5 October 2022
Graphic: Lisa Nelson
The South African Police Service (SAPS) has been ordered to pay compensation of R50,000 to a captain for failing to take proper action against a colleague who sexually harassed her.
Judge Zolashe Lallie in the Eastern Cape Labour Court has ruled that SAPS committed “unfair discrimination” against Captain “B”, in breach of the Employment Equity Act (EEA), because management took too long to investigate her complaint and then used the delay as an excuse for not instituting disciplinary action against her harasser.
“Sexual harassment has no place in the South African working environment. The legislature continuously makes the message clearer and louder by passing legislation designed to eradicate it,” Judge Lallie said.
“Sexual harassment is used, in most cases, by employers and employees entrusted with some level of authority to oppress, exploit and dominate those with less or no authority at all. In this case, like in most cases, the victim was a woman and the perpetrator was a man.”
The EEA, the judge said, outlawed unfair discrimination based on gender and sex. It dictated that employers, on receiving complaints of sexual harassment, must take steps to eliminate the reprehensible conduct. Failure to do so made the employer liable for the sexual harassment and for compensation.
The police officer, who was represented by her trade union Solidarity, had complained that her supervisor, a higher-ranking lieutenant colonel, had made “unwelcome sexual advances” to her during 2013 and 2014.
She reported this informally and then lodged a formal grievance in June 2015.
While the investigation was ongoing, she was told to report to another commander.
It was only in September 2017 that the lieutenant colonel was transferred to another station, with a recommendation that further investigation be made with a view to instituting disciplinary action against him.
In 2018, a further report on the matter noted that there was a “prima facie” case of misconduct, but due to the “lapse of time and extreme vagueness of the evidence it would be a challenge to formulate charges”.
The woman was then officially informed that the lieutenant colonel would not be prosecuted. He was transferred back to the station and she was told she would be moved elsewhere.
She objected to this and lodged a dispute.
Judge Lallie said SAPS had conceded that the lieutenant colonel had made unwelcome sexual advances and utterances to the captain during 2013 and 2014, and this conduct constituted sexual harassment in terms of its own internal policy and the EEA. But, SAPS had argued that the captain had failed to alert management of this “immediately”, as required by the Act.
Judge Lallie said the word “immediate” had to be given a sensible meaning.
“I have considered that the perpetrator and the victim were stationed at the same station and he was her immediate supervisor … in a position of power. It is common cause that there were other female officers who were victims of his sexual harassment. They decided to file a collective grievance, but did not do so … the withdrawal of the other victims left her without the protection of safety in numbers.
“The most plausible inference that can be drawn from the applicant’s reluctance to report the sexual harassment is that a real barrier prevented her.”
Judge Lallie said the legislation had deliberately refrained from placing a fixed period within which sexual harassment had to be reported.
“It is a form of bullying … barriers must be recognised including power relationships between the victim and the perpetrator. Employers should not be allowed to hide behind those barriers to defeat the very purpose of the EEA.”
Judge Lallie said the time SAPS took to investigate the complaint was unreasonably long and the perpetrator had only been removed from the workplace they shared after two years.
“They (SAPS) may not use this to justify their failure to take the necessary steps to eliminate the sexual harassment she was subjected to.”
SAPS had also suggested that the evidence against the perpetrator was vague when in fact the captain had given a detailed account and the information gathered in the initial investigation had supported her.
“The explanation that no action could be taken against the perpetrator because the evidence was uncorroborated is unreasonable when viewed against the nature of sexual harassment … which is generally perpetrated out of sight of potential witnesses.
“There was, at all material times, sufficient evidence for steps to be taken to eliminate the sexual harassment … SAPS was remiss in its duties.”
Judge Lallie found that SAPS acted in breach of the EEA, ordering that the woman be paid R50,000 in compensation.
Read the judgment here