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[2026] ZALCCT 133
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City of Cape Town v Sirmongpong N.O (C417/2024) [2026] ZALCCT 133 (12 August 2026)
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IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO:
C417/2024
In
the matter between:
CITY
OF CAPE TOWN
Applicant
and
STEPHANIE
SIRMONGPONG N.O.
First Respondent
FARIDA
ADAMS
Second Respondent
INDEPENDENT
MUNICIPAL AND ALLIED
TRADE
UNION (IMATU)
Third Respondent
TRACEY
JONES
Fourth Respondent
Date
of hearing: 5 November 2025
Date
of delivery: 12 August 2026
Summary:
Sexual harassment charges against Second Respondent an employee of
Applicant– disciplinary enquiry chaired by external
chairperson
– Second Respondent found not guilty – review of finding
in terms of Section 158(1)(8) of LRA. Second Respondent
and
complainant were both female The evidence was that Second Respondent,
and others in the workplace, frequently hugged fellow
employees and
made various other gestures to indicate support and appreciation.
The complainant, who had been the recipient
of such conduct,
complained that this conduct amounted to sexual harassment.
Disciplinary chairperson found that it did not. No
grounds for
interviewing with such decision on review. Contextually viewed, the
conduct complained of was not of a sexual nature
and could not be
regarded as sexual harassment. Application for review
dismissed, with no order as to costs.
JUDGMENT
A
OOSTHUIZEN AJ
A
INTRODUCTION
1.
Second Respondent, Farida Adams, was
employed by the Applicant as a Nursing Clinic Manager at Rocklands
Clinic. A disciplinary hearing
was convened against her to
investigate allegations that she had sexually harassed a staff
member, Tracey Jones, over the period
August 2022 to January 2023.
2.
After evidence had been given by Ms Adams
and Ms Jones, and certain other witnesses, First Respondent, who
served as Disciplinary
Chairperson, handed down a finding acquitting
Ms Adams of the charges against her.
3.
Applicant applies to this Court in terms of
Section 58(1)(h) of the Labour Relations Act of 1995 (“
the
LRA
”) seeking to review and set
aside the First Respondent’s aforesaid findings. It is
not disputed that this Court
is empowered, in terms of Section
158(1)(h) of the LRA, to deal with the matter.
4.
Section 158(1)(h) of the LRA creates a
review, and not an appeal. I accept that the normal standard of
review applies, and
that I would have to be satisfied that the
decision of First Respondent was one which no reasonable functionary
could have reached,
on the available material.
B.
SEXUAL HARASSMENT
5.
In
Reddy v
University of Natal
[1998] 1
BLLR 29
(LAC)
the Labour Appeal Court
referred with apparent approval to the following extract from an
article written by JG Mowatt, published
in (1986) 7 ILJ 637:
“
In
its narrowest form, the author found, sexual harassment occurs when a
women is expected to engage in sexual activity in order
to obtain or
keep her employment, or obtain promotion or other favourable working
conditions. The wider view is that any unwanted
sexual behaviour or
comment which has a negative effect on the recipient constitutes
sexual harassment.
”
6.
A single act can constitute sexual
harassment depending, always, on the nature thereof and on the
relevant contextual considerations.
This is illustrated by the
judgment in
Shoprite Checkers (Pty)
Ltd v JL & Others
(2022) 43
ILJ 903 (LC)
where the Court accepted
that the complainant, JL, had been slapped on the buttock by her
manager who immediately afterwards giggled
at what had occurred.
The Arbitrator had analysed the evidence, and made a credibility
finding against the manager based
on certain of his actions
immediately after the incident. In
Mokoena
& Another v Garden Art (Pty) Ltd & Another
[2007] ZALC 90
;
[2008] 5 BLLR 428
(LC)
the Court, at
paras 46 and 47
,
emphasised the fact that the conduct complained of must be of a
sexual nature, and also held that a single incident of harassment
may
constitute sexual harassment if the recipient has made it clear that
the behaviour is considered offensive, and the perpetrator
should
have known that the behaviour would be regarded as unacceptable.
Whether all three of these are prerequisites in all
cases of alleged
sexual harassment need not be decided, for present purposes.
7.
The 2022 Code of Good Practice on the
Prevention and Elimination of Harassment in the Workplace discusses,
in Section 5.2 thereof,
factors relevant to establishing sexual
harassment. Clauses 5.2.5 provides as follows:
“
5.2.5
The unwanted
conduct
mu
st
be
of
a
sexua
l
nature and includes
physical.
verbal. or
non-verbal
conduct,
whether
expressed directly
or i
n
directly.
Conduct
amounting to
sexual
harassment
may
include –
5.2.5.1
physical
conduct of
a sexual nature. ranging
from
touching, kissing,, to sexual assault and rape;
5.2.5.2
strip
sea
r
chi
n
g,
including
by a
person
of
the
same sex
in
the presence of
the
opposite sex, or with
appropriate
privacy;
5.2.5.3
fo
ll
ow
in
g,
watching,
pursuing
or
accosting
of
an employee;
5.2.5.4
sexual attention,
advances
or
proposals;
or other behaviour. whether explicit
or
implicit,
including
suggest
i
o
n
s,
messages, advances
,
attention or
proposals
of
a
sexual
nature;
5.2.5.5
implied
or express
threats
of
reprisal
or
actual
rep
ri
sa
l
to
comply
with
sexually
oriented
requests,
advances, attention
o
r
proposals;
5.2.5.6
ve
rb
al conduct such
as innuendos,
suggestions, hints, sexual advances, comments with sexual
overtones, sex-related jokes or insults, graphic comments about a
person’s
body,
inappropriate
enquiries
about
a
p
erso
n'
s
sex
life
,
whistling
of
a
sexual
nature
and
the
sending by electronic
means
or otherwise of
sexually
explicit text; or
5.2.5.7
non-verbal
conduct
s
u
c
h
as
unwelcome
ges
ture
s
,
indecent
exposure
and
th
e
display
or se
ndin
g by electronic
means
or
otherwise
of
sexually explicit
pictures or
o
b
jec
t
s
.”
8.
What needs emphasis is the first sentence
of the aforesaid Section 5.2.5 which states that the unwanted conduct
must be of a sexual
nature. Touching the obviously intimate
parts of the complainant’s body would clearly constitute such
conduct, as illustrated
by the award in
Pick
n Pay Stores Ltd
(1994) 3 (1)
ARB 8.25.136;
Sookunan v SA
Post Office
(2000) 21 ILJ 1923
(CCMA)
). Acts of sexual
harassment can also consist of touching less obviously intimate parts
of the complainant’s body, but
in such cases much will depend
on surrounding and contextual factors, including what the offending
employee intended when making
physical contact with the complainant.
The act of hugging a fellow employee in the workplace serves to
illustrate this.
It might be a wholly innocent gesture on the
occasion, for example, of the complainant’s birthday or
workplace promotion.
It might, on the other hand, be a gesture
made with far more sinister intent.
9.
The words or act complained of must
therefore always be considered in the light of all the surrounding
circumstances. These
will include, but not be limited to, the
nature of the act of touching; what part of the complainant’s
body was involved;
the manner in which the complainant reacted to the
incident; the explanation advanced by the employee accused of
harassment; the
impact both parties make while giving their evidence
before the Labour Court, commission, council or disciplinary enquiry;
and
whether there were any regularly occurring workplace habits,
customs or traditions which either aggravate or lessen the
seriousness
of the particular incident.
10.
The case presented against Ms Adams was
that she had committed acts of sexual harassment falling into four
categories, namely:
10.1.
That on a particular occasion Ms Adams had
asked Ms Jones for a kiss. Ms Adams emphatically denied this
allegation.
I find nothing in the evidence suggesting that Ms
Adams’s denial of this charge should be rejected, and the
Applicant’s
case against her has thus not been proved in
respect of this charge;
10.2.
That Ms Adams frequently hugged Applicant;
10.3.
That on occasions she had made gestures
indicating that she was blowing a kiss at Ms Jones, and advise
advised Ms Jones that she
was beautiful;
10.4.
That on a particular occasion she had
touched Ms Jones’s buttock, and then ran from the room giggling
to herself.
C.
THE COMPLAINT RELATING TO HUGGING
11.
Dealing, firstly, with the complaint
regarding Ms Adams hugging Ms Jones, other employees at the Rocklands
Clinic gave evidence
at the disciplinary enquiry. The evidence
of one of them, Ms Pearce, indicates that this was what can perhaps
be described
as a somewhat tactile workplace, where employees
frequently hugged one another. Ms Pearce stated that this was
normal workplace
behaviour. Ms Adams was known to hug other
employees, as a gesture of support and affection.
12.
Her testimony corroborated that of Ms
Adams, who admitted to hugging fellow employees with some regularity,
but stated that this
was intended as a gesture of support. Her
evidence on this aspect was not shown, in cross-examination, to be
improbable or
untrustworthy. The facts placed before the
disciplinary enquiry show that Ms Adams frequently hugged fellow
employees, with
no sexual or improper intention. Her conduct in
hugging Ms Jones cannot be described as conduct of a sexual nature.
D.
THE BLOWING OF KISSES
13.
Two of the other witnesses, Ms Serra and Ms
Pasquali, confirmed that Adams would
frequently,
in order to thank a fellow employee for a task they had performed,
make a kiss-blowing gesture towards that employee.
The evidence
of Ms Serra was that this is not, in the particular workplace,
regarded as abnormal. After confirming that the
gesture was one
carried out by Ms Adams from time to time, she testified as follows:
“
What
I have seen Sister Adams do and I mean, I also do this sometimes
because I am very expressive with my hands sir, if I did something
for Sister maybe brought her coffee or something in regard, then she
would, and this is exactly what she would do is dankie man,
(makes
kissing sound), like that you know, that is what I have seen her do
on countless occasions with most of our staff.
”
14.
Later on in her evidence, Ms Serra
explained the manner in which these gestures were to be understood,
as follows:
“
So
I can’t specifically say kissing gesture but everyone has
different gestures I would say, we are all women, most of the
time in
nursing, we have a complement of mostly women, so we tend to be a bit
more relaxed about certain stuff. I would –
I am going to
speak about me now, I would go and hug my colleagues, I would go and
kiss them on their cheek, depending on the situation.
We would
normally touch each other in certain ways that we know it is not
meant to be sexual or in our mind it is not intended
to be sexual.
So yes I can say that I have seen gestures, I can’t say exactly
that it is the same gesture that Sister
Adams make but I have seen it
from many managers that I have worked with that has done certain
gestures to me per se to say thank
you, where they would hug me maybe
or say thank you to me and they would hug me, you know I have
experienced that in my years,
because I have been through a lot of
managers as well.
”
15.
When she testified, Ms Adams admitted to
blowing kisses at Ms Jones from time to time, but the explanation she
gave for this gesture
was in line with the evidence given by Ms
Serra. Viewed in context, the making of these gestures does not
constitute conduct
of a sexual nature, or fall within the definition
in clause 5.3 of the Code, quoted above.
E.
THE BUTTOCK TOUCHING INCIDENT
16.
The last complaint was that, on an occasion
in January 2023, an incident occurred at
which
Ms Adams had touched the buttocks of Ms Jones, while Ms Jones was
standing at the office printer. Ms Jones testified
that Ms
Adams then exited the room, giggling.
17.
Ms Adams conceded that there had been an
occasion on which she had touched one of Ms Jones’s buttocks.
Her description
was that this was not a grabbing or pinching
incident. She also denied that she immediately thereafter left
the room, giggling.
18.
Ms Pearce was in the room at the time that
the incident occurred, but did not see Ms Adams exiting the room
running or giggling.
Ms Adams also denied that she had acted in
this fashion.
19.
Ms Adams’s evidence amounted to a
denial that the particular gesture had been planned, or was sexually
intended. The
evidence amounts to a concession that her hand
brushed against Ms Jones’s buttock, but that she by no means
planned or intended
this to be a gesture with any sexual innuendo or
connotation.
20.
Other important circumstantial factors to
be borne in mind are the following:
20.1.
There is no evidence that, in the
buttock-touching incident or in any of the other interactions that Ms
Adams had with Ms Jones,
Ms Adams harboured any feelings or
intentions of a sexual nature towards Ms Jones;
20.2.
Ms Jones was, immediately following the
incident, uncertain as to who had touched their buttock and later
that day addressed a WhatsApp
message to Pearce, stating that she
thought it was Pearce who had touched her in this fashion. This
suggests that the contact
was fleeting and barely noticeable, and
militates against any suggestion that Ms Adams pinched or
intentionally fondled Ms Jones
in the buttock area.
20.3.
There was also a wholly unexplained five
month delay on the part of Ms Jones in reporting the incident to
management, or lodging
any grievance against Ms Adams through the
Departmental Grievance Procedures.
21.
In assessing the incident to determine
whether an act of sexual harassment was perpetrated, there is a vast
difference between Ms
Adams fleetingly brushing the buttock
area
of Ms Jones without any sexual or other improper intention, and her
pinching the buttock of Ms Jones and then giggling about
what she had
done, this being the version of Ms Jones. The facts demonstrate
that what occurred falls into the former and
not the latter category,
and cannot, in my view, be said to constitute an act of sexual
harassment.
F.
FIRST RESPONDENT’S DECISION
22.
Applicant further argued that a reading of
the First Respondent’s decision at the disciplinary enquiry
demonstrates that such
decision was inherently contradictory and
illogical. First Respondent’s decision reads as follows:
“
After
carefully considering all the evidence presented and the arguments
made by both parties, I find the accused not guilty. The
burden of
probabilities lies with the initiator and she has failed to meet the
burden in this case.
The
employee showed that she is now aware that the practices she had for
showing appreciation to staff can be regarded as inappropriate.
Her testimony and those of all witnesses show that gestures the
accused used were signs of appreciation.
The
employee to adhere to the City Policy and stop current practices in
the work place.
”
23.
It would have been far more helpful if
First Respondent had elaborated on the findings made and dealt
specifically with the four
categories of harassment which featured in
the charges against Ms Adams. Furthermore, the finding should
have set out in
greater detail the process of reasoning followed by
First Respondent. Allegations of workplace sexual harassment
are serious
allegations, and the disciplinary chair should endeavour
to deal with such allegations as comprehensively as possible.
24.
The brevity of the decision does not,
however, indicate that it is irrational or unreasonable to the extent
that it should be set
aside on review. The specific criticism
raised by Applicant is that the first paragraph of the decision
amounts to a finding
of not guilty, whereas the second paragraph
seems to suggest that Ms Adams was guilty of not adhering to the
relevant workplace
sexual harassment policies and that this equates
to a
finding that Ms Adams was guilty of
transgressing the policies. That contradiction, Applicant
argued, renders the decision
reviewable.
25.
The by now well-established principles
relating to the interpretation of documents applies, in my view, to
the interpretation of
court orders, labour relations tribunals and
other adjudicative bodies. They apply also in interpreting
decisions made in
disciplinary proceedings. The following
dictum
of
the Constitutional Court in
SOS
Support Public Broadcasting Coalition & Others v SABC
2019 (1) SA 370
(CC)
at
para
31
cogently sets out the approach to be
adopted:
“
Court
orders are intended to provide effective relief and must be capable
of achieving their intended purpose. That must be
the starting
point in interpreting a court order. The well-established principles
governing the interpretation of a court order
were expounded in
Firestone and more recently endorsed in Eke:
“
The
starting point is to determine the manifest purpose of the order.
In interpreting a judgment or order, the court’s
intention is
to be ascertained primarily from the language of the judgment or
order in accordance with the usual well-known rules
relating to the
interpretation of documents. As in the case of a document, the
judgment or order and the court’s reasons
for giving it must be
read as a whole in order to ascertain its intention’.
”
26.
One of the principles of interpretation is
that sections of the document should not be interpreted in
isolation. The document
should be read as a whole, and an
attempt must be made to interpret each of the component parts in
consistency with the rest of
the document.
27.
If that approach is followed, then the
decision is perfectly capable of a sensible interpretation. The
first paragraph contains
a finding that Ms Adams is not guilty of the
various disciplinary transgressions with which she was charged.
The second paragraph
is intended as no more than an indication that
Ms Adams should, in future, be more acutely aware of the fact that
non-sexual gestures
and conduct in the workplace might be incorrectly
interpreted by the recipient of such gestures or conduct, and that
she should
moderate her behaviour accordingly. This
interpretation properly places the entire award in context. The
advice, given
obiter
in the second and third paragraphs of the award, does
not
detract from or contradict what is set out in the first paragraph of
the decision.
G.
CONCLUSION
28.
For all of the reasons set out above, I am
not persuaded that the decision is one which no reasonable
functionary could have reached,
and the application for review must
be dismissed.
29.
The discretion given to the Labour Court by
Section 162(1) of the LRA is a wide one. The Labour Court is
not obliged to follow
the rule which prevails in the courts of civil
jurisdiction that a successful party is generally entitled to costs.
In exercising
that discretion I bear in mind, firstly, that Applicant
has a duty to actively prevent workplace harassment. That duty
also
encompasses seeking a review of disciplinary decisions which
Applicant genuinely and honestly believes are not reasonably made.
In approaching the Court in this matter, Applicant was doing no more
than discharging that duty.
30.
Secondly, it cannot be suggested that the
application for review was frivolously brought. Counsel for
both parties raised
meritorious arguments, and the issues dealt with
in this judgment required careful thought and analysis.
31.
Given these circumstances, I deem it
appropriate to make no order as to costs.
32.
The application is accordingly dismissed.
There is no order as to costs.
AC
OOSTHUIZEN A.J.
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Advocate Hermann Nieuwoudt
Instructed
by: Cluver Markotter Inc.
For
the Respondents: Advocate Coen De Kock
Instructed
by: Bagraims Attorneys