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[2010] ZAGPPHC 279
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Mokone v Sahara Computers (Pty) Ltd (21881/09) [2010] ZAGPPHC 279 (25 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case
No: 21881/09
Date
heard: 12/11/2010
Date
of judgment: 25/11/2010
In
the matter between:
G.G.
Mokone
.............................................................................................................
PLAINTIFF
and
Sahara
Computers (Pty)
Ltd
..................................................................................
DEFENDANT
JUDGMENT
DU
PLESSIS J:
From
2006 to 2009 the defendant employed the plaintiff as a clerk in one
of its departments. The plaintiff alleges that, while so
employed a
manager from another department, one Sello Mtethwa, sexually harassed
her. The plaintiff now claims damages in an amount
of R150 000 for
"mental anguish, psychological trauma and the impairment of her
dignity". She also claims R50 000 damages
for "psychological
and trauma counselling".
It
is the essence of the plaintiff's case, as pleaded in the particulars
of claim, that the defendant was "under the ever present
obligation to provide a safe working environment..." including
one where the plaintiff would not be subjected to sexual abuse
and
harassment. The plaintiff further alleges that she reported Mtethwa's
harassing conduct to the defendant but that "the
defendant was
reluctant to act" against him and/or was reluctant to "take
reasonable steps to avoid further sexual harassment".
The
particulars of claim are not a model of clarity. It is evident,
however, that the plaintiff does not seek to hold the defendant
vicariously liable for Mtethwa's actions, or for the actions of
anyone else. Although neither unlawfulness nor negligence is
pertinently
alleged, the case was conducted on the footing that the
plaintiff is seeking to hold the defendant liable for an unlawful and
negligent
("unreasonable") omission to create a safe work
environment wherein she would not be sexually harassed. The plaintiff
is, as I have pointed out, seeking damages for "mental anguish,
psychological trauma and impairment to her dignity".
As a
general proposition, personality rights are in our law protected by
way of the actio iniuriarum that requires culpability
in the form
intent (animus iniuriandi) on the part of the alleged wrongdoer. The
plaintiff does not allege that the defendant acted
with intent and
the actio iniuriarum is not at issue. But by way of the actio legis
Aquiliae and by way of what has become known
as the action for pain
and suffering, our law affords redress for and protection against the
negligent infliction of bodily injuries.
As I shall point out later
in more detail, a person's body in this sense encompasses both its
physical and psychological components.
Where a plaintiff's bodily
integrity has unlawfully and negligently been infringed, she can
claim both patrimonial loss
1
and also compensation ("genoegdoening") for pain, suffering
and shock
2
resulting from the injury. (See the discussion in Neethling,
Potgieter, Visser: Deliktereg (4th ed. p. 19 and 20; See also Van
der
Wlerwe en Olivier: Die Onrgematige Daad in SA (6th edition) p. 241,
242 and at p. 328, 329.) I have embarked upon this, perhaps
unnecessary, discussion in order to make it plain that, despite
shortcomings in her particulars of claim, the plaintiff's claim
is
one for unlawful and negligent infringement of her bodily integrity.
To the extent that she claims for impairment of her dignity,
the
particulars of claim do not sustain such a claim. I shall regard the
claim for "mental anguish, psychological trauma"
as one for
shock, pain and suffering and the claim for "psychological and
trauma counselling" as one for future medical
expenses
consequent upon a bodily injury. I should add that I am satisfied
that the defendant will not be prejudiced by this lenient
interpretation of the particulars of the plaintiff's claim. The case
was conducted on the basis that this is a claim based on the
unlawful, negligent infringement of the plaintiff's psychological
integrity.
I
turn to the evidence.
The
plaintiff testified that she started working for the defendant on 13
November 2006 as a "RMA clerk". About four to
five months
later Mtethwa, who was a manager in another department, asked her how
she had come to work there without "passing
through him".
Everybody, he said, has to pass through him. He also told her that he
wanted to have sexual intercourse with
her. She told a colleague, one
Sam Maboke about Mtethwa's conduct. Mr Maboke, whom she knew and who
had introduced her to the defendant,
told the plaintiff to ignore
Mtethwa as he was "well connected". Mtethwa continued to
come to the department and repeatedly
told the plaintiff that he
wanted to have sexual intercourse with her. One morning, while she
was sitting on her chair, he came
from behind, put his arms over her
and tried to touch her private part. Two colleagues, Karin de Beer
and one Luntu saw it. Ms
De Beer told the plaintiff to report
Mtethwa's conduct to her manager, Eugene Stenekamp. The plaintiff did
so, but Stenekamp told
her that he could do nothing as Mtethwa was
well connected. He added that a complaint would rather lead to her
dismissal than to
that of Mtethwa. Stenekamp, however, also told the
plaintiff that he would look after her within the department and that
he would
ensure that Mtethwa did not touch her there.
Mtethwa
continued his visits to the department when Stenekamp was not there
and told the plaintiff that sexual harassment is for
whites oniy and
does not apply to him. One day, while she was in the store room with
Stenekamp, Mtethwa, unaware of Stenekamp's
presence, entered the
store room. When he realised that Stenekamp was there, Mtethwa left
the store room. Leaving, he told the
plaintiff in seTswana that he
would get her and that she would yet have sex with him. The plaintiff
did not report this incident
to Stenekamp as, so she said, he had
previously said that there was nothing he could do. The plaintiff
again related the incident
to Maboke who repeated his advice that she
should ignore Mtethwa.
Whenever
they met, Mtethwa told the plaintiff that he was yet going to have
sex with her. At some stage, it is not clear when, Mtethwa
tried to
pour water onto the plaintiffs private part. When she complained to
bystanders, Mtethwa held out his telephone and told
her to call his
superiors who, he said, would do nothing.
In
December 2007 the plaintiff did not attend the office Christmas party
and did not receive the present (a fan) that those who
did attend
received. The plaintiff said that she did not attend the party as she
had to work but also because she knew that Mtethwa
would be present.
On the Monday Mtethwa asked the plaintiff whether she had received a
fan. When she said no, he told her to go
to one Willie who was the
person dealing therewith. He added that if Willie would not give her
a fan, she could come to his house,
have sex with him and he would
give her a fan. The plaintiff tried to get a fan but could not. She
said that she did not take the
fan-incident further.
In February 2008 the
employees had a meeting. When Mtethwa saw the plaintiff he said:
"Here comes Lady Fan". The plaintiff
did not say that this
form of address had any improper implication. She did, however, say
to Mtethwa that if she reported him,
he would say that he has
connections. Mtethwa apologised for calling the plaintiff "Lady
Fan".
During
about January or February 2008 Mtethwa gave the plaintiff, one Piet
Piaatjies and one Mandisi a lift home in his car. The
plaintiff said
that she was prepared to drive with Mtethwa as he had apologised for
calling her "Lady Fan" and she thought
that his harassment
had stopped. As she got out of the car, Mtethwa leaned over and
touched her buttock. The plaintiff swore at
him and left. Back at
work after this incident, the plaintiff went to the defendant's human
resources department ("HR")
and complained about Mtethwa's
conduct. She was told to put the complaint in writing which she did.
As for driving with Mtethwa,
the plaintiff said that was the last
time she drove with him.
On
28 February 2008 the plaintiff made a written complaint to HR. In the
complaint (exhibit D9) she mentions Mtethwa's continuous
harassment
and relates most of the incidents that she mentioned in her evidence.
She made no reference, however, to the incident
when he tried to
touch her while she was on the chair.
In
terms of its disciplinary code the defendant charged Mtethwa with
sexual harassment. A disciplinary hearing was held on 6 March
2008. A
handwritten copy of the minutes of the disciplinary hearing as well
as a typed 'record of the proceedings and the verdict"
were
handed in as exhibits. It is clear from neither document whether
Mtethwa was found guilty of sexual harassment: He admitted
that he
had been "harsh/rude" towards the plaintiff but the
disciplinary committee also found that much of the plaintiff's
complaints could not be corroborated. In any event, Mtethwa was
issued with a final written warning.
The
plaintiff was dissatisfied with the outcome of the disciplinary
hearing: She said that although she did not want Mtethwa dismissed,
she thought that at least a suspension was appropriate. She attempted
to lodge an appeal. After that, whenever he saw her, Mtethwa
assumed
a threatening attitude by, so her evidence was translated, "frowning"
at her. This prompted the plaintiff repeatedly
to contact HR so as to
pursue her intended appeal. She did not, however, get a satisfactory
response. The plaintiff made reference
to e-mail correspondence that
she had with HR. From that and from her evidence it appears that
although HR evinced sympathy for
her cause, she subjectively did not
think they were doing enough to pursue her appeal. What does appear
from the exhibits, however,
is that Mr Stenekamp had a meeting with
HR representatives on 16 April 2008. At this meeting the plaintiff's
intended appeal was
discussed. Although the minutes of this meeting
that were presented to the court are barely legible, the do show that
the plaintiff's
intended appeal was discussed at a relatively senior
level.
In
cross examination the plaintiff confirmed that, after the
disciplinary hearing in March 2008, Mtethwa did not again sexually
harass her.
In
May 2009 the plaintiff resigned, stating in her letter of resignation
that it was "for personal reasons". She said
that she left
because she felt that the defendant was not protecting her. She was
unemployed for some time after her resignation
during which time she
studied. She has since obtained new employment at a higher salary.
In
the course of cross examination it was established that the plaintiff
got married in the course of 2009. She said that, due to
the
harassment, she experienced sexual problems in her marital
relationship.
The
plaintiff's cousin, Mr Piet Plaatjies, testified that he was present
when Mtethwa tried to pour water over the plaintiff. He
drove with
Mtethwa and the plaintiff on the day Mtethwa touched her buttock as
she gout out of the car. On that occasion, he said,
one Mandisi drove
with them but there was no fifth person in the car. Like the
plaintiff, he said that a lady by the name of Mandisa
(as opposed to
the man Mandisi) was not present.
Mr
JS Mostert, a counselling psychologist interviewed the plaintiff on
19 August 2010. Based on the interview and psychometric tests,
he
prepared a written psychological report. Mr Mostert gave evidence as
an expert and in so doing confirmed the contents of his
report. His
clinical impression of the plaintiff was that she was anxious, timid
and appeared somewhat shy. She lacked confidence.
She appeared to
have flattened emotions, lacking strength and vigour. This clinical
observation, according to Mostert's report,
was consistent with his
findings on the SCL-90-R, a symptoms checklist which was one of the
two psychometric tests that he performed.
Mostert aiso performed the
Wechsler Adult Intelligence Scale-test. On it the plaintiff scored
"high average" in most
categories and "average"
in some. Integrating the test results and his interview with the
plaintiff, Mostert expressed
the opinion that she was "severely
traumatised" and that the "incident.... had an impact on
her social, academic,
occupational and interpersonal functioning".
She seems to have "some difficulty with attention and
concentration ability".
She shows significantly high
psychological distress levels. In Mostert's view the plaintiff is in
need of psychotherapy and psychiatric
services. Mostert testified
that the plaintiff was fairiy depressed. That condition was probably
due, in the first place, to the
harassment. The depression was
probably also due thereto that the case was dragging on and that the
plaintiff could not get closure.
In cross examination he said that
she did not suffer from Post Traumatic Stress Disorder.
For
the defendant Ms Mandisa Makinana testified that she once travelled
with Mtethwa, Plaatjies and the plaintiff to Olifantsfontein.
Mandisi
was not present. Mtethwa did not on that occasion touch the
plaintiff's buttock.
Mr
Mtethwa testified that at the relevant time he worked for the
defendant as a production manager. He came to know the plaintiff
when
he did a project
requiring
of him to go to the department where she worked. Apart from the "Lady
Fan"-incident, he denied the plaintiff's
allegations. Calling
the plaintiff "Lady Fan" was a joke, Mtethwa said. Mtethwa
admitted that he occasionally gave the
plaintiff a lift on his way
home. On the last occasion he had four passengers: the plaintiff,
Mandisi, Mandisa and Plaatjies. Mtethwa
denied that anything untoward
happened.
Mtethwa
confirmed that he received a written warning after the disciplinary
hearing. He added that some time thereafter HR told
him not to go the
plaintiff's department. With that instruction, Mtethwa said, he
complied.
The
first question is whether the plaintiff has established on a
preponderance of probabilities that Mtethwa sexually harassed her.
The
respective versions of the plaintiff and Mtethwa are mutually
destructive. In weighing up the two versions, I bear in mind that
an
innocent person in Mtethwa's position will find it difficult
convincingly to convey that nothing untoward happened. In the nature
of things, the two were alone on many occasions of alleged
harassment. In my view it is manifest that something happened that
emotionally upset the plaintiff. It is also manifest that that
something involved Mtethwa. Mtethwa's evidence that only the "Lady
Fan" incident happened between them is improbable. In isolation
that incident was quite innocent Despite that, the plaintiff
reacted
rather strongly to it. Mtethwa's apology also tends to show that that
could not have been an isolated incident. I am satisfied
that Mtethwa
did something that seriously upset the plaintiff. On the evidence
that something can only be the sexual harassment
that the plaintiff
testified to. I am fortified in this conclusion by the fact that
Mtethwa admitted during the disciplinary hearing
that he had treated
the plaintiff rudely.
Plaatjies
was not a very impressive witness but I have to bear in mind that he
testified through an interpreter whose command of
English, in my
view, was not very good. But something prompted the plaintiff soon
after the last lift she had taken with Mtethwa
to lodge a written
complaint of sexual harassment. On the evidence only the incident
when Mtethwa touched her buttock could have
prompted the complaint.
Accordingly, Plaatjies's (and the plaintiff's) evidence of the car
incident is supported by subsequent
events. Ms Makinana's evidence
that she saw nothing is not helpful: Her evidence differs from that
of Mtethwa in that she denied
that Mandisi was present while Mtethwa
admitted that he was. The one explanation for the difference between
Makinana and Mtethwa
could be that she was talking about a different
occasion in which event her evidence would be of no assistance. The
other, and
in my view more likely, explanation is that she and
Mtethwa were falsely exploiting the similarity between her name and
that of
Mandisi. I conclude that the car incident probably happened.
Although the car incident did not happen in the workplace, it
prompted
the plaintiff's written complaint. Having regard to the
evidence as a whole, I conclude that the car incident was the last in
a
series of incidents that cumulatively led the plaintiff to
complain.
In
summary, it is held that the plaintiff has succeeded in proving that
Mtethwa sexually harassed her.
The
defendant had a legal duty to protect the plaintiff, as one of its
employees, against sexual harassment at the workplace (See
Media 24
Ltd and Another v Grobler 2005 (6) 328 (SCA), paragraph 64 and
onwards). The question now is whether the defendant had
negligently
breached that duty. It is not in issue that the defendant had a
disciplinary code in place in terms whereof sexual
harassment
constitutes a dismissible offence. On analysis, the plaintiff made
only two complaints to people within the defendant's
organisation who
had some authority to act.
I
start with the second of the two complaints. Within days after the
plaintiff had complained to HR, Mtethwa was charged under the
disciplinary code. Although he was not dismissed, the written warning
had some effect because the sexual harassment stopped. After
the
disciplinary hearing Mtethwa started to intimidate the plaintiff but
that is not the case that the defendant was called upon
to meet. It
follows, in my view, that after the complaint to HR the defendant
acted reasonably as far as the sexual harassment
is concerned.
The
first complaint was made to Stenekamp. He protected the plaintiff
within the confines of his department, but the sexual harassment
elsewhere on the defendant's premises continued and culminated in the
car incident. (The latter incident did not occur within the
defendant's premises but it is unnecessary to consider whether, had
that been the only incident, the defendant would in law have
had a
duty to prevent it.) Having regard to what happened after the
disciplinary hearing, it is probable that if Stenekamp had
reported
the complaint to HR, the harassment would have stopped earlier.
In
my view Stenekamp should have relayed the plaintiff's complaint to HR
but it is not the plaintiff's case that the defendant is
liable for
Stenekamp's negligence. It is, however, her case that the defendant
failed to create a safe environment wherein she
would not be sexually
harassed. In my view the fact that her complaint to her manager did
not adequately address the sexual harassment,
grounds an inference
that the defendant's management and disciplinary structures were
insufficient to do so. Put differently, the
defendant should have had
management and disciplinary structures that would immediately and
effectively have dealt with the plaintiff's
complaint. For instance,
Stenekamp should have been obliged immediately to have referred the
complaint to HR. There is no doubt
that it reasonably was within the
defendant's means to create the necessary structures. In my view the
defendant acted unreasonably
when it failed to do so.
Moreover,
by reporting to Stenekamp, her manager, the plaintiff brought the
sexual harassment under the defendant's attention. Failing
to act to
protect the plaintiff in the circumstances was unreasonable.
I
conclude that the plaintiff has succeeded in proving negligence on
the part of the defendant.
I
have pointed out that the plaintiff's claim is one for shock, pain
and suffering due to a bodily injury. It follows that she had
to
prove that she has suffered a recognised psychiatric injury
("herkenbare psigiese letsel". See Barnard v SANTAM Bpk
1999 (1) SA 202 (AD) at 216E to F; Media 24 Ltd and Another v Grobler
(supra) at para. 56 and onwards; (Bester v Commercial Union
Versekeringsmaatskapy van SA Bpk 1973 (1) SA 769 (AD) at 779H;)
This
aspect of the case troubled me. The plaintiff relied heavily on the
evidence of Mostert. He is a counselling psychologist and
diagnosing
a psychiatric injury does not fall squarely within his field of
expertise. For his submission that the plaintiff did
not prove that
the harassment caused a recognised psychiatric injury, Mr Beaton for
the defendant relied on Mostert's concession
that she does not suffer
from a Post Traumatic Stress Disorder. It will be quite unfair on the
one hand to disregard Mostert's
evidence when determining whether the
plaintiff has suffered a recognised psychiatric injury and on the
other hand to rely on his
evidence that she does not suffer from Post
Traumatic Stress Disorder. When evaluating Mostert's evidence it must
be borne in mind
that, while he might not be able to give a
psychiatric injury a name, he is sufficiently qualified to express an
opinion as to
whether the plaintiff has suffered an injury that
requires psychiatric treatment. In this regard Mr Bircholtz for the
plaintiff
pointed out, correctly in my view, that Mostert's evidence
shows that the plaintiff is in need of psychotherapy and of
psychiatric
medication. It follows that the plaintiff has suffered an
injury that needs to be addressed by way of psychiatric treatment.
That
the plaintiff suffers from such an injury, albeit that Mostert
could not name it, is borne out by her own evidence as to how the
harassment has affected her personal life and by Mostert's findings
as to her cognitive, social and marital functioning. I might
add that
in the final analysis it is the function of the court to determine
whether a recognised psychiatric injury has been sustained.
The
evidence of an appropriately qualified expert is preferable in that
regard. If the court, however, finds on the evidence that
there is a
psychiatric injury, the failure to name it does not necessarily lead
thereto that the plaintiff must fail.
On
a conspectus of all the evidence I am satisfied that the plaintiff
has suffered a recognised psychiatric injury as a result of
the
harassment.
As
regards the quantum of damages to be awarded, the plaintiff did not
prove the probable costs of the treatment that Mostert recommended.
It is manifest, however, that she will need treatment. In the
circumstances some allowance for such expenses must be made in the
award of general damages for pain, suffering and shock. In Allie v
Road Accident Fund (Corbett & Honey: The Quantum of Damages
in
Bodily and Fatal Injury Cases, Vol. V, K3-1) a composite sum of R80
000 was awarded as general damages for relatively minor
physical
injuries and for emotional shock sustained when the plaintiff saw his
pregnant wife being flung out the car and when he
also had to look on
while shenbled to death. In the same publication (at K3-16) the case
of The Road Accident Fund v Draghoender
is reported. There a mother
sustained shock when she saw her minor child having been killed in an
accident in front of her home.
The effect of the shock was in that
case more severe than in this one. An amount of R80 000 was awarded.
Taking into account that
in this case compensation for future medical
expenses must be included in the award for general damages, I have
come to the conclusion
that an amount of R60 000 will be appropriate.
As
to costs, this case concerns the protection of an important right. It
is of importance to both the parties and involves legal
principles
that are of general importance. In the circumstances I have come to
the conclusion that, despite the sum to be awarded,
costs on the high
court scale should be awarded.
In
the result the following order is made:
1.
Judgment is granted in favour of the plaintiff in the sum of R60 000.
2.
The defendant is ordered to pay the plaintiff's costs.
B.R.
du Plessis
Judge
of the High Court
On
behalf of the Plaintiff: Van den Berg & Meintjies
Office
109B, First Floor Newlands Plaza Cnr Lois -& Dely roads Pretoria
Adv.
F.W. Birkholtz
On
behalf of the Defendant: A.W. Jaffer Attorneys
577
Carl Street Pretoria West Pretoria
Adv.
R. Beaton
1
With
the
actio
iegis Aquiiae.
2
With
the action for pain and suffering. There are more heads under which
compensation could be granted but only those mentioned
are now
relevant.