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[2010] ZALCD 15
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G v Minister of Safety & Security and Another (D495/06) [2010] ZALCD 15 (18 June 2010)
IN
THE LABOUR COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO:
D495/06
HEARD:
24-28 MAY 2010
DELIVERED:
18 JUNE 2010
In the matter between
G
APPLICANT
versus
THE
MINISTER OF SAFETY &
SECURITY
FIRST RESPONDENT
THE PROVINCIAL
COMMISSIONER OF THE SOUTH
AFRICAN
POLICE SERVICE KWAZULU-NATAL
SECOND RESPONDENT
JUDGMENT
18
JUNE 2010
PILLAY
D, J
Introduction
1.
This is a claim for sexual harassment
arising from a sexual relationship between a married male, the
alleged harasser, referred
to as R, and a middle aged unmarried
female, the alleged victim, referred to as the employee. Both are
employees in the South African
Police Service (SAPS). R is an Area
Commissioner, which is a managerial position superior to the
Administrative Clerk post of the
employee.
2.
Manifestly, the constituent elements of
sexual harassment, namely hierarchy, power and sex are present.
However, did R force
the employee to have sex? If he did, he
would have sexually harassed her. Would the Minister then be
vicariously liable for
compensation and expenses of R635 000 if it
failed to act against R’s misconduct? Irrespective of
whether R sexually
harassed the employee, does the SAPS have a duty
to act against R?
The
Parties
3.
The employee is the applicant. The Minister
of Safety and Security is the first respondent. The Provincial
Commissioner of the South
African Police Service KwaZulu-Natal is the
second respondent. R is not a party to this litigation.
The
Employee’s Case
4.
The employee’s case is that R
sexually harassed her over three years before she complained about it
on 31 August 2005.
The SAPS failed to investigate her
complaint and took no disciplinary action against R.
5.
As a result of her compliant, she was
victimised. R and other members of the SAPS treated her badly.
Her promotion to Lamontville
and the treatment she received there
evidenced her victimisation.
6.
The
SAPS offered her no assistance, advice or counselling for sexual
harassment; nor did it take steps to eliminate sexual harassment.
She suffered psychological and emotional trauma as a result of the
sexual harassment, which aggravated a pre-existing post-traumatic
stress disorder (PTSD).
[1]
The
SAPS’s Case
7.
The relationship between the employee and R
was consensual. As R did not sexually harass the employee, the SAPS
was not vicariously
liable. Even if R did harass the employee, the
SAPS investigated her complaint and complied with all the
requirements of the law
and its policy on sexual harassment.
The
Law
8.
The employee relies on section 60(3)
of the Employment Equity Act No. 55 of 1998 (EEA) to invoke the
liability of the SAPS.
Section 60 provides as follows:
“
(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.”
9.
This formulation of the test sets
harassment (“conduct”) as a prerequisite for an employer
to incur vicarious liability
in terms of section 60(3).
Therefore, the first step in this inquiry is to determine whether the
R sexually harassed the employee.
10.
Section 60 provides for the liability of
employers generally. Subsection (2) refers to “conduct”
generally; it is not
limited to harassment specifically; however,
“contravention” in section 60 refers specifically to
contraventions in
terms of the EEA, not the LRA, not the common law,
not any other law. Furthermore, subsection (4) imposes an obligation
on employers
to do everything “reasonably practicable” to
ensure that the offending employee would not breach the EEA. Although
neither party canvassed the provisions of subsection (4), it could be
relevant when assessing the SAPS’s liability for R’s
conduct.
11.
The
EEA does not define “harassment” but treats it as
discrimination.
[2]
It also does
not define “sexual harassment”. T
he
Amended Code of Good Practice on the Handling of Sexual Harassment
Cases in the Workplace also treats
sexual
harassment as discrimination.
[3]
It sets the test as “unwanted conduct of a sexual nature
that
violates the rights of an employee and constitutes a barrier to
equity in the workplace, taking into account certain factors
”
.
[4]
Conversely, behaviour that is desired, welcome, mutual or reciprocal
is excluded from the definition.
[5]
The
Onus
12.
Conceptually
connected as harassment is to discrimination, it follows that the
onus of proving harassment rests on the party who
alleges s/he has
been harassed, in this case employee. The employer, in this case, the
SAPS, bears the burden of proving the fairness
of the discrimination
or, more practically in a harassment case, the treatment did not
amount to harassment.
[6]
Furthermore, based on the standard that a litigant has to
satisfy the court that s/he is entitled to succeed,
[7]
the employee has to prove the harassment because it is
exclusively within her knowledge.
The
Process
13.
The employee closed her case. The
SAPS applied for absolution from the instance on the basis that the
employee has not discharged
the onus of proving that R sexually
harassed her or that the SAPS delayed or otherwise failed to take
steps to eliminate harassment.
14.
Absolution
will not be granted, unless the employee clearly fails to discharge
her onus. She must establish a
prima
facie
case of harassment, to avoid absolution.
[8]
The
Employee’s Evidence
15.
On 20 October 1980 the employee
joined the police force as a level 1 administrative clerk.
Over the next 20 years
she progressed to a level 6 clerk
earning a salary of about R70 000 per annum. By the time
she instituted this
claim she was a level 7 Chief Administrative
Clerk.
16.
It was New Years’ Eve, 1986. At
the time R was a lieutenant. The employee went into his office
to wish him before
leaving. He put his left hand on her right
breast and his tongue into her mouth. Feeling uncomfortable,
shocked, horrified,
but not devastated, the employee retreated to her
office. She did not talk about the incident to anyone, fearing
that her
father, who was a major in the SAPS, would be angry if he
found out. She was close to her father. Besides, she was not proud of
the incident. In the Indian community people did not talk to
their parents about sex.
17.
She secured a temporary transfer from the
Chatsworth office, where this encounter occurred, to Sydenham Police
Station where her
father worked. After six months, she returned
to Chatsworth.
18.
Although she testified about the 1986
incident, she did not plead it, nor did she mention it in statements
she subsequently made
to the SAPS. She remembered and related it for
the first time to her attorney in 2006 because she wanted her
attorney to know everything.
19.
After this incident she had contact with R
when she was charged in March 2002 for making obscene telephone
calls. She had
entertained a certain Naidoo who misrepresented
himself as a medical doctor and a widower, who was in search of a
wife. It
turned out that he was married with children.
The employee discovered this, confronted him and informed his wife of
the affair.
The wife brought charges against the employee for
crimen
iniuria
, allegedly for making abusive
telephone calls, which she withdrew. R was involved in the
investigation of this complaint.
20.
The next occasion was on 7 June 2002.
The employee had had a bad day. Her Charge Office Commander
“screamed”
at her for having lunch instead of working in
the charge office. Back home, her mother picked an argument with
her. These
two incidents set her off to confide in R and to
seek his help to improve her work life.
21.
By this stage, R had become Assistant
Commissioner for 20 stations including Chatsworth. She did not
think of asking her Station
Commissioner for help as he had not
assisted her before. As for her New Years’ Eve encounter
with R, she put that behind
her believing that, over time, he had
matured. Besides, he was now the Assistant Commissioner, a position
of power.
22.
She telephoned R. On hearing of her
troubles with the Charge Office Commander R reassured her that he
would sort them out.
He telephoned her several times that
evening. Between these calls, she drove her friend, a
Captain in the SAPS, to the
Berea to celebrate the latter’s
birthday.
23.
R arranged to meet her at a fast food
restaurant on the Berea. In the parking lot of the restaurant,
she left the Captain
in her car and joined R in his car. For
about 5 to 10 minutes they chatted about nothing serious or
memorable.
24.
R called her the following Monday and told
her that he liked chatting to her. The following week he called
her to his office
in Prospecton. When they met he reminded her
of the New Year’s Eve incident and remarked that her father
would have
“finished” him if he had known about it.
The employee did not respond.
25.
After this meeting R asked the employee to
have sex with him. In return, he offered to promote her. The
employee saw it as
a business proposal. She refused. He
persisted. By the end of June 2002, “after so much
persuasion” and
the promise of making her life better, she
succumbed.
26.
They met at a shopping centre. He
told her that he knew a very nice place he could take her to.
He drove her in her
car to a lodge. It was a “filthy
dump.” He signed the register as “Naidoo” and
paid R100.
They had sex and left.
27.
After this encounter, R gloated that the
former Provincial Commissioner had taken a bet that whoever slept
with the employee would
get R1 million. This angered the
employee so, that she reconsidered her pact to have sex with him in
exchange for her
promotion. But she relented. When he called her
again in July 2002, they had another sexual encounter at the
same lodge. Thereafter,
R vulgarly denigrated her father.
Again, she considered withdrawing from the pact. Still she persisted
with it.
28.
R allegedly started the blackmailing that
caused her to stay in the relationship for the next three years.
He threatened to
tell her family that she slept with him. She
alleged that she was vulnerable after her dad had passed away a year
before
on 14 July 2001. Consequently, she succumbed to the
threat.
29.
If her family found out about the
relationship it would have been detrimental for her as her family
held high moral and spiritual
values. Her two younger sisters
were also in the SAPS. The incidents would have embarrassed them.
Aged 42, unmarried,
she lived with her mother. She could
therefore not risk her family’s wrath and ostracism.
30.
R knew that she would not tell anyone about
the affair because she had not reported the 1986 New Year’s Eve
incident.
He swore her constantly, calling her a prostitute and
its various vulgar synonyms. Once, at the Wild Coast Casino, he swore
at
her in the presence of many people. He had been on duty in
Margate and had insisted that she join him there. On another occasion
at the Sun Coast Casino, he swore at her again in public. On both
these occasions she slapped him.
31.
Once, R had remarked that she wore diamonds
whilst he had none. She bought him a ring. She lent him money,
first, R1 000
to give as a gift to his relatives, second,
R12 000 in 2003 for reasons he did not disclose, and third,
R15 000 for fees
of counsel who was defending him in another
sexual harassment complaint. With regard to the last loan, she had to
borrow the money
herself, using his official cellphone to call the
lender in Johannesburg.
32.
The relationship impaired her health. She
does not enjoy good health. On 23 March 2000 she
volunteered to attend at the
scene of a tragic incident at the Throb
Night Club when 13 children died. Witnessing this incident
induced PTSD which, according
to the employee and psychiatrists
engaged by both parties, continues to afflict her. She also suffers
from diabetes and other ailments.
Since the Throb incident she
consults a psychiatrist. Currently, she consults Dr S Khalil
Kader, who is also her
witness in this action.
33.
The relationship aggravated her PTSD. She
became anxious and suicidal and had to be hospitalised. She
booked off sick from
19 September 2003 to 3 May
2005.
For 19
months she was on paid sick leave.
34.
During her sick leave, she indulged in her
weakness for gambling. On 29 October 2003, barely a
month after she had
booked off sick, she went to the Golden Horse
Casino in Pietermaritzburg with R.
35.
The relationship with R soured to the
extent that on 7 March 2005 she wrote an anonymous letter
to the Minister accusing
R of various acts of misconduct, including
gambling and “satisfying his lustful desires during office
hours”, leaving
his state subsidised vehicle for his family’s
use, his extramarital affairs with his subordinates and abuse of the
state’s
telephone and cellphone. Still, nowhere in the
letter did she disclose that he harassed or abused her. Without a fax
transmission
slip there is also no objective proof that she faxed
this letter to the Minister.
36.
On
13 April 2005, R blackmailed her again to visit him. In his
office, they argued. R went to the adjoining office
and
returned with a pistol allegedly threatening to shoot her if she
reported him to the SAPS. She screamed. He dropped
the
pistol. In the Minutes of the Pre-trial Conference, however, the
parties recorded as a common cause fact that R had threatened
to kill
himself.
[9]
37.
Shocked, stressed, she was admitted to
hospital on 15 April 2005. Her blood sugar level went
so out of control that
the doctors prescribed insulin for the first
time to treat her pre-existing diabetes. She was discharged on
20 April 2005.
38.
That evening at about 8 pm R
telephoned her. Blending abuse with blackmail he persuaded her
to come to his house as his
wife was away. At his house, she
found him drunk. She photographed him naked. On four
occasions when she tried
to leave he pulled her back from her car.
It got late and at about midnight she decided to stay the night at
his house.
39.
On 26 April 2005 she attended a
career session at Prospecton where R was stationed. R
telephoned her and told her
to meet him at his house.
At 10 am that morning, during working hours, they had sex at his
house.
40.
Days later she drove her friend past R’s
house. She noticed a blue VW Golf in his yard. She
drove into his
yard. Leaving her friend in the car, she knocked
on his door. He did not answer. She went to his bedroom window.
The
curtains were slightly ajar. She saw R in bed with another woman
whom she did not know. She knocked on the window. They sprang
out of bed. R hid the woman in his lounge and pushed the
employee into his bedroom. The woman left. The employee’s
friend, who was waiting in the car, telephoned her to check if she
was alright. The employee reported that R was assaulting her
by
pushing her around. She called her friend into the house.
41.
The employee recalled then that R had
boasted that he had slept with over 40 women and that he had given
her Aids. Fearing
the worst, she slapped him, before driving
off with her friend to lunch at a shopping mall.
42.
R continued to telephone her. She
asked him to repay the loan of R12 000. He undertook to
repay her on 29 April 2005
at his house. When she got
there, he called the SAPS. An inspector who attended at
his house asked her what the
problem was. She did not respond.
The inspector encouraged the employee to leave the scene, as the
inspector feared that
R might shoot her.
43.
On 30 April 2005 R again abused
and blackmailed her to get her to his office. There, he raped
her. She cut
her lip. She sent him short text messages
(sms’s) calling him “therapist” and threatening to
report him
for rape. She reported the rape to her friend and to her
sister, both social workers. They advised her to report it to the
SAPS.
That advice, she claims, and not her finding him in bed with
another woman, moved her to lodge a formal complaint of sexual
harassment.
44.
Despite threatening to report him, she
claims that she could not do so because no action was taken against
him when D, another female
officer, had complained of sexual
harassment against him. Besides, R was Assistant Commissioner
and action against him was
unlikely.
45.
Before she had booked off sick in September
2003, the employee was stationed at Chatsworth whilst R was at
Prospecton. About
26 April 2005, shortly before she
was due to return from sick leave, Captain Veerasamy asked her to
return to work in
Prospecton to clear the backlog in the medical
records office. Under cross-examination, she denied that she asked to
work in Prospecton
where R was stationed.
46.
In May 2005 she telephoned
Captain Pillay who was stationed in the Provincial
Commissioner’s office. She informed
him that R was
driving her insane. She asked him for an appointment with the
Provincial Commissioner. He gave her an
appointment. On
the appointed day, she cancelled the appointment, purportedly because
R threatened her.
47.
She took 22 days vacation leave
between May and June 2005.
48.
R asked to meet her. She opted to
meet him in his office in Prospecton. He refunded her the loan
of R12 000.
49.
On 15 August 2005 she wrote
asking for an appointment with the Provincial Commissioner. She
secured an appointment
for 19 August 2005 at 14h30.
At the meeting, she told the Provincial Commissioner “everything”.
50.
The Provincial Commissioner urged her to
leave R alone and to get on with her life. She pleaded with him
for help, saying
that she came to him because he was the Provincial
Commissioner and that she had made up her mind to make her statement
of complaint.
He asked her to call his secretary when she was
ready to make her statement. The meeting ended at 15h15.
51.
The employee called the Provincial
Commissioner’s secretary several times to arrange to make her
statement. Eventually,
she got an appointment with
Assistant Commissioner Makhanya, the Head of Legal Services
on 31 August 2005.
52.
On 26 August 2005 Veerasamy
informed her that she had been transferred “too close to the
source.” He
was referring to the close proximity in which
she worked with R after she had reported him to the Provincial
Commissioner.
He allegedly suggested that she be transferred to
Chatsworth.
53.
That
day, Area Commissioner Zikhali directed the Station Commissioner and
the Area Head of the Employee Assistance Service (EAS)
to transfer
the employee temporarily to Chatsworth to a low stress environment.
Area Commissioner Zikhali recorded that the
employee had no objection
to this intervention and assistance.
[10]
54.
However,
in court the employee contested the purpose of the transfer, saying
that it was for her alleged poor performance. She disputed
that her
performance was poor as Superintendent Nel had rated her performance
as 80%.
[11]
55.
However,
from her letter to Veerasamy
[12]
it emerges that she asked him to transfer her from Prospecton; she
regretted her request and urged him to transfer her back to
the
medical records section in Prospecton. The documentary evidence
therefore does not corroborate the employee’s evidence
in court
that she was transferred against her will. Veerasamy allegedly
replied that he would have to ask R about her request
to return to
Prospecton. Furthermore, given her reluctance to transfer to
Chatsworth, her complaint that the area officials did
not comply
promptly with Zikhali’s directive is unfounded. The
employee remained in Chatsworth until December 2005.
56.
On
31 August 2005 she met Assistant Commissioner Makhanya who
recorded her statement of complaint. Makhanya presented
the
employee with a typed statement, which the latter signed without
reading.
[13]
This statement bears no reference to either the 1986 New Year’s
Eve incident or the
rape in April earlier that very year.
57.
Later that day, Veerasamy telephoned her to
report that R had said that she was “f…ked.” This
sent her on a “guilt
trip”, whatever that meant, for
reasons she did not explain. Veerasamy called again at about
7 pm and invited
her out for a chat. He called her several
times while she was getting dressed and urged her to “dress
pretty.”
Veerasamy, accompanied by Captain Munsamy,
picked the employee up from her home. When she got into the
vehicle she realised
that Veerasamy was drunk. He drove them to
two illegal liquor sales outlets or “shebeens” in
Westcliffe and bought
alcohol.
58.
Veerasamy drove to a shopping centre in
Hillary. He dropped the employee and Munsamy off saying that he
would pick up R and
return for them. As it got late and Veersamy had
not returned, the employee called Veerasamy three times to check when
he was returning
to fetch them. Eventually, Veerasamy returned
with R. She denied under cross-examination that she had asked
Veerasamy to
set up a meeting with R.
59.
The employee got into the vehicle. R
said she should not have made the statement to Makhanya. He
insinuated that he
might commit suicide. She told Veerasamy
about the bet that R had with the former Deputy Provincial
Commissioner and Veerasamy
allegedly replied that she should be
proud.
60.
R said that he still loved her and cared
for her. Veerasamy and Munsamy left R alone with the employee
in the vehicle for
a while. R asked to kiss her.
Indignant, she declared that he would never be able to touch her for
the rest of his
life.
61.
Veerasamy and Munsamy returned to the
vehicle and they dropped her off at her home. After this
incident, which was purportedly
an attempt to intimidate or victimise
the employee, she was adamant about pursuing her complaint.
62.
At 8 am on 1 September 2005
Veerasamy telephoned the employee to inform her that R was suicidal
and urged her to
come to Prospecton with the internal postal delivery
service. When she arrived at Prospecton and entered R’s
office,
R left. Veerasamy smirked. The employee realised
that R and Veerasamy had colluded to make a fool of her.
63.
Makhanya called to inform her that Deputy
Provincial Commissioner van Eck would be investigating her
complaint.
She telephoned van Eck’s office
several times before eventually getting an appointment. During
the interview van Eck
took no notes. He wanted details
that the statement to Makhanya had omitted, such as the contact
numbers and addresses of
the employee’s witnesses and the dates
of various incidents.
64.
In court, the employee contended that she
had informed van Eck of the rape and the incident with the three
officers on the
evening of the very day she had complained to
Makhanya. She also told him about an incident on 29 October 2003
when she
and R went to a casino in Pietermaritzburg. She was on
sick leave. R was on duty. R received a message from
complainant
D to call her. R used the employee’s
telephone to call D. Van Eck asked for the employee’s
cellphone prints.
Yet van Eck included none of this information in
her statement, she pointed out.
65.
She met van Eck again in October in
the lounge of his office. He asked her “sexual
questions.” As she
spoke he crossed and uncrossed his
legs in a way that made her uncomfortable. She gave him the
dates she could recall. Again,
he did not take notes.
66.
On
24 November 2005 she met van Eck with prints of her
cellphone account and the photograph of R naked. A week later,
she called van Eck’s secretary to complain about the delay
in taking her statement. The secretary reported that van Eck
had
mislaid the documents including the cellphone prints and photograph.
The employee arranged to have her typed statement
faxed to
her.
[14]
67.
When she received the statement, she
noticed that van Eck had missed the incident of the evening of
31 August 2005
with the three officers and the date
30 April 2005 was incorrect. Van Eck had also
changed her statement to
read as if she had requested the transfer to
the medical records section of Prospecton, whereas Veerasamy had
asked her to come
there.
68.
She
was not satisfied with van Eck’s handling of the matter.
On 28 November 2005 she wrote to him to
report that she was
being pressured to withdraw the complaint against R, that she was
being promoted to Lamontville instead of
the medical office post, and
that she was not being temporarily transferred to Chatsworth as per
Zikhali’s letter dated 26 August 2005.
This
treatment, she contended, was part of R’s strategy to victimise
her for reporting him. Furthermore, Van Eck had delayed
investigating
her sexual harassment compliant for more than three months.
[15]
69.
She telephoned the National Deputy
Commissioner whom she had heard would be a good person to take up her
complaint. After
listening to the employee, the Deputy
Commissioner responded that she sounded like a woman scorned.
70.
Not
having heard from van Eck she faxed a letter dated
12 December 2005 to the Minister reiterating her complaints
about the sexual harassment and victimisation.
[16]
On 20 and 29 December 2005 she wrote to the Minister
again complaining about the lack of progress by van Eck.
[17]
On 30 December 2005 the Minister acknowledged receipt of her
correspondence sent the previous day.
[18]
71.
On
31 January 2006 she was promoted to Chief Administrative
Clerk level 7 and posted to Lamontville where conditions
were so
unhygienic that she developed cellulites. The conditions also
aggravated her diabetes.
[19]
She went to the doctor seven times that week and was eventually
hospitalised on 14 February 2006 for a week.
72.
She complained to van Eck about the
posting, alleging that she was being victimised because of her
complaint. Van Eck
told her that she would have to remain in
Lamontville because she had applied to be posted there. About
her sexual harassment
complaint, he replied he “will”
investigate. From that she deduced that he had not even started
investigating
her complaint.
73.
She
had no confidence in van Eck or anyone else from the Province
investigating a complaint against R. Consequently, on
28 January 2006
she asked the Minister to appoint a person
from outside the province to investigate her complaint.
[20]
74.
On
2 February 2006 the Divisional Commissioner responded that
van Eck was still investigating her sexual harassment
complaint. As regards her promotion complaint, she had applied
for promotion to Lamontville and the panellists had recommended
her
for the post. There was therefore no irregularity, wrote the
Divisional Commissioner.
[21]
75.
This letter did not reassure her because
van Eck had still not given her her statement of complaint to
sign. She was
on leave from 31 January 2006 to
3 February 2006 when van Eck telephoned her to ask her
to point out the
lodge to which R had taken her. She accompanied
van Eck and his secretary to the lodge.
76.
Eventually,
she signed her statement on 7 February 2006.
[22]
After she had signed it, she realised that it was wrongly dated as
“6
th”
.
She drew this to van Eck’s attention. However, she did not
notice that he had not rectified the other errors that she had
alerted him to previously. By the end of February 2006, she had
engaged her current attorneys to expedite the investigation.
77.
By
letter dated 6 March 2007 the Provincial Commissioner
replied that her transfer was not approved and would be reconsidered
if she were prepared to relinquish her promotion.
[23]
By letter dated 6 November 2007 the Station Commissioner,
Captain Zulu, notified her that unless she reported for
work
within 10 days her salary would be stopped. Her salary was
stopped in January 2008 and reinstated in March.
78.
On
30 June 2008 the SAPS charged the employee for misconduct
for making false allegations of sexual harassment against
R, when
they had a consenting relationship, and for alleging that he had
submitted false petrol claims.
[24]
79.
Van Eck
supported these charges with an affidavit in which he stated that the
employee failed to provide him with particulars
of possible
witnesses, that he viewed the records of the lodge, that the names of
the employee and R did not appear there, nor
did any of the entries
resemble R’s handwriting, that R telephoned the employee on
about a hundred occasions and that R did
not submit a false travel
claim.
[25]
The
disciplinary hearing is suspended pending this litigation.
80.
At Lamontville she continued to be
victimised. For instance, she was checking the staff leave
records and found irregularities
which she reported. An African
male unknown to her approached her in her car in the parking lot and
swore at her. He
had blood on his face. Precisely what the
connection was between the irregularities and the man with blood on
his face, she did
not clarify.
81.
Another incident occurred on
17 November 2006. Whilst Captain M I Zulu was talking to
her, Inspector V E Hlophe came into
her office and argued with her
about certain photocopies that she had made. The employee
recorded the incident in the SAPS10
OB book, noting that Inspector
Hlophe, when speaking to a student, had referred to her as “a
useless clerk” or “a
nothing”. This student had
allegedly said that she did not like Indians. The employee
asked that these incidents be
investigated.
82.
No
investigation occurred because R was by then the Area Commissioner.
He wanted to victimise her for her complaint against
him.
Following these incidents, she asked to be transferred.
[26]
Her request went unheeded until 24 July 2008 when she was eventually
transferred to Malvern.
83.
On 1 August 2008 she went to
Malvern. V G Naidoo said that he had a problem with the
Province sending her there
because he could not accommodate her.
Captain Kubair, the Support Services and Human Resources Commander,
offered to accommodate
the employee in logistics with Chief
Administrative Clerk S Govender.
84.
Whilst working at logistics V G Naidoo
reprimanded her. She retorted that he should not treat her badly
because she had a problem
with R. Following this incident she booked
off sick. Dr Kader had her admitted to hospital for nine
days. She did not
return to work.
85.
On 30 April 2009 the Provincial
Commissioner notified her that she had exhausted her sick leave of
36 days and that the SAPS
had no obligation to continue to
remunerate her if she did not tender her services. She had applied
for ill health retirement in
March 2007. Her application for
medical boarding was on the basis of her diabetes, hypertension,
hypothyroidism, anaemia,
thalessemia and her back and ankle injury
endured in the workplace in 2001. That application was still pending.
Kubair telephoned
her in July and notified her that her application
was rejected and that she should return to work. She resumed her
duties on 24
July 2009, working under Kubair’s supervision. She
lodged an appeal against the rejection of her application for ill
health
retirement.
86.
On 4 August 2009, Superintendent V G
Naidoo called her into his office. Present were the chairperson
of the Community
Policing Forum, Mr M Pillay, the Detective
Branch Commander Captain Ntshangase, Crime Prevention Commander
Captain Govender
and Kubair. They informed her that she was
being transferred to the exhibits room. Although she did not
respond to this instruction
at the meeting, she subsequently refused
to work in the exhibit office. In her view administrative duties
should not be done in
the exhibits office. Exhibits had gone
missing and they had not been audited for seven years.
87.
After the meeting, she booked off sick. Dr
Kader gave her a certificate for 4 August 2009. On 6 to
15 August 2009
she was hospitalised. Since then she has not
returned to work.
88.
Her relationship with R impaired her
relations with her family. On 9 June 2006 her mother told
her to leave the house,
failing which she would obtain “a legal
document” from the High Court to evict her. She has also
become estranged
from her sisters and brother.
89.
She became suicidal. In the first
20 years of her service she took only 85 days sick leave,
however after the PTSD
she took 120 days sick leave.
90.
She could not explain how her compensation
was computed. In fact, it was more important to her to tell her
story.
Dr
Kader’s Evidence
91.
Dr
Kader,
the only witness besides the employee, is a Specialist Psychiatrist
who has Mb.Bs (Kashmir) and Med.Psych (Natal 1986) degrees.
He
is self employed and has consulting rooms at various hospitals
in KwaZulu-Natal. He has approximately 22 years
experience
as a Specialist Psychiatrist.
92.
He consulted with the employee for the
first time on 18 March 2004 and has since provided her
ongoing psychotherapy and
cognitive behavioural therapy about once a
month and sometimes more frequently.
93.
He confirmed that she reported to him about
being verbally and sexually harassed. He diagnosed her with
PTSD as a result of
her witnessing the Throb incident on
24 March 2000 and as a result of a fall at work on
5 February 2001.
94.
In his opinion, the verbal and sexual
harassment exacerbated her pre existing PTSD. He confirmed
that he had her admitted
to hospital on several occasions. Having
seen the transcript of some of her vulgar and abusive sms’s to
R, he opined that
her state of mind was consistent with someone who
was being sexually harassed.
95.
Dr
Kader
is an unreliable witness for two principal
reasons: Firstly, he issued a medical certificate to the
employee on the very first
day of his consultation with her, stating
the following:
“
18.3.2004
The employer
re Ms K Govender.
The above is not fit for
work from 12 September 2003 until medically boarded as she
suffers injury on duty: back
injury and PTSD.
Yours sincerely.”
96.
He produced this certificate after a 20 to
40 minute consultation with the employee. He undertook no
independent clinical
tests to support his opinion. He issued
the medical report, he confirmed, purely on the employee’s
assertion that she
was not fit for duty.
97.
Medical certificates of this kind are more
a hindrance than a help to both employers and employees. Considering
that employees have
to pay for such certificates, which misrepresent
their own opinion as that of the doctor, the practice is unethical.
98.
The
second reason that his evidence is unreliable is that in his notes of
26 May 2004
[27]
he
wrote “she still loves him but knows”. Although he
deleted this entry from his notes, it was still readable.
When
asked to read this portion he hesitated for a while until counsel for
the SAPS prodded him. He pretended that he could
not read the
deleted but decipherable portion.
99.
He explained that the employee had told him
that she loved R but had asked him to delete it. He was distracted
when he wrote it
down because he was trying to arrange for her to be
admitted in hospital.
100.
Dr
Kader
failed to assist the court, as expert witnesses
are required to, with independent, unbiased and reliable evidence.
101.
However, that the employee suffers PTSD is
corroborated by the reports of the SAPS’s own experts. On this
basis Dr Kader’s
diagnosis that she suffers from PTSD is
accepted.
Analysis
of Employee’s Evidence
102.
In
an application for absolution from the instance, courts are usually
slow to make credibility findings because they have heard
only one
party’s evidence.
[28]
However, in this case, the court is able to make credibility findings
on the employee’s own version, even though her evidence
lacks
credibility in many respects. Such findings count as much against her
as they do against R.
103.
Although much of the details of her
evidence are irrelevant to determine whether she was sexually
harassed, the court has recorded
the employee’s narrative to
illustrate both her personality and the extent to which she is
credible and also the milieu in
which her complaint arose. Though the
court does not have to determine the veracity of allegations such as
whether R abused state
resources, or Veerasamy drove whilst under the
influence of alcohol, visited shebeens or cynically completed her for
having a bet
of R1m over her virtue, or whether the physical and
interpersonal conditions at Lamontville were unhealthy, the SAPS
might have
an interest in diagnosing their veracity to launder
negativity about its public image.
104.
On her own version the employee fails to
establish a
prima facie
case that R sexually harassed her for the following reasons:
105.
For three years since June 2002 she
consented to having sex with R for reward, namely a promotion and a
better life, whatever
that meant to her. She assumed that because R
was on the ratification panel appointing and promoting staff, he was
in a position
to make her life better and promote her. She relied on
and expected him to use his seniority in the SAPS to advance her
career.
Under cross-examination, she conceded that she consented to
have sex with him of her own free will and that R did not force her
to have sex with him. She did not want to have sex with him but did
so for reward. Having sex with R in exchange for promotion
or a
better life is both prostitution and a corrupt practice.
106.
After the first pleaded sexual encounter in
June 2002, she did not withdraw from the pact even though she was
upset when R told
her that the Deputy Provincial Commissioner had
taken a bet pay R1 million to anyone who had sex with her. She
did not
withdraw after the second encounter with him the following
month in July even though he angered her by insulting her father.
107.
Almost on a monthly basis she had sex with
R at a filthy lodge, at his house and at other places. Sometimes she
drove herself or
he drove her car to the meeting place. She bought
the condoms but sometimes had unprotected sex with him, even though
he told her
that he had had sex with over 40 women and that he had
infected her with Aids. She voluntarily took risks with R. She must
therefore
have wanted to have sex with him.
108.
After the 1986 incident, she did not report
him to her father who was a Major in the SAPS at the time and R was a
lowly lieutenant.
For three years from the June 2002 encounter she
did not report him to her sister, an employee of the SAPS, or friend,
both of
whom were social workers, or to another sister who was also
an SAPS employee. She did not have him charged for rape. In fact, she
lodged no formal complaint until well after April 2005 when she
discovered him in bed with another woman.
109.
R had a lot more to lose than she did if
she reported him. He was a senior officer holding a managerial
position, a husband, parent
and grandparent. Notwithstanding its
tardiness in making credibility findings in applications for
absolution, on this issue, the
employee’s explanation for not
reporting R rings hollow. If he blackmailed her that he would tell
her family, and if they
ostracised her, he would have been worse off
than she was.
110.
Furthermore, she contradicted this
explanation for not reporting him by saying that he threatened to
kill her. She adduced no credible
evidence that he threatened to kill
her. Her evidence that she feared him and therefore desisted from
reporting him is unsustainable.
111.
As for her promotion, she confirmed under
cross-examination that she had been promoted automatically for the
past 20 years
until she had reached level 6, and that a
promotion to level 7 was her first promotion that she had
applied for and which
was initially unsuccessful. Despite her
dissatisfaction, she did not appeal against that decision.
112.
Notwithstanding her ill health, she was no
wilting wallflower. She is feisty and assertive. She slapped him on
two occasions in
public and once in private. She initiated
contact with him to seek his help in June 2002. She initiated
and maintained
contact via more than 1000 sms messages to him. Her
tone in the messages was as vulgar and abusive as she alleged he was.
113.
At work, she uncovered and reported
irregularities with leave claims without fear or hesitation. She
challenged senior officers
including Veerasamy and V G Naidoo
whenever she disagreed with them. She lodged a complaint against
senior officers in Lamontville.
114.
Eventually, when she decided to proceed
against R, she complained to the Provincial Commissioner, not her
human resources head,
who should have been her first port of call.
She fearlessly complained about van Eck and other issues to the
Provincial Commissioner
in breach protocol and to the Minister.
115.
In court, she cut the image of a confident,
middle aged woman who was determined to go to great lengths to
achieve her objectives.
She volunteered intimacies about the
affair to embarrass and denigrate R as much as possible, without
realising that her bluster
against him denuded her of dignity as much
as it did him.
116.
There is another side to the employee’s
personality. She conceded that she acted “erratically”
and could not explain
for instance, why she informed R’s wife
about finding him in bed with another woman. Ranting against R also
unveiled her
true feelings for him. Even though she asked Dr Kader to
delete her statement to him that she still loved R, she could not
obliterate
the feelings she harboured for him. Notwithstanding her
denial that she did not love him, Dr Kader’s deleted note is
more
credible than her testimony.
117.
Furthermore,
she indulged R even when he did not blackmail her. H He requested and
she bought him a ring, two pairs of shoes, a
jacket and two
T shirts.
[29]
She lent
him money on at least three occasions. On the last occasion, she had
to borrow the money from her friend. In court, when
she testified
about other women who associated with R, e.g. “Anita”,
her disapproval, if not jealousy, was evident
from her disparaging
tone. Most of all, on her version, she voluntarily endured an
abusive, immoral, unethical and secret
relationship for three years,
which no rational, dispassionate, sensible person will tolerate.
118.
In the circumstances, the employee has
failed to prove that R sexually harassed her. Having failed to
cross the first threshold
of her onus the SAPS incurs no vicarious
liability.
Victimisation
119.
Ms
Allen
for the employee submitted that the victimisation
presented as a failure to investigate her sexual harassment complaint
promptly,
intimidation by officers for lodging a complaint and bad
treatment. The failure to investigate and eliminate the harassment
and
victimisation invoked section 60(3) of the EEA, which holds an
employer vicariously liable for the conduct of its employee if it
fails to eliminate offensive conduct. As the victimisation was a
consequence of the employee pursuing her rights to lodge a grievance
and dispute it was also in contravention of section 5(2)(c)(vii) of
the Labour Relations Act 66 of 1995 (LRA). The latter
ground
was neither pleaded nor agreed at the Pre-Trial Conference.
Consequently, the court does not have to determine it. However,
the
facts on which it is founded overlaps with the EEA ground. A
determination of the EEA ground will therefore also indirectly
dispose of the LRA ground.
120.
As the employee failed to cross the first
threshold of proving harassment, which is the conduct she alleged the
SAPS should take
steps to eliminate, she cannot hold the SAPS
vicariously liable. Furthermore, she conceded that she had audience
with very senior
officials within the SAPS, notably Makhanya, the
Head of Legal Services and the Deputy Provincial Commissioner,
van Eck. She
conceded that they did investigate her complaint.
She was dissatisfied at the pace at which they conducted their
investigations.
However, when it was pointed out to her that her
complaint was investigated within about two months after she reported
it, she
admitted that she was satisfied.
121.
As regards any delay in the investigation,
she contributed to it. She undertook to provide van Eck
with the names and
contact details of witnesses but had failed to do
so. She did not revert to van Eck to explain why she was unable
to provide
him with information about her witnesses.
122.
As regards victimisation by other officers
at Lamontville and elsewhere, the employee fails to establish a
connection strong enough
to link her complaint to the treatment she
received to put the SAPS to its defence in these proceedings.
Assuming without deciding
in her favour that other officers treated
her badly, her complaint could have been a factor, but not the only
or most reasonable
factor that contributed to the way other officers
related to her. Her illness, her protracted absences from work with
pay, her
refusal to work in the exhibits room, and not least, her
personality, could have alienated her from her colleagues.
123.
If she had reported the alleged rape, that
would have amounted to a sexual harassment complaint, notwithstanding
their prior consensual
relationship. As she did not report it, she
jeopardised her credibility and any prospects of holding the SAPS
liable under section
60(3) of the EEA.
124.
The employee therefore does not satisfy the
requirements of section 60(3) of the EEA. Even though she does
not clear the harassment
and section 60(3) hurdles, and even though
her evidence is unreliable in many respects, in some respects she
establishes a
prima facie
case of misconduct against R. That case is the following:
i)
R entered into an adulterous relationship
with the employee.
ii)
He is a husband, a father and a
grandfather.
iii)
In the SAPS hierarchy, he was superior to
the employee.
iv)
He broke workplace rules.
v)
He used state time and resources to pursue
an illicit relationship.
vi)
He might have used state time and resources
to pursue other illicit relationships.
vii)
He compromised his integrity to manage and
earn the respect of his colleagues.
viii)He
lacks honour and loyalty.
ix)
He behaved unethically, immorally and
disgracefully.
x)
He broke the law several times.
xi)
He was a party to prostitution and
corruption.
xii)
He had adulterous relationships
simultaneously.
xiii)He
committed adultery which, although not a crime, remains an unlawful
breach of the contact of marriage.
xiv)
He maintained a stressful relationship with
a person who suffered from PTSD.
xv)
He cannot be trusted with protecting or
promoting the interests of women and other vulnerable people.
xvi)
He compromised his responsibility for
eliminating harassment and other forms of discrimination in the SAPS.
xvii)
He put the SAPS at risk to the tune in
excess of half a million rand through this litigation.
xviii)
He contributed to the expenses the SAPS
incurred and will not recover from the employee.
xix)
If he committed some or all these
transgressions, he would have brought the SAPS into disrepute.
125.
Instead, for all of these allegations, the
SAPS reprimanded him for treating the employee with disrespect.
126.
For a senior police officer and an elder in
the community, for a person who is expected to practice and uphold
high moral and ethical
standards, who must avoid harm to colleagues
and members of the public, who must protect vulnerable groups, which
include women
and people with disabilities, who must be accountable
and responsible for his actions, and most of all, who must obey the
law,
the penalty is but a slap on the wrist.
127.
At various stages in her testimony the
employee expressed reservations about whether any action would be
taken against R if she
complained against him. The reprimand
justifies her apprehension. In fact, it gives credence to the
popular perception and
fear, that power is as much a weapon that
sexual harassers use to harm their victims as it is a shield to
protect them when they
are caught. It is an explanation for the
reluctance amongst victims to complain.
128.
The stereotypical employer response that
sexual harassment is the complaint of a woman scorned is another
barrier to exposing unacceptable
sexual behaviour in the workplace.
It discriminates against women and dismisses their complaints as
trivial, emotional and generally
undeserving of serious
consideration. Most of all, it reflects a mindset that bars scrutiny
of the conduct of the alleged harasser.
129.
Notably, the reprimand implies that the
SAPS did regard his conduct as misconduct and disciplined him. Having
fine policies, manuals
and a complaints machinery to combat sexual
harassment does not go far enough to combat the scourge of sexual
harassment if the
leadership of the SAPS remains reluctant to act
decisively against its own by imposing effective, deterrent
penalties.
130.
The inadequacy of the penalty of a
reprimand inspires the question that section 60(4) invites:
Even though the SAPS is not
liable to the employee in this case, can
it say with any confidence that “it did all that was reasonably
practicable to ensure
that (R) would not act in contravention of this
Act”?
Medical
Boarding Appeal
131.
As regards her prayer for an order
directing the SAPS to determine her appeal against the refusal of her
application for medical
boarding within one month, the court agrees
with the employee, but for different reasons, that the SAPS has
vacillated for too
long in finalising the status of this employee.
She remains on full pay without tendering her services. In the public
interest,
and in the employee’s interest, the SAPS should
finalise her medical board application forthwith. However, the court
is not
in a position to grant an order in this regard because, even
though it accepts that she suffers from PTSD, it is not satisfied
that she is so unfit for duty that she cannot be reasonably
accommodated in a stress free environment. For instance, she gambled
when she was on paid sick leave, an activity that hardly conduces to
recovering from PTSD. She also remained in a stressful, adulterous
relationship. Furthermore, she relies on Dr Kader’s
opinion to support her application. As the court has found, Dr
Kader’s opinion is unreliable.
Costs
132.
The SAPS sought an order for costs against
the employee on an attorney and client scale, on the basis that her
claim is entirely
frivolous and vexatious and that she has cost the
SAPS, and indirectly the taxpayers a considerable amount, not only in
the litigation
but also in investigating her complaint.
133.
The Court accepts both these submissions.
However, in mitigation, it takes into account that the employee has
laboured under the
disability of post-traumatic stress disorder.
Another factor is that she was not alone in behaving unethically and
disgracefully.
R was equally, if not more responsible given his
seniority, for putting the SAPS at risk.
The
Order
a.
The application for absolution is granted.
b.
The employee pays the respondents’
costs.
______________
PILLAY
D, J
APPEARANCES
FOR
APPLICANT
:
Adv L R
NAIDOO
Instructed
by
:
STATE
ATTORNEY
FOR
RESPONDENT :
Adv K ALLEN
Instructed
by
:
STEELE
ATTORNEYS
[1]
Paragraph 37
of the pleadings; paragraph 4 of respondents’ heads of
argument
[2]
Section
6(3) of EEA: “Prohibition of Unfair Discrimination: Harassment
of an employee is a form of unfair discrimination
and is prohibited
on any one or combination of grounds of unfair discrimination listed
in sub section (1)”
[3]
Item
3: “
Sexual
Harassment as a form of unfair discrimination:
Sexual
harassment in the working environment is a form of unfair
discrimination and is prohibited on the grounds of sex and/or
gender
and/or sexual orientation.”
[4]
Including
“4.1whether the harassment is on the prohibited grounds of sex
and/or gender and/or sexual orientation; 4.2whether
the sexual
conduct was unwelcome;4.3the nature and extent of the sexual
conduct; and 4.4the impact of the sexual conduct on the
employee.”
Item
4 of the 2005 Code
(NoticeE 1357 OF 2005)
[5]
J
L Pretorius, M L Klinck and C G Ngwenya, Employment Equity Law July
2009 paragraph 6.3.1.2 page 6-30
[6]
Section
11 of EEA: “Burden of
proof: Whenever unfair discrimination* is alleged in terms
of this
Act, the employer against whom the allegation is made must establish
that it is fair.”
[7]
LH
Hoffmann and DT Zeffertt
The
South African Law of Evidence
fourth edition p496
[8]
LH
Hoffmann and DT Zeffertt
The
South African Law of Evidence
fourth edition p508-9
[9]
Para 3.5 of Pre Trial Minute Page 56 of Pleadings
[10]
Bundle
A141
[11]
Bundle
A142
[12]
Bundle
A145
[13]
Bundle
A146 to A150
[14]
Bundle
A174 – 177
[15]
Bundle
A159 – A160
[16]
Bundle
A171 – A172
[17]
Bundle
A178
[18]
Bundle
A179
[19]
Bundle
A285 Report of Dr K P Parag, a specialist physician and nephrologist
[20]
Bundle
A182
[21]
Bundle
A184
[22]
Bundle
A186 – A190
[23]
Bundle
A294
[24]
Bundle
A342
[25]
Bundle
A343 – A344
[26]
Bundle
A254 – A256
[27]
Bundle
B443
[28]
LH
Hoffmann and DT Zeffertt
The
South African Law of Evidence
fourth edition p508-9
[29]
Bundle C108