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[2025] ZALCCT 82
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Bergrivier Local Municipality v Swartz and Another (C316/2024) [2025] ZALCCT 82 (22 September 2025)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
LABOUR – Sexual harassment –
Sanction
short of dismissal
–
10-day
unpaid suspension and final written warning – Persistent and
unwanted physical molestation of a colleague –
Lack of
remorse and dishonesty – Most serious forms of
workplace misconduct – Destruction of trust relationship
implied by nature of offence – Imposed sanction was wholly
disproportionate to gravity of misconduct – Induced
a sense
of shock – No room for sanction short of dismissal –
Sanction substituted with summary dismissal.
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT CAPE TOWN
Case
no: C316/2024
Not
reportable
In
the matter between:
BERGRIVIER
LOCAL
MUNICIPALITY
Applicant
and
MR
R SWARTZ
First
Respondent
DR
JCP TESSELAAR
Second
Respondent
Date
of Hearing:
9 September 2025
Date
of Judgment:
22
September 2025
This judgment was handed
down electronically by circulation to the parties’ legal
representatives by email, publication on
the Labour Court website and
release to SAFLII. The date and time for handing down judgment is
deemed to be 10h00 on 22 September
2025.
Summary:
(Review in terms of section 158(1)(h)
of the LRA – review of sanction short of dismissal imposed by
chairperson under the
South African Local Government Bargaining
Council’s Disciplinary Procedure Collective Agreement –
serious, repeated
sexual harassment of a colleague – no rule
requiring employer to lead evidence of zero-tolerance or breakdown in
trust relationship
– sanction short of dismissal reviewed and
substituted with summary dismissal).
JUDGMENT
LESLIE
AJ
[1]
The first respondent, Mr Swartz, is currently employed by the
applicant (“the Municipality”). Following a
disciplinary
hearing convened in terms of the South African Local Government
Bargaining Council’s Disciplinary Procedure
Collective
Agreement (“the DPCA”), in a ruling dated 18 April 2024
the second respondent found Mr Swartz guilty of
serious allegations
of sexual harassment of a fellow employee.
[2]
In a separate ruling on sanction dated 22 May 2024, the second
respondent imposed a sanction short of dismissal. The sanction
imposed was a 10-day unpaid suspension together with a final written
warning valid for 12 months.
[3]
In making his findings, the second respondent was exercising a
mandate, under the DPCA, to make final decisions on behalf
of the
Municipality. His decisions bind the Municipality
qua
employer.
[4]
This is an application, brought in terms of section 158(1)(h) of the
Labour Relations Act 66 of 1995 (“the LRA”),
to review
and set aside the second respondent’s finding on sanction and
to substitute it with a sanction of summary dismissal.
[5]
In
Hendricks v Overstrand Municipality
(2015) 36 ILJ 163 (LAC)
it was established that this court has jurisdiction to review
decisions of this nature on the grounds contained
in the Promotion of
Administrative Justice Act 3 of 2000 (“PAJA”),
alternatively on grounds of legality. In the present
matter the
applicant argues that the decision on sanction is reviewably
unreasonable and irrational.
[6]
The application is opposed by the second respondent.
[7]
When the matter was
called on 9 September 2025, Mr Swartz requested a postponement on the
basis that he wished to be represented
by new legal representatives.
The postponement application was was opposed by the applicant. After
hearing oral submissions from
both parties, I exercised my discretion
to refuse the postponement. It appears that Mr Swartz’s
previous attorneys withdrew
on or about 22 August 2025. Mr Swartz
stated that he had been in contact with new attorneys from that date.
However, his new attorneys
had not come on record. Nor had they
formally applied for a postponement. They had had ample time, since
22 August, to do so. There
was no clear explanation for this laxity.
There is no reason why the new legal representatives, acting
diligently, could not have
adequately prepared to argue the matter
[1]
within the time available since 22 August. Given that Mr Swartz
remains employed by the Municipality, there would have been ongoing
prejudice to the Municipality if the matter was delayed any further –
bearing in mind that the misconduct in question took
place in
November 2023. There was also no tender of the Municipality’s
wasted costs. In short, Mr Swartz did not make out
a cogent case for
postponement.
[8]
Turning to the merits of the review application, Mr Swartz was
originally charged with four counts of misconduct. The
first two
counts were subsequently abandoned by the Municipality. Mr Swartz
pleaded not guilty to all four counts. The second respondent
rejected
Mr Swartz’s version and found him guilty of counts 3 and 4,
namely:
“
Klagte
3
Dat u op 4 November
2023 gedurende die dag vir Me E[...] B[...] met die raadsvoertuig
vervoer het vanuit Porterville na Piketberg,
u hand verskeie kere op
haar borste en vagina (privaat liggaamsdele) sonder haar toestemming
geplaas en / of haar betas het. U
het dit keer op keer gedoen nadat
sy u versoek net om dit nie te doen nie. U het egter nie daar gestop
nie en liewer haar hand
geneem en op u penis geplaas. U genoemde
aksies kom neer op seksuele teistering en / of betasting en / of
woorde tot die effek.
…
.
Klagte 4
Dat u op 4 November
gedurende die aand vir Me E[...] B[...] met the raadsvoertuig vervoer
het vanuit Piketberg na Porterville, weer
haar begin vat, o.a. haar
vagina (privaat ligaamsdele) en borste. Nadat sy nee gese en u hand
van haar verwyder het, het u weer
haar hand op u penis geplaas sodat
sy kon voel hoe styf u raak terwyl u vir haar vra “kan jy voel
hoe lus ek vir jou?”.
U genoemde aksies het tot gevolg gahad
dat u vir Me B[...] seksueel geteister en / of betas het. …”
[9]
The misconduct committed by Mr Swartz was of an exceedingly serious
nature. It was repeated on two occasions on 4 November
2023. Mr
Swartz showed no remorse for his conduct. On the contrary, he
dishonestly denied it at the disciplinary hearing.
[10]
There is no challenge to the second respondent’s findings that
Mr Swartz committed the misconduct set out in counts
3 and 4 above.
[11]
The second respondent appears to have appreciated the seriousness of
the misconduct in his sanction ruling. However,
he declined to impose
a sanction of dismissal because the Municipality had not pertinently
led evidence on its policy on sexual
harassment and the breakdown of
the trust relationship between employer and employee. He reasoned as
follows:
“
No testimony
was offered by any level of management as to ‘unfair
discrimination’ view
(sic)
or ‘zero
tolerance’ view
(sic)
or
‘intolerant position’.”
[12]
The second respondent went so far as to find that Mr Swartz deserved
to be dismissed and that management had let Ms B[...]
down, “
but
in the absence of guiding testimony by management as highlighted in
my analyses, I therefore must give you the benefit of doubt
and opted
(sic)
for a strong sanction other than dismissal.”
[13]
The second respondent accordingly imposed a sanction of suspension
without pay for 10 days, coupled with a final written
warning.
[14]
The second respondent clearly erred in finding, on the facts of this
case, that the Municipality was under an obligation
to lead evidence
on its sexual harassment policy and the breakdown of the trust
relationship between employer and employee.
[15]
Although the second respondent did not cite any authority for this
finding, he may have had in mind the decision of the
Supreme Court of
Appeal in
Edcon v Pillemer
(2009) 30 ILJ 2642 (SCA), in which
the employer was faulted for failing to lead specific evidence on the
breakdown the trust relationship.
[16]
Since 2009, however, a
number of subsequent authorities have made it clear that there is no
immutable rule requiring an employer
to lead evidence of a breakdown
of trust. There is no such requirement where it is self-evident from
the seriousness of the misconduct
that the necessary trust
relationship between employer and employee has been destroyed.
[2]
[17]
Nor was there a
requirement, in this case, for the Municipality to have led evidence
that it had a zero-tolerance policy towards
sexual harassment. To
require this of the Municipality was to place form over substance. As
the Labour Appeal Court has held, sexual
harassment is “
the
most heinous misconduct that plagues a workplace”
.
[3]
[18]
In
Tlou
v Commission for Conciliation, Mediation and Arbitration
,
[4]
with reference to the
above authority, the Labour Court (per Prinsloo J) held as follows:
“
The LAC
characterised sexual harassment as the most heinous misconduct in a
workplace. It is certainly conduct that an employer
cannot tolerate
and which arbitrators and this court should not condone or reward.
Sexual harassment creates an offensive and very
often intimidating
work environment that undermines the dignity, privacy and integrity
of the victim and creates a barrier to substantive
equality in the
workplace.
I
find it difficult to accept that there is a need to adduce specific
evidence to show that the trust relationship was destroyed
in the
event where an employee is found guilty of sexual harassment. The
destruction of the trust relationship is implied by the
seriousness
and heinousness of the misconduct
.”
(emphasis
added)
[19]
The present case involves persistent, unwanted physical molestation
of a colleague. Ms B[...] was in a vulnerable position
as she was
dependent on Mr Swartz for transport to and from the workplace. The
record shows that it was not easy for her to testify
about the events
of 4 November 2023. Despite robust cross-examination calling her
version into question, the second respondent
ultimately accepted that
the sexual harassment had taken place exactly as described by Ms
B[...]. By corollary, Mr Swartz had been
dishonest in his testimony.
He showed no remorse. Mr Swartz’s personal circumstances could
not ever outweigh the above factors,
such that a sanction short of
dismissal could be justified.
[20]
The sanction imposed by
the second respondent (a 10-day suspension, coupled with a final
warning) induces a sense of shock.
[5]
The sanction ruling was wholly irrational in relation to the evidence
before him. It was so unreasonable that no reasonable decision-maker
could have arrived at it. As such, the sanction ruling falls to be
reviewed and set aside.
[21]
By way of relief, I see
no reason why substitution should not be granted. I have the full
record of proceedings before me. Once
the second respondent’s
“bad reason”
[6]
is
dispensed with the outcome is a foregone conclusion. The only
reasonable sanction in the circumstances of this case is summary
dismissal.
[22]
The applicant did not press for costs against Mr Swartz and I do not
propose to make any order of costs.
[23]
In the premises, the following order is made:
Order
[1] The second
respondent’s finding on sanction (“the sanction
finding”), dated 22 May 2024, is reviewed
and set aside.
[2] The sanction
finding is substituted with a finding that the first respondent is
summarily dismissed.
[3] There is no
order as to costs.
Leslie
AJ
Acting
Judge of the Labour Court of South Africa
Representatives
–
For
the applicant: T du Preez, instructed by Van Der Spuy &
Partners
For
the first respondent: In person
[1]
Mr Swartz, assisted by his erstwhile attorneys, had delivered an
answering affidavit opposing the review application.
[2]
See for example,
Anglo
Platinum v De Beer
(2015)
36 ILJ 1453 (LAC) para 19;
Absa
Bank Ltd v Naidu
(2015)
36 ILJ 602 (LAC) para 52 and
Impala
Platinum Ltd v Jansen
(2017)
38 ILJ 896 (LAC).
[3]
Campbell
Scientific Africa (Pty) Ltd v Simmers
(2016)
37 ILJ 116 (LAC) paras 18-21.
[4]
(2020) 41 ILJ 1445 (LC) para 46.
[5]
In the sense described in
Toyota
South Africa Motors (Pty) Ltd v Radebe
[2000]
3 BLLR 243
(LAC) para 53.
[6]
Namely, his finding that the Municipality was under a duty to lead
evidence on its attitude towards sexual harassment and the
breakdown
in the trust relationship.