Potential Abuse of the Protection from Harassment Act 17 of 2011

Abstract

The Protection from Harassment Act (hereinafter referred to as “the Act”) has been enacted to give effect to the protection of individual fundamental rights, including but not limited to, the right to equality, privacy, dignity and freedom and security of the person. To achieve this, the Act, specifically aims, inter alia, to “afford victims of harassment an effective remedy against such behaviour”. Legislation enacted to pursue the protection of fundamental rights, as the Act asserts it does, is necessary in a constitutional democracy but should be drafted to provide maximum protection to deserving victims of human rights violations, while minimising the potential for abuse by unscrupulous litigants, by way of an interpretation of the Act that creates unjust legal remedies. This article will explore the definition of harassment, as provided for in the Act, taking into account the purpose of the Act and other relevant tools provided for by juridical interpretation. By exploring the aforementioned, the author will determine if the definition of harassment as provided for in the Act will contribute to the achievement of the purpose of the Act. It will be argued that the legal remedies provided for in the Act, allows, in its current form, for potential abuse. It will further be argued that, in securing and protecting the aforementioned rights, the potential for abuse has unintentionally been created, resulting in an unwanted situation whereby an alleged victim of harassment may become the “harasser” through the Act and unintentional or alternatively intentional abuse of the Act.