By Zunaid Lundell and Maxine Naude
In the case of PE v Dr Beyers Naude Local Municipality and Another[1] (PE case), the Plaintiff’s supervisor (Second Defendant) made her employment unbearable due to incidents of sexual harassment and assault, resulting in her resignation. Instead of pursuing the conventional remedy of constructive dismissal in terms of the Labour Relations Act No. 66 of 1995 (Labour Relations Act), she elected to pursue a claim in terms of the common law of delict. The Plaintiff instituted legal proceedings in the form of an action for damages in the region of R4 million against both the Municipality and the Second Defendant.
FACTS OF THE CASE
The Plaintiff was employed at Ikwezi Local Municipality (Ikwezi) as a Registry and Archives Clerk when she was subjected to sexual assault and harassment by the Second Defendant. The Plaintiff reported this to representatives of the Municipality, resulting in the Plaintiff merely obtaining special leave for a few days. On returning to work, and despite notifying the Municipality Manager on multiple occasions that the Second Defendant’s continued contact and interaction with her caused her stress, the Plaintiff started to experience symptoms of Post-Traumatic Stress Disorder (PTSD).
Disciplinary proceedings were eventually instituted by the Municipality against the Second Defendant, and it was found that he was guilty of having committed sexual assault against the Plaintiff. He was subsequently charged with gross misconduct. However, despite this finding, the disciplinary board concluded that dismissal was not an appropriate sanction but rather that the Second Defendant be suspended for two weeks.
At the time of the assault, the Municipality did not have a sexual harassment policy in place, which meant that the Municipality had no direction as to the rights of an employee who has reported an incident of sexual harassment and what assistance was available to such employee.
Thus, the Second Defendant continued to remain in the service of the Municipality and continued to have contact and interaction with the Plaintiff in the course of her duties. In the meantime, the Plaintiff was suffering from PTSD and had to seek the assistance of a psychiatrist on her own accord with no assistance from the Municipality. The Second Defendant’s assault and the way it was addressed by the Municipality culminated in the Plaintiff resigning.
APPLICATION TO THE HIGH COURT FOR DAMAGES
On 16 March 2011, the Plaintiff sued the Municipality and the Second Defendant jointly and severally in the Eastern Cape High Court, claiming damages arising out of the sexual assault committed to her by the Second Defendant during the course and scope of her duties with the Municipality. She claimed past and future loss of income, past and future medical expenses, general damages and contumelia from the Municipality and the Second Defendant.
The issues of liability and quantum were separated in terms of Rule 33(4) of the Uniform Rules of Court and on 31 March 2016 the trial proceeded on merits only. The court found the Defendants jointly and severally liable to pay the Plaintiff such damages that she suffered as a result of the sexual assault upon her. The judgment of the court has been reported as PE v Ikwezi Municipality and Another 2016 (5) SA 114 (ECG) (First Judgment). In the PE case and following on from the First Judgment, the court was then required to adjudicate on the issue of quantum.
The court criticised the Municipality for the deplorable manner in which it handled the matter. The court commented that it was difficult to understand the decision of the Municipality not to dismiss the Second Defendant given their duty to protect the Plaintiff and the gravity of the allegations levelled against him[2]. Instead, the Municipality instructed the Second Defendant to remain at their Klipplaat office and to not have any contact with the Plaintiff. However, it was clear from the evidence led, that the Second Defendant did not follow these instructions.
The court also criticised the Municipality for failing to prioritise disciplinary proceedings against the Second Defendant and expressed its disapproval for the decision by the Presiding Officer to not impose a sanction of dismissal, but rather that the Second Defendant be suspended for two weeks without pay[3].
Acting Judge Kroon (Kroon AJ) held that a municipality is an Organ of State and was obliged to have challenged the disciplinary findings, which were indefensible, in terms of Section 195 of the Constitution,[4]. He stated further that the Municipality had a duty not only to show courtesy and respect for the Plaintiff, but to also provide her with a safe working environment[5].
Kroon AJ further commented that sexual harassment is a:
“Horrendous act and constitutes a heinous violation of a women’s dignity, privacy and bodily integrity. It damages her reputation. It denies her intrinsic worth, her equality. It dehumanises her. It makes her an object.[6]”
CONCLUSION
The court concluded that the Municipality had failed in its legal duty to protect the Plaintiff and had ultimately supported the Second Defendant by not sanctioning him appropriately. In view of the above, the court ordered that the Municipality and the Second Defendant be jointly and severally liable to pay the Plaintiff an amount of R4 million in damages.
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REFERENCES:
[1] PE v Dr Beyers Naude Local Municipality and Another (2021) 2 All SA (ECG)
[2] PE case supra fn. 1 at para 25
[3] PE case supra fn. 1 at para 30 and 31
[4] PE case supra fn. 1 at para 32
[5] PE case supra fn. 1 at para 38
[6] PE case supra fn. 1 at para 72