Villains and (s)heroes in the quest for truth and justice in sexual harassment cases

• Jurisdiction: South Africa
• Citation: 2020 Acta Juridica 27
• Pages: 27-61
• Date: 14 September 2020
• Published date: 14 September 2020

27

Villains and (s)heroes in the quest for truth

and justice in sexual harassment cases

NIC OLETT E NAYL OR*

Sexual harassment i s rooted in str uctures and pattern s of patria rchy,

power and discr imination. The l aw requires employers to addr ess the

root causes of sex ual harassme nt to prevent and protect all employee s.

When the law int ervenes to remedy s exual ha rassment, t he discipli nary

rules and procedures set out in the law of sexual harassment can

victim ise or vind icate both compla inants a nd perpetrators. The law

can also legitimise toxic workplace cultures when it directs all its

focus on indiv idual perpetrators a nd complainants, as opposed to

interrog ating broader organisational cultures that may create a toxic

environment in which sexua l haras sment can thr ive. This ar ticle

explores the limitations of the indiv idualised, adversarial approach

to discipline and oers g uidance for rei magining what justice and

accountability could look l ike in cases of sexual harassment, through

an analysis of the Equa l Education sexual har assment inquiry process

and outcome.

Tribunal justice may be meanin gful to la wyers drafting legal d ocuments …

amid the smolderin g embers of destroyed commu nities. But little satisfac tion

will come to surv ivors … the voices of sur vivors will remain l argely unheard

and unaddressed.1

I INTRODUCTION

Sexual h arassment is persi stent and pervasive acro ss many countries ,

in dierent contexts and workplace cultures. After several decades

of scholarsh ip2 it is well established that sexual harassment is tied

to sex or gender discr imination and that power, patriarchy and

* BProc LLB (Un iversity of t he Western Cape), LLM Int ernation al Human

Right s (University of London).

1 J M ertus ‘Truth i n a box: The limit s of justice throug h judicial mech anisms’

in I Amad iume & A AnN a’im (eds) The Polit ics of Memory: Truth, Heal ing and

Social Justi ce (2000) 142.

2 C C ooper ‘Hara ssment on the ba sis of sex and gender: A form of un fair

discr imina tion’ (2002) 23 ILJ 1; H McLaughli n, C Uggen & A Black stone

‘Sexua l haras sment, workpla ce authorit y, and the paradox of power’ (2 012)

77(4) Americ an Sociological Review 625–47 at 625.

2020 Acta Juridica 27

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28 VIOLENCE AGAI NST WOMEN

privilege, not sex, are at the core of sexual harassment. The South

Afric an Labour Appeal Court ( LAC) has unequivocally st ated that:

At its core, sexual harassment is concerned w ith the exercise of

power and in the main reects the power relations that exist both

in society generally and specica lly with in a part icular work place.

While economic power may underl ie many instances of har assment,

a sexual ly hostile working environment is often less about the abuse

of real economic p ower, and more about the perceive d societal power

of men over women.3

This article locates sexual harassment within the context of

patriarchal and economic power in the workplace. It considers

how an adversarial legal system, set up primarily for determin ing

the guilt of a perpetrator or employer, tries to solve a structural

problem using a series of policies, procedures and sanctions,

endorsed by the Amended C ode of Good Practice on the Handl ing

of Sexual Harassment Cases in the Workplace4 (the Code) read

alongside the Employment Equity Act5 (EEA) and the Labour

Relation s Act6 (LRA). The Code’s objective is to ‘elim inate sexual

harassment in the workplace’7 and it places a duty on employers to

create a working environment where the dignity of all employees8

is respected and sexual harassment is deemed unacceptable by

all employees and management.9 An employer is also deemed to

have acted in term s of its duties where it sanctions the perpetrator,

advises and counsels the complainant, and enacts a policy on

sexual harassment.

3 C ampbell Scie ntic Afric a (Pty) Ltd v Simme rs and Others (2 016) 37 ILJ 116

(LAC) paras 20–1.

4 T he rst Code w as issued in 1998 (GN R1367 of 17 July 1998) and was

amended by GN R1357 of 4 Aug ust 2005. Since th e 1998 Code was not repeale d

in 2005, both Codes rem ained applic able. On 19 December 2018, the Minister

of Labour is sued a notice for mally re pealin g and replacing the 1998 Code w ith

the amended Code of 2005.

5 Act 58 of 1998.

6 Act 66 of 1995.

7 A mended Code of G ood Pract ice on the Hand ling of Sex ual Har assment

Cases in t he Workplace, GN 1357 of 2005 ( hereaft er Amended Cod e of Good

Practice) pa ra 1.1, available at htt ps://www.gov.za/sites/default/les/gcis _

document/201409/278650.pdf.

8 E mployees are widely dened i n the Code to includ e applicant s for

employment, su ppliers, vendor s and other people who int eract with the wo rkplace.

9 A mended Code of Good Prac tice, para 6. 2.

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TRUTH AN D JUSTICE IN SEXUAL H ARASSM ENT CASES 29

This individualised approach to sexual harassment, focusing

only on individual wrongdoing and the role of the perpetrator in

relation to the employer, misses an important transformative goal

of the EEA and the Code in terms of eliminating discrimination

and creati ng workplaces free of sexual h arassment.10 By focusing on

the nature of the relationship between perpetrator and employer,

the law has str uggled to respond to sexual harassment as an issue

of power and equality.

In this ar ticle I explore what it would take to move beyond

the status quo of individual solutions to sexual harassment that

are grounded in a singular focus on the sanctioning of the villain

perpetrator towards approaches that hold institutions accountable

for harassment at a structural level, where it is possible to give

voice to complainants or (s)heroes who come forward. I explore

this issue through the lens of a case that arose in the social justice

sector, involving the Equal Education social movement. The

Equal Education case serves to illustrate the limitations of legal

and quasi-legal processes when interacting within a context of

patriarchy, power and privilege.

In Part II, I consider the facts of the Equa l Education case,

the terms of reference of the inquiry, and the ndings. In Part

III, I explore the ways in wh ich this independent inquiry resorts

to a legal, adversarial search for truth and guilt as opposed to a

macro analysis of organisational culture. I provide an analysis of

how the search for truth in this sexual harassment case serves as

a mirror11 of a typical case involving sexual harassment in South

Africa, since the case allows us to examine the ways in which

sexual harassment is imagined, understood and explained within

the law. I consider and contrast Labour Court jurisprudence with

the nding s in the Equal Education inquir y from the perspective

of truth and bel ievability. In Part IV, I consider how the inquiry

in the Equal Education case fai led to properly contextualise the

role of the complaina nts in terms of their wi llingness to testify and

their fear of reta liation. I contextualise the complainants’ silence

and anonymit y within a broader power analysis and illust rate

the chill ing eect of erasing entire testimonies and accounts of

10 Amended Code of G ood Practice, para s 1 and 3.

11 S Hassim ‘ Democracy’s sha dows: Sexua l rights and gender pol itics in the

rape tri al of Jacob Zuma’ (2009) 68(1) African Studie s 57–7 7.

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