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[2018] ZAWCHC 187
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Makhenkana v City of Cape Town (EC08/2018) [2018] ZAWCHC 187 (12 December 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: EC08/2018
In
the matter between:
Zandisile
Makhenkana
Complainant
And
The
City of Cape Town
Respondent
JUDGMENT DELIVERED ON 12 DECEMBER
2018
BAARTMAN,
J
[1]
The complainant approached this court for relief after he was
dismissed for alleged sexual harassment of a co-worker. The
complainant
seeks an order that video footage of the incident, if it
exists, be made available to him. I deal with the relief in
detail
below.
[2]
On 14 April 2014, a colleague, Ms B (
B
), accused the
complainant of sexual harassment as follows:
‘
At approximately 16h15, the
Complainant groped [B] at Maitland train station by touching her
thigh and buttocks under her dress
and uttering the words: “Kudala
ndifun ukuba lapha”, which is literally translated as “I
have long wanted to
be here”.’
[3]
On 16 May 2014, the employer (
the respondent
) charged the
complainant with misconduct – breaching its policy on sexual
harassment. The disciplinary hearing commenced
on 20 May. The
complainant, who was represented by a union colleague, denied the
charges. His defence was as follows:
‘
The applicant summarises his
version of events [as follows]:
“
Just
as I was about to pass the complainant, the wind blew up her dress
and I held it and pulled the dress down with the intention
to cover
her exposed body. She angrily reacted by saying that I must leave her
alone. I sensed her anger and apologised and told
her that I simply
wanted to cover her and then continued on my way.”’
[4]
On 11 June 2014, the complainant was found guilty and dismissed. On
12 June 2014, he lodged an internal appeal that was dismissed
on 23
July 2014. The complainant, aggrieved by the above outcomes, referred
the matter to the Local Government Bargaining Council.
Arbitration
proceedings, under the auspices of the Bargaining Council, commenced
on 29 September 2014. On 9 December 2014, the
arbitrator issued an
award in which he confirmed the alleged misconduct and found the
sanction to be substantively and procedurally
fair.
[5]
Undeterred, the complainant approached the Labour Court with an
application to review the award. On 11 October 2017, that court
dismissed the application as follows:
‘
I can find no basis on which
the relief sought by the applicant can be granted. It is not for this
court to interfere with the Arbitrator’s
finding on
credibility…
In any event, the version proffered by
the applicant at the arbitration was inherently improbable and his
only witness contradicted
applicant’s version in various
respects. Suffice to say that the complainant put on the same dress
that she had worn on the
day in question at the arbitration, to
illustrate that it was not the type of dress that could be blown up
by the wind and certainly
not above her armpits as alleged by the
applicant. It was a snugly fitting denim dress.'
[6]
On 9 April 2018, the complainant turned to the South African Human
Rights Commission (
SAHRC
). The following appears from the
SAHRC correspondence, dated 21 September 2018:
In
terms of your complaint you alleged the following:
(1) That you were unfairly dismissed
based on false charges of sexual harassment laid by a colleague;
(2) That the matter was heard by the
CCMA and you were not satisfied with the outcome;
(3) That you were not satisfied that
your employer failed to view
possible CCTV footage
of the
incident as it happened on a train station, which you regard as
evidence to prove your innocence;(my emphasis)
(4) That you took the decision of the
CCMA on Review before the Labour Court;
(5) That your application was
unsuccessful.
(6) That you were represented by an
Attorney in the aforementioned proceedings.’
[7]
On 17 September 2018, the complainant informed the SAHRC that he
would pursue his quest for a just outcome in this court. Pursuant
thereto, the SAHRC closed its file.
[8]
In these proceedings, the complainant has articulated the relief
sought as follows:
‘
I want the court to help me get
that footage from PRASA premises in Maitland train station to clear
my name and expose the truth.
The City of Cape Town never
investigated these allegations against me. They infringed my rights
to a fair trial and they did not
bring that evidence against my
evidence I presented on that day.’
Discussion
[9]
It is apparent from the above that this is a labour dispute. In terms
of section 49 of the Employment Equity Act,55 of 1998
(
EEA
)
read with section 157(1) of the Labour Relations Act 66 of 1995
(
LRA
), the Labour Court has exclusive jurisdiction in the
dispute between the parties. The complainant had exhausted his
remedies in
terms of the LRA.
[10]
The complainant now seeks relief in terms of the Promotion of
Equality and Prevention of Unfair Discrimination Act 4 of 2000
(
PEPUDA
). However, section 5(3) of PEPUDA provides that its
provisions do ‘not apply to any person to whom and to the
extent to which
the Employment Equity Act, 1998 (Act No. 55 of 1998)
applies.’
[11]
In addition, I have considered that the complainant has not produced
prima facie
evidence that he was discriminated against.
Nevertheless, due to the litigation history, I have carefully
considered the
record and am persuaded that the respondent did not
discriminate against the complainant. It follows that the provisions
of PEPUDA
do not find application in this matter.
[12]
Nevertheless, again due to the
litigation history, I have considered whether to refer this matter to
another forum
[1]
.
In addition, to the factors specified in section 20(4) a–e of
PEPUDA, I have considered that in previous litigation, the
complainant, despite legal representation, did not seek to lead the
evidence he now seeks to introduce. To date – 4 years
after the event – the complainant is unable to say whether the
footage exists. The respondent had instructed counsel in this
matter.
I have considered that the costs are for the tax payer’s
account.
[13]
Litigation must come to an end – there should be finality to
legal disputes. In the circumstances of this matter, it
is not in the
interest of justice that another forum revisits this matter. The
complainant has had ample opportunity to engage
the merits of this
matter. There is no indication that he sought to introduce/obtain the
video footage in earlier proceedings.
His attempt to obtain video
footage, which might not exist, through this court is an afterthought
and an abuse of the process.
I am persuaded that it would be a
futile exercise to refer this matter to another forum.
[14]
In addition, the video footage, if it exists, is in the possession of
the Passenger Rail Agency of South Africa, which is not
a party to
these proceedings. Therefore, no order can be made against it.
However, the complainant should not see this remark as
an invitation
to proceed with his exhausting and costly litigation. The respondent,
as indicated above, has incurred costs in the
process. The
complainant should consider that he risks costs orders against him
should he proceed.
[15]
I, for the reasons stated above, make the following order:
(a) The complainant’s claim is
dismissed;
(b) No order as to costs.
_____________________________
BAARTMAN
J
[1]
Section 20(4)
of the
Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000
: ‘
The
presiding officer, before making a decision to refer a matter as
contemplated in subsection (3), must take all relevant circumstances
into account, including the following:
(a)
The personal
circumstances of the parties and particularly the complainant;
(b)
The physical
accessibility of any contemplated alternative forum;
(c)
the needs and
wishes of parties and particularly the complainant;
(d)
The nature of
the intended proceedings and whether the outcome of the proceedings-
could facilitate the
development of judicial precedent and jurisprudence in this area of
law;
(e)
The views of the
appropriate functionary at any contemplated alternative forum.’