|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
South Africa: Supreme Court of Appeal |
[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]
Last Updated: 8 June 2005
THE SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
Case number: 301/04
Reportable
In the matter between:
MEDIA 24 LIMITED
FIRST APPELLANT
GASANT SAMUELS SECOND
APPELLANT
and
SONJA GROBLER
RESPONDENT
CORAM: FARLAM, NAVSA, CONRADIE, HEHER
et
VAN HEERDEN JJA
HEARD: 9 MAY
2005
DELIVERED: 1 JUNE 2005
SUMMARY: Delict – liability of employer for sexual harassment
of female employee by trainee manager – negligent breach by employer
of
legal duty to maintain working environment in which employees not subject to
sexual harassment - question as to whether employer
vicariously liable left open
– high court’s jurisdiction not excluded by s 157 of Labour
Relations Act 66 of 1995 –
psychological injury in fact resulting from
conduct of trainee manager away from workplace after series of acts of
harassment in
workplace – high court’s jurisdiction not excluded by
s 35(1) of Compensation for Occupational Injuries and Diseases
Act 130 of
1993
________________________________________________________
JUDGMENT
________________________________________________________
FARLAM JA
INTRODUCTION
[1] This is an appeal from a judgment of
Nel J, sitting in the Cape High Court, in which the first and second appellants
were held jointly
and severally liable to pay the respondent a total amount of
R776 814. This was the figure at which the trial court quantified the
damages
which she had suffered as a result of sexual harassment to which it held she had
been subjected over a period of approximately
five months by the second
appellant and for which it held that the first appellant was vicariously
liable.
[2] The judgment of the court a quo has been reported :
see Grobler v Naspers Bpk 2004 (4) SA 220
(C).
PLEADINGS
[3] At the time when the alleged
sexual harassment took place the respondent was a 33 year old secretary employed
by Nasionale Tydskrifte
Ltd (to which I shall refer in what follows as
‘Tydskrifte’), a wholly owned subsidiary of the first appellant. The
second
appellant was at that time a trainee manager employed by the first
appellant. In response to the respondent’s averment in her
particulars of
claim that she was employed by the first appellant, the latter ultimately
pleaded that she was in fact employed by
Tydskrifte, which had disposed of its
undertaking and whose only remaining employee was the respondent. It went on to
aver that it
had accepted liability for any obligations Tydskrifte might have
towards the respondent.
[4] The first appellant thus figured in the
case in two capacities. In its first capacity, as the employer of the second
appellant, it
was alleged to be vicariously liable for his actions in subjecting
the respondent to sexual harassment. In its second capacity, as
the party which
had accepted liability for the obligations of Tydskrifte, it faced allegations
that Tydskrifte, as the respondent’s
employer, was under a legal duty to
its employees, in particular to the respondent, to create and maintain a working
environment
in which the dignity of its employees would be respected and,
amongst other things, to take all reasonable steps to prevent its employees
from
being sexually harassed by other employees in their working
environment.
[5] The respondent alleged further in paragraph 14 of her
particulars of claim that this duty had been breached because there had been
a
wrongful and negligent failure to prevent the second appellant from sexually
harassing her. In this regard it was alleged that
the first appellant [in the
circumstances, regard being had to the way in which the case was conducted, this
allegation must be taken
to refer to Tydskrifte], or its management:
’14.1 failed to come to the assistance of the [respondent] notwithstanding her requests;
14.2 failed to act against the [second appellant] notwithstanding the fact that it was common knowledge at [Tydskrifte’s] premises that the [second appellant] was sexually harassing the [respondent];
14.3 failed to deal with allegations of sexual harassment against the [second appellant] seriously and expeditiously;
14.4 permitted the [second appellant] wide latitude in his conduct towards his subordinates, in particular, the [respondent];
14.5 failed to act against the [second defendant] notwithstanding the fact that [he] had previously sexually harassed female employees of [the first appellant and Tydskrifte] during his employment with the [first appellant] and notwithstanding the fact that this was known to the management of [Tydskrifte];
14.6 failed to create a climate in the workplace in which the victims of sexual harassment, in particular the [respondent], would not feel that their grievances were being ignored;
14.7 failed to take all or any reasonable steps to preserve and protect the bodily integrity, psychological well-being, mental tranquillity and dignity of [Tydskrifte’s] employees, in particular that of the [respondent]; and
14.8 failed to prevent the [second appellant’s] sexual harassment of the [respondent] when such could and should have been prevented.’
[6] According to the
particulars of claim, the persons comprising the management of the first
appellant [which again must be taken to
be a reference to Tydskrifte] referred
to in paragraph 14 were acting in the course of their employment and the scope
of their duties
as employees.
[7] The respondent also stated that, as
a result of the alleged sexual harassment, she suffered severe shock, anger,
anguish, fear and
anxiety; was humiliated, degraded and disturbed in her mental
tranquillity and emotional integrity, and suffered severe psychological
and
psychiatric trauma,[1] manifesting as
post-traumatic stress syndrome.
[8] In its plea the first appellant
denied that, in sexually harassing the respondent as alleged, the second
appellant had been acting
in the course and scope of his employment. It pleaded
further that neither it nor Tydskrifte had any knowledge of the correctness
of
the respondent’s allegations of sexual harassment and that it made no
admissions in respect thereof. With regard to one
specific allegation of
harassment, which related to an incident which took place near a flat owned by
the respondent (described in
the evidence as ‘the flat
incident’), the first appellant pleaded as
follows:
‘7.3.1 It did not take place at the [respondent’s]
workplace;
7.3.2 It did not take place on premises controlled by the [first appellant] or ... Tydskrifte ...;
7.3.3 It did not take place at a time when either the [respondent] or the [second appellant] were performing their services in terms of either of their contracts of employment;
7.3.4 The event did not take place within the course and scope of the employment of either the [respondent] or the [second appellant];
7.3.5 The event did not arise out of the [respondent’s] employment or that of the [second appellant];
7.3.6 Neither the [first appellant] nor ... Tydskrifte ... is accordingly liable for any of the consequences of the alleged incident.’
[9] The first appellant
denied being vicariously liable for any sexual harassment for which the second
appellant might be liable. As regards
the allegation that Tydskrifte or members
of its management team had breached a legal duty towards the respondent, it
denied that
Tydskrifte owed its employees, including the respondent, a general
(delictual) duty of care consisting of the obligations on which
the respondent
relied. It conceded that an employer has moral obligations towards its employees
to take all reasonably practicable
steps to protect their integrity, dignity and
privacy in their working environment but denied that ‘it has any such
legal obligations
justiciable’ by the high court. In amplification of this
averment it pleaded that an employer’s obligations in this regard
arose
from the provisions of the Labour Relations Act 66 of 1995 (item 2(1)(a) of
Schedule 7) at the time of the claim and now arise
from the provisions of s 6 of
the Employment Equity Act 55 of 1998, both read with the Code of Good
Practice on the Handling of Sexual Harassment Cases’ published
under s 203 of Act 66 of 1995 and that conduct offending against the relevant
provisions of both Acts is justiciable only
by the Labour Court. In any event,
so it was pleaded, Tydskrifte had fully complied with any such
obligations.
[10] The first appellant also denied that the respondent
suffered from post-traumatic stress disorder as a result of the second
appellant’s
alleged sexual harassment. It did not, however, deny that she
suffered severe psychological and psychiatric trauma, its denial on
this part of
the case being confined to the respondent’s allegation that the
psychological and psychiatric trauma she suffered
manifested as post-traumatic
stress syndrome.
[11] In addition to pleading the jurisdictional
defence set out in para [9], the first appellant also pleaded that the
respondent’s
action was one contemplated by s 35(1) of the Compensation
for Occupational Injuries and Diseases Act 130 of 1993 and that, by virtue
of
the provisions of this section, the respondent had no claim against Tydskrifte
other than in terms of the said Act. The present
action, not being an action in
terms of that Act, should thus be dismissed.
[12] The second appellant
denied that he had been guilty of sexual harassment of the respondent. In
particular he denied the incidents
particularised in subparagraph 4.10 and 4.12
to 4.14 of her particulars of claim. These incidents, together with that
referred to
in sub-paragraph 4.11, were extensively covered in the evidence in
the trial court and are dealt with in detail in the trial court’s
judgment. They were variously described as ‘the lift incident’
(paragraph 4.10), ‘the Landbousaal incident’
(paragraph 4.11),
‘the coffee jar incident’ (paragraph 4.12), ‘the fingerbiting
incident (paragraph 4.13) and ‘the
flat incident” (paragraph 4.14).
[13] In respect of the Landbousaal incident, he admitted kissing the
respondent in the room in question but averred that she had consented
to being
kissed and had, as it was put, ‘been a willing participant and had
returned [his] kiss’. He alleged that there
had been what was called
‘a relationship’ between the respondent and himself. He admitted
touching her on occasion, engaging
her in conversations of an intimate nature,
with her willing participation, and asking her to go out with him. He pleaded no
knowledge
of her allegations that she suffered psychological and psychiatric
trauma and patrimonial loss in consequence thereof, putting the
respondent to
the proof thereof.
JUDGMENT OF COURT A
QUO
[14] The learned judge in the trial court rejected the
second appellant’s version that there had been a romantic relationship
between
him and the respondent. He also found that the incidents set forth in
sub-paragraphs 4.10 to 4.14 had taken place, save that he was
unable to find
that, during the so-called ‘flat incident’, the respondent was
threatened by the second appellant with
a firearm.
The judge accordingly
found that the second appellant had sexually harassed the
respondent.
[15] He found that what he called the respondent’s
‘chronic emotional problems’ were the result of the sexual
harassment
to which she was subjected by the second appellant and which she
could not have escaped - despite her efforts to do so - without
the possible
loss of her job. He accordingly held the second appellant responsible for the
respondent’s condition. He refrained
from making a specific finding that
her condition could be classified as post-traumatic stress disorder, pointing
out that the question
to be considered was whether the second appellant was
responsible for the respondent’s condition and not how her condition
would
be classified by the American Psychiatric Association (the publishers of the
fourth edition of the Diagnostic and Statistical Manual of Mental Disorders
(DSM IV), to which all the psychologists and psychiatrists who testified had
referred).
[16] He then proceeded to hold the first appellant, as the
employer of the second appellant, vicariously liable for his actions. He came
to
this conclusion after a comprehensive discussion of the common law as to
vicarious liability and recent developments thereof in
the United States of
America, Canada, the United Kingdom, Australia and New Zealand. He expressed the
view that policy considerations
justified the conclusion that the first
appellant should be held vicariously liable for the sexual harassment of the
respondent by
the second appellant but that, if the existing rules relating to
vicarious liability in our law are not flexible enough or do not
make adequate
provision for changed circumstances in order to deal with the problem of sexual
harassment in the workplace then, he
said, the Constitution obliges the courts
to develop the common law accordingly.
[17] The trial judge also
held that the two jurisdictional defences raised by the first appellant were
without merit. His reasons for this
conclusion are set out fully in the reported
judgment and accordingly need not be repeated here. So too, in view of the fact
that
the judgment of the court a quo has been reported, it is not
necessary to set out in detail all the allegations and counter allegations dealt
with therein.
ACADEMIC AND PROFESSIONAL COMMENTARIES ON THE
JUDGMENT
[18] The judgment of the trial court, as was to be
expected, aroused considerable attention on the part of academic commentators on
the
law of delict and industrial
law[2].
[19] We are
grateful to counsel for the respondent, Mr Melunsky, who conducted the
respondent’s case with considerable ability in both the trial court and
this court, for making available
to us copies of most of the articles in which
this case was discussed.
SUBMISSIONS ON BEHALF OF THE FIRST
APPELLANT
[20] Mr Burger, who appeared with Mr
Duminy and Mr Stelzner for the first appellant, contended that the
trial judge had erred in rejecting the evidence of the witness Leon Africa, who
testified
on behalf of the second appellant at the trial and said that, before
the flat incident, the second appellant and the respondent acted
like children,
one minute having arguments and teasing each other, the next chatting to each,
laughing and smiling. He said that
it looked to him as if they were having an
affair. On one occasion he came into the office he shared with the second
appellant and
found them kissing. On another occasion the respondent told him
she had often kissed the second appellant. He also testified that
he saw a
letter apparently written by the respondent to the second appellant, which read
‘Ek het jou lief’ and was signed
with a drawing of a sun, followed
by the letters ‘ja’, this combination standing for
‘Sonja’, the respondent’s
first name.
[21] Mr
Burger pointed out that the trial judge gave a very cursory summary of
this witness’s evidence and later, when considering it, contented
himself
with remarking that, in so far as Africa’s evidence excused the second
appellant’s conduct, it was in conflict
with the evidence of Vanessa
Binneman, Nicolene Johnson and the other corroborating evidence to which he had
referred and that it
was accordingly not accepted. Mr Burger submitted
that Africa’s evidence should have been considered on its merits and not
simply rejected because it conflicted with
that of other witnesses. He submitted
that in the circumstances the trial judge had materially misdirected himself in
this regard
and that Africa’s evidence was of great importance on a key
issue in the case as far as it relates to the first appellant,
viz
whether any harassment had taken place before the flat incident. As this
incident took place away from the workplace, the second
appellant having
ostensibly gone to inspect the respondent’s flat with a view to buying it,
it was not possible, counsel contended,
to hold the first appellant vicariously
liable for the second appellant’s conduct on this occasion (even if the
extended test
for vicarious liability set out in the trial court’s
judgment were to be upheld). According to counsel, Africa had been a good
witness and his evidence as to the nature of the relationship between the second
appellant and the respondent, at least prior to
the flat incident, should have
been accepted.
[22] In support of his contentions in this regard, Mr
Burger drew attention to a passage in the respondent’s evidence
where she referred to the period of about three weeks which preceded
the flat
incident. During this period, which followed on the second appellant’s
writing a letter to her in which, on her version,
he solemnly swore not to touch
her again or treat her badly or force his attentions on her, she was, she said,
very happy at work.
She worked well and she got on well with the other people
there. She was experiencing no problems with the second appellant and she
could
relax. Mr Burger submitted that even if the respondent had up to that
point been sexually harassed by the second appellant and had not merely been
involved in a flirtatious relationship with him, it could be accepted that, if
the flat incident had not occurred, there would have
been no question of the
respondent’s suffering from a post-traumatic stress disorder. As far as
the flat incident was concerned
he submitted that it alone, regard being had to
the three week period of quiet which preceded it, is the only possible stressful
event which could have precipitated a post-traumatic stress disorder affecting
the respondent.
[23] He contended further that the first appellant
could only be liable to the respondent on the facts of this case if she could
establish
that the harassment to which she had been subjected had resulted in a
recognised psychiatric injury (‘erkende psigiatriese
letsel’) (see
Barnard v Santam Bpk 1999 (1) SA 202 (SCA) at 216E-F). He pointed out
that the trial court had refrained from upholding the respondent’s
contention
that she was suffering from a post-traumatic stress disorder and
submitted that, as she had specifically pleaded that she had suffered
‘severe psychological and psychiatric trauma, manifesting as
post-traumatic stress-syndrome’, she had failed to establish
that her
condition was of such a nature as to qualify for an order for damages within the
ambit of the rule as laid down in Barnard’s case,
supra.
[24] Mr Burger also argued that the court
a quo had erred in holding that the essentials for the successful
invocation of the principles of vicarious liability were present in this
case.
Such harassment as was proved to have taken place had not been committed within
the course and scope of the second appellant’s
employment. Furthermore,
there was no empirical evidence to establish that the first appellant had
created or increased a risk of
sexual harassment within the employment
relationship. In any event, the first appellant should not be held to be
vicariously liable
for sexual harassment of one employee by another merely on
the basis that the first appellant had created or increased a risk of
sexual
harassment within the employment relationship. The expansion of the common law
as regards vicarious liability was in this
case not justified on constitutional
grounds. According to counsel, South African cases provide no authority for the
trial court’s
finding of vicarious liability; the Canadian and English
decisions were decided in different factual contexts, and the American authority
was of doubtful value in our legal system.
[25] As regards the
respondent’s alternative cause of action against Tydskrifte, namely that
Tydskrifte had breached a legal duty
it owed to the respondent by
wrongfully and negligently failing to prevent the second appellant from sexually
harassing her, Mr Burger submitted that the respondent had to prove that
it could reasonably have been expected of Tydskrifte to take positive steps to
prevent
the injury to her and that Tydskrifte failed to take such steps. What
could reasonably have been expected from Tydskrifte was determined
by the
factual circumstances and the legal convictions of the community as assessed by
the court. Pointing out that a legal duty
is something more than a moral,
ethical or social duty, counsel contended - with reference to what was said by
the Constitutional
Court in Carmichele v Minister of Safety and Security
2001 (4) SA 938 (CC) para [43] at 957 - that the question to be answered was
whether Tydskrifte ought reasonably and practically to
have prevented harm to
the respondent: put differently, was it reasonable to expect of Tydskrifte to
have taken positive measures
to prevent the harm? In his submission, no basis
had been laid for any conclusion that the legal convictions of the community
required
the legal duty alleged to be imposed. Such duties as Tydskrifte had
regarding the prevention of harm to the respondent flowing from
sexual
harassment arose from the contract of employment between it and her,
supplemented in some respects by applicable legislation,
such as the Labour
Relations Act 66 of 1995, the Occupational Health and Safety Act 85 of 1993, the
Compensation for Occupational
Injuries and Diseases Act 130 of 1993, the Basic
Conditions of Employment Act 75 of 1997 and the Employment Equity Act 55 of
1998.
[26] Counsel submitted in this regard that there is an important
difference in principle between an employer’s relationship with
his
employees, on one hand, and that with the community in general, on the other.
Any duty which an employer may have to prevent
sexual harassment of its
employees cannot be separated from the employment relationship, which is
contractual both as to its origin
and its nature, with statutory inclusions and
additions. In the present case Tydskrifte had no legal duty qua
employer towards its employee, the respondent, which did not arise
from a contract of employment or applicable legislation. Instead of relying
on a
(delictual) legal duty, the respondent should have relied on a provision in her
employment contract, whether express or implied,
which she clearly had not done.
That, he contended, constituted a complete defence to the respondent’s
claim against the first
appellant in so far as it was being sued as the party
which had accepted an obligation to assume any liability that Tydskrifte had
towards the respondent in this regard. In support of this submission he relied
on the decision of this court in Lillicrap Wassenaar and Partners v
Pilkington Brothers (SA) Ltd 1985 (1) SA 475 (A) at 499H-I.
[27] Even if there were a general legal duty on the part of
Tydskrifte which could be enforced in a delictual action, this duty, so counsel
submitted, had been discharged: in 1997 already, a sexual harassment policy had
been accepted and applied throughout the whole Naspers
group of which Tydskrifte
formed a part; this policy had been distributed and made known throughout the
whole group; a copy thereof
had speedily been made available to the respondent
as soon as she asked for it; a grievance procedure, supplementary to the
procedures
which were applicable at all levels in the group in terms of the
sexual harassment policy, had been accepted enabling employees to
direct and
follow up their grievances to a variety of people within and outside Tydskrifte,
and the disciplinary procedure had been
set in motion expeditiously against the
second appellant as soon as the respondent had laid a formal charge against him.
Mr Burger submitted that the evidence thus showed not only that
Tydskrifte had exercised reasonable care to prevent and correct promptly any
sexually harassing behaviour but also that any legal duty to which it was
subject had been complied with.
[28] He pointed out that the
respondent, who was at all relevant times aware of the disciplinary policy and
code and the grievance procedure
of her employer, had refrained from taking
formal steps of any kind against the second appellant until after the flat
incident: that
is to say after being subjected, on her version, to approximately
six months of harassment. Her failure in this regard was, he submitted,
unreasonable, alternatively she had herself to accept responsibility for the
fact that steps were only taken against the second appellant
after the flat
incident.
[29] As regards the first jurisdictional defence raised by
the first appellant, as set out in para 9 above, counsel referred to the Code
of Good Practice on the Handling of Sexual Harassment Cases promulgated in
terms of s 203(2) of Act 66 of 1995, read with s 203(3) in terms of
which any such code must be taken into
account in interpreting and applying the
Act, and submitted that the elimination of sexual harassment in the workplace
was recognised
as a labour matter involving the application of Act 66 of 1995 in
so far as concerns the relationship between employer and employee.
He also
pointed out that sexual harassment cases are presently dealt with under Chapter
II of the Employment Equity Act 55 of 1998.
Section 10 of that Act, which is
part of Chapter II, provides that disputes concerning alleged unfair
discrimination (of which harassment
is a form (see s 6 (3)) must be referred for
conciliation and, failing resolution, to the Labour Court and, further, that the
relevant
provisions of Parts C and D of Chapter VII of the Labour Relations Act
(which include s 157), with the changes required by the context,
apply to such
disputes.
[30] Dealing with the trial court’s second reason for
rejecting this jurisdictional defence (a reason which applies also in respect
of
the second jurisdictional defence), namely that the respondent’s employer
was Tydskrifte and not the first appellant, Mr
Burger submitted that in
this regard the trial court overlooked the fact that, from a practical point of
view, the respondent and the second
appellant were both working in the same
organisation.
[31] He then turned to the second jurisdictional defence
(as set out in para [11] above), namely that the High Court was precluded from
hearing the respondent’s action because of the provisions of s 35(1) of
the Compensation for Occupational Injuries and Diseases
Act 130 of 1993, which
reads as follows:
‘(1) No action shall lie by an employee ... for the recovery of damages in respect of any occupational injury or disease resulting in the disablement ... of such employee against such employee’s employer, and no liability for compensation on the part of such employer shall arise save under the provisions of this Act in respect of such disablement ...’
[32] The trial court’s first reason for
rejecting this defence was based on a finding that the Act required a particular
incident
constituting an ‘accident’ to have taken place before
compensation would be payable thereunder and that it made no provision
for the
consequences of prolonged harassment. Counsel submitted that this was incorrect
because the Act was not confined to providing
claims for compensation for
injuries sustained as a result of accidents but also for occupational diseases,
many of which can be
contracted as a result of prolonged exposure to what he
called work-related hazards (arbeidsgevare). In this regard he referred to
s
65(1) of the Act, which as far as is material, reads as
follows:
‘(1) Subject to the provisions of this Chapter, an employee
shall be entitled to the compensation provided for and prescribed
in this Act if
it is proved to the satisfaction of the Director-General –
(a) that the employee has contracted a disease mentioned in the first column of Schedule 3 and that such disease has arisen out of and in the course of his or her employment;
or
(b) that the employee has contracted a disease other than a disease contemplated in paragraph (a) and that such disease has arisen out of and in the course of his or her employment.’
In terms of s 66 it is presumed,
unless the contrary is proved, that if an employee who has contracted an
occupational disease listed
in the first column of Schedule 3 was employed in
any work mentioned in the second column of the Schedule, the disease so
contracted
arose out of and in the course of his employment. Thus, to give an
example, a hearing impairment suffered by an employee engaged
in work involving
exposure to excessive noise will be presumed to have arisen out of and in the
course of the employment of the employee
concerned.
[33] Post-traumatic stress syndrome is not a disease listed
in Schedule 3, but, by virtue of the provisions of s 65(1)(b) of the Act,
if the respondent contracted it in circumstances arising ‘out of or in the
course of her employment’, she
would be entitled to compensation under the
Act and would not be able to institute a civil action against
Tydskrifte.
[34] Mr Burger accordingly submitted that, if the
respondent’s condition is correctly to be diagnosed as post-traumatic
stress syndrome and
she contracted it in her workplace as a result of exposure
to sexual harassment by the second appellant, she would be entitled to
compensation under s 65 of the Act and would be precluded from instituting a
common law action for damages against Tydskrifte.
SUBMISSIONS ON BEHALF
OF THE SECOND APPELLANT
[35] Mr Heunis, who appeared on
behalf of the second appellant, submitted that the trial court erred in finding
that it had been proved that the second
appellant had sexually harassed the
respondent. He associated himself with Mr Burger’s submission that
the trial judge had been guilty of a misdirection in the summary manner in which
he had rejected the evidence of the
witness Africa. He contended that Africa had
been a good witness who corroborated the second appellant on the pivotal factual
issue
in the case, namely whether the second appellant had sexually harassed the
respondent or was involved in a consensual flirtatious
romantic relationship
with her. He conceded that the second appellant had not been a satisfactory
witness but said that the same
applied to the respondent who had given
untruthful and dishonest evidence on various points. As both of the two
principal role players
were unsatisfactory, the evidence of Africa became
particularly important. On his evidence (the important aspects of which have
been
summarised in para [20] above), there was no question of harassment: the
respondent was clearly involved in a consensual relationship
with the second
appellant. He submitted further that she was a single witness in respect of many
of the incidents relied on.
[36] Furthermore, there was a pattern
discernible in her conduct in that she had had an office affair previously with
the main person for
whom she performed secretarial duties, namely Barend van As
(at that time the production manager of Tydskrifte). This affair had
terminated
some months before her relationship with the second appellant began. He also
argued that the trial court had erred in
finding that the flat incident had
caused the respondent to lay a charge against the second appellant. He referred
in this regard
to the evidence given by Anchen Pienaar, a social worker employed
at the time by the Naspers group, who testified that the respondent
had told her
that, before she decided to go to Ulrich Stander (the labour law consultant
employed by Naspers) to report what had
happened, there had been a telephone
call on either the Thursday or the Friday following on the flat incident as a
result of which
she had had to tell her husband of what had allegedly happened
at work. This, and not the flat incident, he suggested, had precipitated
her
report to Stander.
[37] Mr Heunis submitted that it was
significant that, after the so-called Landbousaal incident, the respondent burst
into tears only when Nicolene
Johnson commented on lipstick marks on the second
appellant’s collar in the respondent’s presence, not when she first
came back to her workstation after being in the Landbou room. This was not
consistent with the allegation of sexual harassment. The
scratchmarks on the
second appellant’s back, which Nicolene Johnson saw, were not necessarily
corroborative of the respondent’s
story.
[38] He contended that
the two female witnesses called to corroborate the respondent by telling of a
pattern of similar conduct on the
part of the second appellant in the past had
not succeeded in proving such similar conduct. Thus, for example, Elsabe van den
Berg,
who had worked with the second appellant at the premises of Nasionale
Boekdrukkery in Goodwood/Parow in 1996, testified that the
second respondent had
sexually harassed her, essentially by making crude suggestions to her and using
sexually offensive language.
In addition, Lieza Blom had conceded in
cross-examination that it was possible that she had been unduly sensitive
regarding proposals
and suggestions put to her by the second appellant (as a
result of previous experiences she had had at Naspers).
[39] As far as
the evidence of Nicolene Johnson was concerned, important aspects in her
evidence did not appear from her original written
statement or her evidence at
the disciplinary enquiry. Mr Heunis submitted that her evidence had to be
approached with great caution as it was clear that she harboured a grudge
against the first
appellant because she thought that she had been retrenched as
a result of testifying at the disciplinary proceedings against the
second
appellant, despite the fact that she had been promised that the company would
look after her and that she would not lose her
job.
SUBMISSIONS ON
BEHALF OF THE RESPONDENT
[40] Mr Melunsky submitted
that the trial court had correctly found that the second appellant had sexually
harassed the respondent and that she suffered
severe psychological sequelae as a
result. It was not necessary for the court to find that the respondent suffered
from post-traumatic
stress disorder in order to impose liability on the
appellants: the name to be given to her condition was immaterial for the
purposes
of a finding that the appellants were liable.
[41] The trial
court correctly found, so he contended, that the first appellant was vicariously
liable for the acts of sexual harassment
found to have been committed by the
second appellant. In the alternative he contended that it had been shown that
Tydskrifte was
under a legal obligation to ensure safe working conditions at its
workplace. That obligation included a duty to protect the respondent
from sexual
harassment. Various persons who were on the managerial staff of Tydskrifte were
aware of this sexual harassment. In breach
of their duty to prevent a recurrence
thereof, they negligently remained passive and permitted the harassment to
continue.
[42] According to counsel, the trial court had correctly
rejected the jurisdictional defences raised by the first
appellant.
DISCUSSION:
WAS THE RESPONDENT SEXUALLY
HARASSED BY THE SECOND APPELLANT?
[43] It is convenient to
deal first with the issue as to whether the respondent succeeded in proving that
she was sexually harassed by
the second appellant.
[44] In what
follows I am prepared to assume, without deciding, that the trial judge may well
have misdirected himself in regard to the
manner in which he approached the
evidence of the witness Africa. I shall accordingly consider whether this court
can be satisfied
on the record of the evidence led that the second appellant was
indeed guilty of sexual harassment of the respondent.
[45] I do not
think that the evidence of Leon Africa can be accepted. On two important
aspects, his evidence, if accepted, would corroborate
that of the second
appellant and undermine that of the respondent on the crucial question as to
whether they had a romantic relationship
or whether he was guilty of sexually
harassing her. The first item of his evidence to which I refer is his statement
that on one
occasion he entered the office which he shared with the second
appellant, the door of which was half open, and found the second appellant
and
the respondent embracing and kissing one another. The second item was his
statement that he saw a note with the words ‘Ek
het jou lief’,
apparently signed by the respondent with a drawing of the sun followed by the
letters ‘ja’. This
note, which the second appellant kept in a drawer
he shared with the witness, was written on a 9cmx9cm yellow
sticker.
[46] The difficulty with both these items of evidence is that
they are directly in conflict with the evidence of the second appellant.
As far
as the kissing incident is concerned, the second appellant said that he and the
respondent always closed the door of the office
before they kissed. As regards
the alleged note, the second appellant said it was written on a paper serviette.
The conflicts between
the second appellant and Africa on these and other issues
are of such a nature as to satisfy me that Africa’s evidence must
be
rejected.
[47] As will be seen from what follows I do not rely on the
evidence of Elsabe van der Berg and Lieza Blom that the second appellant was
also guilty of sexually harassing them. I am prepared to assume that Mr
Heunis’s submission that it would not be appropriate to do so may
well be correct. I have also not relied on the evidence of Nicolene Johnson.
Here also I am prepared to assume that Mr Heunis’s argument in
regard to her evidence should be accepted.
[48] It is true that, in
respect of the specific incidents referred to, we are largely dependent on the
testimony of the two main protagonists,
both of whom were in certain respects
unsatisfactory witnesses. It seems to me, however, that there are certain
aspects of the evidence,
which the second appellant either admits or cannot
deny, which indicate unmistakeably where the truth lies. They enable us, as it
were, to ascertain in which direction the current is flowing and thus to
determine, in my view, with a fair degree of accuracy whether
or not there was
sexual harassment.
[49] The first aspect to which I refer relates to
the respondent’s assertion that, after the first incident of harassment
relied
on (the lift incident), he threatened her with a newspaper article about
her husband’s previous criminal trial. He admitted
obtaining the report in
question from the Internet and satisfying himself that the respondent, whom he
initially did not believe
on the point, had been telling him the truth. His
evidence that he then downloaded the report from the Internet, held onto it for
some time and then suddenly one day handed it to the respondent in an envelope
does not make any sense and is inherently improbable
unless, as the respondent
says, he was using the report to ‘blackmail’ her into silence about
his harassment of her.
[50] It is also significant that the respondent
asked Jerome Kalan, a trainee manager in the personnel department, for the
Naspers sexual
harassment policy at an early stage, ie immediately after the
alleged lift incident. This was not denied at the enquiry and Kalan
was not
called by the second appellant at the trial. In my opinion it can safely be
accepted that the respondent did indeed call
for the policy at that stage. This
was conduct which clearly rebuts any suggestion that her allegations of
harassment were a recent
fabrication made shortly before the enquiry and is
inconsistent with any suggestion that she was not already being harassed at that
early stage.
[51] The next aspect to which I wish to refer is the
so-called finger biting incident. The second appellant initially said that what
happened
on this occasion was that he put a sweet in the respondent’s
mouth whereupon she bit his finger ‘more in a joking sense’,
resulting in what he described as ‘a little gash’, ‘a
laughable incident’ which was insignificant and not
serious. Later on he
conceded that the bite had been down to the bone and was not ‘just a
little gash’. It was something
quite serious. When pressed further and
confronted with what he had said at the disciplinary enquiry, he conceded the
finger biting
did not take place as a joke but in the context of an argument but
claimed that he could not remember what had happened. His evidence
on this issue
also points strongly in the direction of harassment rather than
flirtation.
[52] Another aspect which, in my view, provided a clear
indication as to where the truth lies in this case is the incident in the
Landbou
room. On the second appellant’s version all that happened in the
Landbou room was that he hugged and kissed the respondent
with her consent.
During the embrace, he said initially, she could have scratched his back. Later
he conceded he had indeed been
scratched and later still, that it had been an
open wound. It had merely happened ‘as part of the kissing’, not as
part
of a passionate embrace. In my opinion the fact that he cannot deny that he
was scratched on the back by her in the Landbou room
is a fairly strong
indication that her version of the incident is to be believed instead of his.
His admission relating to the scratch
wounds certainly corroborates her on the
point because it is evidence which renders her version more probable and his
less probable.
I also can understand her initial reluctance to talk about it and
her subsequent embarrassment when it appeared that there was lipstick
on his
collar. I accordingly do not agree with Mr Heunis’s argument on
this point.
[53] In my view the admissions the second appellant made
in regard to the flat incident indicate that, on this aspect of the case as
well,
the respondent is to be believed that he harassed her on this occasion
also. The trial judge was unable to find that the respondent
was threatened with
a firearm on this occasion. The second appellant admitted that his primary
purpose in going to see the flat was
not with a view to purchase it but to spend
time with the respondent. (In this regard I am satisfied that it is
overwhelmingly probable
that her reason in going there was to show him
the flat with a view to his possibly buying it.) His further statement that they
had reached
the end of their relationship and that he suggested that he make a
hotel booking so that they could again spend time together and
discuss matters
but not to have sexual intercourse is overwhelmingly improbable. Under
cross-examination by counsel for the first
appellant he said:
‘... the
hotel issue doesn’t necessarily mean that it would have been a sexual
relationship, because that never occurred
to any one of the parties ... That was
never, never, ever discussed between the two of us.’
She testified,
however, that when he said that all he wanted was one night with her, she said
she could not go with him that night
because she was menstruating. He then said
that he would make a reservation for the place where he would meet her and give
it to
her. Her statement that she mentioned the fact that she was menstruating
as the reason why she could not go with him that night (a
statement not
challenged in cross-examination) indicates clearly that she got the impression
that he was after a sexual encounter.
His acceptance of her reason for not
coming with him that night and his action in making a hotel reservation for a
night, some twelve
days thereafter, indicates that her impression as to what he
actually wanted was correct.
[54] He conceded that when he got into
the respondent’s utility vehicle after having been shown the exterior of
the flat, she was
shivering and tense and that, after he had asked her why this
was so, he said that he was not going to do anything to her. This indicates
that
he himself thought that the reason for her emotional state was fear that he
intended doing something to her. He concedes he
had brought his firearm with
him, that it was in its holster strapped to his right hip, which would have been
the side nearest to
her as he sat next to her in the passenger’s seat. We
know that she saw his firearm.
[55] All this evidence established in
my view that she thought (a) that he wanted intercourse with her and (b) that he
had brought a firearm
with him so as to overcome her resistance if she refused.
It is true that her further evidence that he drew the firearm from the
holster
and handed it to her saying ‘well shoot yourself’ cannot be accepted
in the absence of corroboration. This notwithstanding,
enough of the detail as
to what happened that evening emerge from his own evidence and that part of her
evidence that was not denied
to enable one to find on the probabilities that he
indicated to her that he wanted sexual intercourse; that she temporised by
pleading
that she was having a period; that he agreed to a postponement of their
night together, and that she believed that, if she did not
agree, he might use
his firearm to achieve his purpose. In the circumstances I am satisfied that
what the respondent experienced
during the so-called flat incident amounted to
sexual harassment and was substantially more serious than anything that had
preceded
it.
DID THE RESPONDENT SUFFER A RECOGNISED PSYCHIATRIC
INJURY?
[56] It was common cause the parties that the
respondent manifested severe psychiatric harm just after the disciplinary
enquiry. All the
professional witnesses agreed that she was not malingering and
that she was suffering from a recognised psychiatric disorder. The
issue debated
between the experts was whether the disorder was correctly diagnosed as
post-traumatic stress disorder. All the experts
accepted the diagnostic features
of this disorder as set out in DSM-IV at p 424, as follows:
‘The
essential feature of Posttraumatic Stress Disorder is the development of
characteristic symptoms following exposure to
an extreme traumatic stressor
involving direct personal experience of an event that involves actual or
threatened death or serious
injury, or other threat to one’s physical
integrity; or witnessing an event that involves death, injury, or a threat to
the
physical integrity of another person; or learning about unexpected or
violent death, serious harm, or threat of death or injury experienced
by a
family member or other close associate (Criterion A1). The person’s
response to the event must involve intense fear, helplessness,
or horror (or in
children, the response must involve disorganized or agitated behaviour)
(Criterion A2). The characteristic symptoms
resulting from the exposure to the
extreme trauma include persistent reexperiencing of the traumatic event
(Criterion B), persistent
avoidance of stimuli associated with the trauma and
numbing of general responsiveness (Criterion C), and persistent symptoms of
increased
arousal (Criterion D). The full symptom picture must be present for
more than 1 month (Criterion E), and the disturbance must cause
clinically
significant distress or impairment in social, occupational, or other important
areas of functioning (Criterion F).’
[57] It was common cause
that Criterion A2 and Criteria B to F were present in the respondent’s
case. The area of debate related
to whether Criterion A1 was
present.
[58] Professor Emsley, professor of psychiatry at the
University of Stellenbosch and the chairperson of the SA Society of
Psychiatrists’
task team for disability assessment, originally diagnosed
the respondent’s condition as post-traumatic stress disorder. However,
he
subsequently revised his opinion when it was put to him that the
respondent’s statement to him that a gun was held to her
head and an
attempt made to rape her was neither consistent with her statement before the
disciplinary enquiry, nor with her evidence
at the enquiry and during the trial.
He regarded incident - she had described it to him - as what he called an
‘extreme stressor’,
which complied with Criterion A1. If,
however, that specific traumatic event had not occurred, the most likely
diagnosis would in his opinion have been an adjustment
disorder.
[59] In my view the traumatic incident which I have found
did occur was sufficiently severe, on the probabilities, to have complied
with Criterion A1. In this regard it is important to bear in mind the
distinction between the scientific and the judicial measures of proof
highlighted by the House of Lords in Dingley v The Chief Constable,
Strathclyde Police 2000 SC (HL) 77 at 89D-E (cited with approval by this
court in Michael v Linksfield Park Clinic (Pty) Ltd 2001 (3) SA 1188
(SCA) para [40] at 1201E-H). And to be fair to Professor Emsley, I did not
understand him to testify otherwise.
[60] On this part of the case I
agree with Mr Burger’s submission that, but for the flat incident,
the respondent would not have sustained post-traumatic stress disorder or any
other psychiatric
injury qualifying for legal redress within the rule as
expounded by this court in Barnard v Santam Bpk, supra. In my view the
respondent’s own evidence, as summarised in para [22] above, provides
substantial support for such a finding.
It may be that the flat incident
constituted the proverbial ‘last straw’ that broke the camel’s
back but, be that
as it may, in my view what ultimately caused the
respondent’s injury and therefore her damages in this case was the sexual
harassment which took place during the flat incident.
[61] It follows
from what I have said so far that the second appellant’s appeal must be
dismissed with costs.
THE LIABILITY OF THE FIRST
APPELLANT
[62] The next question to be considered is whether
the first appellant should have been held liable, jointly and severally with the
second
appellant, to compensate the respondent for the damage she suffered as a
result of the harassment.
VICARIOUS LIABILITY
[63] In
view of the fact that I am satisfied that the respondent succeeded in
establishing the second cause of action on which she relied
against Tydskrifte,
it is unnecessary for me to deal with Mr Burger’s submissions that
Nel J’s finding of vicarious liability against the first appellant was
inappropriate.
BREACH OF LEGAL DUTY
[64] The
respondent’s second cause of action, it will be recalled, was a negligent
breach by Tydskrifte of a legal duty to its employees
to create and maintain a
working environment in which, amongst other things, its employees were not
sexually harassed by other employees
in their working
environment.
[65] It is well settled that an employer owes a common
law duty to its employees to take reasonable care for their safety (see, eg,
Van Deventer v Workman’s Compensation Commissioner 1962 (4) SA 28
(T) at 31B-C and Vigario v Afrox Ltd 1996 (3) SA 450 (W) at 463F-I). This
duty cannot in my view be confined to an obligation to take reasonable steps to
protect them
from physical harm caused by what may be called
physical hazards. It must also in appropriate circumstances include a
duty to protect them from psychological harm caused, for example, by
sexual
harassment by co-employees.
[66] The test to be applied in this regard
was laid down by this court in Minister van Polisie v Ewels 1975 (3) SA
590 (A) at 597A-B, where Rumpff CJ said:
‘Dit skyn of dié
stadium van ontwikkeling bereik is waarin ’n late as onregmatige gedrag
beskou word ook wanneer
die omstandighede van die geval van so ’n aard is
dat die late nie alleen morele verontwaardiging ontlok nie maar ook dat die
regsoortuiging van die gemeenskap verlang dat die late as onregmatig beskou
behoort te word en dat die gelede skade vergoed behoort
te word deur die persoon
wat nagelaat het om daadwerklik op te tree. Om te bepaal of daar onregmatigheid
is, gaan dit, in ’n
gegewe geval van late, dus nie oor die gebruiklike
“nalatigheid” van die bonus paterfamilias nie, maar oor die
vraag of, na aanleiding van al die feite, daar ’n regsplig was om redelik
op te tree.’
[67] In determining the legal convictions of the
community in regard to sexual harassment in the workplace it is appropriate to
have regard
to what was said on the topic by De Kock M in J v M Ltd
(1989) 10 ILJ 755 (IC) at 757G-758D:
‘Unwanted sexual advances in
the employment sphere are not a rare occurrence. It appears from the article
referred to above
[Mowatt ‘Sexual Harassment – New Remedy for an Old
Wrong’ (1986) 7 ILJ 637] that studies in America and England have
shown that close to 50% of working women have received such advances, that is,
sexual
harassment in the wider view. It also appears that a survey of 100 women
in Johannesburg suggests that some 63% had received unwelcome
sexual advances
from a male in the office. There is no evidence that the percentage is in fact
that high but common experience shows
that sexual harassment is by no means
uncommon.
Sexual harassment, whether it be between members of the opposite
sex or of the same sex is, despite the fact that it is often a subject
for
uncouth jokes, a serious matter which does require attention from employers.
Sexual harassment, depending on the form it takes,
will violate that right to
integrity of body and personality which belongs to every person and which is
protected in our legal system
both criminally and civilly. An employer
undoubtedly has a duty to ensure that its employees are not subjected to this
form of violation
within the work-place. The victims of harassment find it
embarrassing and humiliating. It creates an intimidating, hostile and offensive
work environment. Work performance may suffer and career commitment may be
lowered. It is indeed not uncommon for employees to resign
rather than subject
themselves to further sexual harassment. The psychological effect on sensitive
and immature employees, both male
and female, can be severe, substantially
affecting the emotional and psychological well-being of the person involved.
Inferiors who
are subjected to sexual harassment by their superiors in the
employment hierarchy are placed in an invidious position. How should
they cope
with the situation? It is difficult enough for a young girl to deal with
advances from a man who is old enough to be her
father. When she has to do so in
an atmosphere where rejection of advances may lead to dismissal, lost
promotions, inadequate pay
rises, etc – what is referred to as tangible
benefits in American Law – her position is unenviable.
Fear of the
consequences of complaining to higher authority whether the complaint is made by
the victim or a friend, often compels
the victim to suffer in silence. That
sexual harassment of an employee in an inferior position is despicable is only
fully realized
when one has to comfort a young girl crying her heart out in a
quiet corner.’
[68] It is clear in my opinion that the legal
convictions of the community require an employer to take reasonable steps to
prevent sexual
harassment of its employees in the workplace and to be obliged to
compensate the victim for harm caused thereby should it negligently
fail to do
so. I do not think that the fact that the legislature has enacted legislation
providing a statutory remedy for unfair
labour practices involving sexual
harassment justifies a holding that, absent the statutory remedy (which
presumably was intended
to be quicker, cheaper and more convenient than the
common law remedy), the common law is defective in failing to provide a remedy
in a situation which cries out for one.
[69] Nor do I think that the
argument based on the fact that there was a contractual relationship between the
respondent and Tydskrifte
can alter the position. There are many instances where
the courts have recognised that there can be a concurrence of delictual and
contractual actions arising from the same set of facts: see, eg, Van Wyk v
Lewis 1924 AD 438 and Lillicrap, Wassenaar and Partners v Pilkington
Brothers (SA) Pty Ltd 1985 (1) SA 475 (A) at 496D-I.
[70] I also
am of the view that the first appellant’s attempt to rely on the
Lillicrap decision in this matter cannot avail it. In that case an
exception was allowed to the respondent’s delictual claim because the
infringement of duty relied on was an infringement of the appellant’s
contractual duty to perform specific professional work
with due diligence (see
the judgment of EM Grosskopf AJA at 499D-E), it not being contended that the
appellant would have been under
a duty to the respondent to exercise diligence
if no contract had been concluded (at 499A-B). (See also FF Holtzhausen v
Absa Bank, an unreported judgment of this Court delivered on 17 September
2004.) In the present case I am satisfied that the duty allegedly breached
in
this case was not dependent upon any specific term of the contract of employment
between Tydskrifte and the respondent, whether
or not supplemented by
legislative enactment.
[71] The next question to be considered is
whether a negligent breach of that duty by Tydskrifte has been established. In
this regard I
agree with counsel for the first appellant that, on this part of
the case, the respondent had to show a failure by Tydskrifte to
take reasonable
and practicable steps to prevent the sexual harassment of its employees. I do
not agree, however, that the respondent’s
alleged refusal to lay a charge
or even make use of the grievance procedure against the second appellant
precluded Tydskrifte from
preventing her from being harassed. In my opinion Van
As, to whom the respondent had at a very early stage complained of her
harassment
at the hands of the second appellant, could and should have told
Werner Wager (the then chief manager of Tydskrifte) what the respondent
had
reported to him and that (according to Van As) she had refused to lay a charge
or use the grievance procedure and had said that
she would deny it if called
upon to substantiate the allegations. The key point was that, despite the
respondent’s attitude
in this regard, Van As had no reason not to
believe that the second appellant was harassing her – on the contrary,
according to the evidence - and should have realised
(even if he actually did
not) that her reluctance to take the matter further in no way cast doubt upon
the genuineness of her complaints.
In the circumstances his failure to deal with
the matter when the respondent reported it to him was culpable. He was in a
managerial
position and Tydskrifte, his employer, was clearly vicariously liable
for his failure to act in this regard.
[72] If Van As had acted
earlier in the way I have suggested I am satisfied that Wager should (and on the
probabilities would) at least
have informed the second appellant that his
conduct vis-à-vis the respondent had not gone unnoticed and have
warned him that, if such conduct persisted, not only his ambition of rising to
a senior
managerial position in the company would come to nought but there was a
very real danger of his being dismissed. I think it overwhelmingly
probable,
knowing what we do about the personality of the second appellant and his
relationship with Wager, that such a warning would
in all probability have done
the trick and prevented the flat incident from taking place. I have already
found that, if the flat
incident had not taken place, the respondent would not
have suffered the psychological injury on which her claim is
based.
[73] In view of my conclusions in respect of the failure by Van
As properly to react to the respondent’s complaints and the consequences
of such failure, it is not necessary to consider whether or not either Lydia
Davids (the acting personnel manager of Tydskrifte at
the relevant time) or Paul
de Bruin (the information technology manager of Tydskrifte and the second
appellant’s immediate
superior at that time) also acted negligently in
failing to take steps timeously to curb the second appellant’s conduct
vis-à-vis
the respondent, as was argued before us by Mr
Melunsky.
THE FIRST APPELLANT’S JURISDICTIONAL
DEFENCES
[74] Because I have found that the respondent has
proved a culpable breach of legal duty on the part of Tydskrifte, and have left
open
the question as to whether the first appellant is vicariously liable for
the actions of the second appellant, it is not possible
for me to dispose of the
two jurisdictional defences on the ground, relied on in part by the trial judge,
that the respondent’s
delictual claim against the first appellant is not
excluded by s 157 of Act 66 of 1995 and s 35 of Act 130 of 1993 because she was
employed not by the first appellant but by Tydskrifte, and that the first
appellant was not able, as it were, to acquire a jurisdictional
defence which
was not available to Tydskrifte by accepting liability on Tydskrifte’s
behalf. I do not think, however, that
either of the two jurisdictional defences
was available to Tydskrifte in this case.
[75] The harassment which
forms the subject of the respondent’s cause of action occurred before the
Employment Equity Act 55 of 1998
came into operation (on 9 August 1999). Sexual
harassment in the workplace has since 17 July 1998 been dealt with in the
abovementioned
Code of Good Practice on the Handling of Sexual Harassment
Cases, issued by the National Economic, Development and Labour Council in
terms of s 203(1) of Act 66 of 1995. As indicated above, s 203(3)
provides that
any person interpreting or applying Act 66 of 1995 has to take this code into
account.
Item 7(6) of the code reads as follows:
‘A victim of sexual
assault has the right to press separate criminal and/or civil charges against an
alleged perpetrator and
the legal rights of the victim are in no way limited by
this code.’
While the references to ‘civil charges’ and
‘sexual assault’ are not as clear as they might be, I think that
one
can safely assume that conduct of the kind proved to have been indulged in by
the second appellant must be covered by the phrase
‘sexual assault’
and that by a ‘civil charge’ is meant a civil action for damages
therefor. It is also unlikely
that the framers of the code intended a civil
claim for damages such as that brought by the respondent to form the subject of
the
internal procedures set out therein.
[76] As appears from the
summary of this defence as pleaded by the first appellant (set out in paras [9]
and [29] above), the first appellant relied upon items 2(1)(a) and
3 of Schedule 7 to Act 66 of 1995 - which items were then still part of the
Schedule - for the contention that the present dispute
fell within the exclusive
jurisdiction of the Labour Court. Item 3 dealt with disputes about unfair labour
practices, so that a claim
brought thereunder for harassment would be based on
an allegation that the harassment constituted an unfair labour practice. But,
as
this court pointed out in Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA
49 (SCA) para [27] at 261E-H, a dispute about the unlawfulness of an
employer’s conduct (in that case a dismissal) as opposed to its
unfairness is not a ‘matter’ required to be adjudicated by
the Labour Court as contemplated by s 157(1) and accordingly the High
Court’s jurisdiction is not excluded. By parity of reasoning, a delictual
claim such as the present will also not be excluded.
[77] It remains
for me to deal with the second jurisdictional defence as set out in paras [11]
and [31] to [34] above, viz that based on s 35(1), read with s
65(1)(b), of Act 130 of 1993. In this case, it will be recalled, I have
found that the psychological disorder from which the respondent has
been
suffering was ultimately contracted because of the harassment which occurred
during the flat incident. That incident did not
occur in the course of the
respondent’s employment but rather while she was engaged in her own
private activity, namely trying
to sell her flat to the second appellant. It may
well be that employees who contract psychiatric disorders as a result of acts of
sexual harassment to which they are subjected in the course of their employment
can claim compensation under s 65 but those are not
the facts in this case and I
need express no opinion thereon. I am satisfied that the second jurisdictional
defence is also without
merit.
CONCLUSION AND
ORDER
[78] It follows from what I have said that the appeals
of both appellants must fail.
[79] The following order is made:
The
appeals of both appellants are dismissed with costs.
................
IG FARLAM
JUDGE OF APPEAL
CONCURRING
NAVSA JA
CONRADIE JA
HEHER JA
VAN
HEERDEN JA
[1] From a linguistic and medical
point of view, it is more accurate to speak simply of psychological
trauma, for which both psychological and psychiatric treatment
may be required. However, as the respondent’s pleadings refer in terms to
‘psychological and psychiatric trauma’,
I shall utilise this
description or a variant thereof where
appropriate.
[2]It was discussed in
a number of articles published and to be published in the South African
Mercantile Law Journal, the Tydskrif vir die Suid Afrikaanse Reg, the
Industrial Law Journal, Contemporary Labour Law and Employment
Law. (See the two articles by J Neethling and JM Potgieter published in
(2004) 16 SA Merc LJ 488 and to be published in 2005 (3) TSAR; the
articles by Alan Rycroft and Devina Perumal, Rochelle le Roux and Benita
Whitcher published in (2004) 25 ILJ at 1153, 1897 and 1907 respectively,
the article by Karin Calitz to be published in 2005 (2) TSAR 215, the
article by Carl Mischke published in (2004) 14 Contemporary Labour Law 5
and the article by John Grogan published in (2004) 20 (4) Employment Law
3.
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/za/cases/ZASCA/2005/64.html
.RTF of original document