A Johannesburg high court judgment has found that it did not constitute harassment when a woman approached a man’s funders accusing him of rape. The court overturned a protection order granted by the magistrate’s court that had prevented her from talking about her allegations.
Acting judge Alan Dodson said: “The conduct of the appellant in sending the communications was neither predatory nor persecutory. The communications were not sent simply for the sake of targeting or harming the respondent. They sought to address concerns about both the appellant’s safety and that of other women. They reflect a strong desire to bring about societal and institutional change, based on sound policies and protocols. That is not unreasonable.”
The judgment looked at what was “reasonable” when the woman made her allegations — a requirement in determining whether there was harassment and for the granting of a protection order. While the alleged incidents dated back to 2018 and 2019, Dodson found it is not unreasonable for there to be a delay in making the allegations. Nor was it unreasonable that her demands to his funders were “sometimes strident or demanding”.
“Women are entitled to be angry. At a societal level, they are under attack. They are particularly entitled to express outrage where they have personal experience of gender-based violence. And where society and institutions are perceived as responding with lethargy, quiet diplomacy is not to be expected,” he said.
The parties in the case are not named and are referred to in the judgment as “LW” and “KCA”. She is a performance artist and he a jazz guitarist. LW alleged that KCA twice raped her and sexually assaulted another two women. After some years, she sought to address his funders about it. When she threatened the National Arts Festival that she would “go public”, KCA sought, and obtained, a protection order against her in the magistrate’s court under the Protection from Harassment Act, saying she was harassing him.
By no stretch of the imagination can these messages be construed as vehement denials. His assertion to this effect in his founding affidavit was simply a lie.
— Acting judge Alan Dodson
The magistrate agreed, saying she did not have jurisdiction to decide whether the rape allegations were true or not, but had to proceed on the basis that they were untrue. Here, the magistrate got it wrong, said the high court.
Interim protection orders are granted in the absence of the alleged harasser. Dodson said in these circumstances there was a duty on the person who sought the order, to be absolutely truthful with the magistrate. KCA had not been, he said. He had not disclosed crucial information.
This included that — on his own evidence — he had anal sex with her without her consent, though he had said this had been by accident. Dodson said there were “material facts” that may have influenced the decision of the magistrate to grant the protection order.
They were essential to her “being given enough information to understand the appellant’s perspective”. KCA should have shared them with the magistrate “and his attorneys ought to have alerted him to his duty to do so”.
He also did not disclose what had happened with the other woman — called “AS” in the judgment. In his version, she had clearly accused him of raping her. In his version to the magistrate, he had “vehemently denied” the allegations. Yet the evidence before the high court was that he had initially not responded to AS’s claims and, a few years later, tried to apologise to her. “By no stretch of the imagination can these messages be construed as vehement denials. His assertion to this effect in his founding affidavit was simply a lie,” said Dodson.
Looking at the legal definition of harassment, Dodson found that LW was not acting unreasonably when she approached Wits University where KCA was a student and his funders with her allegations.
KCA’s lawyers had argued that the case should go back to the magistrate’s court for it to determine whether the allegations were true or not. Dodson said a previous case had found that even if a statement were false, it could still be reasonable to communicate it. But “an assessment of the reasonableness of a communication must take into consideration the extent to which it is based on the communicator’s sincerely — and reasonably — held belief,” he said. Here, “if regard is had to the common cause facts ... it was not unreasonable for the appellant to conclude ... that she had been raped”.
Her delay in making the allegations was “consistent with the well-known phenomenon that victims may take a long time to come to terms with the fact that they have been raped”, he said. And though her communications “were sometimes strident and demanding”, this was not unreasonable.
Dodson said it was clear that LW was communicating the allegations “not only for her own ends, but also to prevent the commission of an offence and to reveal a threat to public safety”.
