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• Introduction
• Origin Of The Investigation

INTRODUCTION

Introduction

The South African Law Reform Commission’s investigation into stalking emphasises the need to address the pressing and complex problems relating to stalking with a view to reforming the manner in which it is dealt with in terms of current law.

The Domestic Violence Act 116 of 1998 has provided a much-needed forum for addressing the scourge of domestic violence and the option of using a civil procedure to redress the imbalance of power in the arena of inter-personal relations has resulted in a deluge of applications for interdicts. However, troubled homes are a mere reflection of a troubled society. The unprecedented increase in inter-personal violence such as rape and murder bears testimony to this. Despite the fact that there is no statutory definition of stalking in South Africa, newspapers abound with stories about stalking such as ‘husband terrorised by scorned wife’^[1]; ‘my husband stalked me’^[2]; ‘rapist “predator” sent for mental observation’^[3]; ‘actress lives in fear of SA men’^[4]; ‘sniff out serial killers’^[5]; ‘nasrec killer gets 17 life terms’^[6]; ‘weirdo says he is my dad and wants to take me home’^[7]; ‘stalking is a growing menace in SA’,^[8] to mention but a few. These reports clearly indicate that stalking is prevalent in the South African context.

Within all legal systems the general criminal law prohibits personal violence offences and in some systems, such as our own, domestic violence legislation provides recourse in the form of a protection order to prevent future incidences of personal violence. Despite this apparent level of protection, the enactment of specific anti-stalking legislation in numerous jurisdictions bears testimony to the realisation that limited protection is available to people who fear that they will become victims of violent activity in the immediate future. The object of this form of legislation is to reduce and prevent violence in inter-personal relationships (real or imagined) by recognising that violence, in all its forms, is unacceptable behaviour, and ensuring that there is effective legal protection for victims of stalking. Specific stalking legislation also recognises that the string of actions which constitute stalking cause mental and psychological harm and may result in grave danger to the person being pursued. The widespread enactment of specific stalking legislation is adequate proof that existing law, civil and criminal, has been found wanting in comparative jurisdictions.

Origin of the investigation

The Discussion Paper on Sexual Offences the Substantive Law inter alia briefly explored the necessity of addressing the phenomenon of stalking and the topic of sexual harassment within the broader framework of sexual offences.^[9] The Commission concluded that including stalking and/or harassment in legislation specifically aimed at criminalising specific sexual conduct would not afford all victims of stalking or harassment the protection that they deserve. In this paper the Commission recommended that in keeping with numerous foreign jurisdictions,^[10] a separate investigation be conducted to ascertain the need to enact comprehensive legislation prohibiting stalking.

This recommendation endorsed the finding made in the Commission Research Paper on Domestic Violence that although stalking is often associated with domestic violence, it is a problem that is much broader than the domestic sphere.^[11] The Commission recommended that the inclusion of harassment in the definition of domestic violence would accommodate acts amounting to stalking. However, the Commission noted that an investigation into the criminal-law response to stalking fell outside the Commission’s terms of reference.^[12]

Based on the recommendation contained in the Discussion Paper on Sexual Offences: The Substantive Law, the Minister for Justice and Constitutional Development approved the inclusion of an investigation into stalking in the programme of the Commission on 21January 2003.

^[1] Sunday Times ‘Husband ‘terrorised’ by scorned wife’ 10 Sep 2000 as at 27 May 2003 Http://www.sundaytimes.co.za/2000/09/10/news/durban/ndbn01.htm.

^[2] Sunday Times ‘My husband stalked me’ 11 Nov 2001 as at 27 May 2003 Http://www.sundaytimes.co.za/2001/11/11/news/durban/ndbn09.asp.

^[3] Sunday Times ‘Rapist ‘predator’ sent for mental observation’ 18 Feb 2001 as at 27 May 2003 Http://www.sundaytimes.co.za/2001/02/18/news/durban/ndbn02.htm.

^[4] Sunday Times ‘Actress lives in fear of SA men’ 23 Feb 2003 as at 27 May 2003 Http://www.sundaytimes.co.za/2003/02/23/news/news20.asp.

^[5] News24.Com ‘Sniff out serial killers’ 28 May 2003 as at 28 May 2003 Http://www.news24.com/News24/Technology/News.

^[6] Sunday Times ‘Nasrec killer gets 17 life terms’ as at 27 May 2003 Http://www.sundaytimes.co.za/zones/sundaytimes/newsst/newsst1038916966.asp.

^[7] Sunday Times ‘Wierdo says he is my dad and wants to take me home!’ 19 Nov 2000 as at 27 May 2003 Http://www.sundaytimes.co.za/2000/11/19/news/gauteng/njhb02.htm.

^[8] Sunday Times ‘Stalking is a growing menace in SA’ 18 May 2003 as at 27 May 2003 Http://www.sundaytimes.co.za/2003/05/18/news/durban/ndbn05.asp.

^[9] South African Law Reform Commission Discussion Paper 85 Sexual Offences: the Substantive Law 1999.

^[10] Comprehensive 'anti-stalking' legislation has been enacted in most Australian jurisdictions, 49 states in the United States of America, including the District of Columbia, Canada and the United Kingdom.

^[11] South African Law Reform Commission Research Paper on Domestic Violence 1999.

^[12] South African Law Reform Commission Discussion Paper 70 Domestic Violence 1997.