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[2023] ZALCJHB 4
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Solidarity obo Oosthuizen v South African Police Service and Others (JS1030/17) [2023] ZALCJHB 4; [2023] 3 BLLR 258 (LC); (2023) 44 ILJ 882 (LC) (10 January 2023)
HEADNOTE:
LABOUR
–LABOUR AND VICARIOUS LIABILITY
Labour
– Unfair discrimination – Racial harassment –
Vicarious liability – Police services –
Officers
making false accusations and racially harassing superior officer
– Police services failing to investigate
and take necessary
steps –
Employment Equity Act 55 of 1998
,
ss 6
and
60
.
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS1030/17
In
the matter between:
SOLIDARITY
obo A OOSTHUIZEN Applicant
and
SOUTH
AFRICAN POLICE SERVICE First
Respondent
THE
MINISTER OF POLICE NO Second
Respondent
THE
NATIONAL COMMISSIONER OF Third
Respondent
THE
SOUTH AFRICAN POLICE SERVICE NO
ADAM
SEDISA
TIKOE Fourth
Respondent
SEISO
CHRISTOPHER MPHANA Fifth
Respondent
Heard:
2 June 2022
Delivered: 10
January 2023
(This
judgment was handed down electronically by circulation to the
parties' legal representatives by email, publication on the
Labour
Court’s website and released to SAFLII. The date and time for
hand-down is deemed to be 10 January 2022)
Summary: Unfair
discrimination –
section 6(1)
of EEA –
section 60
–
employer vicariously liable.
JUDGMENT
NKUTHA-NKONTWANA,
J
Introduction
[1]
In this action, the applicant (Solidarity), acting on behalf of
Colonel A Oosthuizen
(Col. Oosthuizen), is challenging the conduct of
the first to third respondents (SAPS, the Minister and the National
Commissioner)
in failing to deal with her grievances pertaining to
the unfair discrimination that was perpetrated by the fourth and
fifth respondents
(Warrant Officers (WOs) Tikoe and Mphana). The
first to third respondents are opposing the action and are
collectively referred
to as the respondents.
[2]
The trial commenced on 19 April 2021 and became part heard on 21
April 2021. It resumed
on 13 June 2022 and was still part heard on 17
June 2022. It sat for the last time on 12 to14 September 2022. The
parties agreed
to file written closing submissions. Solidarity filed
its heads of argument on 29 September 2022, while the respondents
filed their
heads of argument on 27 September and their reply to
Solidarity’s heads of argument on 4 October 2022.
Background
[3]
This matter pertains to the allegations of racial abuse suffered by
Col. Oosthuizen
at the instance of her direct subordinates, WOs Tikoe
and Mphana, and the alleged failure by the respondents to protect and
defend
her dignity.
[4]
Col. Oosthuizen has been in the employ of SAPS since 1990. At the
time of the incident,
she held the rank of Lieutenant Colonel (Lt.
Col) and was the Commander of Human Resources Management (HRM) at the
Klerksdorp Police
Station (Klerksdorp).
[5]
The genesis of this contestation is the incident that took place on
27 February 2017.
WOs Tikoe and Mphana went to Col. Oosthuizen
consequent to her corrective action against them. She testified that
the two WOs were
not happy with the fact that she had instructed WO
Tikoe to complete a leave form upon realising that he had signed the
Z8 form
as if he was at work on 24 February 2017 when he was, in
fact, absent. While on 24 March 2017, she had issued WO Mphana with a
verbal warning in relation to absenteeism. There was an altercation
during which the two WOs threatened and intimidated Col. Oosthuizen
and accused her of calling them “kaffirs”.
[6]
Col. Oosthuizen reported the incident to Col. Mohulatsi, the Station
Commander at
Klerksdorp, who issued an instruction that the matter be
investigated with a view to institute disciplinary action against the
WOs. On 28 February 2017, Lt. Col. Weydeman was appointed to
investigate WO Tikoe and Captain Du Plessis was appointed to
investigate
WO Mphana. Lt Col. Mohultasi requested that the two WOs
be transferred pending the investigations but that was never
effected.
[7]
On 1 March 2017, WO Tikoe opened a case of crimen injuria against
Col. Oosthuizen
under case number 10/03/2017 alleging that on 27
February 2017 Col. Oosthuizen called him and WO Mphana “kaffirs”.
On the other hand, Col. Oosthuizen opened a case of intimidation
against the two WOs under case number 13/3/2017.
[8]
On 7 March 2017, the two WOs lodged a grievance against Col.
Oosthuizen alleging that,
on 27 February 2017, she called them
“kaffirs” and she often called blacks “kaffirs”.
They demanded that
Col. Oosthuizen be transferred pending
investigation as they felt unsafe and intimidated by her presence at
work.
[9]
On 13 March 2017, Captain Du Plessis issued his investigation report
wherein he found
that the complaint against WO Mphana was serious and
recommended that disciplinary action be taken against him. On 16
March 2017,
Lt. Col. Weydeman also issued his investigation report
wherein he found that the allegations against WO Tikoe were serious
and
that disciplinary action be taken against him.
[10]
On 15 March 2017, Col. Oosthuizen was approached by Ms Sechele, an
intern at the SAPS, who informed
her that she overheard the WOs
conspiring to falsely accuse her of calling them “kaffirs”.
Ms Sechele later gave a
statement confirming what she heard and
observed and the fact that the WOs had plotted to falsely accuse Col.
Oosthuizen of referring
to them as “kaffirs”. Col.
Oosthuizen opened a criminal case of crimen injuria, criminal
defamation and perjury against
the two WOs under case number
400/3/2017.
[11]
On 7 April 2017, Col. Oosthuizen lodged a grievance requesting that
disciplinary proceedings
be instituted against WOs Mphana and Tikoe
for falsely accusing her of calling them “kaffirs”.
Instead of dealing with
the grievance, on 16 May 2017, Col.
Oosthuizen was transferred pending the finalization of the
disciplinary investigation that
was instituted against her. On 22 May
2017, Solidarity wrote to the SAPS wherein it questioned, inter alia,
the transfer of Col.
Oosthuizen, and demanded that the WOs be
subjected to disciplinary action for falsely accusing Col.
Oosthuizen.
[12]
The criminal case against Col. Oosthuizen was not prosecuted. On 22
May 2017, the Chief Prosecutor
was of the view that there were no
reasonable prospects in the complaint lodged by WO Tikoe.
[13]
On 25 May 2017, Captain Morris, who was appointed to investigate WOs
Mphana and Tikoe per case
number 400/03/2017 which pertained to,
inter alia, the false accusation that Col. Oosthuizen called them
“kaffirs”,
issued his report where he found as follows:
‘
I
find that this is a serious matter. I could not find that any member
had an argument with Me. Sechele that can explain that she
had
something to gain by getting the two warrant officers in trouble with
the complainant. Me Sechele also made other allegations
about the two
members and about not wanting to sign a leave form. I further find
that there is a Prima Face case against the said
members i.t.o
regulation 5(3)(a)
and that they be charged accordingly.’
[14]
Yet, the above recommendation was not implemented as the Provincial
Commissioner and POPCRU,
the two WOs’ trade union, had agreed
to suspend the disciplinary actions against the two WOs. Instead,
Col. Oosthuizen was
investigated by Col. Tlhoaele who, in turn,
recommended that she be charged for allegedly contravening
Regulation
5(3)(n)
or (t) and (u)
[1]
of the
South African Police Service Discipline Regulations, 2016.
[15]
On 23 June 2017, Brigadier Lekubu confirmed that the disciplinary
hearing against WO Mphana was
suspended pending the finalisation of
his grievance against Col. Oosthuizen and that the transfers of WOs
Mphana and Tikoe had
been placed on hold.
[16]
On 28 June 2017, Col. Oosthuizen registered a second grievance due
to, inter alia, the failure
of the SAPS to comply with their own
internal policies and procedure and for suspending the disciplinary
action of Mphana in order
deal with the WOs grievance. Col Oosthuizen
requested that the letter of Brigadier Lekubu be withdrawn and that
disciplinary action
be taken against WOs Mphana and Tikoe but to no
avail.
[17]
On 1 August 2017, Col. Oosthuizen referred the dispute to the CCMA
and the matter was conciliated
on 20 September 2017 and a certificate
of non-resolution was issued.
[18]
On or about 14 August 2017, Col. Oosthuizen received a notice that a
decision was taken to charge
her for using the word “kaffir”.
On 14 September 2017, she appeared before a disciplinary hearing
chaired by Col. Raphata.
She was acquitted on all charges and the
chairperson opined that:
‘
There
was [sic] contradictions on the testimony of the three witnesses of
the Employer;
There
was testimony that WO Tikoe and Mphana colluded to falsely accuse Lt
Col Oosthuizen;
The
two members showed during their testimony that they have a toxic
relationship.’
[19]
On 6 November 2017, WO Tikoe lodged another grievance, alleging once
again that on 27 February
2017 Col Oosthuizen called them “kaffirs”.
[20]
After various correspondence between Solidarity and SAPS in relation
to the manner it had been
handling Col. Oosthuizen’s
grievances, on 19 March 2018, the WOs were ultimately charged. They
appeared before the disciplinary
hearing on allegations of prejudice
against the administration; discipline or efficiency of the
department, office or institution
of the state; conducting themselves
in an improper and disgraceful and unacceptable manner and
intimidation or victimization of
another employee.
[21]
WO Mphana was found not guilty and the reason being that the employer
representative and employee
representative agreed that there are no
statements that corroborated and proved that he committed misconduct
as the statements
before the chairperson were incorrect and
constituted hearsay facts. On the other hand, WO Tikoe pleaded guilty
and was given a
sanction of a written warning and one-day leave
without pay.
[22]
Col. Oosthuizen and Solidarity challenged the turn of events.
Moreover, because Col. Oosthuizen
was never called as a witness
during the two WOs disciplinary enquiry despite being the
complainant. They sent numerous correspondences
which were directed
to the SAPS, impugning its failure to take action against the two WOs
for falsely accusing Col. Oosthuizen
of calling them “kaffirs”.
[23]
It was brought to the attention of the Court that on 23 October 2020,
WOs Tikoe and Mphana were
found guilty in the Regional Court of the
North West Regional Division, of, amongst others, assault,
contravening section 9 of
the Justice of the Peace and Commissioners
of Oaths Act
[2]
, obstructing
the administration of justice and crimine inuiria.
[24]
They were consequently charged internally and appeared before the
disciplinary hearing. They
were found guilty of the following
charges:
[3]
‘
In
terms of section 40 of the South African Police Service Act, 1995
(Act No 68 of 1995), read with the South African Police Service
Discipline Regulations, 2016, you are hereby charged with misconduct,
in that you allegedly contravened Regulation 5(3)(dd) of
the said
Regulations, at or near Klerksdorp on or about 3 June 2020 between
7:30 and 16:00, you were found guilty in Stilfontein
Regional Court
(case SRC 87/17) on the following criminal charges in Klerksdorp CAS
13/3/2017:
Charge
2- made a false statement(s) knowing it to be false in an affidavit
to a commissioner of oath.
Charge
4- injure and insult and impair the dignity of Annemarie Oosthuizen
making her out as a racist.’
[25]
Both WOs were subsequently dismissed.
Legal
principles and application
[26]
The point at issue in this matter is whether the respondents are
vicariously liable in terms
of section 60 of the Employment Equity
Act
[4]
(EEA) for the
racial harassment and bullying perpetrated by WOs Tikoe and Mphana
against Col. Oosthuizen.
[27]
Section 60 clearly provides:
‘
(1)
If it is alleged that an employee, while at work, contravened a
provision of this Act, or engaged in any conduct
that, if engaged in
by that employee’s employer, would constitute a contravention
of a provision of this Act, the alleged
conduct must immediately be
brought to the attention of the employer.
(2)
The employer must consult all relevant parties and must take the
necessary steps to eliminate the alleged
conduct and comply with the
provisions of this Act.
(3)
If the employer fails to take the necessary steps referred to in
subsection (2), and it is proved that
the employee has contravened
the relevant provision, the employer must be deemed also to have
contravened that provision.
(4)
Despite subsection (3), an employer is not liable
for the conduct of an employee if that employer is able
to prove that
it did all that was reasonably practicable to ensure that the
employee would not act in contravention of this Act.’
[28]
Section 6 of the EEA deals with the prohibition of unfair
discrimination and subsection (1) thereof
provides:
‘
No
person may unfairly discriminate, directly or indirectly, against an
employee, in any employment policy or practice, on one or
more
grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnic or social origin, colour, sexual
orientation, age, disability, religion, HIV status, conscience,
belief, political opinion, culture, language, birth or on any other
arbitrary ground.’
[29]
Pertinently, subsection 6(3) provides:
‘
Harassment
of an employee is a form of unfair discrimination and is prohibited
on any one, or a combination of grounds of unfair
discrimination
listed in subsection (1).’
[30]
Section 11 of the EEA deals with the burden of proof and clearly
states that an allegation of
harassment must be tied to conduct based
on a discriminatory ground; providing that:
‘
(1)
If unfair discrimination is alleged on a ground listed in section
6(1), the employer against whom the allegation
is made must prove, on
a balance of probabilities, that such discrimination –
(a)
did not take place as alleged; or
(b)
is rational and not unfair, or is otherwise justifiable.
(2)
If unfair discrimination is alleged on an arbitrary ground, the
complainant must prove, on a balance
of probabilities, that –
(a)
the conduct complained of is not rational;
(b)
the conduct complained of amounts to discrimination; and
(c)
the discrimination is unfair.’
[31]
In the present instance, the discriminatory conduct is tied to
alleged harassment which is based
on the ground of race. Accordingly,
the respondent accepts that they bear the onus in terms of section
11(1).
[32]
The issues for determination are as follows:
32.1.
Whether the conduct of WOs Tikoe and Mphana in harassing and falsely
accusing Col. Oosthuizen of racism by WO Tikoe and WO
Mphana
constitutes unfair discrimination; and
32.2.
Whether the first to third respondents failed to act in accordance
with section 60 and as such are vicariously liable for
contravening
the provisions of the EEA;
32.3.
The relief in the event the first to third respondents are found to
have contravened the provisions of the EEA.
Whether
WOs Tikoe and Mphana unfairly discriminated against Col. Oosthuizen
[33]
As aptly put by the apex Court in
Rustenburg
Platinum Mine v SA Equity Workers Association on behalf of Bester and
Others
[5]
,
the “impact of the legacy of apartheid and racial segregation
that has left us with a racially charged present”. The
use of
racial slurs such as “kaffir” stubbornly persists in the
workplace, uttered not only by those with the power
to subjugate.
Notably, there is an emerging trend of false claims of racial
or sexual harassment by subordinates against
their superiors in order
to circumvent being disciplined.
[34]
In the present instance, it is Col. Oosthuizen’s undisputed
evidence that on 27 February
2017, WOs Tikoe and Mphana were
ill-mannered and harassed her for taking disciplinary measures
against them. In fact, WO Tikoe
later admitted during his
disciplinary enquiry that he did act in an ill-mannered manner. I
will return to this point later when
I deal with the conduct of SAPS
after it became aware of the incident and the investigation reports
that recommended that the WOs
be disciplined.
[35]
What transpired thereafter is really unfortunate. Instead of dealing
with WOs Tikoe and Mphana’s
ill-discipline, SAPS entertained
their grievance based on false allegations of racism against Col.
Oosthuizen. She was transferred
pending investigation and brought
before a disciplinary hearing on a false accusation. The chairperson
of the disciplinary enquiry
found no reason not to accept Ms
Sechele’s statement that she overheard the WOs plotting to
falsely accuse Col. Oosthuizen
of using the word “kaffir”.
Hence she was exonerated. It is telling that, despite the
chairperson’s conclusion
that the WOs evidence showed that they
had a toxic relationship, the SAPS did not conduct further
investigation into their conduct.
It took a persistent complaint by
Solidarity for SAPS to take disciplinary measures but failed to deal
with the complaint of racial
harassment.
[36]
In the circumstances, it is absolutely clear that Col. Oosthuizen was
racially harassed by WOs
Tikoe and Mphana which was motivated by
insubordination and animus. The respondents’ submission that
Solidarity failed to
prove that there was discrimination is untenable
as the racial harassment complained of is based on a listed ground in
terms of
section 6(1) of the EEA. Furthermore, it is not their case
that the overtly offensive conduct of WOs Tikoe and Mphana was fair.
Whether
the respondents failed to act in accordance with section 60 and as
such are vicariously liable for contravening the provisions
of the
EEA
[37]
In
SAMKA
v Shoprite Checkers (Pty) Ltd and Others
[6]
the
Labour Appeal Court (LAC) endorsed the following requirements for the
application of section 60 of EEA set out in
Mokoena
and another v Garden Art (Pty) Ltd and another
[7]
:
‘
40.1
The conduct must be by an employee of the employer.
40.2
The conduct must constitute unfair discrimination…
40.3
The conduct must take place while at work.
40.4
The alleged conduct must immediately be brought to the attention of
the employer.
40.5
The employer must be aware of the conduct.
40.6
There must be a failure by the employer to consult all relevant
parties, or to take the necessary steps to eliminate
the conduct or
otherwise to comply with the EEA, and
40.7
The employer must show that it did all that was reasonably
practicable to ensure that the employee would not act in
contravention of the EEA.’
[38]
It is worth mentioning that these requirements were recently codified
in terms of the Code of
Good Practice on the Prevention and
Elimination of Harassment
[8]
which came into effect on 18 March 2022. Instructively, clause 10.3
provides that:
‘
Failure
to take adequate steps to eliminate harassment once an allegation of
harassment by an employee has been submitted within
a reasonable
time, will render the employer vicariously liable for the conduct of
the employee in terms of section 60 of the EEA.
This is the case even
if the harassment consists of a single incident.’
[39]
In the present instance, it is common cause that the SAPS was made
aware of actionable harassment
perpetrated by WOs Tikoe and Mphana as
soon as it took place. Even though initially swift steps were taken
to investigate the insubordinate
conduct, the investigation reports
by Col. Weydeman and Captain Du Plessis, that had recommended that
disciplinary measures be
taken against WOs Tikoe and Mphana, were
abandoned. While Captain Morris’s investigation report, which
found that there was
a prima facia case of racial harassment against
the two WOs, was never implemented.
[40]
Despite the respondents’ insistence that SAPS took all the
necessary steps to address the
racial harassment that was perpetrated
by WOs Tikoe and Mphana, that contention is not backed up by
evidence. Two of its witnesses,
Col. Gause, the initiator, and
Brigadier Tlotleng, the chairperson, in the disciplinary hearing of
WOs Tikoe and Mphana conceded
that the two WOs were never charged for
making false allegations of racism and discrimination. In fact, no
witnesses were called,
in particular, Col. Oosthuizen, the
complainant. Col. Gause testified that the ultimate charges were
decided on the basis of the
statements that had been made available
to him. He was not aware of the investigation reports by Col.
Weydeman and the two Captains,
Du Plessis and Morris.
[41]
On the other hand, Brigadier Sibeko, the Provincial Head: Personnel
Management for the North
West Province, the respondents’ main
witness, conceded during her cross-examination that Col. Gause was
not given all of
the investigation reports. It was her view that
Captain Morris’ report was not informative and hence she
decided to extract
some of the informative statements from the
reports of Col. Weydeman and Captain Du Plessis. There was no
explanation proffered
for the conduct of Brigadier Sibeko other than
a flimsy proposition by the respondents’ counsel that she had
the discretion
to do so. Regrettably, she abused that discretion in
order to suppress the critical evidence and in turn manipulate the
outcome
of the disciplinary hearing against WOs Tikoe and Mphana.
[42]
It is also strange that the respondents persist with their stance
that Ms Sechele’s statement
was suspicious or influenced by
Col. Oosthuizen despite the fact the allegation that she called the
two WOs “kaffirs”
was never proven. To my mind, that
clearly shows that SAPS dismally failed to investigate the racial
confrontation and take necessary
steps to eliminate it. Conversely,
what transpired is that SAPS did everything in its power to protect
the perpetrators of racial
harassment.
[43]
The racial harassment perpetrated by the two WOs was not just a
single incident in a spare of
the moment. It was premeditated
machination to get rid of Col. Oosthuizen. She testified that the two
WOs organised a demonstration
by their fellow union members during
her disciplinary enquiry, they laid a case against her with the
Equity Court and she was transferred
pending her disciplinary enquiry
while they remained untouched. Brigadier Sibeko conceded during her
cross-examination that had
the two WOs gotten away with their false
allegations, Col Oosthuizen would have been dismissed.
[44]
After a careful analysis of the respondents’ version of
defence, it is apparent that they
are oblivious to their statuary
duties in terms of section 60 of the EEA. There is no evidence that
the respondents were able to
produce to show:
44.1.
Firstly, that SAPS consulted all relevant parties. Solidarity was the
one that was imploring SAPS to take action. Worse still,
Col.
Oosthuizen was unjustly criticised for lodging grievances while the
racial harassment persisted;
44.2.
Secondly, that they took the necessary steps to eliminate racial
harassment within SAPS or to comply with the EEA. Instead,
they acted
in a partial manner by protecting the perpetrators at the expense of
the victim; and
44.3.
Thirdly, they did all that was reasonably practicable to ensure that
WOs Tikoe and Mphana would not racially harass Col. Oosthuizen
or act
in contravention of the EEA. Tellingly, they incorrigibly persisted
during trial to vilify Col. Oosthuizen for vindicating
her right to
dignity and equality.
[45]
In my view, for the employer to escape being held vicariously liable
for the actionable discriminatory
conduct of its employees, it must
show (i) that it took reasonable precaution to prevent and promptly
correct the inimical behaviour,
and (ii) that the employee
unreasonably failed to take advantage of the employer’s
preventive or corrective opportunities
[9]
.
To achieve that, the employer would be expected to transcend the
confines of superficial compliance and deal with historical
ethos and
systems that may have created a toxic environment which is
susceptible to racial harassment
[10]
.
Remedy
[46]
Section 50 (2) of the EEA provides inter alia that:
‘
If
the Labour court decides that an employee has been unfairly
discriminated against, the court may make any appropriate order that
is just and equitable in circumstances, including –
(a)
payment of compensation by the employer to that employee;
(b)
payment of damages by the employer to that employee;
(c)
an order directing the employer to take steps to prevent the
same unfair discrimination...’
[47]
In
SA
Revenue Service v Commission for Conciliation, Mediation and
Arbitration and Others
[11]
,
the Constitutional Court cautioned the courts of its constitutional
imperative responsibility to root out racism. It was stated
that:
‘
[12]
The Constitution is the conscience of the nation. And the courts are
its guardians or custodians. On their shoulders
rests the very
important responsibility of holding our constitutional democracy
together and giving hope to all our people that
their constitutional
aspirations will be realised. To this end, when there is litigation
about racial supremacy related issues,
it behoves our courts to
embrace that judgement call as dispassionately as the judicial
affirmation or oath of office enjoins them
to and unflinchingly bring
an impartial mind to bear on those issues, as in all other cases.
[13]
Judicial Officers must be very careful not to get
sentimentally connected to any of the issues being reviewed. No overt
or subtle sympathetic or emotional alignments are to stealthily or
unconsciously find their way into their approach to the issues,
however much the parties might seek to appeal to their emotions. To
be caught up in that web, as a judicial officer, amounts to
a dismal
failure in the execution of one’s constitutional duties and the
worst betrayal of the obligation to do the right
thing, in line with
the affirmation or oath of office.
[14]
Bekker CJ, Mohamed CJ and Zondo JP observed in essence that
racist conduct requires a very firm and unapologetic response
from
the courts, particularly the highest courts. Courts cannot therefore
afford to shirk their constitutional obligation or spurn
the
opportunities they have to contribute meaningfully towards the
eradication of racism and its tendencies. To achieve that goal
would
depend on whether they view the use of words like kaffir as an
extremely hurtful expression of hatred and the lowest form
of
contempt for African people or whether the outrage it triggers is
trivialised as an exaggeration of an otherwise less vicious
or
vitriolic verbal attack.’ (Own emphasis)
[48]
Col. Oosthuizen seeks compensation equivalent to six months’
salary for the humiliation
and insult she suffered at the hands
of the two WOs which was compounded by SAPS’s partisan and
insular nature of its response.
Furthermore, instead of owning up to
its flaws, it baldly denied that Col. Oosthuizen was racially
harassed and vilified her
[12]
.
As aptly observed by the Constitutional Court in
McGregor
v Public Health and Social Development Sectoral Bargaining Council
and Others
[13]
,
the sanction in cases of harassment (albeit sexual harassment) serves
as a deterrent and should unequivocally send a stern warning
to
employees who perpetrated harassment that they do so at their peril.
[49]
I agree that Col. Oosthuizen is entitled to payment of compensation
in the form of a solatium
for the racial harassment which negatively
impacted on her dignity. Moreover, some compensation is justified in
the light of SAPS’s
biased approach in manipulating the WOs
disciplinary hearing and the outcome.
[50]
In
Minister
for Justice and Constitutional Development and another v
Tshishonga
[14]
,
dealing with compensation, the Labour Appeal Court stated that:
[20]
For all the reasons set out in this judgment, a significant award is
justified. While the principles developed
in the cases dealing with a
solatium are important, the actual amount to be awarded is a
discretionary act of the court; there
is no tariff to which recourse
can be made.
[21]
To the extent that precedent is of assistance, in
Mogale and
Others v Seima
2008 (5) SA 637
(SCA) at para 18, it was noted
that courts have not been generous in their awards of solatia. In
Mogale, a newspaper, with a readership
of possibly more than 900,000,
carried a report that plaintiff gave his girlfriend a ‘hot
klap’ for having taken notice
of other men. The newspaper
tendered an apology which was not accepted. The Supreme Court of
Appeal reduced the award from R70,000
to R12,000.
[22]
In this case, a far more significant sum should be awarded as
compensation for the indignity suffered, the extent
of the
publication of the attack on respondent (publication being on
national television) and the persistent, egregious nature
of the
attacks upon respondent which has been triggered because he had acted
in the national interest. In my view, an amount of
R100,000 is thus
justified, that is apart from the R 177,000 in respect of costs
incurred in respondent’s defence.’
[51]
In addition, Col. Oosthuizen seeks a written apology from SAPS for
the indignity and ordeal she
had been subjected to. I see no reason
why SAPS should not own up to its mistakes and apologise to Col.
Oosthuizen
[15]
.
Conclusion
[52]
In all the circumstances, I am satisfied that for a period of about a
year, Col. Oosthuizen was
disparaged and humiliated by the racial
harassment that was perpetrated by the two WOs with impunity. SAPS is
therefore vicariously
liable for the actionable racial harassment. In
my view, the compensation equivalent to R300 000 is just and
equitable. Moreover,
SAPS shall tender a written apology to Col.
Oosthuizen for the indignity she had suffered.
Costs
[53]
Section 162 of the Labour Relations Act
[16]
confers this Court with a discretion to make orders as to costs,
based on the requirements of the law and fairness. In the
present
instance, awarding costs in favour of Solidarity is justifiable given
the history of this matter and the outcome I have
arrived at above.
[54]
In the circumstances, I make the following order:
Order
1.
The first to third respondents are directed to pay Col. Oosthuizen
R300 000 in compensation.
2.
SAPS shall tender a written apology to Col. Oosthuizen for the
indignity she had suffered
within a week from the date of this order.
3.
The first to third respondents are to pay Solidarity’s costs.
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
Applicants: Advocate
D.J. Groenewald
Instructed
by: Serfontein,
Viljoen & Swart Attorneys obo Solidarity
Respondent: Advocate
S Mbhalati
Instructed
by: Leepile
Attorneys
[1]
Regulation 5(3) of the provides that an employee will be guilty of
misconduct if he or she:
‘…
(n)
unfairly discriminates against others on the basis of race, gender,
disability, sexuality or other grounds prohibited by the
Constitution;
…
(t)
conducts himself or herself in an improper, disgraceful and
unacceptable manner;
…
(u)
contravenes any prescribed Code of Conduct of the Service or the
Public Service, whichever may be applicable to him or her…’
[2]
Act 16 of 1963
[3]
Bundle D p 5-8.
[4]
Act 55 of 1998, as amended
[5]
(2018) 39 ILJ 1503 (CC); 2018 (8) at para [48].
[6]
(2020) 41 (ILJ) 1945 (LAC) at para [12].
[7]
[2007] ZALC 90
;
[2008] 5 BLLR 428
(LC) at para
[40]
.
[8]
GNR.1890 of 18 March 2022
[9]
See:
Biggar
v City of Johannesburg
(Emergency
Management Services)
[2008] ZALC 29
;
[2017] 8 BLLR 783
(LC) at para
[47]
.
[10]
See: N Naylor ‘Villains and (s)heroes in the quest for truth
and justice in sexual harassment cases’ 2020 Acta Juridica,
p.
27 – 62
[11]
(2017) 38 ILJ 97 (CC) at paras [12] – [14].
[12]
McGregor v Public
Health and Social Development Sectoral Bargaining Council and Others
2021 (5) SA 425
(CC) at
paras [43] - [45].
[13]
Id.
[14]
(2009) 30 ILJ 1799 (LAC) at paras [20] - [22].
[15]
See:
Atkins
v Datacentrix (Pty) Ltd
(2010)
31 ILJ 1130 (LC)
[16]
Act 66 of 1995, as amended.