DA calls for review of Harassment Act amid alleged abuse

South Africa’s protection order legislation is allegedly being exploited to silence journalists, frustrate criminal investigations and intimidate people pursuing allegations of wrongdoing.

The DA has called for a parliamentary review of the Protection from Harassment Act amid concerns that legislation intended to protect vulnerable people is being used to avoid scrutiny and accountability.

DA called for review of the Protection from Harassment Act

DA MP Ian Cameron said parliament should examine whether existing safeguards were sufficient to prevent abuse.

“People investigating corruption or asking difficult questions cannot automatically be accused of harassment,” Cameron said.

Media lawyer Helene Viljoen said journalists were encountering these tactics when investigating allegations in the public interest.

Viljoen has been involved in matters concerning two local publications where attorneys who were subjects of reporting sought protection orders against journalists, rather than responding to media inquiries.

“It has a chilling effect on the right to freedom of expression,” Viljoen said. “Journalists are doing their jobs and giving effect to that constitutional right, yet they are being forced to retrace every step of their news gathering, prepare affidavits and produce supporting documentation.”

Chad Thomas of IRS Forensic Investigations said protection orders were being used against people investigating alleged financial crimes, sometimes forcing investigators and complainants into legal delays.

Protection orders being used against people investigating financial crimes

He has faced several protection order applications during investigations into suspected financial wrongdoing this year alone which, he said, were intended to frustrate investigations rather than protect genuine victims of harassment.

“It’s bizarre that suspects are doing this,” Thomas said.

“The Protection from Harassment Act takes into consideration that people may try to abuse it, yet some presiding officers aren’t applying their minds fully.”

Thomas said interim protection orders could be granted without the respondent being heard. Once served, the restrictions could remain effective for months while the matter proceeded through court.

Known as an ex parte application, the procedure allows a court to consider urgent interim relief without first hearing the respondent.

“Somebody can make the worst allegations to the court. The magistrate applies their mind based on the perceived danger and grants an interim order without hearing the other side,” he said.

DA previously challenged attempts to use protection orders

The DA has previously challenged attempts to use protection orders against journalists, including a case involving a magistrate who obtained state-funded legal assistance to pursue proceedings against the media.

Cameron said a parliamentary review should establish whether the problem lay with the legislation, inconsistent judicial application or inadequate enforcement of existing safeguards.

Thomas said a suspected Ponzi scheme operator had obtained protection orders against a complainant and an investigating police officer, allegedly to interfere with an investigation.

He also recently defended two protection order applications against probes he did under IRS Forensic Investigations.

The experience, he said, demonstrated the financial and professional consequences of having to defend proceedings arising from legitimate investigative work.

“The Act was introduced to protect vulnerable people from predators. What concerns me most is that whistle-blowers, witnesses, investigators and victims of crime are now being subjected to this process,” he said.

Courts already had safeguards available

Viljoen said courts already had safeguards available. Magistrates dealing with applications against journalists had, in her experience, generally issued notices to show cause rather than immediately granting interim orders.

“The difficulty with an application brought without notice is that the court initially hears only one version,” she said.

Cameron said the same constitutional considerations applied to criminal investigations.

Being investigated did not deprive anyone of protection against harassment or unlawful police conduct, but it could not provide an automatic means of preventing an investigating officer from performing lawful duties.

“An investigator carrying out lawful duties, obtaining statements, following evidence or pursuing allegations of financial misconduct should not face restrictions merely because the subject of the investigation objects to being investigated,” he said.

Thomas also wants parliament to consider legislative amendments, including the appointment of social workers to assist courts in assessing applications before interim orders are granted.

Greater use of existing judicial discretion

Viljoen suggested greater use of existing judicial discretion, particularly notices requiring respondents to explain their conduct before restrictions are imposed.

Cameron supports stronger judicial scrutiny, clearer reasons from magistrates when granting interim orders, more narrowly framed restrictions and quicker opportunities for respondents to challenge them.

However, he rejected a blanket requirement that both parties be heard before every interim order. “Nobody should be able to turn a law designed to protect victims into a tool for avoiding accountability.”