DA Urges Parliamentary Review of Harassment Act Amid Reported Misuse

Alleged Exploitation of Protection Orders

According to DA Member of Parliament Ian Cameron, there is growing unease that protection order mechanisms intended to prevent harassment are being turned against people engaged in legitimate investigative work or public interest reporting. “People investigating corruption or asking difficult questions cannot automatically be accused of harassment,” Cameron emphasized, highlighting how easily the Act’s provisions might be activated against well-intentioned parties.

Impact on Media and Investigative Work

Media lawyer Helene Viljoen noted the troubling trend of journalists facing protection order applications while carrying out public interest investigations. She explained that legal professionals who become subjects of media scrutiny sometimes pursue protection orders instead of engaging directly and transparently with the press. This tactic, she said, generates a chilling effect on press freedom, adding,

“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.”

The complexities extend beyond the media. Chad Thomas of IRS Forensic Investigations stated that, during financial crime probes, protection orders have been brought against investigators and even complainants. He described these moves as attempts to frustrate investigations, noting that interim protection orders can be issued without the knowledge or input of the respondent, sometimes lingering for months as the matter is addressed by the courts.

The Ex Parte Process and Its Pitfalls

One of the central criticisms concerns the ex parte application process, which enables courts to grant interim protection orders based solely on the applicant’s assertions, without providing the respondent an immediate opportunity to counter. Thomas called attention to the fact that such applications can result in restrictive measures before the respondent’s version of events is ever heard. The resultant legal delays and costs can weigh heavily on those defending themselves in proceedings stemming not from harassment, but from their investigative or whistle-blowing roles.

Previous Challenges and Ongoing Review

The DA has challenged what it views as inappropriate deployment of protection orders against journalists before, including in incidents involving state-funded legal support for complainants acting against the press. Cameron has urged Parliament to establish whether the root of the issue lies in legislative flaws, inconsistent judicial application, or ineffective enforcement of existing safeguards.

Thomas relates additional incidents where subjects of investigation have allegedly used protection orders against both complainants and law enforcement officers to hinder inquiries into suspected financial misconduct. He cautioned that vulnerable partiesincluding victims, whistle-blowers, and investigatorsmay increasingly face adverse legal and financial consequences due to this emerging practice.

Safeguards and Judicial Oversight

Viljoen pointed out that the courts already have basic safeguards in place. In cases involving journalists, magistrates often exercise restraint, requiring the party seeking an order to show cause rather than granting interim protection immediately. The difficulty arises, she said, “when applications proceed without notice and courts must weigh only one side’s version”.

Cameron concurred that the same constitutional considerations protecting against harassment or unlawful police conduct must coexist with the need for accountability. He stressed that being the subject of an investigation does not mean the investigator’s lawful activities should be obstructed merely because restrictions are sought through the Act.

Proposed Solutions and Areas of Focus

Calls for legislative amendments have surfaced, with Thomas suggesting that social workers could aid the courts in evaluating applications before interim protection orders are granted. Viljoen advocated for greater use of judicial discretion, particularly through preliminary notices compelling respondents to clarify their conduct prior to restrictions taking effect.

Cameron supported these calls for robust judicial scrutiny, clearer explanations from magistrates when issuing orders, more precisely defined restrictions, and faster avenues for respondents to contest interim decisions. He rejected proposals mandating a hearing for both parties in every interim application, noting the need for practical safeguards alongside genuine protection for victims.

Balancing Protection and Accountability

The ongoing debate highlights the tension between shielding individuals from harassment and ensuring that the Protection from Harassment Act does not become a shield for those seeking to avoid transparency or investigation. The DA will continue to push for a parliamentary inquiry into whether reforms, stricter enforcement, or clearer guidelines are necessary to ensure the law functions as intended.

The concerns raised serve as a reminder of the importance of maintaining both individual safeguards and public interest oversight within South Africa’s legal system. The outcome of the anticipated review could shape the ways in which courts, the media, and investigators operate in the future.