DELETE '.,"li :,Cl-:EV2.fl IS i,OT APPLICABLE
(1) REPORTABLE: -/NO.
(2) OF INTEREST TO OTH'.:::R JUDGES: 'C /NO.
(3) REVISED.
DATE
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
In the matter between:
HARMONY GOLD MINING COMPANY LIMITED
and
COMMISSION FOR CONCILIATION MEDIATJQ ,N '
AND ARBITRATION
COMMISSIONER SAKI NGAPA
SEPHITHIPHITHI AMos:NTSHOT$HO .
Heard: 28 January~025
Delivered: ·0$ May·202-5 ◄ NotReportable
Appellant
First Respondent
Second Respondent
Third Respondent
Su~mary: Aj>peal A'1 terms of section 10 (8) of EEA -appeal filed outside the
pres~ribed peri~d -condonation granted -an appeal in a strict sense - a
recons,ideration of the matter to determine whether employee succeeded in
proving'~tiscrimination (racial harassment) and whether conduct complained of
is{ational; fair or justifiable -evidence considered -appeal dismissed.
JUDGMENT
2
PHAKEDI, AJ
Introduction
[1] This is an appeal in terms of section 10 (8) of the Employment Equity Act1 (EEA)
wherein the Appellant is challenging the arbitration award under casetn.imber
GAJB12989-23 dated 23 March 2024. This section provides that: ◄-
'A person affected by an award made by a commissioner of(the CCMA pursuant
to a dispute contemplated in subsection (6) (aA) ma~appe~l'to the l.:abour
Court against that award within 14 days of the dat~ofthe aw~rd, b4t.the Labour
Court, on good cause shown, may extend the period within w.hich that person
may appeal.'
[2] At the outset, it is important to point out :tQat, ~nlike review applications, the
Rules for the conduct of proceedings iQ the Labqur Court2 do not have a specific
provision dealing with these kinds of appeals. These are appeals in the true or
strict sense, which involve a/fuli',re-examination of the evidence to determine
whether the decision re?1ch~d q/tl,~ Coi;nmissioner was right or wrong, having
◄
regard to the facts and th~ lavv\
[3] The Appellant, Harmq_ny Gold Mining Company Limited, further seeks an order
condoning the late tl~liveryof its notice of appeal to this court. Section 10 (8) of
the E~A coqfers this• court with a discretion to extend the period within which
thEf pppeal :may be noted on condition that the Appellant has shown good
cause. ShouJd the condonation application be declined, this Court lacks the
necessaryJurisdiction to consider the merits of the matter. However, if the
~6ndonation application is granted, then the appeal will be considered on the
merits . • >
[4] The Appellant received the award on 26 March 2024. The appeal was noted on
the 30th of April 2024, outside the prescribed period of fourteen (14) days from
the date the Appellant became aware of the award.
1 Act 55 of 1998.
2 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court, repealed with effect from
July 2024.
3
[5] The EEA does not provide a definition of a 'day', nor does it exclude the
application of any other Act of Parliament3. In order to calculate the period within
which the Appellant ought to have noted the appeal, I accept that the appeal
ought to have been filed within the 14 ordinary calendar days as env[~~ged in
◄
the Interpretation Act (Act)4. This means the appeal ought to haveJ:ieen nqted
on or before 9th of April 2024.
[6] The notice of appeal was delivered, accompanied by a cond~natioJ.1 .application
and the matter is not opposed.
Condonation application
[7] In respect of the degree of latenes.s, the' no'ttc~ ~( ,appeal was delivered
approximately 15 days outside the pre~cribed ti'r;neframe set in section 10(8) of
the EEA. The explanation for the delay-p.J:_ov~ded by the Appellant is that its
Employee Relations Manc!g'er, Mr Thabang Molahlehi, was under the mistaken
◄
impression that it had s(x we~ks)o-deliveit an application to review and set aside
the arbitration award. Th~ APP~l!ant also had to comply with its policy of
◄
ensuring that finging~_Qf alleQ:ed racial discrimination were reported to a specific
subcommittee , and,{his ·exercise took just over a week to complete.
[8] The,J\pp_ellanf asserted that it has strong prospects of success in the appeal
aridJl}c!Ythe,third respondent will not suffer any prejudice if the late noting of
~he ap·p~c!I ,is/condoned bearing in mind that the incident in question occurred
. on/25-.:.t~ly"2020. Furthermore, the second respondent awarded compensation
tQ the third respondent and he remains employed .
[9] In respect of the importance of the matter, the Appellant submitted that the
appeal relates to an issue of social importance in that the alleged utilization of
racially offensive language occurred within its workplace, and it is necessary
3 Section 63 of EEA.
4 Act 33 of 1957. Section 4 reads:
'When any particular number of days is prescribed for the doing of any act, or for any other
purpose, the same shall be reckoned exclusively of the first and inclusively of the last day,
unless the last day happens to fall on a Sunday or on any public holiday, in which case the time
shall be reckoned exclusively of the first day and exclusively also of every such Sunday or
public holiday.'
4
that this issue must be properly ventilated. Should condonation not be granted,
the Appellant will be deprived of its statutory right to note an appeal against an
adverse decision reached by the second respondent.
[10] The Constitutional Court in Booi v Amathole District Municipality and 0}hers5
emphasized that condonation is not merely for the taking. The Courtcc>nWmed
that condonation should be granted if it is in the interests of justice>which 'h~s
to be determined by reference to all relevant factors including_ t_he nature of the
relief sought, the extent and cause of the delay, the effect'e(l the.{3dministration
of justice, prejudice and the reasonableness of the e~planation ,for tt:ie delay.
[11] In applying the ratio in Melane v Santam Insurance Co.Jtcfa,{Melane), the Court
in Academic and Professional Staff Association v Pretorius NO and others7
summarized the principles for conside/ation -as follows'~
'The factors which the court takes 'in_~o consideration in assessing whether or
not to grant condonation-are ;\(a) the degree of lateness or non-compliance with
the prescribed time frame; ,(-b)-the.e_xplanation for the lateness or the failure to
... ', - ,·•
comply with time 'trame;'{c) prospects of success or bona fide defence in the " "'( -,
main case; @) the imj:)Qrtanee of the case; (e) the respondent's interest in the ', . .
finality _pf t_he jud~rrient; 1(f) the convenience of the court; and (g) avoidance of
unnecessary d~lay'in the administration of justice ...
lt-ii;.trite:!aw_that these factors are not individually decisive but are interrelated
an'.,d m_ust be weighed against each other. In weighing these factors for
'instance·, a good explanation for the lateness may assist the applicant in
,COIJ1pensating for weak prospects of success. Similarly, strong prospects of
success may compensate the inadequate explanation and long delay.'
'[{2] /fn'Foster v Stewart Scott lnc8 (Foster), his Lordship Mr Justice Froneman (as
he then was) held as follows:
'It is well settled that in considering applications for condonation the court has
a discretion, to be exercised judicially upon a consideration of all the facts.
5 [2021) ZACC 36; [2022] 1 BLLR 1 (CC) at para 27.
6 1962 (4) SA 531 (A) at 532C-F.
7 (2008) 29 ILJ 318 (LC); [2008) 1 BLLR 1 (LC) at paras 17-18.
8 (1997) 18 ILJ 367 (LAC); [1997) 2 BLLR 117 (LAC) at 369C-E.
5
Relevant considerations may include the degree of non-compliance with the
rules, the explanation therefor, the prospects of success on appeal, the
importance of a case, the respondent's interest in the finality of the judgment,
the convenience of the court, and the avoidance of unnecessary dela{Jn the
/
administration of justice, but the list is not exhaustive. These fa99rs ,~re not
individually decisive but are interrelated and must be weighed.one,against,_th _e
other. A slight delay and good explanation for the ~~ay may help to
compensate for prospects of success which are not st(ong.,pcfnverseiy~ :very
good prospects of success on appeal may c~l)'lpensater for ,~n otherwise
perhaps inadequate explanation and long delay.'9
[13] Lekhesa: In re Ngwenya v Trustees for the Tvme being of Sishen Iron Ore Co
Community Development Trust and anofl]fJ.[10'i(was st?ited:
The grant of condonation involves,,the exerc1se of a discretion, with a decision
to condone a party's non.-compliance~ithJhe rules of the court or directions
constituting an indulg,ence granted by the court. Such an application should be
granted if, having:regatdtothe -i>~rticular circumstances of the matter, it is in
the interests_ of justic~ to-clo so, and refused if it is not. To reach a decision,
regard is to he,_had to fa~tors including the nature of the relief sought, the extent
and Gause-of t~e,~elay:, the reasonableness of the explanation for the delay,
the ii;nportancei \of the issue to be raised, issues of prejudice and the prospects
Qf suc~ess. Af,· a general proposition, the factors to be considered are not
indiyiq!,Jally' .decisive of an application for condonation but are all considered to
"d~terl'l)ine what is in the interests of justice.'
[14] .)n,appfying the above principles to the present application, I am of the view that
tt\e period of delay is not too excessive and the Appellant has provided an
explanation for the delay in delivering the notice of appeal. I am also mindful of
the fact that the third respondent, although not participating in these
proceedings, will not be prejudiced if the late delivery of the notice to appeal is
condoned. I am satisfied that the Appellant has shown good cause, and it is in
9 See also: Melane (Id fn 6); Mansoor v CCMA and others [2000] 1 BLLR 79 (LC); [1999] ZALC 150 at
para 18; NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC); [1998] ZALAC 22 at para
1 0; Forster (Id fn 8); SA Broadcasting Corporation v Commission for Conciliation, Mediation and
Arbitration and others (2003) 24 ILJ 999 (LC); [2003] 5 BLLR 497 (LC); Achilles v HE Auto Import and
Export (Ply) Ltd (2000) 5 LLD 18 (LC); Fortuin v Commission for Conciliation, Mediation and Arbitration
and others (2005) 26 ILJ 96 (LC); [2004] 12 BLLR 1252 (LC).
10 (2024) 45 ILJ 1220 (LAC); [2024] 6 BLLR 585 (LAC) at para 14.
6
the interests of justice and fairness that the late delivery of the notice to appeal
be condoned for the purposes of properly considering the appeal on the merits.
Background facts
[15] The third respondent, Mr Sephithiphithi Ntshotsho (Ntshotsho), is emplq¥ed as
an underground locomotive driver by the Appellant and is based at Kusa$alethu
◄
Mine in Carletonville, in Merafong. On Saturday, 25 July 2020, he-was ari19ng
other employees who were waiting for transport en /oute ,to various
workstations within the mine when pushing and shoii_n~ 'e,nsued among
employees.
[16] During this pushing and shoving, the third respqnden(bump_ed ~against a fellow
employee, Mr Cornelius van Zyl (Van Zyl), w,ho was standing in front of him.
Ntshotsho tried to explain to Van Zyl tn'at he· did-.ctot ptjsh him intentionally, as
he was also pushed by the people i~ho wer~ behind him. Their argument
escalated then Van Zyl turnec;I __ around 'aQd sa:ld in Afrikaans "Jy is 'n kaffir'.
When he told him that he was golng to open a case against him, he responded
by saying, "bring it on (:am~ nfpresentative of Solidarity trade union". He then
tried to pull down his lam'p~sp 'h~ could get his employee number, but Van Zyl
◄ • :
gave him his clock·-qard, as \it. had the employee number. On the same day,
Ntshotsho reported)he -fn.cident to Molahlehi, but he encouraged him to report
on Monday\since the}incident occurred on a Saturday.
[17] On,.tJ1ond~y;-he reported the incident to Molahleli who advised him to report the
incideh-\ to his trade union, National Union of Mineworkers (NUM) and reminded
him'th~~ he also had a right to open a criminal case against Van Zyl.
[18]
[19] He later opened a criminal case against Van Zyl who was arrested and -....
subsequently released on bail.
Ntshotsho was then advised that he cannot represent himself in the hearing
because Van Zyl was his senior, as such Mr Gert van Emmenis (Gert), the
Human Resources Leader will represent him. On 19 March 2021, the employer
convened a disciplinary hearing against Van Zyl.
7
[20] On this day, he was in the company of his witness, Sibusiso Xhamlo. They were
then taken to a back room with no explanation as to why they ought to leave
the hearing room to go and wait in the back room. Gert later came into the room
and informed him that the disciplinary hearing will be postponed to allow the
parties and their witnesses to undergo polygraph tests.
[21] Ntshotsho initially refused to take the test because he knew nothing/a~6ut the
polygraph test. However, Gert convinced him to take the test, statin,g thal~rhe
did not take the test, he would be taken as a person who is np(truthlul at work~
and he will not be in a good environment. He then agreed ~o tak~ t~e-test Which
was scheduled to take place on 29 March 2021. H9wever;, Van-"Zyl and his
witness only took the test on 2 July 2021. He only '(_eceived', a copy of the
polygraph results when the case was already cohtinUiQg atCCMA. -,
[22] He later learned that Van Zyl had been ira'i:i&ferr~_dJo another company, and he
went to the management to enquire aQout this. tie then spoke to Molahlehi and
further requested to see a picture of the·-~itr:iess1Van Zyl intends to call to testify
at the hearing. Molahlehi theh informed him that the witness had resigned and
was no longer workingJo'r ,,{he .App~]@n!. When he was shown the picture, he
informed Molahlehi that 'ti~-had,never seen such a person before, and he was
not part of the grciU.f? when 'the incident happened. He then asked to see the
clock registef-for,t~e ge!ltle!'l'lan in the picture, but Molahlehi told him that the
law did not allow for such details to be disclosed. And on the issue of the
tran/sferQf Vaq~Zyl,.-Molahlehi referred him to Gert.
[23] When"he met with Gert, he enquired about the status of the criminal case, but
Ntsti(?tsho)0ld him that he was not ready to disclose any issues relating to the
qase. Th-en Gert confirmed that Van Zyl had been transferred to another shaft.
\Nl:)en he heard this information, he got angry and left the office.
[24}--The following week, he was invited to testify at the criminal trial, and he was
warned not to divulge anything relating to the case until the next court
appearance. Upon his arrival at work, he then informed Molahlehi about the
conditions set at the Court and the disciplinary hearing was not scheduled.
8
[25] He went back to testify at the criminal court, and Van Zyl was found guilty and
sentenced to a period of six months' imprisonment with an option of a RS 000.00
fine. During mitigation, Van Zyl informed the magistrate that he should not be
harsh on him as he was still attending the internal hearing and the case could
not proceed without him if he were imprisoned.
[26] The following day, Ntshotsho approached Molahlehi and informed-him a~ol_Jt
the outcome of the case, and that is when Molahlehi informed,Mim that he would ' •
be the one dealing with the case, but nothing happened : He"then referred a
dispute in terms of section 10(6)(b) of the EEA11 so,.that he cpuld,~~ assisted
because the incident had affected his mental health, _pa(ticularly his family and
employment relations. He was then referred t6 the soqial worker by Molahlehi
on 15 November 2022. The social workeJ .tt:,en. advised rhim to consult with the
psychiatrist, but he felt no need for suph, and he didiiof consult
'
[27] Under cross-examination, he reiterated 't6atthe Appellant could have resolved
this case within the first thr~e months of him reporting, and because he was
never updated about tt\e ~-tt~·rnp'ts foi:~~c:hedule the disciplinary hearing, he felt
that the Appellant gid not'd,b eno,ugh to ensure that his complaint was resolved.
[28] At the close -0f the -~mploy~.e·s case, Molahlehi requested an adjournment so
• ...... < -• ,
he could c~H his witnE;!sses , and the Commissioner acceded to his request. The
matt!3r tt)en proceed,eo again on the 13th of March 2024.
[29] Thei~(Sl witness for the Appellant, Mr Derick Koekemoer (Koekemoer) , testified
th~_! he W,?S an external service provider hired by the Appellant to conduct the
,polygraph test on the four employees of the Appellant. He testified that he is
th~, one who prepared the polygraph reports and emphasised that the tests
.,were taken voluntarily, as all the employees signed the consent forms. When
he was examining Ntshotsho, he found deception, and he recorded a note
saying, "take note that the examinee did not cooperate very well during the in
test phase of the examination ".
11 This section provides that "if the dispute remains unresolved after conciliation , any party to the dispute
may refer it to the CCMA for arbitration if all the parties to the dispute consent to arbitration of the
dispute".
9
[30) He further concluded that Xhamlo was not truthful in answering questions, and
that is how they both failed the test.
[31) When it came to Van Zyl, he found that he was truthful in all respects. He
confirmed the truthfulness of his statement regarding the incident of the 20th of
July 2020 and also gave more information which was not contained Jq the
statement. Van Zyl denied that he had called Ntshotsho the 'K-word'._x(an Zyl's
version was that Ntshotsho made these allegations because he had infor.(ned
him that he was going to discipline him for not complying witj;r',COVID-19 rules'
◄ •
and regulations. Ntshotsho was behind him and not folloV{.ing'G_O\flDc.·19f'ules.
[32) However, due to Van Zyl's damaged lungs, his r'e~4lts wer~ inconclusive.
[33] Meaning he neither failed nor passed the polygr~fph_Jest. ~He further confirmed
having tested Evert, who confirmed that he yvas not a, party to the argument
between Van Zyl and Ntshotsho. He th~n-.¢onct~ded Jhpt Evert was a truthful
witness as he answered some questiohs with flyihg colours, although his results
were also inconclusive.
Under cross-examination ·, Ntshot!?_ho denied that he had taken the tests '(
voluntarily . When it was",put lq:Koekerrt6er that Van Zyl was found guilty on the
charges emanatin~ from tne(·sam~ incident by a court of law, he responded by
saying that he· ~as ~t aware of such, but it was highly unlikely that Van Zyl
was guilty.
[34) Th~·seco,nd witpes{for the Appellant was Thabang Molahlehi who confirmed
thaHJ,e/incident was reported to him telephonically on the 25th of July 2020 by
Ntshots'hp .a;nd he advised him to report the incident to his trade union National
\Unfoh -otMineworkers (NUM) and further informed him that he had a right to
open a criminal case against Van Zyl. The Appellant then charged Van Zyl, and
,,. ' /Ntshotsho was represented by Gert, who is a Senior HR Team Leader.
[35) He stated that the Appellant made genuine attempts to hold a disciplinary
hearing against Van Zyl. The first delay was due to the fact that the Appellant
had to consult the Solidarity Union because Van Zyl was a shop steward. The
second contributing factor to the delays was the absence of both Ntshotsho and
Van Zyl. He testified that Ntshotsho was on sick leave from the 8th to 14th of
10
September 2020, followed by a vacation leave from the 28th of September until
the 18th of October 2020. The hearing could not proceed on 13th October due
to the unavailability of Coenie Reeder, who was representing Van Zyl.
[36] Van Zyl was on leave on 4th November 2020, and he also took annual leave
from the 26th of November until 23 December 2020. The Appellant closf:d its
offices for the festive season, and this also contributed to the delay?,, ·Van Zyl
was also on sick leave on 2 January 2021. On 11th January 2021_, Jie was ,~l?o
on leave. He was also on sick leave from the 20th until 29th J9rfuary\2021.
\ ·,
[37] During February, he was able to secure the date of the 19th,.~f Mc\fCh 2021. On
this day, Van Zyl was represented by a certain Mr Kr~g~r from\Solrdarity, who
proposed that all the parties must undergo a pplygra_ph te,st. He confirmed that
Ntshotsho and his witness took the test on 29(March, ali)d Van Zyl took the test
on 2 July 2021. The events were o/veiiaken .. by w.a~e negotiations which
concluded on the 16th September 202(1.
[38] Ntshotsho was on leave from,27111 Septemberfo /17th October 2021, followed by
Van Zyl, who was on leav(from .1 October until 21 October 2021. The hearing
was never reschedulecf agairf The Appellant closed its offices for the festive . ' '
season on 23 DeEember ·2Q21 ·ar,d only opened on or during January 2022.
Van Zyl was,o~_-_sick'--l~ave ~gain from 16 January until 27 January 2022. The
disciplinary hearing\Was then scheduled to take place on 19 May 2022, and
Van ZY! was.row represented by Mr Viviers, who made a request for disclosure
of<_~II witnes,s statements, video footage and all relevant documentation, but
same~as n9t provided as they were not available.
[39] ,pr{ or'during May 2022, Ntshotsho informed him that he had been warned at
Cpurt not to say anything regarding the case and requested the employer to
~~spend the proceedings pending the finalisation of the criminal court case. On
or during November 2022, Ntshotsho was referred to a social worker, and
Molahlehi gave him the referral letter. On or about 14 October 2022, Mr Van
Zyl was found guilty and a six months imprisonment sentence was imposed on
him. Soon after the issuing of the court judgment, Van Zyl was booked off sick
11
for a lengthy period between 20th October 2022 and the last sick note he
submitted booked him off until 21 April 2024.
[40] Under cross-examination when Ntshotsho put it to him that he was coerced to
take the polygraph test by Gert who informed him that if he did not take the
tests he will not be in a good position at work, he responded by saying tt,l?t no
employee should be forced to take a polygraph test and none of the e,mployees
who had refused to take polygraph tests were ever victimized.
[41] Molahlehi was referred to a notification to attend the heaflng, vyhich clearly
.... ' --·-- • ·'
informed Van Zyl that he must ensure that he is present at't~e he~ring together
with his representative, but he was allowed multiple~ostponen:,ents- to secure
a representative , and this led to the delays in thehea_r.in~~eir1g ,finalised. When
questioned about his knowledge of the crimin~I court findings, he stated that he
was informed that Van Zyl is appealirig, ~nd ,~s the_ -Company, they cannot
dismiss him on the strength of the co~rt outcome.
[42] At the end of his cross-examina~ion, Molahleh1 indicated that he wished to call
Van Zyl as a witness alth~iJgh he' l]_ad been booked off sick until 21 April 2024.
He eventually indicate6~hat ,IJ,e was u·nsure of the health status of Van Zyl as
to whether he wou/d come 't~stify--<,,r not. The Commissioner invited both parties
to make closing_argu~ents, a~d they both did so orally.
[43] The Commissioner, having listened to all the witnesses and assessing the
evipence) conclLJdec;f that Mr Van Zyl had committed the racial harassment and
the -~ppellarit failed to take all the necessary steps to eliminate the alleged ' •
-c9nduct,antl· comply with the provisions of the EEA. He then ordered the
\Appellant to pay Mr Ntshotsho an amount of R100 000.00 by no later than 5
April 2024. The Appellant is not happy with the decision and is challenging the
/award on the grounds listed hereunder .
Appeal grounds
[44] The Appellant's first ground of appeal is that the Commissioner erred in refusing
to grant an application for postponement in order to call Mr Van Zyl as a witness,
and this resulted in it being denied an opportunity to properly present its case.
12
[45] The second ground of appeal is that the Commissioner erred by failing to
exercise his powers in terms of section 142 of the Labour Relations Act12 to
subpoena Petrus Evert to testify during arbitration proceedings and this resulted
in the Appellant being deprived of a fair hearing.
[46] The third ground is that the Commissioner erred by failing to inform Molahlehi
that a negative inference will be drawn if no evidence was led on the~ppetlant's
policy prohibiting racial discrimination.
[4 7] The Appellant asserted further that the Commissioner err~d in,,(?6ncluding that
it was liable for Van Zyl's alleged racial discriminatiQn desplt~' ev'i'ci~nce being
presented that reasonable steps were ta~en to ,institute disciplinary
proceedings against Van Zyl and the delays were ,not on the side of the
Appellant but were on various aspect nolunder its control.
The legal framework
[48] Section 6 of the EEA provides,:
'(1) No persol:(may).mfairly -discriminate, directly or indirectly, against an
empl9yee, in-__ any ~mployment policy or practice, on one or more
ground~~._Jncludin _g race, gender, sex, pregnancy, marital status, family
resp0QSib1lity: -ethnic or social origin, colour, sexual orientation, age,
disability, religion, HIV status, conscience, belief, political opinion,
,~ultlff~(language, birth or on any other arbitrary ground.
(3) 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).'
[49]" Section 48 of the EEA provides:
'(1) A commissioner of the CCMA may, in any arbitration proceedings in
terms of this Act, make any appropriate arbitration award that gives
effect to a provision of this Act.
12 Act 66 of 1995, as amended.
13
(2) An award made by a commissioner of the CCMA hearing a matter in
terms of section 10 (6) (aA) or (b) may include any order referred to in
section 50 (2) (a) to (c), read with the changes required by the context,
but an award of damages referred to in section 50 (2) (b) may not
exceed the amount stated in the determination made by the Minister in
terms of section 6 (3) of the Basic Conditions of Employment Acf .. '
Section 60: liability of employers
[50] Section 60 provides for an employer's vicarious liability i~ /the event of an
alleged contravention (by an employee) of the provision~ ·of tt:(e/EEAand'the
employer's failure to take the necessary steps to ~ddress 't~e cbQtravention,
and provides that:
(1) If it is alleged that an employee, w~ile at work, contravened a provision
of this Act, or engaged in,ahy_,con~uct that, if engaged in by that
employee's employer, wo61d constit\;lte a· contravention of a provision
of this Act, the alleged con~uct mu,st immediately be brought to the
attention of the ~rfipt~yer.
(2) The empl~yer ,{llu~ consuJt all relevant parties and must take the
nece~sary ste_p~ fo -~liminate the alleged conduct and comply with the
provi$i<;_>ns of this. Act. •
(3) If the -¢mployer fails to take the necessary steps referred to in
subsectjbn 2, and it is proved that the employee has contravened the
relevant provision, the employer must be deemed also to have
icontravened 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.
Analysis and Evaluation
14
[51) "In the lexicon of the South African people, there is a word, which more than
any other word, has the capacity to utterly denigrate the person to whom it is
addressed and to mark the speaker as utterly contemptible. That word is
"kaffir" ... "13
[52) The Labour Appeal Court in Crown Chickens (Pty) Ltd tla Rockland,sRpLJltry v
Kapp and others14 had an opportunity to deal with the impact ,of racisrri,ih a
society and held:
'[6] It is important that the conduct of the first respond~nt be,viewed in the
correct perspective and be treated with the's,eriousnes~ thaht warrants.
The calling of, or, the reference to, an?\fric~r:i p~rs_on)n ,South Africa as
a "Kaffir'' by a person who is not a:n African 1~ part of the racial abuse
that Africans have been subjected to in this cpuntry for over 300 years. --'
This abuse has been perpetrated against Africans mostly by people
' \
who are white. Anyone who~ives or has lived in South Africa knows this.
In fact by now the ~ord "Kaffir'1 is a term of racial abuse that is known
internationall¥./lri Cilita's case, referred to below, James JP said at 247
of his jud~tmen(tliat in· his -opinion one of the recognised meanings
whic,h the worq ''Kaff_,(' ._,already bore in South Africa as far back as when
he gave his judgrnent in that case -which was in 1976 -was that such -.. '
a pers~m wa-s ''_uncivilised, uncouth and coarse".
-[!] 'T_he reference to, or the calling of, an African as a "Kaffir" by whites is
the kind of racial abuse that courts in this country have, from time to
,,time, been called upon to deal with. In this regard it is apposite to refer
to at least two cases that occurred way back in the 1970s and early
1980s which, in my view, represent some of the typical instances where
Africans were subjected to this type of racial abuse for absolutely no
reason. The cases are Ciliza v Minister of Police and Another 1976 (4)
SA 243 (N) and Mbatha v Van Staden 1982 (2) SA 260 (NJ. The facts
of each one of these cases demonstrate some of the types of racial
abuse that Africans have often been subjected to over many years.
Almost invariably the circumstances have been where Africans have
13 South African Revenue Service v CCMA and Others (2016] 3 BLLR 297 (LAC); (2016) 37 ILJ 655
(LAC) at para 1.
14 (2002) 23 ILJ 863 (LAC); (2002) 6 BLLR 493 (LAC) (footnotes omitted).
15
clearly done nothing to invite the abuse or to provoke the abuser.
Because of what the facts demonstrate in each case, it is important to
set them out albeit as briefly as possible.'
[53] The Constitutional Court in South African Revenue Service v Commission for
Conciliation, Mediation and Arbitration and Others (SARSJ15 held that:
'[1] This case owes its genesis to the use of the term kaffir in 'a workplace
and a more assertive insinuation that African peqple are· inherently
foolish and incapable of providing any leadership worthy/bf$LJbmitting
◄--. ', . • . ...,
to. It bears testimony to the fact that there are many or1dges yet to be
'· " crossed in our journey from crude and leg'alised racism to a new order
where social cohesion, equality and-the ~ffortl~ss qbservance of the
right to dignity is a practical reality.
[2] South Africa's special sect or brand Qf r~9ism was so fantastically
egregious that it had to be ~eclared a prime against humanity by no less
a body than the United Nation.~ itsel(.And our country, inspired by our
impressive dem9cratic credentials, ought to have recorded remarkable
progress towa~ds th~ _realisation of our shared constitutional vision of
◄ ' • --
entrenching,6on..:ra,ci~lism. Revelations of our shameful and atrocious
past; ,made to ·the Truth and Reconciliation Commission, were so
/ShoQ.king'---as to i~duce a strong sense of revulsion against racism in
every s~nsible South African. But to still have some white South
Africans address their African compatriots as monkeys, baboons or
kaffirs and impugn their intellectual and leadership capabilities as
}inherently inferior by reason only of skin colour, suggests the opposite.
And does in fact sound a very rude awakening call to all of us.
[3] In order to give some context and shed light on the correct attitude to
adopt in dealing with the term kaffir, it is necessary to flesh out its
history, meaning and implications. Dr Gabeba Baderoon says "kaffir" is
"the most notorious word in South African history, known most pointedly
for its license of violence towards Blacks during apartheid, but first used
and elaborated during the colonial period. She goes on to observe that
it is offensive in all senses and combinations to the extent of being
15 [2016] ZACC 38; [2017] 1 BLLR 8 (CC) at paras 1 -5 (footnotes omitted).
16
unspeakable today, its use now constitutes a hate crime in our country
and is unpardonably painful and violent. This is in line with the
observation made about 33 years ago by Van Rensburg J and Jennett
AJ that:
"When a black man is called a 'kaffir' by somebody of another
race, as a rule the term is one which is disparaging, de,:ogatory
and contemptuous and causes humiliation."
[4] It follows that the word kaffir was meant to visit the w,or,stkind of vetb?I
abuse ever, on another person. Although the term erigina,ted in Asia, in
' " • ··- t
colonial and apartheid South Africa it acqyir.ed ,,a particularly
excruciating bite and a deliberately dehQmanising \or deJegitimising
effect when employed by a white person ag~inst h.is or her African
compatriot. It has always been /calculate~ to ·and almost always
achieved its set objective of delivering the h/:irshest and most hurtful , '
blow of projecting African people as theJowest beings of superlatively
moronic proportions. Profe~sor Pierre De Vos has this to say about the
term kaffir:
"This 't~rm ha~ ~n ugly history in South Africa and was almost
exc14_5ively used by ·white racists as a gross generalisation to
denigrat~ bla'Ck South Africans. To be called a 'kaffir' is to be
c911ed a lazy and stupid person. But the assumption behind the
\word is that by being lazy and stupid one is merely behaving as
all black people always behave -as white people expect black
people and know all black people to behave. So even when a
white person is called a 'kaffir', the recipient of the insult is being
told that he or she is just as lazy and stupid as all black people
are known to be by all racist white people."
[5] It could only have been with this disrespect in mind and the need to
make a decisive break from the ills of the past, that non-racialism,
human dignity and freedoms (which include freedom of expression
without any trace of hate speech) are values foundational to our
constitutional democracy . The healing of the divisions of the past, the
national unity and reconciliation that need to be built and fostered
respectively, are likewise intended to entrench peaceful co-existence,
17
respect and the right to dignity of all our people. It was in recognition of
this constitutional vision that Brooks J recently endorsed the remarks in
Puluza in the following terms:
"The appropriateness of this observation has not been
adversely affected by the passage of more than thirty years
since it was first expressed in S v PULUZA. If anything ,)he truth
which finds expression therein is even more acce~~il)lef today
than it was before the dawn of a constitution ,al -c1~mocracy ·in
South Africa and the concomitant dramcltrc increase in the
awareness of her citizens of the need tof~cognjte; respect.and
exercise the demands now f9~de by· society for the
demonstration of respect for human·--,9ignity ar;id equality. The
term 'kaffir' historically bandied abo~t Witt, impunity, is a term
which today cannot be hea,rd without flinching at the obvious
derogatory and abusive ccmnbf<!_tions :'associated with the term.
It is rightly to be cla,ssified as '~n inescapably racial slur which is
disparaging, deroga'tqry. an_d contemptuous of the person of
'-
whom itis useii or to whom it is directed. Considered objectively ,
its µse .. can -0nly be J3S an expression of racism with a clear
intentio[I t0,_be hurtful and to promote hatred towards the person
of whom, it is ·used or to whom it is directed. This brings its use
i:::lf!arly wjt~in the ambit of section 10 of PEPUDA. .. "
[54] In its subrpi:ssions and throughout arbitration proceedings, the Appellant
ma,iritaiils that' !~_e Commissioner erred in holding the Employer vicariously
liab1e, oft the -basis of unproven allegations. It is the Appellant's submissions
th~t Ntshptsho laid a false claim of racial harassment against Van Zyl on the
/ -\basis that he failed to prove the veracity of the allegations against Van Zyl.
Ntshotsho testified that Van Zyl was arrested, released on bail and
/subsequently sentenced to a period of six months with an option of a fine. In
response to this, the Appellant's witness (Molahlehi) testified that Van Zyl had
appealed the sentence, and the Appellant could not just dismiss him on the
strength of the outcome of the criminal case.
[SSJ The Appellant seeks to rely on the results of the polygraph test, which found
that Ntshotsho and Xhamlo failed the test. Xhamlo did not testify during
18
arbitration proceedings. However, Ntshotsho testified that he was compelled to
take the test, and for fear of victimization and being in a hostile environment ,
he eventually agreed to take the tests. The person who was supposed to
represent him, Gert, is the one who agreed with Solidarity that the parties must
be subjected to the polygraph tests, but did not discuss this with Ntshotsl)o and
Xhamlo. Even so, Van Zyl and his witness only took the tests on 2 Jtfly 2021,
three months after Ntshotsho had taken his on 29 March 2021.
[56] Ntshotsho testified that he only learned about the results A dt:1rir:,g a~b1!ration at
the CCMA. In rejecting the polygraph test results, the Conirtjissio .(l~r held:
'The employer relied only on the polygraph te~t re$u'lts, to prov~ that the alleged
racial harassment did not take place. In 0th.er words;,,~he employer failed to lead
direct evidence in the proceedings. It is trite,that polygraph tests are only useful
if they are corroborated by other direct eviden~ ,-l~Jhe absence of any direct
evidence, I find that the polygraph \test results submitted by the employer in the
proceedings constitute unreliable evid~nce. 'Therefore, I find, on the balance of
probabilities, that Van,Zyl ·called the employee a kaffir.'
[57] The Labour Court in ~wu,c{bo Kapesi and Others v Premier Foods Ltd tla
Ribbon Salt Riverf6 ~onfirm~d that polygraph test results have to be supported
by direct evide!)C~, .. ari~ in th~ absence of direct evidence they cannot be relied
upon to determine th!=! guilt of the employee . The court held that:
'lh-SATAWf! t Others v Protea Security Services, Protea Security Services
,s6,ught,to place guards with a new client who insisted that security guards used
'b~ it had to pass a polygraph test. When the guards could not be persuaded to
l,l_l!dergo polygraph testing the employer embarked upon a section189
consultative process. The Court held that before it could be fair to force
employees to subject themselves to testing, the test or assessment used would
need to be: (i) shown to be scientifically valid and reliable; (ii) shown to be
capable of being fairly applied to employees; (iii) shown to not be biased
against any employee or group. The court held that the employer had the onus
to show that a dismissal was fair and therefore had to show that the test used
is valid and reliable and not biased against any employee or group of
16 [2010] ZALC 61; (2010) 31 ILJ 1654 (LC) at para 86.
19
employees. In Truworths v CCMA the Court expressed doubts as to the
probative value of the polygraph on its own:
"[37] What appears from the aforegoing is that a polygraph test on its
own cannot be used to determine the guilt of an employee (see
also John Grogan Workplace Law 9th edition page 160.)
However, a polygraph certainly may be taken into /,fotount
where other supporting evidence is available providfd al~q that
there is clear evidence on the qualifications of )he, polygrap~isJ
.. " .
and provided that it is clear from the evider:tce ·that .the test was
done according to acceptable and reco§nizabJ _e standards. At
the very least, the result of a proP.erly cond~cteckp(?lygraph is
evidence in corroboration of the ~mpl~y_er's evidence and may
be taken into account as a factor ih-~sses$irfg -the credibility of
a witness and in assessing ~he probabilities . The mere fact that
an employee, howe:ler; refuses!o undergo a polygraph is not in
itself sufficient to s~bstantiate(an employee's guilt."
[58] The only evidence relied upoh _by the Appeilant to allege that there was no
contravention of the E~A is ,the results of the polygraph tests which
conveniently suggests ,that -~tshotsho and his witnesses were not truthful
witnesses and the reason '""hy 'Ntshotsho laid a complaint was because Van
Zyl had threat~n~d _tChfharr:te him for his failure to observe Covid-19 rules and
regulations . However, in his complaint against Ntshotsho, filed a month after
the i1Jci9ent,(?n 17 August 2020, Van Zyl did not mention any of this. He only
co~plaioe _d ~that on the 25th of July 2020, Ntshotsho had provoked and
~ssaul\ed him. The other issue is that polygraph tests for both Van Zyl and Evert
wer,e!J!lc~i:1clusive, and this cannot translate to a conclusion that both witnesses
vyere truthful. The Commissioner was correct to reject these inconclusive
polygraph tests as evidence in the absence of the Appellant leading any direct
evidence.
[59] The Appellant is further aggrieved that the Commissioner deprived it of a fair
hearing by refusing to give Molahlehi an opportunity to call Van Zyl and Evert
as witnesses. It is alleged that he failed to exercise his powers to subpoena
Evert when he was informed that he was no longer in the employ of the
20
Appellant. I fail to understand how the commissioner could have given the
Appellant such an opportunity when Molahlehi did not make such a request to
call further witnesses. He conceded that Van Zyl was forever sick, he was not
sure when he was ever going to be fit to return to work or even avail himself to
testify at the CCMA.
[60] Furthermore, the evidence presented before the Commissioner confirfned that .
Molahlehi's main concern was to start the process of medically ooarding ,Van
Zyl and not to bring him to the CCMA as a witness. The cor:itt;;nts of his email
dated 12 September 2023 read:
'Dear Mr Moremi
Mr Cornelius van Zy, P3561411, solidarity repres~ntative was transferred to
Moab, a year before last if II remember well leaving at, outstanding case of the
use of derogatory language, ra<~ist remarks. ! st~~ggled to have the case
scheduled because he has been \sick for a 'fong time due to mine accident. I
was informed that he was injured lr:i,)une,"?022 and the injury got worse in
October 2022 Since then hef,as been reporting sick and sending me sick note.
In the meantime t!:,e'se,mpl9yee __ t!Jat Jodged a complaint where Gert took over . •
as a complainant h~s ref~rred the company for not taking action against Mr
Cornelius vaq Zyl. The\concern from CCMA is that if Mr. Cornelius is so sick
for thi~,Ion9._pe'ri()d of time, for sure he is not getting any salary because he
sho1/id have e:x;hausted his sick leave. The question is for how long should a
.persoq be continuously sick bellbeforeore he could be medically boarded.
,G13n you please help or refer me to someone that can help me to establish how
1q_ng, ,w,ill it take for Mr Cornelius van Zy to be medically boarded if he is not
Jound fit to continue with his normal duties. ,, ... _.,
Kind regards
Thabang Molahlehi'
[61] In paragraph 44 of his award, the Commissioner concluded that the Appellant
failed to take the necessary steps to ensure that the racial harassment would
not persist within the workplace because no evidence was led about whether it
had a policy prohibiting racial discrimination. The. Appellant is taking an issue
21
with this finding on the basis that the representative was not warned that an
adverse finding would be made if evidence was not led on the existence of the
policy. The Appellant is adamant that Van Zyl did not utter racial slurs against
Ntshotsho, and even if it was proven that Van Zyl did contravene the EEA, the
Appellant should not be held vicariously liable because it took all the nec~ssary
steps to address the complaint through a disciplinary hearing.
[62] In order to escape liability under the EEA, the Appellant was obljge<;i to cons~lt
all relevant parties (Ntshotsho and Van Zyl) and take th~ ri~cessary steps to
eliminate the alleged conduct of racial discrimination ahc;l · ,con:,ply with the . ~., '
provisions of the EEA. The arbitrator had regard to<t~e facts 'ql the case and
concluded that indeed Van Zyl had contraveneqthe :~EA'c(ndAppellant had not
taken any reasonable steps to investigate th~ incident, No evidence was led
confirming that a consultation process---t6ok pla¢e. The-'only consultation was
between the Appellant and the Solida~ity trade tfhion, and not with both parties.
The Commissioner cannot be faltered fo(_·having reached a conclusion that the
Appellant did not investigate- the incident nor consult with the parties as
envisaged in section 69.(2}~:0f th~ EE:~. ,
[63] The LAC in SATk\WU bbo/v[etnbers v South African Airways (Pty) Ltd and
Others dealt witb the.,:Oblig~tions of the employers to ensure that it complies
with the pr0v·isions of the EEA and held that:
'lh.m_~ vie~i t~.e ipse dixit of the first respondent that it has acted in accordance
wfth the' Employment Equity Policy is not sufficient for one to conclude that it
l1~s done so. More factual basis was required from the respondent to show how
(has complied with the Employment Equity Policy and other related policies
and plans since it carries the onus to do so. It is only a Court trying the issue
that will have an opportunity to consider all these matters.'17
[64r Molahlehi confirmed that when the representative from Solidarity requested the
exchange of bundles, he informed him that they were not available including
relevant policies, video footage. As such, I am of the view that the appeal has
to fail on the first three grounds and the final question for determination is
17 [2014] ZALAC 40; [2015] 2 BLLR 137 (LAC) at para 22.
22
whether the Commissioner erred in concluding that the Appellant was liable for
Van Zyl's alleged incident of racial discrimination by calling Ntshotsho, a black
employee of the Appellant a kaffir.
[65] The Appellant is a mining company which employs people from different parts
of our country and has a duty to ensure that all employees are treat~d with
dignity. The attitude towards the victims of racial discrimination ~as ---it was
demonstrated towards Ntshotsho in this matter is quite dishearjening to say'tqe
least. On two occasions, Molahlehi emphasised that layinQ fal~~ ~laims of
racism against a fellow employee was a very serious acl,~f mi~conduct and
Ntshotsho could be charged and dismissed for havin9 Jied ab'qut Van Zyl. He
said these while testifying and knowing fully weUtnaf.ti_e ,dic!_ not~ave the version
of Van Zyl whom he perceived as a truthful witness \pased on inconclusive
polygraph test results.
[66] In the SARS18 case, Chief Justice Mo9oeng (cis he then was) expressed his
utter abhorrence with the mpnQ~r in whlch racism is being addressed in this
country and stated:
'[1 OJ Anot~er faclot thal -}_X~uld undermine the possibility to address racism
squarejy would· . be a tendency to shift attention from racism to
·fochnjcaliti~s, .eyen where unmitigated racism is unavoidably central to
the dispute or engagement. The tendency is, according to my
,~xperience, to begin by unreservedly acknowledging the gravity and
repugnance of racism which is immediately followed by a de-emphasis
1~nd over-technicalisation of its effect in the particular setting. At times
a firm response attracts a patronising caution against being emotional
and an authoritative appeal for rationality or thoughtfulness that is made
out to be sorely missing.
[11] That in my view is a nuanced way of insensitively insinuating that
targets of racism lack understanding and that they tend to overreact.
That mitigating approach would create a comfort zone for racism
practitioners or apologists and is the most effective enabling
environment or fertile ground for racism and its tendencies. And the
18 SARS at paras 10-11.
23
logical consequence of all this gingerly or "reasonable" approach to
racism, coupled with the neutralising reference to the word kaffir as the
"k word", is the entrenchment and emboldenment of racism that we now
have to contend with so many years into our constitutional democracy ...
Those who should help to eradicate racism or gross injustice could, with
.....
that approach, become its unintending , unconscious or indifferent
helpers.'
Employer's responsibility under section 60
[67] Section 60(2) provides that the employer must consult alf'r~levaqtparties and
take the necessary steps to eliminate the alleged con~_uct of disFim'in.ation and
comply with the provisions of the Act. Whil,e sect)on ~0(4} /states that an
employer may escape liability if it is able to prove that it had done all that was
reasonably practicable to ensure t'1af lhe ,'?mplqyee would not act in
contravention of the Act.
[68] In determining whether an ~mployer, in a -se-ction 60 claim, has done all that . ~
was reasonably practicabl_e to ensµre that the employee would not contravene
the Act, the Court in Biggar v.(;ity of Johannesburg19, the respondent employer
was found to not:have tak~n any steps to prevent the racial discrimination
complained 9f~ §riefly_, the A,'ppellant, a black firefighter, was transferred to a
new fire station, his c,hildreri were subjected to various forms of racial abuse by
the chil_dren\of his white colleagues and the harassment continued for years
ev~n after _the· Appellant had complained. The Court, on the evidence
presented, f0und that the City had taken no steps to address the racial
haras~111ent experienced. Where intervention did occur (i.e. the issuance of
vy·arnings against the Appellant's antagonists), the City failed to follow up or
ir,nplement any lasting solutions. The Court found that the only reasonable
conclusion it could reach was that the City was reluctant to deal with the issue.
The Court found that the City did not take all necessary steps to eliminate the
racial abuse and that it could not be said that it did everything that was
reasonably practicable to prevent the continued harassment.
19 (2011) 32 ILJ 1665 (LC); [2011] ZALCJHB 5.
24
[69] National Union of Metalworkers of SA & another v Passenger Rail Agency of
SA20 concerned the alleged sexual harassment of a junior employee by two
senior managers of the first respondent employer. The employee referred a
section 10 process alleging that the respondent contravened the provisions of
section 60 of the Act whilst the respondent alleged that, when the alleijations
of sexual harassment had been raised, steps had been taken in terms/o{ section .
60(2) of the EEA and thus, it had taken all the necessary steps in accora~nce
with the provisions of the Act. Moshoana J provided a .summary of the
legislative scheme of the EEA and its dispute resolution {Tl~dh~nism and held
that:
'[16] In my view, a claim predicated on s60 is,,or:ielh~t is1civil in nature. It
does not resort under s 1 O of tl)e EEA. T,hus rts onus position is
governed by the principle Ol!tli_r,~d in.Pi/lay v }Jrishna & another- s/he
who alleges must prove. As I see it, i(l as 60 claim, two aspects require
proof; namely (a) contravertion of the EEA; and (b) the employer's
failures. In the q:>ntE:!xt of s 60, the ·contravention must have happened
/. ' through acts,.of agents -employees -hence the need to bring that
contraventlpn fo{he immediate attention of the employer. Contravention
of the EEA may happen in many forms, regard being had to the EEA as . ' ... -
a whol~: In an instance of sexual harassment, the contravention
happer:,s when-' one employee harasses another sexually. Since the
employer may not be in a position to disprove the harassment
~Ilegati6n, the onus contemplated in s 11 must lie on the employee who
,_committed the act of unfair discrimination and not the employer, since
'allegations are not made against it.
[17] Therefore, the conclusion I reach is thats 11 finds no application in as
60 claim. I also take the view that a s 60 claim may be brought without
first complying with the dispute-resolution procedure outlined in s 10 of
the EEA. This conclusion finds support from a plain reading of s 60(3).
The section, in part, states: 'and it is proved that the employee has
contravened the relevant provision' (emphasis added). It must naturally
follow that the aggrieved party must prove the alleged contravention.
Otherwise, who then must prove that the employee has contravened
20 (2021) 42 ILJ 2637 (LC); [2021] ZALCJHB 312.
25
the relevant provisions? It cannot be the employer who must prove the
contravention .
[18] In order to escape liability, the employer must disprove failure. I do
accept that an employer may also $Ucceed in a s 60 claim if it disproves
that the EEA was contravened. Of course, in order to disprove the
failure, the aggrieved employee must have proven that ther~/ii_a failure
on the part of the employer. Therefore, the overall onus in a s 60·claim
rests with the aggrieved employee -plaintiff/ Appellant.
[19] One last aspect to be mentioned on the issue i;•tQat the contravention
of the EEA may be proven in separate pro~e~dings a11d presented in a
s 60 claim as proof of contravention,.A-_properreadir:ig of s 10 of the
EEA suggests that Limo could hasie referred a dispute to the CCMA
against Ramutloa and Swartz.as individual employees. Section 10(2)
refers to a party as oppos¢d to an en:iployee. However, if that party is
an employee and alleges u~fair discrimination on the grounds of sexual
harassment, that employee as ~,p~_rty may refer a dispute to the CCMA
for arbitration)(certain conditions are met. Section 10(8) makes the
' point I arri; maki~g)n this jucJgment to be beyond perspicuous, in that it
refers to a .,perSOQ affected by an award and not an employer
specifi~ally.
[70) In V v Pas~enger Ra.ii Agency of South Africa (PRASA) and Others21 the Court
confirJ11ecJ th~t in order to be held liable in terms of section 60 the Employer has
a duty tojce>risult with all relevant parties. It was held that:
'l).1raing to the issue of liability. Section 60 of the EEA effectively introduces
what may be seen as the common law principle of vicarious liability. What is
required is firstly, an allegation of discrimination (sexual harassment) being
brought to the attention of the employer. Once that is done, the employer is
obligated to consult all the relevant parties and must take the necessary steps.
The necessary steps in this instance does not necessarily mean taking
disciplinary steps against the alleged perpetrator. The steps must be aimed at
eliminating the alleged conduct. Taking disciplinary steps does not of necessity
lead to the elimination of the conduct. Where an employer adopts a code on
21 [2020] ZALCPE 6 at para 15.
26
sexual harassment, such is a step aimed at eliminating the conduct of sexual
harassment. This Court in Potgieter v National Commissioner of the SA Police
Services and another concluded that the sanction, which was imposed by the
SAPS was an irrelevant issue. The investigations conducted by Majola were
sufficient. The obligation in the section is not intended at aimless processes. A
disciplinary enquiry would have been an aimless exercise in the circumstances
of this matter.'
[71] Having regard to the merits of this matter, I am satisfied that,NtsJ1otsho w,~s
able to prove that there was a contravention of the EEA durif\~ the criminal trial
proceedings and the Appellant failed to accept such prbqf as,,~vidence that
indeed Van Zyl had called Ntshotsho a Kaffir. The<fommissi .f:mer,cannot be
faltered for ignoring the Appellant's claims that Var, Z:yh~ad a_p'pealed against
his conviction and sentence-without any proqf. Based \On flie above, I cannot
find errors in the Commissioner's findin_g th~t the Appellant is vicariously liable
for Van Zyl's contravention of the EE,4. in terms,,of section 60(4) of the EEA.
[72] In terms of clause 6 of the CQMA guidelines published in line with section
A .--
115(2)(9) of the LRA, . the CCMA and all its Commissioners are obliged to
' ' ' . " ::::::::: ...
interpret and apply the Labour Relations Act and other legislation in accordance
with judicial decisions of courts that are binding on it. These include the ' ' .... , '
decisions of the Constitutional Court, the Supreme Court of Appeal, Labour
~ ~ ...,;:,, ~ J
Appeal Court, High Court and Labour Court. I am satisfied that the Arbitrator
interpreted and applied all the legal principles applicable in Employment Equity
' .. \ ..:. ..1111
disputes as prescribed in the guidelines. "' _·..:.· ..
[73] for all't~e .above reasons, the award is correct and not appealable on any of
,th,e/grourids raised by the Appellant. The application was not opposed, as such
t~e issue of costs does not arise.
[74J In the result, the following order is made:
Order
1. Condonation for the late delivery of the notice of appeal is granted.
27
2. The appeal is dismissed.
3. There is no order as to costs. w~
GC Rflakedi
Acting Judge of the Labour Court-0.f·South AfriG~.
Appearances:
For the Appellant:
Instructed by:
For the Respondent: Adv Engelbrecht SC
Webber Wentzel
No appearance 28