16 January 2023 16:00 by Merilyn Kader

In Moos v Makgoba [2022] JOL 54225 (GP), evidence necessary of psychological, economic, or mental harm to secure a protection order.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Personal injury/delict - Harassment – definition of conduct: In Moos v Makgoba [2022] JOL 54225 (GP) the appellant appealed against the dismissal of her application for a protection order in terms of the Protection from Harassment Act 17 of 2011. Her challenge to the order appealed against centred around the question of what constitutes harassment.

It was held that the Protection from Harassment Act was enacted to, inter alia, give effect to the rights of privacy, dignity, freedom and security of the person and the right to equality as enshrined in the Constitution. It affords victims of harassment the opportunity to an effective remedy against the various forms of harassment they may face.

For conduct to be considered as harassment, the respondent must have directly or indirectly engaged in harmful conduct and must have known or ought to have known that his conduct causes harm or inspires the belief that harm may be caused. The applicant must have believed that the conduct of the respondent would cause harm or have the reasonable believe that it would cause harm. No support could be found for the appellant’s contention that the magistrate should have given a subjective interpretation to what the appellant believed harassment was and what her fear of irreparable harm was. The court held that a subjective interpretation would leave the scope too wide, and courts would be inundated with harassment claims where even the slightest conduct could be subjectively interpreted as harassment. It would also stifle engagements and interactions with one another.

The appellant’s evidence fell short of showing how the respondent’s conduct had caused her emotional, psychological, economic, or mental harm.

The appeal was dismissed with costs.

Merilyn Rowena Kader
Legal Editor at LexisNexis