Johannesburg writer Jo Watson, who was slapped with an interim protection order after posting several videos on TikTok in which she spoke about witnessing a road-rage assault, has taken her plight to the high court.
Watson is asking that the definition of harassment in the Protection from Harassment Act be declared unconstitutional and invalid and that parliament should “correct the defect” within 18 months. She also wants the order against her to be dismissed and declared an abuse of the act.
The matter was heard in the Johannesburg high court on Tuesday. Judgment was reserved.
The court action stems from an incident on February 17 in which Watson witnessed a woman repeatedly punch another female motorist in the face after a minor collision on Beyers Naudé Drive in Honeydew.
Watson filmed a portion of the assault on her phone. Later, keen to find the victim and offer her the footage should she want to open an assault case, Watson posted six videos on TikTok in which she described the incident and invited the victim to contact her. She also hired a private investigator and used AI facial recognition software to identify Candice Adams, whose identity she then passed on to the woman who had been assaulted, Zandi Mbazima.
Mbazima opened a case with police and Adams, an education specialist, was arrested and charged with assault.
While Watson identified Adams and posted her video only after she had appeared in court, Adams saw the posts as harassment and obtained an interim protection order (IPO) against Watson. Watson was served with the IPO by three police officers at her home at about 9pm on March 11.
Watson tried unsuccessfully to have the matter heard urgently at the Randburg magistrate's court, and then waited for the return date of April 10 when magistrate Palesa Setshedi declined to lift the interim order. She warned Watson that she would be arrested should she fail to comply with it and then postponed the matter to June 10.
“I am now at constant risk of arrest and prosecution at the instance of a person who appears to be violent and volatile; has been dishonest in sworn court papers; and has a motive to silence, intimidate and discredit me (especially as I am due to be a state witness against her). And this will endure indefinitely unless the IPO is set aside by this court,” Watson says in her heads of argument.
Her lawyer, Ben Winks, told judge Denise Fisher that Adams could have sued Watson for defamation, as should have been the case. “But instead she took this quick, cheap and more serious action against someone with whom she has a grievance,” Winks said, describing Adams’s IPO as an abuse of court process by “weaponising it against legitimate freedom of expression”.
The judge asked Adams's lawyer, Mohammed Razak: “We all know things go viral. There was nothing Watson could do about that — the story was out. All she can do is talk about it. Why is she not allowed to do that?”
Razak responded that the IPO was not a gag order, but could not reference specifically what Watson had done wrong and described Watson’s efforts to identify and track Adams down as invading her privacy in actions that should rather have been undertaken by the police.
Razak argued that Watson’s application amounted to an unfair request for the high court to take over the responsibility of a lower court.
Fisher responded: “A court can step in where there’s a clear abuse of process, such as your client’s failure to say, ‘There’s footage of me punching someone in the face.’ I’ve watched the video myself and would welcome your client to the witness box or to file her explanation in a replying affidavit.”
Razak argued that Adams’s IPO application had been filed in her capacity as a lay person, and that she had not had legal advice or guidance, that there was nothing exceptional about the case and that the suspended warrant of arrest against Watson was “a natural consequence” under anti-harassment law. Razak said Watson should not be allowed to have her case resolved more quickly by running to a higher court.
Fisher responded: “This is also not a free pass for you to submit information that is incomplete or false to the court. The law is not designed to protect someone in these circumstances. What if a woman says, ‘My husband severely assaulted me and I want an order that he cannot enter the home,’ and she gets it. Is that exceptional, or must the husband just wait until June or whenever for a decision? Do you just have to live with the fact that you have this arrest warrant? Where does one draw the line?”
In her court papers, Watson says the “overly wide” definition of harassment in the legislation should be amended. She adds that the definition of harassment in the act is so wide that “it can include virtually any expressive conduct”.
The definition of “harm” is “extraordinarily wide” — given as “any mental, psychological, physical or economic harm”, meaning that this would include even hurt feelings, she says.
“The act thus creates the real and demonstrable risk that justifiable speech may be restrained, without the respondent even having an opportunity to be heard. The act thus inflicts a far-reaching limitation on the right to freedom of expression.”
She asks that this be remedied by the court declaring the definition of harassment in the act as unconstitutional and invalid and that — pending parliament’s correction of the defect within 18 months — the definition wording be amended by the addition of the clarification: “provided that this definition does not apply to any engagement in public discourse on matters of public interest”.
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