, and the broader implications on an individual’s personal and professional life.

Interpretation of the Protection from Harassment Act (PHA) and its implications within the South African legal framework, particularly concerning cases of alleged harassment, including gender-based violence and rape.

1. The Protection from Harassment Act (PHA): The Act was designed to offer a protective mechanism for individuals alleging they were victims of harassment. It provides a clear process for obtaining both interim and final protection orders against alleged harassers.
2. Constitutional and International Law Influence: The interpretation of the PHA align with the spirit of the Constitution, especially the Bill of Rights. It also considers international law standards.
3. Contextual Background: The high prevalence of gender-based violence in South Africa underpins the significance of the PHA. The courts have recognised the severity of such crimes, and public campaigns like #MeToo and #AmINext have amplified the voices of victims and encouraged them to speak out against their abusers. The Act was also influenced by international understanding and legislation regarding “stalking,” evolving to encompass broader forms of harassment for more comprehensive protection.
4. Procedural Aspects of the PHA:
   • The Act is designed to be accessible to victims, even those without legal representation.
   • It outlines a two-stage procedure: first, the interim protection order, and second, the final protection order.
   • The court must consider the application as soon as possible, and if the prerequisites are met, an interim protection order is issued.
   • On the return date, the court evaluates the evidence to decide on the final protection order.
   • A significant feature of the PHA is the automatic issuance of a warrant of arrest once a protection order is granted, but its execution is suspended unless a breach of the protection order occurs.
5. Consequences of Protection Orders: The issuance of protection orders has significant implications for both the complainant and the respondent. While it offers protection and legal recourse to the complainant, it also restricts certain rights of the respondent, such as freedom of movement and expression. However, these restrictions aim to protect the fundamental rights of victims, as highlighted in the preamble of the PHA.
6. Judicial Responsibility: Magistrates bear a significant responsibility when applying the PHA. They must strike a balance, recognising the gravity of gender-based violence in society while ensuring that the rights of all parties are upheld. This requires a comprehensive understanding of the definition of harassment within the Act and a careful exercise of discretion.

Harassment

The term “harassment” is defined to encompass direct or indirect behaviour that leads to harm or creates a reasonable belief of potential harm to the complainant. Such behaviours may include stalking, unwanted communication, or the delivery of objects to the complainant. Harassment can also encompass sexual harassment. The definition of “harm” is further detailed to include mental, psychological, physical, or economic harm.

The interpretation of what constitutes harassment is anchored in the reasonableness of the conduct. There are specific provisions, as listed in section 9(5), to determine the reasonableness of conduct. The court must consider whether the act was committed for purposes such as preventing a crime, revealing threats to public safety, or complying with legal duties.

The judgment of Mnyandu was discussed, which revolved around an email accusation of “verbal and emotional abuse”. The court, in this case, asserted that harassment must either have a repetitive element that leads to distress or be of such an intense nature that a single act results in similar distress.

The dictionary definition of “harassment” is also referenced, which supports the understanding of harassment as repeated attacks or persecution. However, it is noted that a single act can also qualify as harassment if its impact is sufficiently severe.

The approach in Mnyandu was further supported by another case, DS v AP. In this case, a woman alleged rape by her former partner and began discussing it with friends and private online groups as part of her healing process. Although her statements in the private group were leaked without her consent, the court ruled that she had the right to discuss her experiences, emphasising the therapeutic effect of allowing victims to speak about their traumas.

The appellant’s communications with various institutions regarding her allegations against the respondent.

1. Appellant’s Realisation: After undergoing therapy and talking to another individual named AS, the appellant realised that the respondent’s penetration of her might not have been accidental. The respondent, while insisting that the act was accidental, did not dispute the appellant’s claims of therapy or her interactions with AS.
2. Pro Helvetia: The appellant and AS informed the Swiss Arts Foundation, Pro Helvetia, about their allegations against the respondent due to concerns about sharing an artistic space with him. Pro Helvetia, after some deliberation, decided they would not intervene, but were in the process of drafting a policy on harassment.
3. Wits University Gender Equity Office (GEO): The appellant contacted GEO since the respondent was a student at Wits University. After several administrative hiccups and disputes over jurisdiction, the respondent allegedly deregistered as a student, and the GEO no longer had jurisdiction over him.
4. National Arts Festival (NAF): The appellant informed the NAF about the respondent when she learned he was set to perform at the festival. She emphasised the festival would not be a safe space for her and other potential survivors of the respondent. Despite multiple communications, the NAF’s response remained vague, and there was no evidence that any concrete action was taken.
5. Public Disclosure: The appellant, along with AS, threatened to go public with their allegations. In her affidavit, the appellant clarified that she intended to publicise the allegations but did not explicitly mention naming the respondent. However, an Instagram post by AS suggested that they might have revealed the respondent’s name.
6. NAF’s Response: The NAF escalated the complaint to their executive committee and proposed that all parties participate in private interviews. However, due to concerns about the process and potential leaks of confidential information to the respondent, the appellant and AS expressed reservations.

Did the appellant’s communications constituted harassment under the Protection from Harassment Act (PHA) of South Africa.

1. Criteria for Harassment: The respondent beared the onus to prove that the appellant’s communications qualified as harassment. Four main criteria were identified:
   • Direct or indirect engagement in conduct.
   • The appellant should have known that her conduct might cause harm to the respondent.
   • The conduct should be one of the forms of conduct identified in the definition of harassment.
   • The conduct must have been unreasonable.
2. Examination of Criteria:
   • Direct Conduct: The exchanges between the appellant and the institutions were deemed as direct conduct.
   • Potential Harm: Given the potential implications on the respondent’s career, it was concluded that the appellant must have been aware that her actions might cause harm.
   • Form of Harassment: The communications could be considered as “engaging in verbal, electronic or any other communication aimed at the complainant or a related person.” However, the multiple objectives of the communications made it doubtful whether they were singularly “aimed at” the respondent. For the sake of argument, this requirement was considered satisfied.
   • Reasonableness of Conduct: Several factors were considered to assess the reasonableness of the appellant’s communications:
     • The sincerity of the appellant’s belief in her allegations.
     • The delay in communicating the allegations was consistent with the patterns of many victims of abuse.
     • The tone of the appellant’s communications, although sometimes strident, was justified in the context of gender-based violence.
     • The communications weren’t predatory or persecutory but aimed at societal change and safety.
     • The threat to “go public” lacked a firm basis for being unreasonable.
     • The appellant’s communication aimed to prevent future offenses and revealed threats to public safety.

Order

The court’s decision was based on two primary grounds:

1. Failure to Comply with Full Disclosure: The respondent did not provide complete information, which was a critical requirement in such cases.
2. Failure to Prove Harassment: The respondent could not conclusively demonstrate that the appellant’s actions amounted to harassment under the relevant law.

Based on these two failures, the appeal was allowed, and the previous order by the magistrate’s court was overturned. The interim protection order was discharged, and the application for a final protection order was dismissed.

Costs: Typically, in cases under the Protection from Harassment Act (PHA), costs orders are not made to ensure that potential complainants are not discouraged from pursuing their claims. However, given the respondent’s dishonesty and non-disclosure, the court ordered that he pay the appellant’s legal costs on an attorney-client scale for both the proceedings in the magistrates’ court and the High Court.

The court’s order consists of the following key points:

1. The respondent’s application for condonation of the late filing of his cross-appeal was granted.
2. The application to admit new evidence on the appeal was dismissed.
3. The cross-appeal was dismissed.
4. The appeal was upheld.
5. The previous order from the Magistrates Court was set aside and replaced with a new order, which discharged the interim protection order, dismissed the application for a final protection order, and ordered the applicant to pay the respondent’s costs.
6. The respondent had to cover the appellant’s legal costs for the appeal, cross-appeal, and associated applications on an attorney-client scale.

Summarised by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here.

READ THE CASE HERE