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[2016] ZAKZPHC 78
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Mnyandu v Padayachi (AR162/2014) [2016] ZAKZPHC 78; [2016] 4 All SA 110 (KZP); 2017 (1) SA 151 (KZP) (1 August 2016)
IN HIGH COURT OF SOUTH
AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO: AR162/2014
DATE: 1 AUGUST 2016
REPORTABLE
In the matter between
SINDISIWE
LOVEDALY
MNYANDU
...........................................................................
APPELLANT
And
THIVIANATHAN
PADAYACHI
..................................................................................
RESPONDENT
JUDGMENT
Delivered
on: 1 August 2016
MOODLEY
J (PLOOS VAN AMSTEL J concurring):
[1]
The Preamble to the Protection from Harassment Act 17 of 2011
(the Act),
[1]
sets out the objectives of the Act:
‘Since
the Bill of Rights in the Constitution of the Republic of South
Africa, 1996, enshrines the rights of all people in
the Republic of
South Africa, including the right to equality, the right to privacy,
the right to dignity, the right to freedom
and security of the
person, which incorporates the right to be free from all forms of
violence from either public or private sources,
and the rights of
children to have their best interests considered to be of paramount
importance;
AND IN
ORDER to-
(a)
afford victims of harassment an effective remedy against such
behaviour; and
(b)
introduce
measures which seek to enable the relevant organs of state to give
full effect to the provisions of this Act,... ‘
One of the
remedies afforded to a victim under the Act is the issue of a
protection order by the Magistrates' Court against the
perpetrator of
harassment.
[2]
On 24 May 2013 the respondent, Thivianathan Padayachi
(applicant in the court a quo), applied for a protection order in
terms of
s 2(1) of the Act against the appellant, Sindisiwe Lovedaly
Mnyandu (respondent in the court a quo), at the Magistrates' Court,
Durban, alleging that the appellant had harassed and subjected him to
slander, false allegations and defamation in an email she
had sent to
their colleagues at Mondi Paper Limited, Merebank (Mondi), where they
were both employed. The appellant denied the
allegation. After the
hearing of oral evidence, the court a quo found in favour of the
respondent and issued a final protection
order against the appellant
on 29 November 2013. This is an appeal against the judgment delivered
by the Magistrate, Durban, on
29 November 2013.
[3]
Both Mr Shepstone who represented the appellant, and Mr
Combrinck who represented the respondent, held the consensual view
that
the Magistrate was correct in holding that the sending of a
single email could constitute an act of harassment, provided that the
further requirements for harassment were proved.
[4]
Mr Shepstone submitted that the Magistrate had misdirected
herself by regarding statements made by the respondent during his
closing
argument as constituting evidence. He contended further that
she had erred in failing to refer to the definitions of harassment‘
and ham‘ as set out in s 1 of the Act or to make a finding in
respect of the harm caused to the respondent by the sending
of the
email. Further there was no evidence that any ham‘, as defined
in the Act, was caused to the respondent, no physical
harm had been
alleged, and there was no evidence to substantiate the respondent's
allegations of potential economic harm. Therefore,
the respondent had
to prove that he suffered either mental or psychological harm,
neither of which was evident or alleged in his
description of his
reaction to, or the effect on him of, the appellant's email dated 4
May 2013; nor was there evidence of such
mental or psychological
harm.
[5]
In response, Mr Combrinck contended that the respondent had
proved that the appellant had infringed his constitutional rights as
set out in the preamble of the Act. The sending of the email, the
contents of which were false and defamatory, by the appellant
was an
act of harassment as contemplated by the Act, and therefore, the
respondent had discharged the onus on him and was entitled
to the
relief ordered by the court a quo.
Factual Matrix
[6]
The circumstances that gave rise to the allegations by the
appellant and the application by the respondent are common cause.
6.1
The
respondent is the Section Head of Finishing-Dispatch, WIP Stores and
Packaging Manager at Mondi and the immediate senior of
the appellant,
who is one of the shift foremen reporting to him, and an Employment
Equity (EE) representative.
6.2
Consequent
to the refusal by the appellant to sign off a Work Skills Plan (WSP)
for the section in which the parties worked for
the 2013/2014 year, a
meeting was called on the instructions of management on 26 April
2013, the objective of which was to resolve
the reasons that the
appellant offered for not supporting the WSP. The WSP had however
already been submitted to the Department
of Labour without the
appellant's signature but had been signed off by the other EE
representative, Bongani Sikhakhane.
6.3
Present
at the meeting were the appellant, the respondent, Daniel Pillay,
Bongani Sikhakhane (the aforesaid EE representative),
and Sagie
Pillay, who chaired the meeting. All those present attended a
follow-up meeting which was held immediately thereafter
at 12h00 with
the Chief Operating Officer, Clinton Van Vught.
6.4
The
respondent subsequently issued an invitation to a follow-up meeting
on 2 May 2013. In response thereto, the appellant sent an
email on 4
May 2013 to the recipients of the invitation and the respondent in
which she declined the invitation and set out the
reasons for her
refusal to attend the proposed meeting, stating:
I would like
to provide you with a valid reason for not accepting this meeting.
Our
Department meeting set on Friday the 26
th
April, where we
were supposed to have a successful plan for WSP issue. After 2 hrs of
our meeting, we were given an opportunity
by Clinton to schedule a
date to resolve or put plan in place for Employee's Development plan.
What Clinton
didn't know, is that I (before we met with him)was verbally and
emotionally abused by the same people that are inviting
me. I
couldn't inform CvV then, as I was still shaken by that 2 hours
ordeal. I'm still shocked of the way I was attacked when
my only
purpose was to ensure that our organization is one where NO person is
denied development opportunities. Instead, what I
found in this
department, were four MEN attacking a female, with an EE rep
promoting it as well, extremely embarrassing for Mondi
Employment
Equity Committee.
I've decided
to follow our EE Policy and Procedure so that EEC will take a
decision, therefore, I will not divulge everything that
was said to
me in this email.
Lastly, I
would like to emphasis to Thivian and Bongani the EE rep that. All
Employees who have dealings with Mondi have the right
to be treated
with dignity irrespective of Gender.'
6.5
The
respondent responded to the appellant's email on 6 May 2013 by way of
an email headed Misconduct charges to be drafted against
Finishing EE
Representative', denying the appellant's allegations. Thereafter, on
24 May 2013, he launched the application for
a protection order.
The application in terms of s
2(1) of the Act
[7]
In Part A section 4 of the application, the respondent stated
under incidents of the harassment' that:
7.1
On 4
May 2013 at 14h02 the appellant had circulated an email which was
defamatory, slanderous, libellous, dishonest, deceitful and
malicious' of the respondent and their three colleagues.
7.2
Contrary
to the appellant's assertions in the email, the meeting on 26 April
2013 had been cordial and constructive' and
=
civilized and
polite'. All the participants had
=
treated each other with
dignity, politeness, courtesy and respect throughout the meeting'.
The managers had not
=
attacked, abused or impaired the
dignity of any Mondi employee' including the appellant, at any time.
Therefore the allegations
of verbal and emotional abuse, an attack on
the appellant by the four men and an ordeal of two hours, shocked the
respondent.
7.3
The
appellant had impaired his dignity, defamed him, adversely affected
his well being, and undermined his opportunity for promotion
and
financial benefit at Mondi by fabricating unfounded allegations
against him.
[8]
In paragraph 6 of the application the respondent advanced the
following reasons for the urgency of the application:
8.1
Using
her computer at Mondi, the appellant could spread more malicious,
defamatory, slanderous, libellous and deceitful acts' about
the
respondent, further damaging his good reputation at Mondi.
8.2
An s
189 retrenchment process was in progress at Mondi; the appellant
might use the opportunity to undermine the respondent's
=
employment
and promotional opportunities at this critical time' to the position
of B.U. Manager-Pulpmill because she had created
the perception that
the respondent was
=
an abuser of women who regularly
denies people their rights and dignity'.
8.3
The
longer the delay before the appellant was restrained by a protection
order,
=
tte greater the likelihood that her fabrications
will be accepted as gospel/the truth'.
[9]
The relief sought by the respondent, as set out in paragraph 7
of the application, was an order, inter alia, interdicting the
appellant
herself or through a third party, from harassing or
attempting to harass the respondent and the Related parties',
[2]
or defaming or leveling false accusations against them, or sending
further emails maligning the respondent. The respondent also
sought a
retraction of the email in which he had been defamed, an unreserved
written apology from the appellant and a costs order
against her.
[10]
No interim relief was ordered when the application was filed
but a Notice in terms of s 3(4) of the Act, calling on the appellant
to show cause why a final protection order should not be issued
against her, was issued on the same day viz 24 May 2013.
[11]
The appellant filed an opposing affidavit dated 21 June 2013,
denying that she had leveled false accusations against or defamed the
respondent or the
=
elated parties', and pointed out that
the elated parties' had not confirmed the allegations by the
respondent.
[12]
The respondent thereafter filed a replying affidavit and
answering affidavit dated 10 July 2013 to which he annexed
confirmatory
affidavits by the
=
elated parties', and a
copy of the Chairperson's Findings in the Grievance Hearing' held on
20 June 2013 at Mondi pursuant to the
grievance lodged by the
appellant against the respondent, in which the overall finding was
that the allegations by the appellant
against the respondent were
unsubstantiated.
[13]
The appellant subsequently filed a further answering affidavit
dated 12 August 2013 to which she annexed a final draft of the
=
Employment Equity Internal Dispute Procedure' and a
Recognition and Procedural Agreement between Mondi Paper Company
Limited and
the Paper, Printing, Wood and Allied Workers Union'.
[14]
The court a quo heard oral evidence on 23 October 2013. It is
common cause that although the respondent cited
=
elated
parties' who filed affidavits, the participants at the meeting, other
than the appellant and respondent, were not party to
the application
before the court a quo.
[15]
The respondent was initially represented by an attorney but
subsequently represented himself. He testified and called one
witness,
Daniel Pillay, who had attended the meeting on 26 April
2013.
[16]
The respondent testified that he and his colleagues, Daniel
Pillay and Sagie Pillay, had been requested to meet with the
appellant
and Bongani Sikhakhane, the EE representatives, to resolve
issues arising from the failure of the appellant to sign off a WSP
for
the 2013/2014 year, in particular, promotion and development
opportunities within the company. The appellant was not requested to
sign any document at the meeting.
[17]
The respondent described the meeting as constructive and
fruitful. He was therefore shocked and confused at the contents of
the
appellant's email sent a week and a half later because she
informed all the recipients of his invitation that she had been
abused
at the meeting, principally by him. The respondent pointed out
that despite the several lines of recourse available to her; the
appellant had not reported the abuse' to anyone or lodged a grievance
in the interim preceding the email. He believed that the
appellant's
email was motivated by Mondi's notice to its employees that it was
contemplating retrenchments and that the appellant's
intention was to
cast him in a poor light, thereby placing him at risk of losing his
job and jeopardising his prospects of promotion,
while advancing her
own prospects. Although an internal grievance procedure was available
to him, the respondent sought relief
by way of the application in
terms of the Act because the adverse impact of the false allegations
reached beyond the workplace
into his personal life and was
detrimental to his reputation in the community in which he lived. He
persisted that the appellant
had unreasonably, and in bad faith, sent
the email containing false and malicious allegations against him.
[18]
Mr Daniel Pillay corroborated the respondent's evidence about
the objective of the meeting on 26 April 2013 and also described the
meeting, in which everyone was given an opportunity to share their
ideas', as well-structured‘, calm, fruitful' and productive',
and denied that the appellant had been abused. Mr Pillay admitted
that he had approached the appellant to sign the WSP while the
respondent was on leave. He had given the EE representatives an
opportunity to consider the WSP and make recommendations. Bongani
Sikhakhane had done so and the issues he had raised were resolved. Mr
Pillay testified that he had a good relationship with the
appellant
prior to her circulating the impugned email. He denied her
allegations that abuse was meted out to her at the meeting
on 26
April 2013. He confirmed that, despite the discussions on the WSP at
the first meeting, they went into the second meeting
with the
original WSP. However Van Vught, had only been interested in the way
forward and not in the discussions of the earlier
meeting. He had
reprimanded the managers for not keeping to their promise that from
2013, two persons were to be sent on the foremen
development program,
an issue which was raised by the appellant at the meeting with Van
Vught.
[19]
The appellant thereafter testified and called one witness, Mr
Trevor Chinsamy, who served as a member of the Employment Equity
Executive
Committee (EEEC) with the appellant and as a shop steward
at Mondi.
[20]
The appellant confirmed that the meeting on 26 April 2013 was
called to discuss the WSP but added that the WSP specifically
included
attendance at a foreman development program. The meeting had
started well but about 20 minutes into the meeting the other
participants
had deliberately digressed from the purpose of the
meeting and intentionally ignored her questions. The meeting overran
its scheduled
time because the discussion veered to issues unrelated
to the WSP and was not fruitful. The appellant, who described the
meeting
as
=
very abusive‘ and
=
tense‘,
felt intimidated because the respondent and Sagie Pillay were
managers in seniority to her and had remained quiet.
But when she was
asked, near the end of the meeting, if she was happy with the
discussion, she expressed her dissatisfaction at
their digression
from the business of the meeting and the resultant lack of resolution
in respect of the failure to send employees
for training in January
2013. This caused an argument and the appellant was forced to resign
as EE representative, which she resisted.
[21]
At the second meeting, which was to reschedule the training,
she did not inform Van Vught of the abuse she had been subjected to
by the respondent and the others because she was still shaken. But
she did tell him why she did not sign the WSP and Van Vught
reprimanded the others for failing to reschedule the training. She
had informed Mr Chinsamy and Nathi Nkosi, the Chairperson of
their
trade union, telephonically between 16h00 and 18h00 on 26 April 2013
about the emotional and verbal abuse that she had been
subjected to.
[22]
The email sent by the respondent on 2 May 2013 was an
invitation to a rescheduled meeting to finalise dates for the
training. The
appellant did not attend the meeting because the date
was not specified', but responded by way of her email dated 4 May
2013.
[23]
The appellant denied that she had intended to compromise the
respondent's future at Mondi by sending the email; she had expressed
her feelings about the treatment she had been subjected to. Under
cross-examination, the appellant admitted that she was unaware
that
the foreman development program had terminated in 2011, although she
had attended the training herself and had not graduated
therefrom.
She explained that she considered a question by her fellow EE
representative on the suitability of certain employees
for training,
as an attack on her, and not part of the agenda. She also viewed
being told that she had wasted the respondent's
time at the meeting,
and not being asked to sign the WSP, although the documents were on
the table, as abuse‘.
[24]
Mr Chinsamy was not at the meeting on 26 April 2013. He
testified about the dispute relating to the WSP which he, the
appellant
and certain other members of the EEEC had refused to sign
and the telephone call he had received in the late afternoon of 26
April
2013 from the appellant. She had informed him that the meeting
was out of order and she had forced to sign the WSP (but had not
done
so) and attacked verbally; she had also been let down by the other EE
representative who had signed the WSP and agreed to
everything. She
had been upset and emotional; so he had told her to send him an email
when she was rational. The appellant had
subsequently booked off work
sick, but not immediately after the meeting on 26 April 2013. She had
sent him the email on her return
to work. He did not have a copy of
the email. Mr Chinsamy confirmed that the issue of the WSP had
occurred before 26 April 2013
and had been discussed by the EEEC
prior to that date.
The judgment of the court
a
quo
[25]
In her judgment, the learned Magistrate identified the issues
for determination by her to be:
25.1
the
veracity of the appellant's allegations; and
25.2
whether
the appellant's conduct constituted harassment, entitling the
respondent to the protection order sought.
[26]
Having considered the evidence, the learned Magistrate held
that the evidence presented by the appellant had failed to prove that
she had been subjected to numerous violations of her constitutional
rights' and verbal and emotional abuse, as she had alleged
in her
email dated 4 May 2013, or that she had been subjected to a two hour
ordeal and attacked‘ by the respondent and other
men present at
the meeting. The Magistrate noted further that the appellant did not
report the ordeal‘ to Van Vught with
whom she met immediately
after the meeting and only telephoned Mr Chinsamy late that
afternoon; she had also lodged a grievance
with Mondi only after she
was served with the Notice to show cause issued at the Durban
Magistrates' Court, and that her complaint
only related to the
respondent, and not the other three men.
[27]
Thereafter, holding that the Act has a very wide
interpretation', the Magistrate found that, although the appellant
had only sent
one email, it was sufficient to constitute harassment
in the workplace'. She was therefore satisfied that the respondent's
constitutional
rights had been infringed by the appellant and granted
a final protection order against her, interdicting her from defaming
the
respondent and his colleagues, making false accusations of gender
based attack against the respondent, and sending malicious defamatory
emails. She also ordered that the appellant pay the respondent's
taxed attorney and client costs.
[28]
It is trite that a court of appeal will not interfere with the
findings of fact and credibility of the trial court unless it is
apparent from the record that the court a quo either materially
misdirected itself or erred to the extent that its findings are
vitiated and fall to be set aside. The court of appeal must also
remain cogniscent that the trial court has the advantage of having
observed and heard the witnesses.
[29]
In S v Trainoi
2
Navsa JA set out the obligation of
a trial court:
A conspectus
of all the evidence is required. Evidence that is reliable should be
weighed alongside such evidence as may be found
to be false.
Independently verifiable evidence, if any, should be weighed to see
if it supports any of the evidence tendered. In
considering whether
evidence is reliable, the quality of that evidence must of necessity
be evaluated, as must corroborative evidence,
if any. Evidence, of
course, must be evaluated against the onus on any particular issue or
in respect of the case in its entirety.'
[30]
The court a quo was mindful that the onus lay on the
respondent to prove that he was entitled to a protection order
against the
appellant because her conduct in sending the email in
which she had made false allegations against him constituted
harassment‘
in terms of the Act.
[31]
The evidence of the respondent that the meeting was fruitful
and constructive and overran its scheduled two hours because the
various
options for training were explored, and that there was no
abuse of the appellant remained uncontroverted under
cross-examination
and was corroborated by Daniel Pillay, who also
confirmed that he had approached the appellant to sign the WSP
previously and not
at the meeting. They both also testified that the
appellant had not voiced any objection nor had she raised the issue
of abuse
at the meeting or at the later meeting with Van Vught. The
credibility of both witnesses was not undermined in
cross-examination.
[32]
On the other hand, during her testimony, the appellant was
unable to furnish clear and coherent examples of the emotional and
verbal
abuse she had allegedly suffered, as expressed in her email.
Although it was put to the respondent that the appellant was forced
to sign the WSP document, the appellant admitted that she was not
asked to sign the WSP document.
[3]
She alleged that the objective of the first WSP meeting on 26 April
2013 was for management to reschedule the date for the training
which
was supposed to have taken place in January 2013, in accordance with
the agreement of 2012. But when the other participants
digressed,
she:
J. looked at
it as an attack because that was not the purpose of the meeting. The
decision had already been made in 2012 to develop
people in January,
so that was an irrelevant question, that was an attack.'
[4]
She persisted
that it was an attack on her, which motivated her to send the
email.
[5]
But she was unable to state exactly what the respondent had said to
her:
it was a
heated argument, so you, the applicant and Seggy Pillay and the rest
of the people in the boardroom, you were very happy
to attack me, so
the attack was coming from any one of you where... .‘
[6]
She continued
Yes' I would
never forget that day, just because you wanted my signature you
abused me so severely.'
[7]
But she
admitted that she was not given the document for signature, stating:
The signing
is right at the end of the meeting, so there was no tangible thing
that you gave to me so that I could sign the document,
there was no
time, you didn't even ask me to sign the document, and that was the
purpose. Nobody asked me. The documents were sitting
on the table, Mr
Applicant'.
[8]
[33]
The appellant was evasive about the documents presented at the
meeting and the discussions. She admitted that she was tense because
they did not ask her to sign the WSP and that, when you didn't, I
felt abused'.
[9]
She claimed to have been emotionally abused,
[10]
and vacillated between emotional and verbal abuse.
[34]
Although the appellant alleged that she did not report her
odeal‘ to Van Vught because she was still in a state of shock,
she did inform him that the immediate management had made promises
which were not kept. Her report related to the WSP discussion
at the
earlier meeting, and if she had the equanimity of mind to report the
problem, she ought to have had no difficulty in informing
him that
she had been subjected to abuse at that same meeting, but she did
not.
[35]
Although the appellant relied on Mr Chinsamy for
corroboration, he had not attended the meeting. He merely clarified
that the issues
of training and the WSP were on-going prior to the
meeting attended by the parties and applied to other departments as
well, but
none had gained the magnitude that it had at the meeting
attended by the parties. His testimony that the appellant was
incoherent
and emotional and could not explain what had happened did
not assist the appellant, nor did he produce the email she had sent
to
him some time later.
[36]
Therefore there was no consistent or convincing evidence to
sustain the appellant's version that she had been subjected to abuse,
whether emotional or verbal, or that she had suffered a two hour
ordeal at the meeting. Consequently, I am satisfied that the
Magistrate did not err in finding that the respondent had proved that
the appellant's allegations of abuse by the respondent were
false.
Therefore, the sending of the impugned email may properly be found to
constitute direct, unreasonable conduct on the part
of the appellant.
[37]
Although it was correctly pointed out by Mr Shepstone that the
Magistrate misdirected herself by accepting a point raised in
argument
as a fact,
[11]
I am satisfied that such misdirection does not vitiate her findings
on the credibility of the witnesses and that the allegations
by the
appellant were not true.
[38]
The next issue before court a quo was whether the conduct of
the appellant albeit unreasonable, constituted harassment.
Interpretation
[39]
In s 1 of the Act harassment' is defined as:
directly or indirectly engaging in conduct that the respondent
knows or ought to know
(a)
causes
harm or inspires the reasonable belief that harm may be caused to the
complainant or a related person by unreasonably -
(0
(ii)
engaging
in verbal, electronic or any other communication aimed at the
complainant or a related person, by any means, whether or
not
conversation ensues; or
(iii)
sending,
delivering or causing the delivery of letters, telegrams, packages,
facsimiles, electronic mail or other objects to the
complainant or a
related person or leaving them where they will be found by, given to,
or brought to the attention of, the complainant
or a related person;
or
(b)
,..
[12]
harm means
any mental, psychological, physical or economic harm;'.
[40]
As it is common cause that the appellant sent the email
[13]
complained of to the respondent and other colleagues at Mondi, but
the contents were aimed at the respondent, the application appears
to
have been premised on s 1(a)(ii) and (iii) of the Act. The onus was
on the respondent to prove on a balance of probabilities,
that the
appellant knew or ought to have known that by sending the email, she
was engaging in conduct which would cause harm to
the respondent or
inspire the reasonable belief that harm would be caused to him, be it
mental, psychological, physical or economic,
and that her conduct was
unreasonable in the circumstances.
[41]
The Act came into effect on 27 April 2013. To date there is
little South African jurisprudence on the Act and on the
interpretation
of harassment‘ as defined in the Act.
[42]
In their article entitled The Protection from Harassment Act
and its implications for the workplace', the authors AA Landman and
MM Ndou state:
The Act
applies to everyone. It may also apply to an employer or employee and
it may have an effect on a workplace, management and
personnel
issues.'
[14]
They
acknowledge that the ^ct is not specifically directed towards
employers and employees but its ambit is wide enough to include
them,'
[15]
and pertinently point out that the Protection from Harassment Act of
1997 currently in effect in the United Kingdom, is similarly
worded
and has been used in the workplace.
[43]
I agree that the Act has application and may prove useful in
the workplace environment as it enhances the remedies for harassment
in the workplace available under other legislation. Outside the
workplace, a complainant may seek relief under the Act although
he/she may also have recourse for relief against harassment under the
Domestic Violence Act 116 of 1998 (the DVA).
[44]
Given the comprehensive ambit of the Act, it is essential that
a consistent approach be applied to the evaluation of the conduct
complained of, although the factual determination will depend on the
circumstances under or context within which the alleged harassment‘
occurred. If the conduct against which protection is offered by the
Act were to be construed too widely, the consequence would
be a
plethora of applications premised on conduct not contemplated by the
Act. On the other hand too restrictive or narrow a construal
may
unduly compromise the objectives of the Act and the constitutional
protection it offers. Therefore the interpretation of the
term
harassment‘ as defined in the Act, is significant.
[45]
In Natal Joint Municipality Pension Fund v Endumeni
Municipality,
[16]
Wallis JA provided useful guidance to interpretation and a relevant
caveat against intruding into the realm of legislation:
The present
state of the law can be expressed as follows: Interpretation is the
process of attributing meaning to the words used
in a document, be it
legislation, some other statutory instrument, or contract, having
regard to the context provided by reading
the particular provision or
provisions in the light of the document as a whole and the
circumstances attendant upon its coming
into existence. Whatever the
nature of the document, consideration must be given to the language
used in the light of the ordinary
rules of grammar and syntax; the
context in which the provision appears; the apparent purpose to which
it is directed and the material
known to those responsible for its
production. Where more than one meaning is possible each possibility
must be weighed in the
light of all these factors. The process is
objective, not subjective. A sensible meaning is to be preferred to
one that leads to
insensible or unbusinesslike results or undermines
the apparent purpose of the document.
Judges must
be alert to, and guard against, the temptation to substitute what
they regard as reasonable, sensible or businesslike
for the words
actually used. To do so in regard to a statute or statutory
instrument is to cross the divide between interpretation
and
legislation...'
[46]
On contextual interpretation, in R v Smith
[17]
the court stated:
ord
Wilberforce said that consideration of the purpose of an enactment is
always a legitimate part of the process of interpretation...
The
extent to which the courts should apply the mischief' approach must
be a matter of judgment in the individual case. There is
a case for
saying that the courts should, where they think it appropriate, look
more readily at ministerial statements which may
help to identify the
mischief which Parliament was invited to regard as the object of the
legislation, and should not be inhibited
from construing it
accordingly, even where a natural reading of seemingly wide words
might warrant a wider construction.'
[47]
Accordingly, in order to understand the purpose to which the
Act was directed and the material considered by the drafters, and to
identify the mischief targeted by the Act, I had recourse to the
SALRC Discussion Paper on Stalking,
[18]
which reflects the legislation in comparative jurisdictions and
submissions which the SALRC considered when drafting the Act and
the
subsequent evaluation and recommendations by the SALRC, which forms
the basis of the following exposition. I have however quoted
only
those parts of the legislation referred to in the Discussion Paper
which are relevant to the facts of this appeal, where possible
without detriment to comprehension.
[48]
The term stalking‘ as reflected in the title of Project
130 was initially used by the drafters. The SALRC found that the
general
tendency in comparative jurisdictions was to include
'harassment' and intimidation' within the definition of stalking‘;
that
=
harassment‘ and intimidation' are encompassed
in the ways in which a person may be stalked. The inclusion of
=
harassment‘ under an umbrella definition of
stalking‘ was endorsed by an expert consultation meeting held
on 20 January
2004 in
Durban, and
the SALRC recommended that harassment and intimidation be
incorporated in the definition of stalking‘.
[19]
[49]
However, when the SALRC released its report on 25 November
2008
[20]
which contained its final recommendations based on its investigation
into stalking and a draft Bill which embodied a civil remedy
to
address stalking behaviour, the SALRC noted that internationally, the
legal understanding of stalking‘ had evolved to
the point where
it falls under the broad terms harassment' and recommended that the
broader term harassment‘ should be used,
in order to provide
greater protection under the Act, as had been done in the United
Kingdom and Canada. Hence the term stalking‘
was replaced by
=
harassment‘ in the title of the Bill and
subsequently the Act. It must therefore be borne in mind that
reference to stalking‘
in the Discussion Paper was effectively
to what is currently termed Jwassment'.
[50]
In the Bill annexed to the Report harassment‘ was
defined as directly or indirectly engaging in conduct that causes
harm or
inspires the reasonable belief that harm may be caused'.
[51]
The SALRC noted in the Discussion Paper that anti-stalking
laws almost always require that the alleged stalker engage in a
course
of conduct, not just a single act, to fall under their
provisions. Typically, a course of conduct is characterised as a
series
of acts over a period of time, however short, evidencing a
continuity of purpose.
[21]
Therefore the SALRC recommended that an element of repetition be
included in the definition of
=
stalking‘.
[52]
In order to define
=
stalking‘ within the
South African context the SALRC found it appropriate to note the
matter in which the legislature had
already addressed the phenomenon
of stalking in relation to domestic relationships in the DVA, in
which the definition of domestic
violence' includes intimidation,
harassment and stalking.
[53]Ha
rassment‘
in the DVA is defined as engaging in a pattern of conduct that
induces the fear of harm to a complainant including-
(a)
repeatedly
watching, or loitering outside of or near the building or place where
the complainant resides, works, carries on business,
studies or
happens to be;
(b)
repeatedly
making telephone calls or inducing another person to make telephone
calls to the complainant, whether or not conversation
ensues;
(c)
repeatedly
sending, delivering or causing the delivery of letters, telegrams,
packages, facsimiles, electronic mail or other objects
to the
complainant;'
Stalking‘
is defined as repeatedly following, pursuing or accosting the
complainant'.
[54]
The SALRC concluded that to constitute harassment' the conduct
must be repeated, that is, occur more than once or be a pattern of
conduct, must be regarded as abusive conduct and must induce the fear
of harm, but that stalking may entail following, pursuing
or
accosting the complainant on one occasion without the proviso of
induction of fear.
[22]
[55]
The SALRC also took particular note of the definition of
=
unlawful stalking' in the Queensland Criminal Code.
Section 359B of the Code sets out the elements of
=
ur1iawful
stalking' as follows:
[23]
Conduct
-
(a)
intentionally directed at a person; and
(b)
engaged
in on any 1 occasion if the conduct is protracted or on more than 1
occasion; and
(c)
consisting
of 1 or more acts of the following, or a similar, type -
(ii) contacting a person in any way, including, for example, by
telephone, mail, fax, e-mail or through the use of any technology;
(d)
that-
(i)
...;or
(ii)
causes
detriment reasonably arising in all the circumstances, to the stalked
person or another person.'
[56]
All four elements set out in s 359B are required for the
conduct to constitute
=
ur1iawful stalking', as indicated
by the word and‘. Distilling what is relevant to the present
issue for determination, s
359B of the Queensland Criminal Code
provides protection against intentionally directed conduct which
occurs on one occasion (if
protracted), or which occurs on more than
one occasion and the conduct may consist in the act of sending one or
more emails. It
is the physical act of communication and not the
contents of the communication that appears to be contemplated in
subsections (b)
and (c) of s 359B. Therefore, under the Queensland
Criminal Code, the sending of one email, which is not a protracted
act, may
be considered not to constitute harassment, as the conduct
did not occur on more than one occasion.
[57]
In addition to the aforegoing elements, the contents of the
communication must be such that they cause deriment‘ to the
stalked
person. Section 359A of the Queensland Criminal Code which
provides definitions for key words and phrases, defines
=
d4riment‘
in terms of the consequences of the stalking behaviour, which
includes:
(a) apprehension of fear or violence to, or against the property
of, the stalked person or another person; and
(b)
serious
mental, psychological or emotional harm;'
Therefore the
victim must establish that the communication caused him fear of
physical violence to person or property, or serious
mental,
psychological or emotional harm. Finally an objective test must be
applied: the harm must reasonably arise' from the relevant
circumstances.
[58]
Similarly the Criminal Law Consolidation (Stalking) Amendment
Act 7 of 1994 of South Australia prescribes that the conduct
complained
of should occur on at least two separate occasions and
could reasonably be expected to arouse the victim's apprehension or
fear.
[59]
In its Report on Stalking the Law Reform Commission of Hong
Kong recommended that the following ought to form constituent
elements
of the criminal offence of stalking:
59.1
the
=
stalker‘ must pursue a course of conduct which
amounts to harassment of another;
59.2
the
harassment should be serious enough to cause that person alarm or
distress; and
59.3
a
reasonable person would think that the course of conduct amounted to
harassment of the other.
[24]
[60]
The Protection from Harassment Act 1997 was enacted in the
United Kingdom on 21 March 1997
=
to make provision for
protecting persons from harassment and similar conduct' creates two
specific criminal offences, one of which
is an offence of
harassment‘.
[61]
Section 1 enjoins a person not to pursue a course of conduct
which amounts to harassment and which the person knows or ought to
know amounts to harassment of another. Harassing a person includes
alarming the person or causing the person distress, and the —coitus
of conduct” must involve conduct on at least two occasions.
[25]
Section 1 (2)
provides that Jtie person whose course of conduct is in question
ought to know that it amounts to harassment of another
if a
reasonable in possession of the same information would think the
course of conduct amounted to harassment of the other'. The
legal
test as to whether a person is guilty of harassment is therefore
objective: the assessment of the conduct by
=
a reasonable
person' - unlike most criminal offences which require a degree of
intent before an offence is committed, because many
stalkers claim
that they have no intention of harassing their victims.
[62]
Therefore the elements required to constitute harassment in
terms of the Protection from Harassment Act 1997 in the United
Kingdom
are more than one occurrence of prohibited conduct and a
reasonable person in the position of the offender thinking that the
course
of conduct amounted to harassment.
[63]
The Protection from Harassment Act 1997 was amended by the
Protection of Freedoms Act 2012, which introduced the offence of
stalking.
[26]
Stalking is similarly constituted by the perpetrator following a
course of conduct, which he or she knows or ought to know amounts
to
harassment of the other person. Under s 4A which creates the offence
of stalking involving fear of violence or serious alarm
or distress,
the perpetrator's course of conduct must cause the victim to fear, on
at least two occasions, that violence will be
used against him or
cause the victim serious alarm or distress which has a substantial
adverse effect on his usual day-to-day activities;
and the
perpetrator must know or ought to know that his course of conduct
will cause the victim such alarm or distress. The test
applied
remains an objective one: that of a reasonable person in possession
of the same information who would think that such course
of conduct
would cause the victim so to fear on that occasion, or that it will
cause him serious alarm or distress which has a
substantial adverse
effect on the victim's usual day-to-day activities.
[64]
The substantive requirements that consistently occur in all
the aforementioned reports and legislation were implemented in the
following
English cases:
64.1
Dowson
and others v Chief Constable of Northumbria Police
[27]
..a summary
of what must be proved as a matter of law in order for the claim in
harassment to succeed:
(1)
There must be conduct which occurs on at least two occasions,
(2)
which is targeted at the Claimant,
(3)
which is calculated in an objective sense to cause alarm or
distress, and
(4)
which is objectively judged to be oppressive and unacceptable.
(5)
What is oppressive and unacceptable may depend on the social
or working context in which the conduct occurs.
(6)
A line is to be drawn between conduct which is unattractive
and unreasonable, and conduct which has been described in various
ways:
4orment” of the victim, -ef an order which would sustain
criminal liability”.'
64.2
Majrowski
v Guy’s and St Thomas’s NHS Trusl
[28]
[18] I turn
to the material provisions of the 1997 Act. The purpose of this
statute is to protect victims of harassment, whatever
form the
harassment takes, wherever it occurs and whatever its motivation. The
Act seeks to provide protection against stalkers,
racial abusers,
disruptive neighbours, bullying at work and so forth.'
[30]
...Courts are well able to separate the wheat from the chaff at an
early stage of the proceedings. They should be astute to
do so. In
most cases courts should have little difficulty in applying the ^lose
connection' test. Where the claim meets that requirement,
and the
quality of the conduct said to constitute harassment is being
examined, courts will have in mind that irritations, annoyances,
even
a measure of upset, arise at times in everybody's day-to-day dealings
with other people. Courts are well able to recognise
the boundary
between conduct which is unattractive, even unreasonable, and conduct
which is oppressive and unacceptable. To cross
the boundary from the
regrettable to the unacceptable the gravity of the misconduct must be
of an order which would sustain criminal
liability under s 2.'
64.3
Hayes
v Willoughby
[29]
Section 1(1)
of the Protection from Harassment Act 1997 provides that a person
jriust not pursue a course of conduct (a) which amounts
to harassment
of another, and (b) which he knows or ought to know amounts to
harassment of the other'. Harassment is both a criminal
offence under
s 2 and a civil wrong under s 3. Under s 7(2), References to
harassing a person include alarming the person or causing
the person
distress', but the term is not otherwise defined. It is, however, an
ordinary English word with a well understood meaning.
Harassment is a
persistent and deliberate course of unreasonable and oppressive
conduct, targeted at another person, which is calculated
to and does
cause that person alarm, fear or distress.'
The court
noted that the Protection from Harassment Act 1997 is capable of
applying to any form of harassment, including repeated
offensive
publications in a newspaper and victimization in the workplace.
64.4
R
v Smith
[30]
In construing
s 1 of the 1997 Act it is right to have regard to the type of
mischief at which it was aimed. It is also right to
have regard to
what the ordinary person would understand by harassment. It does not
follow that because references to harassing
a person include alarming
a person or causing a person distress (s 7(2)), any course of conduct
which causes alarm or distress
therefore amounts to harassment...So
to reason would be illogical and would produce perverse results.
...the definition of the
word harass' in the Concise Oxford
Dictionary... meaning to 4erment by subjecting to constant
interference or intimidation”.
...Essentially it involves
persistent conduct of a seriously oppressive nature, either
physically or mentally, targeted at an individual
and resulting in
fear or distress.'
64.5
R
v Curtis
[31]
The court
held that the impugned conduct must be unacceptable to a degree which
would sustain criminal liability and must also be
oppressive and
agreed with the following analysis in Thomas v News Group Newspapers
Ltd
[2002] EMLR 78:
[29] Section
7 of the 1997 Act does not purport to provide a comprehensive
definition of harassment. There are many actions that
foreseeable
alarm or cause a person distress that could not possibly be described
as harassment. It seems to me that section 7
is dealing with that
element of the offence which is constituted by the effect of the
conduct rather than with the types of conduct
that produce that
effect.
[30]
The Act does not attempt to
define the type of conduct that is capable of constituting
harassment. -Harassment” is, however,
a word which has a
meaning which is generally understood. It describes conduct targeted
at an individual which is calculated to
produce the consequences
described in section 7 and which is oppressive and unreasonable. The
practice of stalking is a prime example
of such conduct.'
[65]
It is apparent from these cases that the offence of harassment
is not merely constituted by a course of conduct that is oppressive
and unreasonable but that the consequences or effect of the conduct
ought not cause a mere degree of alarm; the contemplated harm
is
serious fear, alarm and distress. The legal test is always an
objective one: the conduct is calculated in an objective sense
to
cause alarm or distress, and is objectively judged to be oppressive
and unacceptable.
[66]
In SATAWU obo Dlamini / Transnet Freight Rail, a Division of
Transnet Ltd & Another
[32]
the arbitrator held that harassment is a form of unfair
discrimination, and that although harassment is generally understood
to
denote repeated conduct a single extremely serious slur on the
grounds of race could constitute harassment. He held further that
although the test for establishing discrimination is objective, the
Constitution requires that the primary focus be on the effect
on the
complainant of the action complained of, and that the proper test for
assessing whether the conduct constituted harassment
is by reference
to the reasonable victim.”
[67]
In my view this construction of the Act runs contrary to the
application of the objective legal test as it shifts the evaluation
from the conduct of the perpetrator to the impact on the victim. The
test to be applied ought to remain consistent. But as the
oppressive
and unacceptable conduct jnay depend on the social or working context
in which the conduct occurs',
[33]
the determination of allegations of harassment based on racial slurs
may take place within the relevant social context without
changing
the focus of the test from the oppressive and unreasonable conduct as
defined in the Act.
The offence of Harassment in the
South African context
[68]
Based on its examination of international legislation, the
SALRC recommended that the recurrent element of the offence should be
incorporated in the definition of harassment'. The definition in the
Act states that harassment‘ is constituted by directly
or
indirectly engaging in conduct...'. However although the definition
does not refer to a course of conduct' in my view the conduct
engaged
in must necessarily either have a repetitive element which makes it
oppressive and unreasonable, thereby tormenting or
inculcating
serious fear or distress in the victim. Alternatively the conduct
must be of such an overwhelmingly oppressive nature
that a single act
has the same consequences, as in the case of a single protracted
incident when the victim is physically stalked.
[69]
It is against this background that I turn to the facts of this
appeal. The conduct complained of was constituted by the sending of
a
single email, the contents of which were proved to be untrue.
However, the lack of veracity does not mean that the appellant's
conduct was necessarily oppressive or unreasonable. Her expressed
intention in sending the email, to provide a reason for refusing
the
respondent's invitation to a follow up meeting, is also not
pertinent.
[70]
But applying the objective test to the information within the
appellant's knowledge, her conduct must be evaluated within the
context
of the workplace. The WSP related disputes between management
and members of the EEEC were ongoing at Mondi, as testified to
by Mr Chinsamy. The meeting on 26 April 2013 was held to resolve the
failure of the appellant to sign off the WSP on the instructions
of
senior management. Her email on the 4 May 2013 appears to be a
retaliatory response, based on her perception that she was ignored
at
the previous meeting because of gender bias and the objective of the
meeting was not achieved as the other attendees digressed.
[71]
In my view the conduct of the appellant in sending the email
may have been unreasonable, as she allowed her emotions to cloud her
perception, but I am not persuaded that her conduct was objectively
oppressive or had the gravity to constitute harassment.
[72]
Further, the appellant levied accusations of abuse against all
four men who were at the meeting. Only the respondent took serious
umbrage at the allegations against him, and resorted to the
application for an interdict. Although he alleged that his prospects
of promotion and his dignity and reputation within Mondi and in the
community may be compromised as a consequence of the email,
there was
no evidence to this effect.
[73]
I am therefore unable to find that the facts of this matter
sustain a finding that the conduct of the appellant constituted
harassment
as contemplated by the Act, and the appeal must succeed.
[74]
The following order do issue:
1.
The
appeal is upheld.
2.
The
judgment of the court a quo delivered on 29 November 2013 is set
aside.
3.
The
respondent is directed to pay the costs of appeal.
MOODLEY J
I agree
PLOOS VAN AMSTEL J
[1]
The date of commencement of the Act was 27 April 2013.
[2]
S Pillay, D Pillay and B Sikhakhane, the other three men who
attended the meeting on 26 April 2013.
[3]
Page 249 of the record.
[4]
Page 284, lines 14-17.
[5]
Page 284, lines 12-25.
[6]
Page 286, lines 8-11.
[7]
Page 286, lines 24-25.
[8]
Page 287, lines 10-14.
[9]
Page 291, lines 5-6.
[10]
Page 306, lines 5-7.
[11]
Page 366, lines 4-10.
[12]
Sub-sections of s 1 are immaterial for present purposes have been
omitted.
[13]
The South African Law Reform Commission (SALRC) supported a broad
definition of stalking so as to encompass stalking irrespective
of
the medium used because it recognised the ready availability of
different mediums, including cellular phones, and computerized
technology. It therefore suggested that the prohibited conduct be
defined broadly in terms of -eommunication”, -harassment”,
or -threats” without specifying the methods or defining
stalking as including, but not restricted, to specified prohibited
conduct. The SALRC also noted the distinction between direct and
indirect online harassment. Direct online harassment includes
threats, bullying, or intimidating messages sent directly to the
victim via e-mail or other Internet communications media. Indirect
online harassment includes spreading rumours about the victim in
various Internet discussion forums.
[14]
Contemporary Labour Law
(2013) 22 (No 9) April at 81.
[15]
Ibid at 86.
[16]
2012 (4) SA 593
(SCA) para 18.
[17]
[2013] 2 All ER 804
para 23.
[18]
South African Law Commission Project 130:
Stalking
Discussion Paper 108 (2004).
[19]
Ibid para 1.33.
[20]
South African Law Commission Project 130:
Stalking
Report (2008).
[21]
Para 1.34 of the Discussion Paper.
[22]
Ibid para 1.32.
[23]
Parts immaterial for present purposes have been omitted.
[24]
The Law Reform Commission of Hong Kong Report on
Stalking
October 2000 at 184.
[25]
The Protection from Harassment Act 1997 provides:
Section 1: Prohibition of
harassment
(1)
A person must not pursue a course of conduct—
(a)
which amounts to harassment of another, and
(b)
which he knows or ought to know amounts to harassment
of the other.
(2)
For the purposes of this section, the person whose
course of conduct is in question ought to know that it amounts to
harassment
of another if a reasonable person in possession of the
same information would think the course of conduct amounted to
harassment
of the other.
(3)
Subsection (1) does not apply to a course of conduct
if the person who pursued it shows—
(a)
that it was pursued for the purpose of preventing or
detecting crime,
(b)
that it was pursued under any enactment or rule of law
or to comply with any condition or requirement imposed by any person
under
any enactment, or
(c)
that in the particular circumstances the pursuit of
the course of conduct was reasonable.
Section 2: Offence of
harassment
:
(1) A person who pursues a course of
conduct in breach of section 1 is guilty of an offence.
Section
4: Putting people in fear of violence
(1)
A person whose course of conduct causes another to
fear, on at least two occasions, that violence will be used against
him is
guilty of an offence if he knows or ought to know that his
course of conduct will cause the other so to fear on each of those
occasions.
(2)
For the purposes of this section, the person whose
course of conduct is in question ought to know that it will cause
another to
fear that violence will be used against him on any
occasion if a reasonable person in possession of the same
information would
think the course of conduct would cause the other
so to fear on that occasion.
Section 7
is the
interpretation clause:
(1)
This section applies for the interpretation of
sections 1 to 5.
(2)
References to harassing a person include alarming the
person or causing the person distress.
(3)
A "course of conduct" must involve
(a)
in the case of conduct in relation to a single person
(see section 1(1)), conduct on at least two occasions in relation to
that
person conduct on at least two occasions.
(4)
"Conduct" includes speech.
7
See s 2A of the Protection from Harassment Act
1997.
[27]
[2010] All ER (D) 191
para 142.
[28]
[2006] 4 All ER 395.
In this case the House of Lords considered
whether an employee had been unlawfully harassed by his departmental
manager in breach
of s 1 of the Protection from Harassment Act 1997.
[29]
[2013] 2 All ER 405
para 1 (references and footnotes omitted).
[30]
[2013] 2 All ER 804
para 24 (references and footnotes omitted).
[31]
[2010] 3 All ER 849
para 29.
[32]
[2009] JOL 24429
(TOKISO).
[33]
Dowson v Chief Constable of Northumbria Police
supra.