P.E v Ikwezi Municipality and Another (828/2011) [2016] ZAECGHC 20; [2016] 2 All SA 869 (ECG); [2016] 7 BLLR 723 (ECG); (2016) 37 (ILJ) 1799 (ECG); 2016 (5) SA 114 (ECG) (31 March 2016)

P.E v Ikwezi Municipality and Another (828/2011) [2016] ZAECGHC 20; [2016] 2 All SA 869 (ECG); [2016] 7 BLLR 723 (ECG); (2016) 37 (ILJ) 1799 (ECG); 2016 (5) SA 114 (ECG) (31 March 2016)

The court found that the second defendant, as Corporate Services Manager and immediate superior to the plaintiff, abused his position of authority to commit a sexual assault in the workplace. The employer placed him in a position of trust and control over the plaintiff's working conditions, which facilitated the opportunity for the assault. The court held that the common law must be developed, in line with constitutional values of dignity and equality, to impose vicarious liability on employers for sexual harassment perpetrated by superior employees. The employer also breached its direct duty of care by failing to adequately protect the plaintiff from further trauma after the assault,...

Citation
[2016] ZAECGHC 20
Parties
Plaintiff: P. E.; Defendant: Ikwezi Municipality; Defendant: Xola Vincent Jack
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
31 March 2016
Case Number
828/2011
Procedural Posture
Civil Action / Merits Trial; Liability and Quantum Separated Under Rule 33(4)
Outcome
Both defendants are declared jointly and severally liable for such damages as the plaintiff may prove she has suffered in consequence of the sexual assault.
Judges
J.D. Pickering
Legal Topics
Sexual Harassment, Vicarious Liability, Employer Duty of Care, Post Traumatic Stress Disorder, Workplace Discrimination, Disciplinary Procedure
Labour Law Delict Sexual Harassment Vicarious Liability Employer Duty of Care Post Traumatic Stress Disorder Workplace Discrimination Disciplinary Procedure

Case Brief

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Parties

P. E.

Plaintiff

Ikwezi Municipality

Defendant

Xola Vincent Jack

Defendant

Procedural Posture

Civil Action / Merits Trial; Liability and Quantum Separated Under Rule 33(4)

Legal Issues

  1. 1 Whether the employer (first defendant) is vicariously liable for sexual assault committed by a superior employee against a subordinate in the workplace.
  2. 2 Whether the employer breached its legal duty to protect the plaintiff from further trauma pending disciplinary proceedings.
  3. 3 Whether the actions of the second defendant were sufficiently connected to his employment to justify vicarious liability.

Ratio Decidendi

The court found that the second defendant, as Corporate Services Manager and immediate superior to the plaintiff, abused his position of authority to commit a sexual assault in the workplace. The employer placed him in a position of trust and control over the plaintiff's working conditions, which facilitated the opportunity for the assault. The court held that the common law must be developed, in line with constitutional values of dignity and equality, to impose vicarious liability on employers for sexual harassment perpetrated by superior employees. The employer also breached its direct duty of care by failing to adequately protect the plaintiff from further trauma after the assault,...

Court Disposition

Both defendants are declared jointly and severally liable for such damages as the plaintiff may prove she has suffered in consequence of the sexual assault.

Orders

  • It is declared that the first and second defendants are jointly and severally liable for such damages as the plaintiff may prove she has suffered in consequence of the sexual assault upon her on 16 November 2009 at the offices of first defendant in Jansenville.
  • Defendants are ordered jointly and severally to pay the costs of the action on the merits, the one paying the other to be absolved.