Ané Kotzé

It’s that time of the year again – the time for secret Santa presents, office parties and Christmas dinners. There is no doubt that it is a very exciting time of the year (it’s just a shame that some forms of excitement are unwanted). So if your co-worker, boss, uncle or unwanted guest had something different in mind for a secret Santa present, this article is for you.

Sexual harassment has recently become a hot topic and has taken the news by storm, especially through women taking action and admitting to being victims to sexual harassment and assault through the #metoo campaign.

The campaign not only had remarkable feedback but also created awareness to such an extent that a number of people realized that they were actually, unknowingly, victims of sexual harassment and that they actually have a leg to stand on to fight back.

If you are therefore unsure as to what you can do to take a stand, or if the recent events inspired you to take a stand on behalf of someone you know that is being sexually harassed, this article will give you some insight as to what to do and what you can expect from this brave fight.

It is important to note that sexual harassment takes on various forms and can be both direct and indirect and occur within the workplace and outside of it.

In terms of the Protection from Harassment Act, sexual harassment is defined as “any unwelcome sexual attention from a person who knows or who reasonably knows that such attention is unwelcome”. Is saying “stop” then an indication that the sexual attention is unwelcome? Definitely.

The question however arises – what is sexual attention exactly? Sexual attention can include sexual innuendos, messages (either through e-mail, Whatsapp, or any other form of social media), any unwelcome behaviour or remarks of a sexual nature that are “offensive, intimidating or degrading” to the complainant or any person in close relationship with the complainant.

So what is the process and what can you expect?

The Magistrate’s Court is easily accessible as the Protection from Harassment Act makes way for a process where an interim court order can be obtained by you, without the consent or knowing of the person harassing you, based solely on your version as put to the Court as to why you believe that you are being harassed sexually. The Court will then, based on the evidence presented by yourself, and if you can justify that you have already suffered harm or are likely to suffer harm in the absence of such an Order, decide to grant or deny interim relief by issuing you with a Protection Order. You will further be provided with a future date upon which the person harassing you should appear in Court, where after it will be decided if the interim Order that you obtained will become a final one.

This interim Protection Order is drafted to fit each and every circumstance and to provide you with the necessary protection that you need to remain safe and out of harm’s way. The Court can therefore dictate that the person is prohibited from engaging with you either by way of social media or face-to-face and can also include a distance perimeter. A warrant of arrest also usually accompanies such an interim Protection Order.

This Order is further served on your perverted friend through the SAPS and he / she is therefore made aware of the fact that he / she is not allowed to violate the terms of the Protection Order and of the seriousness thereof.

What happens if the harassment continues even when you have a valid interim Protection Order?

A simple telephone call or a reporting of the incident to your closest police station might save your life as the SAPS have the authorisation to arrest the person harassing you immediately. If you have a final Protection Order, a violation of same is regarded as a criminal offence and can result in a fine to be issued or imprisonment for a period up to 5 years.

Are you convinced that taking a stand is the right thing to do yet? Not sure if you want to fight this fight alone? Appoint us. We’ll be your gladiators in suits. No more unwanted secret Santa surprises.

This article is a general information sheet 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 your legal adviser for specific and detailed advice.