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[2014] ZAGPPHC 475
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Sahara Computers (Pty) Ltd v G.G.M (A 189/2011) [2014] ZAGPPHC 475; (2014) 35 ILJ 2750 (GP) (2 June 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG. PRETORIA)
Case No: A 189/2011
Date 2 June 2014
In the matter
between:
Sahara
Computers (Pty)
LTD
...........................................................................................................
Appellant
and
GG
M[...]
................................................................................................................................
......
Respondent
JUDGMENT
MAUMELA
J
[1]
This is an appeal with leave of the court
a
quo
to
the full bench of this division. It is against a judgment from this
division which went against the Appellant. The said judgment
was
reported under the citation M[...] v Sahara Computers (Pty) LTD
(2010) 31 ILJ 2827 (GNP). Before the court
a
quo
,
the Respondent instituted an action against the Appellant alleging
that she suffered mental anguish, psychological trauma, and
the
impairment of her dignity.
[2]
For mental anguish, the Respondent claimed damages in the amount of R
150 000-00. She also claimed R 50 000-00 in consideration
for
“psychological and trauma counselling”. The Appellant
defended the action without success. In the end, the court
a
quo
ordered
Appellant to pay to the Respondent an amount of R 60 000-00, and to
pay the respective costs. It is against that judgment
that Appellant
lodged this appeal.
[3] Briefly stated,
the facts of the case are as follows: Appellant is a company that is
involved in computer distribution and service.
The Respondent was an
employee in the said company; so was a male person called Mthethwa.
The Respondent alleged that Mthethwa,
her fellow employee in the
Appellant, grew and persisted in the tendency to harass her.
[4] To sustain
her claim, the Respondent cited instances listed hereunder, where
Mthethwa harassed her sexually, and which
she contended to have
reported to the Appellant. She disclosed to the Appellant that the
offending acts were taking place at the
workplace. According to her,
the Appellant was either reluctant to act, in order to create a safe
workplace environment for her
benefit, or failed to take “reasonable
steps” to avoid her suffering any further acts of harassment in
the hands of
Mthethwa.
Before the court a
quo, the Respondent did not seek for the Appellant to be held to be
vicariously liable for Mthethwa‘s acts.
She alleged that the
above omission on the part of the Appellant was both unlawful and
negligent.
[5] This court is to
consider whether or not the court a quo was correct in finding that:
(a). The Respondent,
who was the Plaintiff before it was sexually harassed.
(b). The Appellant
who was the Defendant negligently breached its duty to protect the
Respondent, as one of its employees, against
sexual harassment in the
workplace.
(c). The Respondent
did prove that she suffered from a recognised psychiatric injury.
[6]
The Respondent told the court
a
quo
that
she started serving as an employee of the Appellant on the 13
th
November 2006. Five months after she had come on board as the
Appellant’s employee, a fellow employee called Mthethwa
questioned
how she had managed to get onto the employ of the
Respondent without “passing through him”. Mthethwa told
her that
everybody that comes on board as the Appellant’s
employee has to “pass through him”. She said that
Mthethwa demanded
sex from her.
[7]
She told a colleague, one Sam Maboke about Mthethwa’s conduct.
Maboke is the one who introduced her to the Appellant.
He told her to
ignore Mthethwa, but in the same breath he told her that Mthethwa is
“
well
connected”. In the meantime, Mthethwa persisted with his
constant demands for sexual favours from her, much as he continued
to
pester her.
[8] She said that
one morning, as she sat on a chair, Mthethwa crept from behind her
and put his arms around her. He then tried
to touch her private
parts. This happened in full view of one Karin de Beer and one Luntu,
who are co-workers. Ms. de Beer advised
the Respondent to report the
incident to her manager, Mr. Eugene Steenekamp. Steenekamp pleaded
helplessness stating that Mthethwa
stood “well connected”.
[9] She stated
further that Steenekamp warned her that she stands at risk of losing
her job if she persisted with her complaint
against Mthethwa.
Steenekamp also promised her protection in the sense of ensuring that
Mthethwa does not touch her again. Evidence
does not show how
Steenekamp intended to deliver on his promise of protection for the
benefit of the Respondent. Moreover, Mthethwa
relentlessly persisted
with his offending acts; often taking advantage whenever Steenekamp
would not be around.
[10] On another day,
unaware that Steenekamp is around, Mthethwa endeavoured to join her
company in a store room. He soon retreated
as soon as he became aware
of Steenekamp’s presence. Before retreating, Mthethwa told
Respondent in Setswana that he would
“get her”.
Knowing that
Steenekamp had pleaded helplessness before, she did not report this
incident to Steenekamp, but she told Maboke, who
again advised her to
ignore Mthethwa.
[11] Whenever he
came into contact with her; Mthethwa incessantly threatened to “get
her one day”. On another occasion,
in the presence of
bystanders, Mthethwa attempted to pour water over her private parts.
In response to her audible protests, Mthethwa
held out his cellphone
and dared her to call his supervisors, telling her that they too are
helpless about it.
[12] In December
2007, the Respondent stayed away from an ‘office Christmas
party’, partly because she had a heavy workload,
and partly due
because she felt apprehensive knowing that Mthethwa would also be in
attendance. On the following Monday, Mthethwa
told her to get a fan
from one Willie. It turned out that he was only playing tricks on her
and he ended up telling her that she
has go to his, (Mthethwa’s)
home where she must have sex with him in return for a fan. She
decided not to pursue the issue
of the fan.
[13] In February
2008, as she joined colleagues in a meeting, Mthethwa poked fun at
her as she walked into the venue of the meeting
saying: “here
comes lady fan!”. She did not take particular offence. Later
Mthethwa apologised for calling her “Lady
fan”. She
accepted the apology, much as she thought that Mthethwa would no
longer harass her.
[14] With the
hatchet in her thinking thus buried, on a day in January or February
2008, she, one Plaatjies and one Mandisi accepted
a lift home offered
by Mthethwa. It was to be the first and the last ride ever that she
accepted from him. As she alighted from
the car, Mthethwa leaned over
and touched her buttocks. She swore at him and left. Back at the
workplace she approached the Human
Resource section and lodged a
written complaint against Mthethwa.
[15] On the 28
th
February 2008, Respondent lodged a written complaint against
Mthethwa. She cited Mthethwa’s incessant harassment, mentioning
most of the incidences. But she omitted the incident when he tried to
touch her as she sat on a chair. Mthethwa was charged with
misconduct. A hearing was conducted on the 6
th
March 2008.
According to the Respondent, Mthethwa was convicted of ‘sexual
harassment’, but that is not common cause.
[ 16] According to
the Appellant, at the hearing Mthethwa admitted to having been rude
or harsh to the Respondent. However the disciplinaiy
committee found
that most of the allegations made against Mthethwa were not
corroborated. The sanction written against Mthethwa
was a “final
written warning”. The Respondent expected Mthethwa to be
dismissed and as such she was dissatisfied with
the outcome of the
disciplinary hearing. She attempted to lodge an appeal.
[ 17] Thereafter
Mthethwa began frowning whenever he would meet her. She felt
threatened by this behavior. She lodged a number of
complaints to the
HR department in pursuance of her appeal. A trail of emails, shows
that Steenekamp held a meeting with the HR
department on the 16
th
of April 2008 where her appeal was discussed. However, nothing
concrete seems to have come out of the discussion. In May 2009,
the
Respondent resigned as an employee of the Appellant. She cited
“personal reasons”. She stated that the reason is
that
the Appellant is not protecting her against Mthethwa. After
resigning, she remained unemployed for a while. She also furthered
her studies. She has since secured another employment.
[ 18] Under cross
examination before the court a quo, it was revealed that the
Respondent got married in 2009. She stated that she
experienced
sexual problems in the marriage due to the sexual harassment she
suffered at the hands of Mthethwa. Plaatjies who is
a cousin to the
Respondent corroborated her on the instance when Mthethwa attempted
to pour water over Respondent’s private
parts and when he
touched her buttocks as she alighted from a vehicle. He also
confirmed that a lady called Mandisi, and not a
male called Mandisa
drove with them in the vehicle. He denied that there was a fifth
person with them.
[19] A Mr. J.S.
Mostert, who is a counselling psychologist interviewed the Respondent
on the 19
th
August 2010. Based on the interview and
psychometric tests, he prepared a written report, He tendered expert
evidence and confirmed
the contents of his report. His clinical
impression of the Respondent was that she is anxious, timid and she
appeared somewhat
shy. She also lacked confidence, much as she showed
flattened emotions. She lacked strength and vigor.
[20] Dr. Mostert
stated that his findings are consistent with his findings on the
SCL-90-R, which is a ‘symptoms checklist’
which made for
one of the two psychometric tests conducted. Mostert also confirmed
the Wechsler Adult intelligence scale-test.
On that scale-test, in
most categories the Respondent scored “high average” and
“average” on some. Mostert
opined that in the interview,
the Respondent came across as” severely traumatized”. He
said that the incident had an
impact on her “social academic,
occupational and interpersonal functioning”. Her capacity for
attention and concentration
was adversely affected. She exhibited
significantly high psychological distress levels.
[21]
In Dr. Mostert's view, the Respondent is in need of psychotherapy and
psychiatric services. He testified that the Respondent
is fairly
depressed due to both the harassment itself and the fact that the
matter dragged over a long period of time, preventing
her from
getting closure. Under cross examination, Dr. Mostert did state that
the Respondent did not suffer from
Post-Traumatic
Stress Disorder.
[22] One Ms. Mandisa
Makinana testified for the Appellant. She testified about the day
when she, the Respondent, and one Plaatjies
accepted a lift from
Mthethwa. She said that Mandisi was not present. She disputed that
Mthethwa touched the Respondent’s
buttocks. Mthethwa also
testified, stating that he did work for the Respondent as a
production manager. Due to a work related project.
He got to know the
Respondent. He admitted the “Lady Fan” taunt, calling it
a joke, but he denied other allegations.
He said that on occasion he
would give the Respondent a lift home. He denied that anything
untoward ever happened on the day he
gave, the Appellant, Mandisa and
Plaatjie a lift home. He confirmed that a complaint by the Respondent
resulted in the disciplinary
enquiry pursuant to which he was handed
a written warning. He admitted further that after the disciplinary
hearing, the HR department
banished him from setting foot at the
section where the Respondent was deployed. He said that he complied
with the said banishment.
[23]
The court
a
quo
found
that the Respondent was indeed subjected to harassment by Mthethwa,
who was her fellow employee at the Appellant. The court
found further
that in reporting the incident of harassment to Mr. Steenekamp, the
Respondent effectively brought the incidents
of harassment to the
attention of the Respondent. The
court
a quo
correctly
held that the Appellant had a legal duty to protect the Respondent in
her capacity as one of its employees against sexual
harassment at the
workplace; (See Media 24 Ltd and Another v Grobler
1
.
[24]
The court
a quo
correctly
held that the Appellant negligently breached its duties to protect
the Respondent. It found that the written warning against
Mthethwa
had some effect in terms of stopping Mthethwa from harassing the
Respondent further. In the view of the court
a
quo
,
Steenekamp should have immediately referred the Respondent’s
complaint to the HR department. The court also found that it
was
within the Appellant’s means to create a safe working
environment. It found that the Appellant acted unreasonably in
failing to create that working environment in favour of the
Respondent.
[25]
Our law requires the Respondent to prove that she suffered a
“recognized psychiatric injury” (herkenbare psigiese
letsel) as a result of harassment at the hands of Mthethwa. See
Barnard v SANTAM Bpk
2
;
Media 24 Ltd and Another
3
,
at paragraph 56 and onwards; and Bester v Commercial Union
Versekerings maatskapy Van SA Bpk
4
.
Based on the evidence before it; the court
a
quo
concluded
that the Respondent did satisfy this requirement.
[26]
The Respondent contended before the court
a
quo
that
the sexual harassment she suffered in the hands of Mthethwa resulted
in her suffering
“
mental
anguish, psychological trauma and impairment to her dignity
”
However,
she did not allege before the court
a
quo
that
the Appellant acted with intent,
{actio
iniuriandi),
in
failing to come to her rescue from the offending conduct on the part
of Mthethwa. Instead, the Respondent reliedbased her claim
against
the Appellant on the
actio
legis Aquiliae
and
on an action for pain and suffering. She stated that her bodily
integrity was unlawfully and negligently infringed as a result
of
Mthethwa’s acts.
[27]
The Respondent also proved before the court
a
quo
that
she requires psychotherapy and psychiatric medication. She alleged a
breach of its duty on the part of the Appellant in failing
to create
a safe working environment for her benefit. According to her, that
the failure resulted in her being sexually harassed
by a fellow
employee at the workplace. Hence, the court
a
quo
ordered
the Appellant to pay an amount of R60 000-00 plus costs.
[28] The Appellant
did not dispute the sexual harassment allegedly committed by
Mthethwa, together with the fact that the Respondent
was in its
employ at the applicable period. In fact, instituting disciplinary
proceedings against Mthethwa, and imposing a sanction
on him based on
the written complaint lodged by the Respondent is indication that
Appellant does not dispute the allegations.
[29] I find that the
Appellant delayed overly in taking action to prevent Mthethwa from
continuing with his unacceptable behavior.
After the Respondent
reported Mthethwa’s conduct, it took Steenekamp forever to do
anything meaningful. He was too preoccupied
with stepping too
carefully, knowing that Mthethwa is well connected within the
Appellant. Even in taking steps, the Appellant
merely instituted
disciplinary proceedings, issued a final written notice, and left the
rest to fate as to what then happens between
the Respondent and
Mthethwa. That is why Mthethwa still found space to perpetrate his
offensive conduct further.
[30] It was argued
on behalf of the Appellant that the Respondent’s claim cannot
succeed because Dr. Mostert did not find
that the Respondent suffered
Post-Traumatic-Stress-Disorder. It has to be borne in mind that Dr.
Mostert nonetheless recommended
treatment for the Respondent.
That
treatment shall come at a cost. Based on considerations made in a
similar regard in the case of Allied v Road Accident Fund
and on
writings in Corbett & Honey
5
,
the
court
a quo
determined
that R60 000 - 00 is an appropriate amount to be paid by the
Appellant for the benefit of the Respondent. I find no fault
with the
findings of the
court
a qou.
[31] In the
circumstances I am of the view that the judgement and the
corresponding order, made by the trial court is correct.
In the result I make
the following order:
1. The appeal is
dismissed with costs.
T A MAUMELA
JUDGE OF THE HIGH
COURT
I agree:
D DOSIO
ACTING JUDGE OF
THE HIGH COURT
L M MOLOPA -
SETHOSA J
JUDGE OF THE HIGH
COURT
I agree and it is so
ordered
1
2005
(6) 328 (SCA), at paragraph 64 onwards
2
[1998] ZASCA 84
;
1999
(1) SA 202
(AD), at 216 E to F
3
Supra
4
1973
(1) SA 769
(AD), at 779 H
5
"The
Quantum of Damages in bodily and fatal injuries".