Attorneys Face Scrutiny for Misuse of Protection From Harassment Act

Attorneys Warned Over Misuse of Protection Orders

Legal professionals in South Africa are facing heightened scrutiny amid concerns over the misuse of protection orders under the Protection from Harassment Act. Attorneys who assist clients in employing these legal instruments to silence journalists or hinder criminal investigations may face both professional and criminal consequences.

Independent Duty to the Court

Myron Mer, director at Fluxmans Attorneys, highlighted that legal practitioners have an independent duty to the courts. This responsibility overrides any instructions from clients when it comes to bringing applications under the Act. As Mer stated, “An attorney cannot justify such conduct by relying on the client’s instructions.” Instead, they are required to exercise sound professional judgment, ensure all allegations are substantiated, and avoid presenting misleading information to the court.

Concerns Over Public Scrutiny and Accountability

Recent warnings stem from fears that protection order proceedings may be misused to:

• Prevent public scrutiny by gagging journalists
• Obstruct ongoing criminal investigations
• Interfere with and frustrate workplace disciplinary processes

These actions not only undermine the original intent of the Protection from Harassment Act but also threaten essential pillars of transparency and justice in society.

Special Responsibilities for Without-Notice Applications

A major area of focus is when protection orders are sought through applications brought without notifying the respondent. In these ex parte proceedings, the court can issue interim restrictions before hearing both sides. Mer emphasized:

“Applications brought without notice require particular care and full and frank disclosure of material facts, including adverse facts.”

The requirement for full disclosure ensures the courts are properly informed, safeguarding the fairness of the process.

Legal and Professional Consequences

The current legislative framework already includes mechanisms to address deliberate abuse of the system. Section 16 of the Act allows the courts to award costs against parties who act frivolously, vexatiously, or unreasonably. Additionally, Section 18 criminalises materially false statements made within protection order applications or supporting affidavits.

Attorneys who knowingly facilitate these abuses could:

• Face complaints to the Legal Practice Council
• Be subject to disciplinary actions
• Be held liable for personal costs orders where justified

Understanding Misconduct and Proper Process

Mer underlined that not every tactical move or unsuccessful application constitutes misconduct. The key consideration is whether the application has a genuine legal and factual basis, or if it is being used for an improper purpose. Only proceedings pursued without merit or for ulterior motives would attract sanctions.

Calls for Stronger Scrutiny and Timely Hearings

In response to these concerns, legal experts have called for:

• Stronger scrutiny of protection order applications
• Speedier contested hearings to quickly resolve disputes
• Consistent and meaningful consequences where abuse or deliberate dishonesty is proven

These measures aim to maintain the integrity of the Protection from Harassment Act and prevent its misuse for silencing critics or avoiding legitimate accountability.

Balancing Access with Accountability

Mer advocated for a careful balance:

“Protection must remain accessible against genuine harassment, while the process must not become a means of shielding anyone from lawful scrutiny, investigation or accountability.”

The Protection from Harassment Act is designed to safeguard individuals from legitimate threats of harassment, but it must not be misappropriated as a tool for undermining the rule of law or public interest journalism.

Wider Implications for Justice and Accountability

This ongoing debate underscores the vital importance of clear, ethical conduct within the legal profession and robust oversight of legal processes. Ensuring protection orders are used as intended helps maintain trust in South Africa’s legal system and preserves essential freedoms such as legitimate investigation and free expression.