A critical analysis of the law on sexual harassment in the workplace in South Africa in a comparative perspective

Doctoral Thesis


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University of Cape Town

A central feature of sexual harassment in the workplace is that it essentially involves two sides of a coin an impairment of dignity, self-esteem, self-worth, respect, ubuntu, individual autonomy, and equality from a positive aspect and freedom from insult, degrading treatment, disrespect, abuse of trust and unfair discrimination from a negative aspect. The overlap between equality and dignity as founding values of the Constitution, constitutionally entrenched rights, and values underpinning the limitation clause in the Constitution is explored with a view to illustrating why sexual harassment is unacceptable in an open and democratic South Africa. The central theme of the thesis is that the future of the law on sexual harassment lies in the adoption of a multi-dimensional approach which focuses on dignity/ ubuntu because there can never be equality without respect for dignity/ ubuntu which is an essential pillar in the celebration of self-autonomy and humanity in a democratic society. A central focus of the research is that the harm of sexual harassment gives rise to various remedies, which are not mutually exclusive. The plaintiff can use one or more of the available remedies because sexual harassment is potentially a labour issue; a constitutional rights matter; a delict; unfair discrimination and can even manifest itself as a specific offence in criminal law. A wide range of data collection methods were used including reference to South African judicial precedent; legislation; selected foreign case law; the Constitution; textbooks; journal articles; feminist theories; and international conventions. The aim is to underscore the impairment suffered by women through sexual harassment, which includes economic harm, psychological harm, unfair discrimination, work sabotage, unequal access to employment opportunities and abuse of organizational power by supervisors. The multiple facets of the harm of sexual harassment such as treating women as sub-human, un-equal and as sub-citizens in total disregard of their constitutional rights, self-autonomy and ubuntu is highlighted in an effort to identify the essence of sexual harassment. The judicial tests, which determine whose perception of the nature of sexual harassment is decisive, are described. The focal point of the thesis advocates a judicial test for identifying sexual harassment, which is gender neutral, objective, and promotes the objects, purport, and spirit of the Bill of Rights by offering equal protection before the law. A critique of the current law on sexual harassment in South Africa is conducted in the light of the common-law principles of vicarious liability. An evaluation is made of how and to what extent the South African case law is compatible with Canadian and English authorities. This was done by broadening the scope of employment test to include approaches compatible with an abuse of power and trust; frolic of one's own; enterprise risk; mismanagement of duties; and abuse of supervisory authority and the sufficiently close nexus between the wrongful conduct and the employment. The United States supervisory harassment approach, which focuses on sexual harassment as an abuse of power or trust in employment relations, is critically regarded as having truly captured the essence of the risk of abuse inherent in the supervisor's delegated power. Statutory vicarious liability in terms of labour law is underscored because it is distinct from the common-law principles of vicarious liability in creating an element of deemed personal liability on the part of the employer for failure to take steps and ensure the eradication of gender discrimination. It is observed that women cannot be liberated as a class (gender equality) if they are not liberated as autonomous individuals (dignity). It is concluded that South African law is in harmony with the Canadian and English authorities on sexual harassment in the workplace and has the potential to deal adequately with sexual harassment cases in the workplace but only if attention is paid to the proposed emphasis and suggestions made in the thesis.