REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number: 301/04
Reportable
In the matter between:
MEDIA 24 LIMITED FIRST APPELLANT
GASANT SAMUELS SECOND APPELLANT
and
SONJA GROBLER RESPONDENT
CORAM
: FARLAM, NAVSA, CONRADIE, HEHER et
VAN HEERDEN JJA
HEARD
: 9 MAY 2005
DELIVERED: 1 JUNE 2005
SUMMARY: Delict – liability of employer for sexual harassment of
female employee by trainee manager – negl igent breach by employer of legal duty to
maintain working environment in which employees not subject to sexual harassment -
question as to whether employer vicariously liable left open – high court’s jurisdiction not
excluded by s 157 of Labour Relations Act 66 of 1995 – psychological injury in fact
resulting from conduct of trainee manager away from workplace after series of acts of
harassment in workplace – high court’s ju risdiction not excluded by s 35(1) of
Compensation for Occupational Injuries and Diseases Act 130 of 1993
________________________________________________________
JUDGMENT
________________________________________________________
FARLAM JA
2
INTRODUCTION
[1] This is an appeal from a judgment of Nel J, sitting in the
Cape High Court, in which the fi rst and second appellants were
held jointly and severally liable to pay the respondent a total
amount of R776 814. This was t he figure at which the trial court
quantified the damages which she had suffered as a result of
sexual harassment to which it held she had been subjected over a
period of approximately five months by the second appellant and
for which it held that the first appellant was vicariously liable.
[2] The judgment of the court a quo has been reported : see
Grobler v Naspers Bpk 2004 (4) SA 220 (C).
PLEADINGS
[3] At the time when the alleged sexual harassment took place
the respondent was a 33 year ol d secretary employed by
Nasionale Tydskrifte Ltd (to which I shall refer in what follows as
‘Tydskrifte’), a wholly owned subsidiary of the first appellant. The
second appellant was at that time a trainee manager employed by
the first appellant. In response to the respondent’s averment in her
particulars of claim that she was employed by the first appellant,
the latter ultimately pleaded that she was in fact employed by
Tydskrifte, which had disposed of its undertaking and whose only
remaining employee was the respondent . It went on to aver that it
3
had accepted liability for any obligations Tydskrifte might have
towards the respondent.
[4] The first appellant thus figured in the case in two capacities.
In its first capacity, as the empl oyer of the second appellant, it was
alleged to be vicariously liable f or his actions in subjecting the
respondent to sexual harassment. In its second capacity, as the
party which had accepted liability for the obligations of Tydskrifte, it
faced allegations that Tydskri fte, as the respondent’s employer,
was under a legal duty to its employees, in particular to the
respondent, to create and maintain a working environment in
which the dignity of its empl oyees would be respected and,
amongst other things, to take all reasonable steps to prevent its
employees from being sexually harassed by other employees in
their working environment.
[5] The respondent alleged furt her in paragraph 14 of her
particulars of claim that this duty had been breached because
there had been a wrongful and negligent failure to prevent the
second appellant from sexually hara ssing her. In this regard it was
alleged that the first appellant [in the circumstances, regard being
had to the way in which the case was conducted, this allegation
must be taken to refer to Tydskrifte], or its management:
4
’14.1 failed to come to the assistance of the [respondent]
notwithstanding her requests;
14.2 failed to act against the [sec ond appellant] notwithstanding the
fact that it was common knowledge at [Tydskrifte’s] premises
that the [second appellant] was sexually harassing the
[respondent];
14.3 failed to deal with allegations of sexual harassment against the
[second appellant] seriously and expeditiously;
14.4 permitted the [second appellan t] wide latitude in his conduct
towards his subordinates, in particular, the [respondent];
14.5 failed to act against the [second defendant] notwithstanding the
fact that [he] had previously sexually harassed female
employees of [the first appella nt and Tydskrifte] during his
employment with the [first appella nt] and notwithstanding the
fact that this was known to the management of [Tydskrifte];
14.6 failed to create a climate in the workplace in which the victims of
sexual harassment, in particular the [respondent], would not feel
that their grievances were being ignored;
14.7 failed to take all or any reasonab le steps to preserve and protect
the bodily integrity, psychological well-being, m ental tranquillity
and dignity of [Tydskrifte’s] employ ees, in particular that of the
[respondent]; and
14.8 failed to prevent the [second ap pellant’s] sexual harassment of
the [respondent] when such could and should have been
prevented.’
5
[6] According to the particulars of claim, the persons comprising
the management of the first appellant [which again must be taken
to be a reference to Tydskrifte ] referred to in paragraph 14 were
acting in the course of their employment and the scope of their
duties as employees.
[7] The respondent also stated that, as a result of the alleged
sexual harassment, she suffered severe shock, anger, anguish,
fear and anxiety; was humiliated, degraded and disturbed in her
mental tranquillity and emotional integrity, and suffered severe
psychological and psychiatric trauma,
1 manifesting as post-
traumatic stress syndrome.
[8] In its plea the first appellant denied that, in sexually
harassing the respondent as all eged, the second appellant had
been acting in the course and scope of his employment. It pleaded
further that neither it nor Tyd skrifte had any knowledge of the
correctness of the respondent’s a llegations of sexual harassment
and that it made no admissions in respect thereof. With regard to
one specific allegation of harassment, which related to an incident
which took place near a flat owned by the respondent (described in
1 From a linguistic and medical point of view, it is more accurate to speak simply of psychological
trauma, for which both psychological and psychiatric treatment may be required. However, as the
respondent’s pleadings refer in terms to ‘psychological and psychiatric trauma’, I shall utilise this
description or a variant thereof where appropriate.
6
the evidence as ‘the flat incident’), the first appellant pleaded as
follows:
‘7.3.1 It did not take place at the [respondent’s] workplace;
7.3.2 It did not take place on premises controlled by the [first
appellant] or … Tydskrifte …;
7.3.3 It did not take place at a time when either the [respondent] or the
[second appellant] were performing their services in terms of
either of their contracts of employment;
7.3.4 The event did not take plac e within the course and scope of the
employment of either the [respondent] or the [second appellant];
7.3.5 The event did not arise out of the [respondent’s] employment or
that of the [second appellant];
7.3.6 Neither the [first appellant] nor … Tydskrifte … is accordingly
liable for any of the consequences of the alleged incident.’
[9] The first appellant denied being vicariously liable for any
sexual harassment for which the second appellant might be liable.
As regards the allegation that Tydskrifte or members of its
management team had breached a legal duty towards the
respondent, it denied that Tydskrifte owed its employees, including
the respondent, a general ( delictual) duty of c are consisting of the
obligations on which the respondent relied. It conceded that an
employer has moral obligations towards its employees to take all
reasonably practicable steps to protect their integrity, dignity and
7
privacy in their working environmen t but denied that ‘it has any
such legal obligations justiciable’ by the high court. In amplification
of this averment it pleaded that an employer’s obligations in this
regard arose from the provisions of the Labour Relations Act 66 of
1995 (item 2(1)(a) of Schedule 7) at the time of the claim and now
arise from the provisions of s 6 of the Employment Equity Act 55 of
1998, both read with the Code of Good Practice on the Handling of
Sexual Harassment Cases’ published under s 203 of Act 66 of
1995 and that conduct offending agai nst the relevant provisions of
both Acts is justiciable only by the Labour Court. In any event, so it
was pleaded, Tydskrifte had fully complied with any such
obligations.
[10] The first appellant also deni ed that the respondent suffered
from post-traumatic stress disorder as a result of the second
appellant’s alleged sexual hara ssment. It did not, however, deny
that she suffered severe psychol ogical and psychiatric trauma, its
denial on this part of the case be ing confined to the respondent’s
allegation that the psychological and psychiatric trauma she
suffered manifested as post-traumatic stress syndrome.
[11] In addition to pleading the juri sdictional defence set out in
para [9], the first appellant also pleaded that the respondent’s
action was one contemplated by s 35(1) of the Compensation for
8
Occupational Injuries and Diseas es Act 130 of 1993 and that, by
virtue of the provisions of this section, the respondent had no claim
against Tydskrifte other than in te rms of the said Act. The present
action, not being an action in term s of that Act, should thus be
dismissed.
[12] The second appellant denied that he had been guilty of
sexual harassment of the responde nt. In particular he denied the
incidents particularised in subparag raph 4.10 and 4.12 to 4.14 of
her particulars of claim. These incidents, together with that referred
to in sub-paragraph 4.11, were ex tensively covered in the
evidence in the trial court and are dealt with in detail in the trial
court’s judgment. They were vari ously described as ‘the lift
incident’ (paragraph 4.10), ‘the Landbousaal incident’ (paragraph
4.11), ‘the coffee jar incident ’ (paragraph 4.12), ‘the fingerbiting
incident (paragraph 4.13) and ‘the flat incident” (paragraph 4.14).
[13] In respect of the Landbousaal incident, he admitted kissing
the respondent in the room in question but averred that she had
consented to being kissed and had, as it was put, ‘been a willing
participant and had returned [his] ki ss’. He alleged that there had
been what was called ‘a relationship’ between the respondent and
himself. He admitted touching her on occasion, engaging her in
conversations of an intimate natu re, with her willing participation,
9
and asking her to go out with him. He pleaded no knowledge of her
allegations that she suffered ps ychological and psychiatric trauma
and patrimonial loss in consequence thereof, putting the
respondent to the proof thereof.
JUDGMENT OF COURT A QUO
[14] The learned judge in the trial court rejected the second
appellant’s version that there had been a romantic relationship
between him and the respondent. He also found that the incidents
set forth in sub-paragraphs 4.10 to 4.14 had taken place, save that
he was unable to find that, during th e so-called ‘flat incident’, the
respondent was threatened by the second appellant with a firearm.
The judge accordingly found th at the second appellant had
sexually harassed the respondent.
[15] He found that what he called the respondent’s ‘chronic
emotional problems’ were the result of the sexual harassment to
which she was subjected by t he second appellant and which she
could not have escaped - despite her efforts to do so - without the
possible loss of her job. He acco rdingly held the second appellant
responsible for the respondent’s condition. He refrained from
making a specific finding that her condition could be classified as
post-traumatic stress disorder, point ing out that the question to be
considered was whether the second appellant was responsible for
10
the respondent’s conditi on and not how her condition would be
classified by the American Psych iatric Association (the publishers
of the fourth edition of the Diagnostic and Statistical Manual of
Mental Disorders (DSM IV) , to which all the psychologists and
psychiatrists who testified had referred).
[16] He then proceeded to hold the first appellant, as the
employer of the second appellant, vi cariously liable for his actions.
He came to this conclusion a fter a comprehensive discussion of
the common law as to vicarious liability and recent developments
thereof in the United States of America, Canada, the United
Kingdom, Australia and New Zealand. He expressed the view that
policy considerations justified the conclusion that the first appellant
should be held vicariously liable f or the sexual harassment of the
respondent by the second appellant but that, if the existing rules
relating to vicarious liability in our law are not flexible enough or do
not make adequate provision for changed circumstances in order
to deal with the problem of sexu al harassment in the workplace
then, he said, the Constitution ob liges the courts to develop the
common law accordingly.
[17] The trial judge also held that the two jurisdictional defences
raised by the first appellant were without merit. His reasons for this
conclusion are set out fully in the reported judgment and
11
accordingly need not be repeated here. So too, in view of the fact
that the judgment of the court a quo has been reported, it is not
necessary to set out in detail all the allegations and counter
allegations dealt with therein.
ACADEMIC AND PROFESSIONAL COMMENTARIES ON THE
JUDGMENT
[18] The judgment of the trial court, as was to be expected,
aroused considerable attentio n on the part of academic
commentators on the law of delict and industrial law2.
[19] We are grateful to counsel for the respondent, Mr Melunsky,
who conducted the respondent’s case with considerable ability in
both the trial court and this court, f or making available to us copies
of most of the articles in which this case was discussed.
SUBMISSIONS ON BEHALF OF THE FIRST APPELLANT
[20] Mr Burger, who appeared with Mr Duminy and Mr Stelzner
for the first appellant, contended th at the trial judge had erred in
rejecting the evidence of the witness Leon Africa, who testified on
behalf of the second appellant at the trial and said that, before the
2It was discussed in a number of articles published and to be published in the South African
Mercantile Law Journal, the Tydskrif vir die Suid Afrikaanse Reg, the Industrial Law Journal,
Contemporary Labour Law and Employment Law. (See the two articles by J Neethling and JM
Potgieter published in (2004) 16 SA Merc LJ 488 and to be published in 2005 (3) TSAR; the
articles by Alan Rycroft and Devina Perumal, Rochelle le Roux and Benita Whitcher published
in (2004) 25 ILJ at 1153, 1897 and 1907 respectively, the article by Karin Calitz to be
published in 2005 (2) TSAR 215, the article by Carl Mischke published in (2004) 14
Contemporary Labour Law 5 and the article by John Grogan published in (2004) 20 (4)
Employment Law 3.
12
flat incident, the second appell ant and the respondent acted like
children, one minute having arguments and teasing each other, the
next chatting to each, laughing and sm iling. He said that it looked
to him as if they were having an affair. On one occasion he came
into the office he shared with the second appellant and found them
kissing. On another occasion the respondent told him she had
often kissed the second appellant. He also testified that he saw a
letter apparently written by the respondent to the second appellant,
which read ‘Ek het jou lief’ and was signed with a drawing of a sun,
followed by the letters ‘ja’, this combination standing for ‘Sonja’,
the respondent’s first name.
[21] Mr Burger pointed out that the trial judge gave a very cursory
summary of this witness’s evidence and later, when considering it,
contented himself with remarking that, in so far as Africa’s
evidence excused the second appellant’s conduct, it was in conflict
with the evidence of Vanessa Binneman, Nicolene Johnson and
the other corroborating evidence to which he had referred and that
it was accordingly not accepted. Mr Burger submitted that Africa’s
evidence should have been cons idered on its merits and not
simply rejected because it conflict ed with that of other witnesses.
He submitted that in the ci rcumstances the trial judge had
materially misdirected himself in this regard and that Africa’s
13
evidence was of great importance on a key issue in the case as far
as it relates to the first appellant, viz whether any harassment had
taken place before the flat incident . As this incident took place
away from the workplace, the second appellant having ostensibly
gone to inspect the respondent’s flat with a view to buying it, it was
not possible, counsel contended, to hold the first appellant
vicariously liable for the second appellant’s conduct on this
occasion (even if the extended test for vicarious liability set out in
the trial court’s judgment were to be upheld). According to counsel,
Africa had been a good witness and his evidence as to the nature
of the relationship between the second appellant and the
respondent, at least prior to the flat incident, should have been
accepted.
[22] In support of his contentions in this regard, Mr Burger drew
attention to a passage in the respondent’s evidence where she
referred to the period of about three weeks which preceded the flat
incident. During this period, which followed on the second
appellant’s writing a letter to her in which, on her version, he
solemnly swore not to touch her again or treat her badly or force
his attentions on her, she was, she said, very happy at work. She
worked well and she got on well wi th the other people there. She
was experiencing no problems with the second appellant and she
14
could relax. Mr Burger submitted that even if the respondent had
up to that point been sexually harassed by the second appellant
and had not merely been involved in a flirtatious relationship with
him, it could be accepted that, if the flat incident had not occurred,
there would have been no question of the respondent’s suffering
from a post-traumatic stress disorde r. As far as the flat incident
was concerned he submitted that it alone, regard being had to the
three week period of quiet which preceded it, is the only possible
stressful event which could hav e precipitated a post-traumatic
stress disorder affecting the respondent.
[23] He contended further t hat the first appella nt could only be
liable to the respondent on the fact s of this case if she could
establish that the harassment to which she had been subjected
had resulted in a recognised p sychiatric injury (‘erkende
psigiatriese letsel’) (see Barnard v Santam Bpk 1999 (1) SA 202
(SCA) at 216E-F). He pointed out t hat the trial court had refrained
from upholding the respon dent’s contention that she was suffering
from a post-traumatic stress disorder and submitted that, as she
had specifically pleaded th at she had suffered ‘severe
psychological and psychiatric trauma, manifesting as post-
traumatic stress-syndrome’, she had failed to establish that her
condition was of such a nature as to qualify for an order for
15
damages within the ambit of the rule as laid down in Barnard’s
case, supra.
[24] Mr Burger also argued that the court a quo had erred in
holding that the essentials for the successful invocation of the
principles of vicarious liability were present in this case. Such
harassment as was proved to hav e taken place had not been
committed within the course and scope of the second appellant’s
employment. Furthermore, there wa s no empirical evidence to
establish that the first appellant had created or increased a risk of
sexual harassment within the employment relationship. In any
event, the first appellant should not be held to be vicariously liable
for sexual harassment of one em ployee by another merely on the
basis that the first appellant had created or increased a risk of
sexual harassment within the employment relationship. The
expansion of the common law as regards vicarious liability was in
this case not justified on c onstitutional grounds. According to
counsel, South African cases pro vide no authority for the trial
court’s finding of vicarious lia bility; the Canadian and English
decisions were decided in different factual contexts, and the
American authority was of doubtful value in our legal system.
[25] As regards the respondent’s al ternative cause of action
against Tydskrifte, namely that Tydskrifte had breached a legal
16
duty it owed to the respondent by wrongfully and negligently
failing to prevent the second appellant from sexually harassing her,
Mr Burger submitted that the respondent had to prove that it could
reasonably have been expected of Tydskrifte to take positive steps
to prevent the injury to her and that Tydskrifte failed to take such
steps. What could reasonably have been expected from Tydskrifte
was determined by the factual circumstances and the legal
convictions of the community as assessed by the court. Pointing
out that a legal duty is something more than a moral, ethical or
social duty, counsel contended - wi th reference to what was said
by the Constitutional Court in Carmichele v Minister of Safety and
Security 2001 (4) SA 938 (CC) para [43] at 957 - that the question
to be answered was whether Tyd skrifte ought reasonably and
practically to have prevented harm to the respondent: put
differently, was it reasonable to ex pect of Tydskrifte to have taken
positive measures to prevent th e harm? In his submission, no
basis had been laid for any conclusi on that the legal convictions of
the community required the legal duty alleged to be imposed.
Such duties as Tydskrifte had reg arding the prevention of harm to
the respondent flowing from sexual harassment arose from the
contract of employment between it and her, supplemented in some
respects by applicable legislation, such as the Labour Relations
17
Act 66 of 1995, the Occupational Health and Safety Act 85 of
1993, the Compensation for Occupational Injuries and Diseases
Act 130 of 1993, the Basic Conditions of Employment Act 75 of
1997 and the Employment Equity Act 55 of 1998.
[26] Counsel submitted in this regard that there is an important
difference in principle between an employer’s relationship with his
employees, on one hand, and that with the community in general,
on the other. Any duty which an em ployer may have to prevent
sexual harassment of its employee s cannot be separated from the
employment relationship, which is contractual both as to its origin
and its nature, with statutory in clusions and additions. In the
present case Tydskrifte had no legal duty qua employer towards its
employee, the respondent, which did not arise from a contract of
employment or applicable legisl ation. Instead of relying on a
(delictual) legal duty, the respo ndent should have relied on a
provision in her employment cont ract, whether express or implied,
which she clearly had not done. T hat, he contended, constituted a
complete defence to the respo ndent’s claim against the first
appellant in so far as it was being sued as the party which had
accepted an obligation to assume any liability that Tydskrifte had
towards the respondent in this regard. In support of this
submission he relied on the de cision of this court in Lillicrap
18
Wassenaar and Partners v Pilkington Brothers (SA) Ltd 1985 (1)
SA 475 (A) at 499H-I.
[27] Even if there were a general legal duty on the part of
Tydskrifte which could be enforced in a delictual action, this duty,
so counsel submitted, had been discharged: in 1997 already, a
sexual harassment policy had been accepted and applied
throughout the whole Naspers group of which Tydskrifte formed a
part; this policy had been distribu ted and made known throughout
the whole group; a copy thereof ha d speedily been made available
to the respondent as soon as she asked for it; a grievance
procedure, supplementary to the procedures which were
applicable at all levels in the group in terms of the sexual
harassment policy, had been accepted enabling employees to
direct and follow up their grievances to a variety of people within
and outside Tydskrifte, and t he disciplinary procedure had been
set in motion expeditiously against the second appellant as soon
as the respondent had laid a f ormal charge against him. Mr Burger
submitted that the evidence thus showed not only that Tydskrifte
had exercised reasonable care to prevent and correct promptly
any sexually harassing behaviour bu t also that any legal duty to
which it was subject had been complied with.
19
[28] He pointed out that the resp ondent, who was at all relevant
times aware of the disciplinary policy and code and the grievance
procedure of her employer, had refra ined from taking formal steps
of any kind against the second appellant until after the flat incident:
that is to say after being subj ected, on her version, to
approximately six months of harass ment. Her failure in this regard
was, he submitted, unreasonable, alternatively she had herself to
accept responsibility for the fact that steps were only taken against
the second appellant after the flat incident.
[29] As regards the first jurisdictional defence raised by the first
appellant, as set out in para 9 above, counsel referred to the Code
of Good Practice on the Handlin g of Sexual Harassment Cases
promulgated in terms of s 203(2) of Act 66 of 1995, read with
s 203(3) in terms of which any such code must be taken into
account in interpreting and applying the Act, and submitted that the
elimination of sexual harassment in the workplace was recognised
as a labour matter involving the application of Act 66 of 1995 in so
far as concerns the relationship between employer and employee.
He also pointed out that sexual harassment cases are presently
dealt with under Chapter II of the Employment Equity Act 55 of
1998. Section 10 of that Act, whic h is part of Chapter II, provides
that disputes concerning alleged unfair discrimination (of which
20
harassment is a form (see s 6 (3)) must be referred for conciliation
and, failing resolution, to the Labou r Court and, further, that the
relevant provisions of Parts C and D of Chapter VII of the Labour
Relations Act (which include s 157), with the c hanges required by
the context, apply to such disputes.
[30] Dealing with the trial court’s second reason for rejecting this
jurisdictional defence (a reason which applies also in respect of the
second jurisdictional defence), namely that the respondent’s
employer was Tydskrifte and not the first appellant, Mr Burger
submitted that in this regard the tr ial court overlooked the fact that,
from a practical point of view, the respondent and the second
appellant were both working in the same organisation.
[31] He then turned to the second jurisdictional defence (as set
out in para [11] above), namely that the High Court was precluded
from hearing the respondent’s action because of the provisions of
s 35(1) of the Compensation f or Occupational Injuries and
Diseases Act 130 of 1993, which reads as follows:
‘(1) No action shall lie by an employ ee … for the recovery of damages in
respect of any occupational injury or disease resulting in the
disablement … of such employee against such employee’s employer,
and no liability for compensation on t he part of such employer shall
21
arise save under the prov isions of this Act in respect of such
disablement …’
[32] The trial court’s first reason for rejecting this defence was
based on a finding that the Ac t required a particular incident
constituting an ‘accident’ to have taken place before compensation
would be payable thereunder and that it made no provision for the
consequences of prolonged harassm ent. Counsel submitted that
this was incorrect because the Act was not confined to providing
claims for compensation for injuries sustained as a result of
accidents but also for occupational diseases, many of which can
be contracted as a result of prolon ged exposure to what he called
work-related hazards (arbeidsgevare). In this regard he referred to
s 65(1) of the Act, which as far as is material, reads as follows:
‘(1) Subject to the provisions of this Chapter, an employee shall be entitled
to the compensation provided for and prescr ibed in this Act if it is proved to
the satisfaction of the Director-General –
(a) that the employee has contracted a disease mentioned in the first
column of Schedule 3 and that such disease has arisen out of and
in the course of his or her employment;
or
(b) that the employee has contracted a disease other than a disease
contemplated in paragraph (a) and that such disease has arisen out
of and in the course of his or her employment.’
22
In terms of s 66 it is presumed, unless the contrary is proved, that
if an employee who has contracted an occupational disease listed
in the first column of Schedule 3 was employed in any work
mentioned in the second column of the Schedule, the disease so
contracted arose out of and in the course of his employment. Thus,
to give an example, a hearing impairment suffered by an employee
engaged in work involving exposure to excessive noise will be
presumed to have arisen out of and in the course of the
employment of the employee concerned.
[33] Post-traumatic stress syndrome is not a disease listed in
Schedule 3, but, by virtue of the provisions of s 65(1) (b) of the Act,
if the respondent contracted it in ci rcumstances arising ‘out of or in
the course of her employment’, she would be entitled to
compensation under the Act and woul d not be able to institute a
civil action against Tydskrifte.
[34] Mr Burger accordingly submitted that, if the respondent’s
condition is correctly to be diagnosed as post-traumatic stress
syndrome and she contracted it in her workplace as a result of
exposure to sexual harassment by the second appellant, she
would be entitled to compensation under s 65 of the Act and would
be precluded from instituting a common law action for damages
against Tydskrifte.
23
SUBMISSIONS ON BEHALF OF THE SECOND APPELLANT
[35] Mr Heunis, who appeared on behalf of the second appellant,
submitted that the trial court erred in finding that it had been
proved that the second appell ant had sexually harassed the
respondent. He associated himself with Mr Burger’s submission
that the trial judge had been guilt y of a misdirection in the
summary manner in which he had re jected the evidence of the
witness Africa. He contended that Africa had been a good witness
who corroborated the second appellant on the pi votal factual issue
in the case, namely whether the second appellant had sexually
harassed the respondent or was involved in a consensual
flirtatious romantic relationship with her. He conceded that the
second appellant had not been a sati sfactory witness but said that
the same applied to the responden t who had given untruthful and
dishonest evidence on various point s. As both of the two principal
role players were unsatisfactory, the evidence of Africa became
particularly important. On his evid ence (the important aspects of
which have been summarised in par a [20] above), there was no
question of harassment: the respondent was clearly involved in a
consensual relationship with the second appellant. He submitted
further that she was a single wi tness in respect of many of the
incidents relied on.
24
[36] Furthermore, there was a pattern discernible in her conduct
in that she had had an office affair previously with the main person
for whom she performed secretaria l duties, namely Barend van As
(at that time the production manager of Tydskrifte). This affair had
terminated some months before her relationship with the second
appellant began. He also argued that the tria l court had erred in
finding that the flat incident had caused the respondent to lay a
charge against the second appellan t. He referred in this regard to
the evidence given by Anchen Pienaar, a social worker employed
at the time by the Naspers group, who testified that the respondent
had told her that, before she decided to go to Ulrich Stander (the
labour law consultant employed by Naspers) to report what had
happened, there had been a telephone call on either the Thursday
or the Friday following on the flat incident as a result of which she
had had to tell her husband of what had allegedly happened at
work. This, and not the flat incident, he suggested, had
precipitated her report to Stander.
[37] Mr Heunis submitted that it was significant that, after the so-
called Landbousaal incident, the re spondent burst into tears only
when Nicolene Johnson commented on lipstick marks on the
second appellant’s collar in t he respondent’s presence, not when
she first came back to her workst ation after being in the Landbou
25
room. This was not consistent with the allegation of sexual
harassment. The scratchmarks on the second appellant’s back,
which Nicolene Johnson saw, were not necessarily corroborative
of the respondent’s story.
[38] He contended that the two female witnesses called to
corroborate the respondent by telling of a pattern of similar
conduct on the part of the se cond appellant in the past had not
succeeded in proving such simil ar conduct. Thus, for example,
Elsabe van den Berg, who had work ed with the second appellant
at the premises of Nasionale Boekdrukkery in Goodwood/Parow in
1996, testified that the second respondent had sexually harassed
her, essentially by making crude suggestions to her and using
sexually offensive language. In addition, Lieza Blom had conceded
in cross-examination that it was possible that she had been unduly
sensitive regarding proposals and su ggestions put to her by the
second appellant (as a result of previous experiences she had had
at Naspers).
[39] As far as the evidence of Nicolene Johnson was concerned,
important aspects in her evidence did not appear from her original
written statement or her evidence at the disciplinary enquiry. Mr
Heunis submitted that her eviden ce had to be approached with
great caution as it was clear that she harboured a grudge against
26
the first appellant because she thought that she had been
retrenched as a result of testif ying at the disciplinary proceedings
against the second appellant, despite the fact that she had been
promised that the company would look after her and that she
would not lose her job.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
[40] Mr Melunsky submitted that the trial court had correctly found
that the second appellant had se xually harassed the respondent
and that she suffered severe p sychological sequelae as a result. It
was not necessary for the court to find that the respondent
suffered from post-traumatic st ress disorder in order to impose
liability on the appellants: the nam e to be given to her condition
was immaterial for the purposes of a finding that the appellants
were liable.
[41] T he trial court correctly found, so he contended, that the first
appellant was vicariously liable f or the acts of sexual harassment
found to have been committed by the second appellant. In the
alternative he contended that it had been shown that Tydskrifte
was under a legal obligation to ens ure safe working conditions at
its workplace. That obligation included a duty to protect the
respondent from sexual harassm ent. Various persons who were
on the managerial staff of Tydskrif te were aware of this sexual
27
harassment. In breach of their du ty to prevent a recurrence
thereof, they negligently remained passive and permitted the
harassment to continue.
[42] According to counsel, the tr ial court had correctly rejected
the jurisdictional defences raised by the first appellant.
DISCUSSION:
WAS THE RESPONDENT SEXUA LLY HARASSED BY THE
SECOND APPELLANT?
[43] It is convenient to deal first with the issue as to whether the
respondent succeeded in proving that she was sexually harassed
by the second appellant.
[44] In what follows I am prepared to assume, without deciding,
that the trial judge may well have misdirected himself in regard to
the manner in which he approached the evidence of the witness
Africa. I shall accordingly cons ider whether this court can be
satisfied on the record of the evidence led that the second
appellant was indeed guilty of sexual harassment of the
respondent.
[45] I do not think that the evi dence of Leon Africa can be
accepted. On two important aspect s, his evidence, if accepted,
would corroborate that of the second appellant and undermine that
of the respondent on the crucial ques tion as to whether they had a
28
romantic relationship or whether he was guilty of sexually
harassing her. The first item of his evidence to which I refer is his
statement that on one occasion he entered the office which he
shared with the second appellant, the door of which was half open,
and found the second appellant and the respondent embracing
and kissing one another. The second item was his statement that
he saw a note with the words ‘Ek het jou lief’, apparently signed by
the respondent with a drawing of the sun followed by the letters
‘ja’. This note, which the second appellant kept in a drawer he
shared with the witness, was written on a 9cmx9cm yellow sticker.
[46] The difficulty with both these items of evidence is that they
are directly in conflict with the evidence of the second appellant.
As far as the kissing incident is concerned, the second appellant
said that he and the respondent always closed the door of the
office before they kisse d. As regards the alleged note, the second
appellant said it was written on a paper serviette. The conflicts
between the second appellant and Africa on these and other
issues are of such a nature as to satisfy me that Africa’s evidence
must be rejected.
[47] As will be seen from what follows I do not rely on the
evidence of Elsabe van der Berg and Lieza Blom that the second
appellant was also guilty of sexually harassing them. I am
29
prepared to assume that Mr Heunis’s submission that it would not
be appropriate to do so may well be correct. I have also not relied
on the evidence of Nicolene Johns on. Here also I am prepared to
assume that Mr Heunis’s argument in regard to her evidence
should be accepted.
[48] It is true that, in respect of t he specific incidents referred to,
we are largely dependent on the te stimony of the two main
protagonists, both of whom were in certain respects unsatisfactory
witnesses. It seems to me, however , that there are certain aspects
of the evidence, which the second appellant either admits or
cannot deny, which indicate unm istakeably where the truth lies.
They enable us, as it were, to ascertain in which direction the
current is flowing and thus to dete rmine, in my view, with a fair
degree of accuracy whether or not there was sexual harassment.
[49] The first aspect to which I ref er relates to the respondent’s
assertion that, after the first incident of harassment relied on (the
lift incident), he threatened her wi th a newspaper ar ticle about her
husband’s previous criminal trial. He admitted obtaining the report
in question from the Internet an d satisfying himself that the
respondent, whom he initially did not believe on the point, had
been telling him the truth. His evidence that he then downloaded
the report from the Internet, held onto it for some time and then
30
suddenly one day handed it to the respondent in an envelope does
not make any sense and is inherent ly improbable unless, as the
respondent says, he was using th e report to ‘blackmail’ her into
silence about his harassment of her.
[50] It is also significant that the respondent asked Jerome Kalan,
a trainee manager in the person nel department, for the Naspers
sexual harassment policy at an ear ly stage, ie immediately after
the alleged lift incident. This was not denied at the enquiry and
Kalan was not called by the second appellant at the trial. In my
opinion it can safely be acc epted that the respondent did indeed
call for the policy at that stage. This was conduct which clearly
rebuts any suggestion that her a llegations of harassment were a
recent fabrication made shortly before the enquiry and is
inconsistent with any suggestion that she was not already being
harassed at that early stage.
[51] The next aspect to which I wish to refer is the so-called finger
biting incident. The seco nd appellant initially said that what
happened on this occasion was that he put a sweet in the
respondent’s mouth whereupon she bit his finger ‘more in a joking
sense’, resulting in what he de scribed as ‘a little gash’, ‘a
laughable incident’ which was insi gnificant and not serious. Later
on he conceded that the bite had been down to the bone and was
31
not ‘just a little gash’. It was something quite serious. When
pressed further and c onfronted with what he had said at the
disciplinary enquiry, he conceded t he finger biting did not take
place as a joke but in the cont ext of an argument but claimed that
he could not remember what had ha ppened. His evidence on this
issue also points strongly in t he direction of harassment rather
than flirtation.
[52] Another aspect which, in my view, provided a clear indication
as to where the truth lies in this case is the incident in the Landbou
room. On the second appellant’s version all that happened in the
Landbou room was that he hugged and kissed the respondent with
her consent. During the embrace, he sa id initially, she could have
scratched his back. Later he conceded he had indeed been
scratched and later still, that it had been an open wound. It had
merely happened ‘as part of the kissing’, not as part of a
passionate embrace. In my opinion the fact that he cannot deny
that he was scratched on the back by her in the Landbou room is a
fairly strong indication that her version of th e incident is to be
believed instead of his. His adm ission relating to the scratch
wounds certainly corroborates her on the point because it is
evidence which renders her ve rsion more probable and his less
probable. I also can understand her initial reluctance to talk about
32
it and her subsequent embarrassmen t when it appeared that there
was lipstick on his collar. I ac cordingly do not agree with Mr
Heunis’s argument on this point.
[53] In my view the admissions the second appellant made in
regard to the flat incident indicate that, on this aspect of the case
as well, the respondent is to be believed that he harassed her on
this occasion also. The trial judg e was unable to find that the
respondent was threatened with a firearm on this occasion. The
second appellant admitted that his primary purpose in going to see
the flat was not with a view to purc hase it but to spend time with
the respondent. (In this regard I am satisfied that it is
overwhelmingly probable that her reason in going there was to
show him the flat with a view to his possibly buying it.) His further
statement that they had reached t he end of their relationship and
that he suggested that he make a hotel booking so that they could
again spend time together and discuss matters but not to have
sexual intercourse is overw helmingly improbable. Under cross-
examination by counsel for the first appellant he said:
‘… the hotel issue doesn’t necessarily mean that it would have been a sexual
relationship, because that never occurr ed to any one of the parties … That
was never, never, ever discussed between the two of us.’
33
She testified, however, that when he said that all he wanted was
one night with her, she said she could not go with him that night
because she was menstruating. He then said that he would make
a reservation for the place where he would meet her and give it to
her. Her statement that she mentioned the fact that she was
menstruating as the reason why sh e could not go with him that
night (a statement not challenged in cross-examination) indicates
clearly that she got the impression that he was after a sexual
encounter. His acceptance of her reason for not coming with him
that night and his action in making a hotel reservation for a night,
some twelve days thereafter, indicates that her impression as to
what he actually wanted was correct.
[54] He conceded that when he got into the respondent’s utility
vehicle after having been shown the exterior of the flat, she was
shivering and tense and that, after he had asked her why this was
so, he said that he was not going to do anything to her. This
indicates that he himself thought that the reason for her emotional
state was fear that he intended doing something to her. He
concedes he had brought his firearm wi th him, that it was in its
holster strapped to his right hip, which would have been the side
nearest to her as he sat next to her in the passenger’s seat. We
know that she saw his firearm.
34
[55] All this evidence established in my view that she thought (a)
that he wanted intercourse with her and (b) that he had brought a
firearm with him so as to overcome her resistance if she refused. It
is true that her further evidence th at he drew the firearm from the
holster and handed it to her saying ‘well shoot yourself’ cannot be
accepted in the absence of corr oboration. This notwithstanding,
enough of the detail as to what happened that evening emerge
from his own evidence and that pa rt of her evidence that was not
denied to enable one to find on th e probabilities that he indicated
to her that he wanted sexual int ercourse; that she temporised by
pleading that she was having a period; that he agreed to a
postponement of their night together, and that she believed that, if
she did not agree, he might use his firearm to achieve his purpose.
In the circumstances I am sati sfied that what the respondent
experienced during the so-called flat incident amounted to sexual
harassment and was substantially more serious than anything that
had preceded it.
DID THE RESPONDENT SU FFER A RECOGNISED
PSYCHIATRIC INJURY?
[56] It was common cause the parties that the respondent
manifested severe psychiatric harm just after the disciplinary
enquiry. All the professional witnesses agreed that she was not
35
malingering and that she was suffering from a recognised
psychiatric disorder. The iss ue debated between the experts was
whether the disorder was correctl y diagnosed as post-traumatic
stress disorder. All the experts ac cepted the diagnostic features of
this disorder as set out in DSM-IV at p 424, as follows:
‘The essential feature of Posttraumatic Stress Disorder is the development of
characteristic symptoms following expos ure to an extreme traumatic stressor
involving direct personal experience of an event that involves actual or
threatened death or serious injury, or other threat to one’s physical integrity;
or witnessing an event that involves death, injury, or a threat to the physical
integrity of another person; or learning about unexpected or violent death,
serious harm, or threat of death or injury experienced by a family member or
other close associate (Criterion A1). T he person’s response to the event must
involve intense fear, helplessness, or horror (or in children, the response must
involve disorganized or agitated behaviour) (Criterion A2). The characteristic
symptoms resulting from the exposure to the extreme trauma include
persistent reexperiencing of the traum atic event (Criterion B), persistent
avoidance of stimuli associated wit h the trauma and numbing of general
responsiveness (Criterion C), and persi stent symptoms of increased arousal
(Criterion D). The full symptom picture must be present for more than 1 month
(Criterion E), and the disturbance must caus e clinically significant distress or
impairment in social, occupational, or other important areas of functioning
(Criterion F).’
36
[57] It was common cause that Criterion A2 and Criteria B to F
were present in the respondent’s case. The area of debate related
to whether Criterion A1 was present.
[58] Professor Emsley, professor of psychiatry at the University of
Stellenbosch and the chairpers on of the SA Society of
Psychiatrists’ task team for disability assessment, originally
diagnosed the respondent’s conditi on as post-traumatic stress
disorder. However, he subsequently revised hi s opinion when it
was put to him that the respondent’s statement to him that a gun
was held to her head and an attempt made to rape her was neither
consistent with her statement before the disciplinary enquiry, nor
with her evidence at the enquiry and during the trial. He regarded
incident - she had described it to him - as what he called an
‘extreme stressor’, which complied with Criterion A1 . If, however,
that specific traumatic event had not occurred, the most likely
diagnosis would in his opinion have been an adjustment disorder.
[59] In my view the traumatic in cident which I have found did
occur was sufficiently severe, on the probabilities, to have
complied with Criterion A1. In this regard it is important to bear in
mind the distinction between the scientific and the judicial
measures of proof highlighted by the House of Lords in Dingley v
The Chief Constable, Strathclyde Police 2000 SC (HL) 77 at 89D-
37
E (cited with approval by this court in Michael v Linksfield Park
Clinic (Pty) Ltd 2001 (3) SA 1188 (SCA) par a [40] at 1201E-H).
And to be fair to Professor Em sley, I did not understand him to
testify otherwise.
[60] On this part of the case I agree with Mr Burger’s submission
that, but for the flat incident, the respondent would not have
sustained post-traumatic stress disorder or any other psychiatric
injury qualifying for legal redress within the rule as expounded by
this court in Barnard v Santam Bpk, supra. I n m y v i e w t h e
respondent’s own evidence, as summarised in para [22] above,
provides substantial support for su ch a finding. It may be that the
flat incident constituted the prov erbial ‘last straw’ that broke the
camel’s back but, be that as it may, in my view what ultimately
caused the respondent’s injury and therefore her damages in this
case was the sexual harassment which took place during the flat
incident.
[61] It follows from what I have said so far that the second
appellant’s appeal must be dismissed with costs.
THE LIABILITY OF THE FIRST APPELLANT
[62] The next question to be cons idered is whether the first
appellant should have been held li able, jointly and severally with
38
the second appellant, to com pensate the respondent for the
damage she suffered as a result of the harassment.
VICARIOUS LIABILITY
[63] In view of the fact that I am satisfied that the respondent
succeeded in establishing the seco nd cause of action on which
she relied against Tydskrifte, it is unnecessary for me to deal with
Mr Burger’s submissions that Nel J’s fi nding of vicarious liability
against the first appellant was inappropriate.
BREACH OF LEGAL DUTY
[64] The respondent’s second cause of action, it will be recalled,
was a negligent breach by Tydskrifte of a legal duty to its
employees to create and maintain a working environment in which,
amongst other things, its employ ees were not sexually harassed
by other employees in their working environment.
[65] It is well settled that an employer owes a common law duty
to its employees to take reasonable care for their safety (see, eg,
Van Deventer v Workman’s Compensation Commissioner 1962 (4)
SA 28 (T) at 31B-C and Vigario v Afrox Ltd 1996 (3) SA 450 (W) at
463F-I). This duty cannot in my view be confined to an obligation
to take reasonable steps to protect them from physical harm
caused by what may be called physical hazards. It must also in
appropriate circumstances include a duty to protect them from
39
psychological harm caused, for example, by sexual harassment by
co-employees.
[66] The test to be applied in this regard was laid down by this
court in Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 597A-
B, where Rumpff CJ said:
‘Dit skyn of dié stadium van ontwikkeling bereik is waarin ’n late as
onregmatige gedrag beskou word ook wanneer die omstandighede van die
geval van so ’n aard is dat die late ni e alleen morele verontwaardiging ontlok
nie maar ook dat die regs oortuiging van die gemeensk ap verlang dat die late
as onregmatig beskou behoort te word en dat die gelede skade vergoed
behoort te word deur die persoon wat nage laat het om daadwerklik op te tree.
Om te bepaal of daar onregmatigheid is, gaan dit, in ’n gegewe geval van late,
dus nie oor die gebruiklike “nalatigheid” van die bonus paterfamilias nie, maar
oor die vraag of, na aanleiding van al die feite, daar ’n regsplig was om redelik
op te tree.’
[67] In determining the legal convictions of the community in
regard to sexual harassment in t he workplace it is appropriate to
have regard to what was said on the topic by De Kock M in J v M
Ltd (1989) 10 ILJ 755 (IC) at 757G-758D:
‘Unwanted sexual advanc es in the employment sphere are not a rare
occurrence. It appears from the article referred to above [Mowatt ‘Sexual
Harassment – New Remedy for an Old Wrong’ (1986) 7 ILJ 637] that studies
in America and England have shown that close to 50% of working women
have received such advances, that is, sex ual harassment in the wider view. It
40
also appears that a survey of 100 women in Johannesburg suggests that
some 63% had received unwelcome sexu al advances from a male in the
office. There is no evidence that the percentage is in fact that high but
common experience shows that sexu al harassment is by no means
uncommon.
Sexual harassment, whether it be between members of the opposite sex or of
the same sex is, despite the fact that it is often a subject for uncouth jokes, a
serious matter which does require attention from employers. Sexual
harassment, depending on the form it takes, will violate that right to integrity of
body and personality which belongs to ev ery person and which is protected in
our legal system both crim inally and civilly. An employer undoubtedly has a
duty to ensure that its employees are not subjected to this form of violation
within the work-place. The victims of harassment find it embarrassing and
humiliating. It creates an intimidating, hostile and offensive work environment.
Work performance may suffer and career commitment may be lowered. It is
indeed not uncommon for employees to resign rather than subject themselves
to further sexual harassment. The p sychological effect on sensitive and
immature employees, both male and fema le, can be severe, substantially
affecting the emotional and psychological well-being of the person involved.
Inferiors who are subjected to sexual harassment by their superiors in the
employment hierarchy are placed in an invidious posi tion. How should they
cope with the situation? It is difficul t enough for a young girl to deal with
advances from a man who is old enough to be her father. When she has to do
so in an atmosphere where rejection of advances may lead to dismissal, lost
41
promotions, inadequate pay rises, etc – what is referred to as tangible
benefits in American Law – her position is unenviable.
Fear of the consequences of compla ining to higher aut hority whether the
complaint is made by the vi ctim or a friend, often compels the victim to suffer
in silence. That sexual harassment of an employee in an inferior position is
despicable is only fully realized when one has to comfort a young girl crying
her heart out in a quiet corner.’
[68] It is clear in my opinion that the legal convictions of the
community require an employer to take reasonable steps to
prevent sexual harassment of its employees in the workplace and
to be obliged to compensate the victim for harm caused thereby
should it negligently fail to do so. I do not think that the fact that the
legislature has enacted legislation providing a statutory remedy for
unfair labour practices involving sexual harassment justifies a
holding that, absent the statutory remedy (which presumably was
intended to be quicker, cheaper and more convenient than the
common law remedy), the common la w is defective in failing to
provide a remedy in a situation which cries out for one.
[69] Nor do I think that the argument based on the fact that there
was a contractual relations hip between the respondent and
Tydskrifte can alter the position. There are many instances where
the courts have recognised that there can be a concurrence of
delictual and contractual actions arising from the same set of facts:
42
see, eg, Van Wyk v Lewis 1924 AD 438 and Lillicrap, Wassenaar
and Partners v Pilkington Brothers (SA) Pty Ltd 1985 (1) SA 475
(A) at 496D-I.
[70] I also am of the view that the first appellant’s attempt to rely
on the Lillicrap decision in this matter cannot avail it. In that case
an exception was allowed to the respondent’s delictual claim
because the infringement of duty relied on was an infringement of
the appellant’s contractual duty to perform specific professional
work with due diligence (see the judgment of EM Grosskopf AJA at
499D-E), it not being contended that the appellant would have
been under a duty to the respondent to exercise diligence if no
contract had been concluded (at 499A-B). (See also FF
Holtzhausen v Absa Bank, an unreported judgment of this Court
delivered on 17 September 2004.) In the present case I am
satisfied that the duty allegedly breached in this case was not
dependent upon any specific term of the contract of employment
between Tydskrifte and t he respondent, whether or not
supplemented by legislative enactment.
[71] The next question to be consid ered is whether a negligent
breach of that duty by Tydskrifte has been established. In this
regard I agree with counsel for the fi rst appellant that, on this part
of the case, the respondent had to show a failure by Tydskrifte to
43
take reasonable and practicable st eps to prevent the sexual
harassment of its employees. I do not agree, however, that the
respondent’s alleged refusal to lay a charge or even make use of
the grievance procedure against the second appellant precluded
Tydskrifte from preventing her from being harassed. In my opinion
Van As, to whom the respond ent had at a very early stage
complained of her harassment at the hands of the second
appellant, could and should have told Werner Wager (the then
chief manager of Tydskrifte) w hat the respondent had reported to
him and that (according to Van As) she had refused to lay a
charge or use the grievance p rocedure and had said that she
would deny it if called upon to substantiate the allegations. The key
point was that, despite the respondent’s attitude in this regard, Van
As had no reason not to believe that the second appellant was
harassing her – on the contrary, a ccording to the evidence - and
should have realised (even if he actually did not) that her
reluctance to take the matter further in no way cast doubt upon the
genuineness of her complaints. In the circumstances his failure to
deal with the matter when the respondent reported it to him was
culpable. He was in a managerial position and Tydskrifte, his
employer, was clearly vicariously liable for his failure to act in this
regard.
44
[72] If Van As had acted earlier in the way I have suggested I am
satisfied that Wager should (and on the probabilities would) at
least have informed the second appellant that his conduct vis-à-vis
the respondent had not gone un noticed and have warned him
that, if such conduct persisted, not only his ambition of rising to a
senior managerial position in the company would come to nought
but there was a very real danger of his being dismissed. I think it
overwhelmingly probable, know ing what we do about the
personality of the second appella nt and his relationship with
Wager, that such a warning woul d in all probability have done the
trick and prevented the flat incident from taking place. I have
already found that, if the flat in cident had not taken place, the
respondent would not have suffere d the psychological injury on
which her claim is based.
[73] In view of my conclusions in res pect of the failure by Van As
properly to react to the respondent’s complaints and the
consequences of such failure, it is not necessary to consider
whether or not either Lydia Davids (the acting pers onnel manager
of Tydskrifte at the relevant tim e) or Paul de Bruin (the information
technology manager of Tydskrifte and the second appellant’s
immediate superior at that time) also acted negligently in failing to
45
take steps timeously to curb t he second appellant’s conduct vis-à-
vis the respondent, as was argued before us by Mr Melunsky.
THE FIRST APPELLANT’S JURISDICTIONAL DEFENCES
[74] Because I have found that the respondent has proved a
culpable breach of legal duty on the part of Tydskrifte, and have
left open the question as to whether the first appellant is
vicariously liable for the actions of the second appellant, it is not
possible for me to dispose of the two jurisdictional defences on the
ground, relied on in part by the tria l judge, that the respondent’s
delictual claim against the first a ppellant is not excluded by s 157
of Act 66 of 1995 and s 35 of Ac t 130 of 1993 because she was
employed not by the first appellant but by Tydskrifte, and that the
first appellant was not able, as it were, to acquire a jurisdictional
defence which was not available to Tydskrifte by accepting liability
on Tydskrifte’s behalf. I do not think, however, that either of the
two jurisdictional defences was available to Tydskrifte in this case.
[75] The harassment which forms the subject of the respondent’s
cause of action occurred before t he Employment Equity Act 55 of
1998 came into operation (on 9 August 1999). Sexual harassment
in the workplace has since 17 July 1998 been dealt with in the
abovementioned Code of Good Practice on the Handling of Sexual
Harassment Cases , issued by the National Economic,
46
Development and Labour Council in terms of s 203(1) of Act 66 of
1995. As indicated above, s 203(3 ) provides that any person
interpreting or applying Act 66 of 1995 has to take this code into
account.
Item 7(6) of the code reads as follows:
‘A victim of sexual assault has the right to press separate criminal and/or civil
charges against an alleged perpetrator and t he legal rights of the victim are in
no way limited by this code.’
While the references to ‘civil charges’ and ‘sexual assault’ are not
as clear as they might be, I think that one can safely assume that
conduct of the kind proved to hav e been indulged in by the second
appellant must be covered by the phrase ‘sexual assault’ and that
by a ‘civil charge’ is meant a civil action for damages therefor. It is
also unlikely that the framers of the code inte nded a civil claim for
damages such as that brought by the respondent to form the
subject of the internal procedures set out therein.
[76] As appears from the summary of this defence as pleaded by
the first appellant (set out in p aras [9] and [29] above), the first
appellant relied upon items 2(1) (a) and 3 of Schedule 7 to Act 66
of 1995 - which items were then still part of the Schedule - for the
contention that the present dis pute fell within the exclusive
jurisdiction of the Labour Court. It em 3 dealt with disputes about
47
unfair labour practices, so that a claim brought thereunder for
harassment would be based on an a llegation that the harassment
constituted an unfair labour practice . But, as this court pointed out
in Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA) para
[27] at 261E-H, a dispute about the unlawfulness of an employer’s
conduct (in that case a dismissal) as opposed to its unfairness is
not a ‘matter’ required to be adj udicated by the Labour Court as
contemplated by s 157(1) and accordingly the High Court’s
jurisdiction is not excluded. By parity of reasoning, a delictual claim
such as the present will also not be excluded.
[77] It remains for me to deal with the second jurisdictional
defence as set out in paras [11] and [31] to [34] above, viz that
based on s 35(1), read with s 65(1) (b), of Act 130 of 1993. In this
case, it will be recalled, I hav e found that the psychological
disorder from which the res pondent has been suffering was
ultimately contracted because of the harassment which occurred
during the flat incident. That incident did not occur in the course of
the respondent’s employment but rather while she was engaged in
her own private activity, namely tryi ng to sell her flat to the second
appellant. It may well be that employ ees who contract psychiatric
disorders as a result of acts of sexual harassment to which they
are subjected in the course of their employment can claim
48
compensation under s 65 but those are not the facts in this case
and I need express no opinion ther eon. I am satisfied that the
second jurisdictional defence is also without merit.
CONCLUSION AND ORDER
[78] It follows from what I have said that the appeals of both
appellants must fail.
[79] The following order is made:
The appeals of both appellants are dismissed with costs.
…………….
IG FARLAM
JUDGE OF APPEAL
CONCURRING
NAVSA JA
CONRADIE JA
HEHER JA
VAN HEERDEN JA