Authored By: Sindisiwe Mkhono
University of Fort Hare
REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG
Case No: A2023-013223
In the matter between: L.W Appellant And K.C.A Respondent
Facts of the case:
The respondent in question complains of being harassed by the appellant in terms of the Protection of Harassment Act 17 of 2011, who in return claims that the respondent raped and assaulted her and her friends. The respondent claimed that the incident of harassment occurred on the 21st of April 2021 where the gender-based violence allegations which were denied by the respondent were filled. The appellant also informed the respondents school (WITS) of these allegations, she claimed the allegations were because of a specific encounter they (with the respondent) had on the 26th of October 2019. When asked to provide evidence she submitted their WhatsApp communication and details of their interaction on the day of question as well as a vn from from her asking him to come over for sex before leaving. The respondent further claimed that although the appellant claims these allegations, she never reported the offence thereon.
The respondent further claimed that the appellant threatened to go public with these allegations and this would ruin his reputation and result in loss of income as there is no evidence in support of them and he had not been convicted of them. Based on this information, the magistrate awarded the appellant an interim protection order under section 3(2) of the PHA on May 11, 2022, without giving her any previous notice. If the magistrate is certain that a prima facie case has been made, Section 3(2) permits this. She was barred by the magistrate’s temporary order from harassing the respondent or attempting to do so by contacting him, making false accusations against him, threatening or intimidating him, or “bad-mouthing” him on social media.
The appellant claims that before the rape occurrence, the respondent had regularly asked her to have anal sex, which she flatly refused. On the day of the alleged rape, the respondent penetrated her anul during their sexual encounter without attempting to obtain her consent. The other victims also provided the respondent with proof supporting the claims. The magistrate limited her investigation to determining whether the appellant’s actions qualified as harassment under the PHA, ruling that it did, on the return date following the issuance of the evidence because she lacked the authority to determine whether the rape accusations were true or false.
An appeal against the magistrate’s decision was noted by the appellant. It was contended in the heads of argument submitted on her side that, in accordance with the Plascon-Evans rule1, her version as presented in the numerous replying affidavits should have won. Therefore, the respondent was unable to meet the burden of demonstrating, on the balance of probabilities, that the rape accusations were false. Given that she sincerely thought the accusations were accurate, even if it were presumed that the appellant’s claims were false, her actions in filing complaints with the three organisations in question would still not be considered unreasonable. The magistrate was incorrect when she said she lacked the authority to investigate the truth of the rape claims.
Issues Raised
Did the communications constitute harassment?
Judgment
In this regard the burden of proving that the appellant has engaged in or is now engaging in harassment is with the respondent. According to section 1 of the PHA’s definition of harassment, the appellant’s involvement in the communications between the appellant, AS, and the three institutions had to meet certain requirements to qualify as harassment if read with s9(5) of the PHA which include to:
(a) Direct or indirect engagement in conduct.
(b) The conduct was engaged in in circumstances where the appellant knew or ought to have known that harm will be caused to the respondent or that the respondent would reasonably believe that harm may be caused to him or to a related person.
(c) The conduct must have constituted one of the four forms of proscribed conduct identified in subparagraphs (i), (ii), or (iii) of paragraph (a) of the definition, or paragraph (b) of the definition.
(d) Where the form of harassment alleged is conduct as contemplated in subparagraphs (i), (ii), or (iii), it must have been unreasonable. In assessing unreasonableness, the factors in section 9(5) must be considered, along with other relevant factors.”
The court in the first requirement it was established that the foregoing exchanges between the appellant and the institutions amounted to direct conduct. Regarding the second element, the appellant must have known—or at least should have known that her actions, should the respondent learn of them, would give him a legitimate basis to believe that harm could be done, considering the consequences for the respondent’s career. At the very least, this would involve the perception that there would be financial harm.
The question of whether the verbal and electronic communication between the appellant and institutions were aimed at the respondent was raised with reference to the conversations between them. According to the dictionary definition, “aimed at” implies a single focus of attention on the respondent as a prerequisite. Without a doubt, the institutions were being made aware of the respondent’s purported behaviour based on the letters. However, other goals are also disclosed in the letters.
Along with raising awareness of the issue of gender-based violence, the appellant and AS also aimed to persuade the institutions to implement policies and procedures to address the issue and to think about ways to make their spaces safer for women and victims of this type of violence. According to the judge, it is questionable if the reports could be considered directed at the respondent given their numerous, broader goals. The court did, however, presume that they were directed at the respondent in the manner that the subparagraph anticipated. Therefore, the third requirement needs to be deemed met.
With regards to the fourth requirement, the degree to which a communication is founded on the communicator’s truly held beliefs must be considered when evaluating its reasonableness. The mere fact that an allegation is false does not automatically make it harassment. If the common cause facts are taken into consideration, particularly the glaring resemblance to the complaint that AS filed with the respondent years prior2, the appellant’s conclusion that she had been raped was reasonable, at least in relation to the 2018 occurrence.
The court held that by sending the communications, the appellant did not act in a predatory or persecutory manner. The purpose of the communications was not to specifically attack or hurt the respondent. They attempted to address worries for the safety of other ladies as well as the appellant. They show a great drive to implement solid rules and procedures to bring about institutional and societal change. That isn’t unjustified.
Furthermore, it was held that regarding the reasonableness of the threat to “go public,” there is no concrete evidence to support the appellant’s claim that she did not plan to name the respondent in going public, except than AS’s Instagram post. The fact that neither AS nor the appellant, for that matter, has ever carried out the purported threat is noteworthy and since the respondent did not request a protection order against AS, he could not have taken AS’s Instagram post indicating that naming would occur seriously.
Regarding the elements in section 9(5)(a) and (b), it is evident from the appellant’s stated desire to safeguard other women and implement safeguards against gender-based violence that she participated in the communication not only for her personal benefit but also to stop an offence from being committed and to identify a danger to public safety.
In accordance with section 9(4) of the PHA, the respondent has thus failed to establish, on the basis of the common cause facts, that he was harassed by the appellant. A referral to oral evidence upon remittal to the magistrates’ court or the admission of the written answering affidavits on appeal would not alter this result. Thus, the court dismissed the application for a final protection order.
See the discussion on the admissibility of similar fact evidence in Savoi v National Director of Public Prosecutions 2014 (5) SA 317 (CC) at paras 50–59 and the authorities there referred to. Reference is made to the English case of Makin v Attorney-General for New South Wales [1894] AC 57 where a category of similar fact evidence recognised as being potentially relevant and admissible is that which “bears upon the question of whether the acts alleged to constitute the crime charged in the indictment were designed or accidental”. Whilst English law has moved on from Makin to a more flexible, rather than category-bound, approach to similar fact evidence, the highlighting of this category is significant for the present matter where the respondent relies on accident as his defence to the appellant’s complaint of a rape in 2018. In S v D 1991 (2) SACR 543 (A), the Appellate Division adopted a criterion for admissibility of “striking similarity”, discussed at paragraph 56 of Savoi. The 2010 and 2018 complaints of AS and the appellant do indeed bear striking similarity.
Reference(S):
1 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)
