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2.1 In South Africa a person may, depending on the actions of the stalker, have recourse to civil law or criminal law remedies. However, since public and individual interests may overlap and even be identical, the same conduct may be a crime, a delict or a breach of a fundamental right as contained in the Bill of Rights of the Constitution of the Republic of South Africa.[50] This leaves the complainant with a choice as to which remedy to pursue and with the option of pursuing more than one remedy if need be.
2.2 Various civil law remedies are available to a person being stalked.
2.3 A delictual claim aims at indemnifying a person for loss suffered. The normal remedies available to the victim of a delict are an action for damages and an application for an interdict restraining a person from committing or continuing his or her wrongful conduct. An applicant is in principle entitled to an interdict, not only where the respondent is committing or continuing to commit a delict or wrongful act, but also where the respondent threatens to commit a wrongful act.[51]
2.4 An interdict is an order made by a court prohibiting or compelling the doing of a particular act for the purpose of protecting a legally enforceable right which is threatened by continuing or anticipated harm.[52] In this instance the interdict would be prohibitory, ordering the respondent to desist or refrain from doing a particular act. Three requisites exist for the granting of a high court interdict, namely a clear right, an actual or threatened invasion of the right and the absence of another suitable remedy. A further requisite, namely that a balance of convenience favours the granting of the interdict, exists where a temporary interdict is sought i.e. pending an action between the respective parties.
2.5 The purpose of a constitutional remedy is to vindicate a constitutional right and to enforce constitutional values.[53]
2.6 A binding over of persons to keep the peace is regulated in terms of section 384 of the Criminal Procedure Act 56 of 1955, which section is retained in terms of the Criminal Procedure Act 51 of 1977. Pursuant to a complaint on oath that any person is conducting him or herself violently towards, or is threatening injury to the person or property of another or that he or she has used language or behaved in a manner towards another likely to provoke a breach of the peace or assault, in public or in private, a magistrate may order such person to appear before him or her and if necessary may cause the person to be arrested and brought before him or her. After conducting an enquiry the magistrate may order the person against whom the complaint is made to give recognizances with or without sureties to the amount of R2000 for a period not exceeding six months to keep the peace towards the complainant and refrain from doing or threatening injury to his or her person or property. This order may be accompanied by an order of costs. In the event that the recognizances are not observed it may be declared forfeited and any such declaration of forfeiture, will have the effect of a judgment in a civil action in the magistrate’s court of the district.
2.7 Harassment, and more pertinently sexual harassment, is addressed by means of the Labour Relations Act 66 of 1995, the Employment of Educators Act 76 of 1998, the Further Education and Training Act 98 of 1998 and the Municipal Systems Act 32 of 2000. The primary object of these statutes is the prevention of sexual harassment in the workplace and to provide disciplinary methods for non-compliance by officials bound by the specific Acts. An official who is being stalked and is bound by these statutes would have to exhaust the appropriate internal remedy before being allowed to proceed with a civil claim.
2.8 A domestic violence protection order is aimed at preventing further incidences of domestic violence. Currently only the Domestic Violence Act 116 of 1998 (hereinafter the Domestic Violence Act) specifically addresses the phenomenon of stalking. The Domestic Violence Act provides that a person may acquire a protection order in order to prevent further incidences of domestic violence against a person with whom the complainant has been in a domestic relationship.[54] The term >domestic violence= is widely defined and includes stalking and harassment.
2.9 Relying solely on civil remedies to address stalking has its limitations. To obtain an interdict, for example, notice must be given to the stalker. This may be problematic as a victim may not know the stalker’s name. The police cannot be called upon solely to assist the victim in finding out the identity and address of the stalker. The victim might have to retain a private investigator to stalk the stalker in order to find out where he or she lives so that a writ can be served on the stalker. Even if the stalker is known to the victim, many victims are discouraged from seeking a civil remedy because the civil procedures are cumbersome, expensive and less appropriate where emergency protection is required.
2.10 If a dispute of fact arises which is relevant to the proof of one of the essential requirements for an interdict, the matter may be referred to oral evidence. If the dispute is still not resolved the court may dismiss the application. The applicant will have to bear the initial cost of bringing the application, which if not done personally, will entail the retention of an attorney and an advocate. In order to resolve a dispute of fact the applicant may also have to call an expert to testify on his or her behalf to prove that the applicant is being subjected to psychological terror or that the person has suffered damage and the quantum thereof. The
process entails initial costs which on their own are prohibitive. However, if successful the respondent may be ordered to pay the applicant’s legal costs in addition to damages. A case in point is the matter between Independent Newspapers operations manager Noel Seymour and journalist Paul Kirk where Kirk was ordered to pay Seymour’s legal costs in addition to R60 000 damages following a week-long civil trial in which it was found that Kirk had conducted “cowardly acts of terror against him and his family”. A punitive costs order reported to be in excess of R200 000 was also made against Kirk.[55] Nonetheless, if the respondent is a proverbial man of straw there is no point in launching a delictual action against a stalker in order to obtain recompense for the damage caused as this would only result in the applicant incurring legal expenses for his or her own account.
2.11 An order to keep the peace seems to have fallen into a state of disuse, largely due to the impractical nature of the sanction provided by section 384 of the Criminal Procedure Act 1955. [56]
2.12 The procedure followed to obtain a Domestic Violence Protection Order is reasonably simple and this is generally an inexpensive remedy. The scope of the Act does elicit concern though. Although the Domestic Violence Act follows a progressive and innovative approach, peace officers may only arrest a person at the scene of an incident of domestic violence, without a warrant, if they reasonably suspect the person of having committed an offence containing an element of violence against a complainant.[57] Stalking and harassment usually precede violence, and for this reason a stalker or harasser would not be liable for arrest for stalking or harassment where there is no violence. The victim bears the burden of proof when seeking a protection order and, if granted, the stalker’s or harasser’s action will constitute an offence only once the protection order has been contravened.[58] A matter of further concern is that a protection order can only be acquired if the stalker or harasser and the complainant are in a domestic relationship. Persons falling outside of this definition, for example strangers or work colleagues, do not fall within the reach of the Domestic Violence Act. Consequently there is no recourse in terms of this Act.
2.13 In the final analysis one could always reason that interdicts are mere pieces of paper – they will not stop a determined stalker. Restraining orders cannot stop a bullet, knife or car. Protection orders have a limited effect because they penalize perpetrators only after the orders are breached. In other words, they can do nothing to protect the victim until the harm they are designed to protect against has already occurred.
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Questions
11. Do you regard the existing civil remedies as appropriate and
sufficient to deal with the phenomenon or results of stalking?
12. Are victims who are stalked faced with practical problems when they
seek to address the problem of stalking in terms of the existing civil
law?
13. If the majority of cases of stalking are by former intimate partners,
is the option of a protection order in terms of the Domestic Violence Act
effective?
14. Do domestic violence protection orders prevent future conduct?
15. Does the small percentage of other stalkers warrant another form of
intervention?
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2.14 Stalkers may employ unlawful means to harass their victims. For example, a stalker may make telephone calls that are of an obscene or menacing character, threatening the victim with injury to his or her person or property, or inflict violence on the victim or the victim’s family members. Such conduct can be restrained and penalised by means of the existing criminal law. However, stalkers may seek to stay outside the bounds of the criminal law in order to avoid arrest and prosecution. They may therefore engage in behaviour which is apparently harmless and entirely lawful when viewed in isolation. [59]
2.15 Stalking behaviour involves a series of discrete and often unrelated acts. These acts are performed individually and at different times and in different locations. Stalking is therefore different from most crimes. Existing criminal law focuses primarily on the punishment of specific
prohibited acts. It is only where an aspect of stalking behaviour constitutes a criminal act that the criminal law may be invoked to restrain or punish the stalker. Criminal law therefore treats stalking as a precursor to a crime or as evidence of its mens rea instead of a crime in its own
right.
2.16 As stated above stalking may be a precursor to the commission of a crime or may include one or numerous criminal actions. A few of these crimes will briefly be discussed below, but should not be seen as an exhaustive list of crimes associated with stalking.
2.17 The integrity of the physical person is one of a trinity of interests of human personality which is protected by South African law. The other protected interests are the dignity of the person and the reputation of the person. In South African Law these interests are protected both through civil actions for damages and by way of the criminal sanction. At criminal law violations of reputation and dignity are respectively prosecuted as defamation and crimen injuria.[60]
2.18 Violation of the interest of the physical person is prosecuted as assault. Assault consists in unlawfully and intentionally applying force to the person of another; or inspiring a belief in that other that force is immediately to be applied to him or her. The fundamental principle is that every person’s body is inviolate.[61] The law punishes not only the actual infliction of force upon the person of another but also the mere inducement in the mind of the victim of an apprehension that he or she is to be assaulted. The law is therefore capable of punishing the inducement of mere emotional distress, unaccompanied by any psychological harm of physical trauma.
2.19 The application of force may be direct or indirect, for example where a person instructs someone else to strike the victim and the person does so.[62] An example is where a woman’s ex-husband posted her name and home address on the Internet, urging men to gang rape her, and men began to show up at her house.[63] ‘Force’ does not connote any degree of violence, and the slightest contact may suffice.
2.20 The gist of assault where there is no application of force is the inspiring in the victim of a belief that force is immediately to be applied to him or her. The person often will, but need not necessarily, suffer actual emotional fear. Apprehension may be awakened by acts or gestures or words.
2.21 The crime of common assault has no provision for grading the harm caused by the assault. The punishment which may be imposed is at the discretion of the court, which can of course set the punishment in relation to the seriousness of the injury and harm inflicted. Nevertheless the South African law has created a version of the crime of assault which identifies serious assaults under the appellation of ‘assault with intent to do grievous bodily harm’. No specified punishment is prescribed for this form of assault, which, as in the case of common assault, is left to the discretion of the court.[64]
2.22 Crimen injuria consists in unlawfully, intentionally and seriously impairing the dignity of another.[65] It is very difficult to lay down a general definition of what acts, what exact form of conduct, or what extent of repetition of objectionable conduct would constitute crimen injuria. The criminal or innocent character of the acts would depend upon very many circumstances, such as the place where the acts are committed, the time of commission, the relation between the parties, age[66] and social standing, etc. The prevailing view is that dignity is a composite concept embracing the human claim to respect for the individual’s sense of self-respect, mental tranquillity and privacy.[67] The concepts of self-respect, mental tranquillity and privacy are judged both objectively and subjectively: objectively in that the law accepts that each person is entitled to them; subjectively in that it depends upon the particular person and the circumstances whether it can be said that the person’s dignity has in fact been impaired.
2.23 In addition to the standard considerations, there is a special consideration which applies in the case of crimen injuria, namely that in order to be considered liable to punishment an injuria must constitute a serious invasion of the dignity of the complainant. Thus a trifling impairment of dignity is not unlawful in criminal law, whether or not it constitutes an actionable injuria in civil law. For example trespass founds a civil action for injuria, but it does not constitute crimen injuria in the absence of further conduct which is of itself criminal.[68]
2.24 The persistent repetition of conduct may push it over the borderline between injuria and crimen injuria; to stare at a woman, for instance, is scarcely injurious, but to follow her and rudely stare persistently at her may be.[69]
2.25 The elements of liability in the case of crimen injuria committed by invasion of another’s privacy are somewhat different in that it is not necessary that the invasion of privacy involve an insult to the dignity of the victim; the crime is committed by the act of intentionally invading the privacy of another.[70] The right to privacy is recognized as including a right not to have information concerning the private affairs of the person disclosed to others. Milton describes ‘peeping toms’, eavesdropping and ‘shadowing’ as actions which constitute invasion of privacy and which are consequently punishable as crimen injuria.[71]
2.26 Defamation consists in the unlawful and intentional publication of matter concerning another which tends to injure his or her reputation.[72] Defamatory matter may take the form of words, written or spoken, acts or omissions which tend to diminish the esteem in which the person to whom it refers is held by others. It may reflect upon the complainant’s moral character, or upon his or her capacity for his or her occupation or some special undertaking, or it may attribute some quality to him or her which tends to diminish the willingness of others to associate with him or her even though there can be no question of his or her being to blame for the presence of that quality.[73] Milton refers to a particular case involving the defamation of a private individual as serious and therefore actionable, namely S v F[74] in which X circulated to a number of people a derogatory letter concerning Y, his ex-mistress, together with a photograph of her in the nude.
2.27 Malicious injury to property consists in unlawfully and intentionally damaging the property of another.[75] Ordinarily the law regards damage to property as a matter for civil redress, and not the appropriate subject of criminal proceedings. However, when the damage is malicious it is appropriate to punish at criminal law. Milton notes that some difficulty surrounds those cases where a person destroys property not from motives of gain but out of spite or ill-temper. However, he finds that it would be appropriate to charge the person with theft or malicious injury to property.[76]
2.28 The Trespass Act 6 of 1959 criminalises the actions of any person entering onto any land or into any building without permission unless the person has a lawful reason to do so.
2.29 In addition to a stalker committing one or more of the above offences, a stalker may commit any number of other offences such as loitering, contravention of telephone and post office statutes, public nuisance, breach of the peace, etc.
2.30 The inadequacy of traditional criminal remedies seems to lie in the fact that stalkers typically engage in behaviour which is threatening to the victim but which may not constitute a crime. Prosecuting a stalker for trespassing, for example, will not necessarily provide a remedy unless the stalker enters private property.[77] In South Africa, little can be done to deter or punish a stalker until he or she actually causes direct harm to an individual or an individual=s property.[78]
2.31 Although existing criminal laws cover some aspects of stalking behaviour, they do not address stalking as an independent phenomenon. They treat stalking behaviour piecemeal and deal with it as isolated incidents. The police usually focus upon a particular aspect of the stalker’s conduct and seek to bring it within an existing provision of the criminal law. Existing criminal law deals mainly with single incidents of criminal behaviour such as murder, robbery, theft or assault. It is far less developed in dealing with behaviour such as stalking, which is continuous and where the whole is worse than the sum of the parts or any individual part.
2.32 The criminal justice system fails to deal with stalking mainly “because it has tended to chop up the continuous film of persistent misbehaviour into individual, discrete snapshots”. [79]
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Questions
15. Do you regard the existing criminal law remedies appropriate and
sufficient to deal with the phenomenon or results of stalking?
16. Are victims who are stalked faced with practical problems when they
seek to address the problem of stalking in terms of the existing criminal
law?
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[50] Act 108 of 1996.
[51] Van der Walt & Midgley Delict Principles and Cases Second Edition Butterworths Durban 1997 at pp 178.
[52] Van Winsen, Cilliers & Loots The Civil Practice of the Supreme Court of South Africa Fourth Edition Juta & Co, Ltd 1997 at pp 1063.
[53] Van der Walt & Midgley Delict Principles and Cases Second Edition Butterworths Durban 1997 at pp 48.
[54] ADomestic relationship@ means a relationship between a complainant and a respondent in any of the following ways:
[55] Daily News ‘Newspaper man welcomes damages award’ June 10 2003.
[56] South African Law Commission Commission Paper 509 Domestic Violence (Project 100) Minority report 1998.
[57] Section 3 of the Domestic Violence Act follows on the amendment of section 40(1) of the Criminal Procedure Act, 1977, by the addition of paragraph (q).
[58] The offence being contravention of the protection order and not stalking or harassment per se.
[59] The Law Reform Commission of Hong Kong Report on Stalking October 2000 pp 7.
[60] Milton JRL South African Criminal Law and Procedure (Volume II) Common Law Crimes (third edition) Kenwyn: Juta 1996 at pp 407.
[61] Milton JRL South African Criminal Law and Procedure (Volume II) Common Law Crimes (third edition) Kenwyn: Juta 1996 at pp 406.
[62] Milton JRL South African Criminal Law and Procedure (Volume II) Common Law Crimes (third edition) Kenwyn: Juta 1996 at pp 420.
[63] Http://www.angelfire.com/ga/random/internetstalking.html accessed on 2 June 1999.
[64] Milton JRL South African Criminal Law and Procedure (Volume II) Common Law Crimes (third edition) Kenwyn: Juta 1996 at pp 431.
[65] Milton JRL South African Criminal Law and Procedure (Volume II) Common Law Crimes (third edition) Kenwyn: Juta 1996 at pp 492.
[66] An act may be aggravated by the fact that it is committed in respect of a young person. In R v S 1955 3 SA 313 (SWA) at 316 for instance, the court emphasised that the complainant was a young girl, who had been accosted in her home by a strange man.
[67] Milton JRL South African Criminal Law and Procedure (Volume II) Common Law Crimes (third edition) Kenwyn: Juta 1996 at pp 493.
[68] R v Farukayi 1951 SR 235, 1951 (2) PH H129 (SR).
[69] R v Meer 1923 OPD 77.
[70] S v A 1971 (2) SA 293 (T) as quoted in Milton JRL South African Criminal Law and Procedure (Volume II) Common Law Crimes (third edition) Kenwyn: Juta 1996 at pp 513.
[71] Milton JRL South African Criminal Law and Procedure (Volume II) Common Law Crimes (third edition) Kenwyn: Juta 1996 at pp 514.
[72] Milton JRL South African Criminal Law and Procedure (Volume II) Common Law Crimes (third edition) Kenwyn: Juta 1996 at pp 520.
[73] Milton JRL South African Criminal Law and Procedure (Volume II) Common Law Crimes (third edition) Kenwyn: Juta 1996 at pp 534.
[74] 1967 (3) SA 407 (SWA).
[75] Milton JRL South African Criminal Law and Procedure (Volume II) Common Law Crimes (third edition) Kenwyn: Juta 1996 at pp 766.
[76] Ibid.
[77] South African Law Commission Domestic Violence (Project 100) Discussion Paper 70 (1997).
[78] Clark & Van der Walt >Stalking: Do we need a Statute?=(1998) South African Law Journal 729 at 731.
[79] House of Commons Hansard 17 Dec 1996, col 788 as quoted in The Law Reform Commission of Hong Kong Report on Stalking October 2000 pp 77.
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