In a May 2024 judgment (MM v Kiewiet ZAGPPHC 411 (3 May 2024)), the Gauteng High Court was tasked with making a decision as to whether an interim protection order, issued under the Harassment Act, should be made final or not. The interim order was previously granted in favour of MM, prohibiting Kiewiet from verbally and physically abusing her and from threatening and harassing her.
At the hearing, Kiewiet’s legal team raised a point in limine: It was argued that since the conduct complained of occurred in the community scheme where both parties are resident, it was inappropriate to seek an order under the Harassment Act and that the provisions of the Community Schemes Ombud Service Act were applicable.
The Magistrates’ Court agreed with Kiewiet’s assertion in his point in limine, and directed that the matter be referred for adjudication under the Community Schemes Ombud Services Act, Act 9 of 2011. MM appealed to the High Court against this finding.
The High Court agreed with MM, explaining that the two pieces of legislation have very different aims and scope of application.
The purpose of the Harassment Act is indicated in its preamble and records that:
“SINCE the Bill of Rights in the Constitution of the Republic of South Africa, 1996, enshrines the rights of all people in the Republic of South Africa, including the right to equality, the right to privacy, the right to dignity, the right to freedom and security of the person, which incorporates the right to be free from all forms of violence from either public, or private source, and the rights of children to have their best interest considered to be of paramount importance;
AND IN ORDER TO –
(a) afford victims of harassment an effective remedy against such behaviour, and
(b) introduce measures which seek to enable the relevant organs of state to give full effect to the provisions of this Act.”
It is clear that the object of the Harassment Act is to give effect to the provisions of the Bill of Rights and the High Court emphasised that courts, when interpreting the Bill of Rights, must promote the values that underlie an open and democratic society based on human dignity, equality and freedom. This the Magistrates’ Court failed to do and missed the opportunity to afford MM the protection of her basic rights as afforded by the Harassment Act, by failing to recognise that Act’s purpose.
The mischief which the legislature intends to eliminate in the Harassment Act, is the prevalent violent behaviour in our society and in particular gender-based violence. This was a matter where such protection was necessary: MM had proven harassment, which included physical abuse, and hence obtaining an order in terms of the Harassment Act was appropriate.
Conversely, the purpose of the Community Schemes Ombud Service Act, 9 of 2011 (‘CSOSA’) is described as follows:
“To provide for the establishment of the community Scheme Ombud Services; to provide for its mandate and functions; and to provide for a dispute resolution mechanism in Community Schemes and to provide for matters connected therewith”.
Clearly the disputes to be dealt with under the CSOSA are those which concern the well-being of a community scheme – as generally opposed to disputes between individuals. This view finds support from the fact that the CSOSA makes no mention of the word “harassment”, as opposed to the Harassment Act where this is defined in detail. In addition, where section 39 of the CSOSA lists the forms of relief which a party may seek, it states that:-
“in respect of behavioural issues –
(a) an order that a particular behaviour or default constitutes a nuisance and requiring the relevant person to act, or refrain from acting, in a specified way.”
The CSOSA therefore deals with Nuisance and, in the absence of any definition of the word “nuisance” in that Act, it cannot be said to encapsulate harassment.
The High Court accordingly confirmed that proceeding in terms of the Harassment Act in the present matter was the correct approach.
