Public Service Association of South Africa and Another v Department of Mineral Resources (JS 677/17) [2022] ZALCJHB 307 (31 October 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No JS 677/17

In the matter between:

PUBLIC SERVICE ASSOCIATION OF SOUTH AFRICA

First Applicant

SEAPEI SYLVIA SEKGETHO

Second Applicant

and

DEPARTMENT OF MINERAL RESOURCES

Respondent

Heard: Various Dates

Delivered: 31 October 2022

JUDGMENT

NTSOANE, AJ

Introduction

[1] My fundamental point of departure in this case is to firstly and passionately agree with my brother Moshoana J in his judgment[1] that there can be no doubt that sexual harassment is a heinous and horrendous conduct, since it undermines the dignity of women and the values enshrined in our Constitution[2]. Section 6(3) of the Employment Equity Act[3] (EEA) provides that harassment of an employee is a form of discrimination and is prohibited on any one, or a combination of grounds of unfair discrimination listed in subsection (1).

[2] Section 60 of the EEA places liability on employers by providing the following:

(1) ‘(1) If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any conduct that, if engaged in by that employee’s employer, would constitute a contravention of the provision of this Act, the alleged conduct must immediately be brought to the attention of the employer.

(2)The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act.

(2) If the employer fails to take the necessary steps referred to in subsection (2), and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened the provision.

(3)Despite subsection (3), an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act.’

[3] Section 60 is a classification of the common law principle of vicarious liability where the employer is held accountable for wrongful actions committed by its employees in the scope of their employment. In the context of the EEA, the starting point is whether unfair discrimination has been committed or not. It is trite in law that acts of sexual harassment or even any form of harassment in a workplace is highly prohibited in terms of the provisions of the EEA. The Act then places an unequivocal and specific obligation on the employee to instantaneously bring such act(s) to the attention of the employer, who must in turn swiftly investigate such act(s) by engaging the relevant parties in its quest to eliminate the alleged conduct. Specifically, section 60 of the EEA provides that, if the employer fails to take the steps necessary to deal with unfair discrimination or sexual harassment and it is proven that an employee has contravened the relevant provisions, the employer must be deemed also to have contravened that provision.

[4] A pertinent question that arises is, as it will be dealt with in this judgment, to what extent, if at all, can employees or colleagues engage each other on a personal level so as not to be construed as sexual or unappreciated romantic advances? Similarly, can an invitation to the home of one colleague to another be tantamount to sexual advances? Does a (unappreciated) romantic advance at a workplace by one gender to the other attract claims of sexual harassment within the ambit of the EEA? Can these advances amount to harassment and unfair discrimination in terms of section 6(3) to an extent that such conduct poses a barrier to the achievement of substantive equality in the workplace by creating an arbitrary barrier to the full and equal enjoyment of an employee’s rights, violating that person’s dignity and limiting their right to equality at work[4]?

[5] The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace[5] (Code) defines sexual harassment broadly “as unwanted conduct of a sexual nature”. The Code further states that sexual harassment includes unwelcomed physical, verbal or non-verbal conduct, which includes, but is not limited to; physical contact, ranging from touching to sexual assault and rape, innuendoes, sex-related jokes, inappropriate enquiries about a person’s sex life, comments about a person’s body, gestures, and the display of sexually explicit pictures and objects. The Code prescribes that employers must create and maintain a working environment in which the dignity of employees is respected and where victims of sexual harassment will not feel that their grievances are ignored or trivialised. Employers should develop clear procedures to deal with sexual harassment. These procedures should ensure the resolution of problems in a sensitive, efficient and effective way.

The second applicant, through the assistance of her union the first applicant, brought a claim by way of a stated case where she alleges unfair discrimination occasioned by sexual innuendos and general harassment and/or unfair conduct towards her from her Regional Manager (RM), Aubrey Tshivhandekano (Tshivhandekano). The applicants seek the intervention of this Court to issue an order directing the respondent to take steps to prevent the unfair discrimination of the second applicant or similar practice occurring in the future in respect of the other employees of the respondent. The applicants further seek an order of compensation towards the second applicant in the event that this Court finds in her favour. The respondent disputes this claim and asserts that it committed no act of discrimination towards the second applicant.

[6] This is case law that is not only relevant but will also guide me in deciding this matter. In Ehlers v Bohler Uddeholm Africa (Pty) Ltd[6] (Ehlers), the court said the following:

‘… to succeed in her claim for damages against the respondent in terms of the EEA, she will have to prove that she suffered discrimination at the workplace, she brought it to the attention of the respondent, the respondent knew about it and did not take any reasonable steps to prevent it from happening… Section 60 of the EEA deals with liability of employers. The respondent will only be liable if the applicant was able to prove that it brought the discriminatory conduct of the employee to the attention of the respondent and the respondent failed to take all the reasonably practicable steps to ensure that the employees would not act in contravention of the EEA…’

[7] In relation particularly to sexual harassment, in Potgieter v National Commissioner of the SA Police Service and another[7] (Potgieter), the court said the following:

‘An employer will be held liable if it is shown in terms of s 60 of the EEA, that:

(i) the sexual harassment conduct complained of was committed by another employee.

(ii) It was sexual harassment constituting unfair discrimination.

(iii) The sexual harassment took place at the workplace.

(iv) The alleged sexual harassment was immediately brought to the attention of the employer.

(v) The employer was aware of the incident of sexual harassment.

(vi) The employer failed to consult all relevant parties, or take the necessary steps to eliminate the conduct will otherwise comply with the provisions of the EEA.

(vii) The employer failed to take all reasonable and practical measures to ensure that employees did not act in contravention of the EEA.’

[8] This judgement is in respect of a trial which ran for some number of days and was finalised on 16 September 2022. Following the finalisation thereof, the respective parties submitted their detailed written heads of argument to which the Court is grateful and were duly considered. It is unnecessary, for the purposes of this judgment, to repeat all those submissions.

Synopsis of the issues

[9] It is common cause that the second applicant is employed by the respondent as a Deputy Director: Mineral Laws at its Mpumalanga Region and her employment with the respondent subsists. The second applicant joined the respondent as an intern in May 2005, until she moved to the Mpumalanga region during or about December 2010. The second applicant reports to Tshivhandekano as her direct supervisor and the latter commenced his employment at the Mpumalanga Region sometime in September 2011 following a secondment from the respondent’s Free State Region.

[10] Most of the fundamental and defining issues presented to this Court by the respective parties are in dispute.

[11] The second applicant presented her case through her own evidence and also called three witnesses; Modilati Magdeline Malapane (Malapane) who is the current Chief Director of the respondent overseeing three regions Mpumalanga, Limpopo and Gauteng, Sunday Meshack Mabaso (Mabaso) who is the former Acting Regional Manager for various regions of the respondent and Tshivheano Mandela Ralushai (Ralushai) whom for purposes of this case was a director/shareholder of Tylogix.

[12] The respondent on the other hand confronted the case of the applicants by calling Tshivhandekano, Mpho Maxwell Mutavhatsindi (Mutavhatsindi) who occupies the position of Assistant Director, Siyabonga Pandavu (Pandavu) who is employed as an Information Officer, Sibongile Radebe (Radebe) who is employed as Deputy Director: Social and Labour Plan, Samuel Mathabela (Mathabela) who is employed as Assistant Director: Mine and Environmental Section and Ntshele Phasha (Phasha) who is employed as a Deputy Director Mine Economics. The respondent’s witnesses are all based at the respondent’s Mpumalanga Region and all remain so employed. Consequent to the trial having been affected by loadshedding, the parties came to a mutual consensus that the incomplete testimony of Phasha should be entirely discarded for obvious fairness reasons.

[13] For purposes of this judgement I will quote and deal with the witnesses’ testimonies where relevant and necessary. The second applicant testified that she enjoyed and appreciated flawless relationships with Acting RMs prior to Tshivhandekano’s tenure and continues to have a good relationship with both Deputy Director General (DDG) and Chief Director. Subsequent to his move to the Mpumalanga Region, Tshivhandekano would call the second applicant into his office to discuss matters that were personal yet irrelevant for purposes of the respondent’s business objectives. Tshivhandekano on the other hand disputes this and states that the correct prescribed procedure to meet with him is for everyone to go through his secretary and the latter remains in attendance in most if not all meetings. He said most of the meetings held with the second

applicant pertained to work. She testified how Tshivhandekano would inform her about, his white big house; his three children and his desire to add two more; his side hustle of selling clothes; had invited her to his house to view the said merchandise including his stainless steel pots at his house; how rich he is; he would invite her to embark on business travel with him in his vehicle to Sodwala caves as a cost containment measure despite everyone travelling in their own vehicles and during the trip he would engage her on personal matters; and how all these made her very uncomfortable. While the respondent vehemently disputes all these, there is essentially no witness that could corroborate the second applicant’s version in this regard. She nonetheless did not heed this, and simply ignored the unwanted conduct and what she perceived as an ill-intentional invitation to his house.

[14] The second applicant came to the conclusion that, because she did not accede to Tshivhandekano’s indirect advances, she was then subjected to perpetuated acts of harassment by Tshivhandekano who clearly sought to embarrass and get her out of the system. This is denied by the respondent. It is common cause that the second applicant later reduced all these episodes into written formal grievances submitted with the respondent through the office and assistance of her trade union. The respondent addressed these grievances and found that the evidence of the two was inconclusive.

[15] The second applicant further stated that Tshivhandekano would question her reports despite Tshivhandekano’s knowledge of her continued struggle in obtaining information from other units to generate and finalise her report. It is further common cause that the respondent used to convene Monday management meetings however it remains a disputed fact that it was during these meetings that Tshivhandekano would intimate in front of every other colleague in attendance that the second applicant was useless and how she could be led by IT when she was a lawyer.

[16] The second applicant averred that Tshivhandekano continued attacking women in positions such as hers, and embarked on his intense drive to get rid of women as they fall pregnant, all the time adversely affecting the respondent’s smooth operations and that she was employed on false and undeserved merits. The respondent, in its quest in opposing the issue, avers that the respondent has numerous women in positions and colleagues falling pregnant from time to time and all these employees are at all material times frankly supported. Contrary to all of this, the second applicant has never even fallen pregnant, at least not during her tenure with the respondent. She continued to state and was corroborated by Mabaso, that

Tshivhandekano abused his powers and used abusive and offensive language in conversing with her, especially during management meetings. This is nonetheless denied. Each time the second applicant would attempt to discuss backlog with Tshivhandekano, she would be unceremoniously dismissed. The respondent accepts and concedes that it suffers perpetuated and transmitted backlogs but denies the second applicant’s submissions. A further disputed issue is that Tshivhandekano unreasonably refused to authorise her upgrade from level 11 to 12 despite her qualifying and she opted to seek assistance elsewhere after the DPSA had changed its processes.

Instead, Tshivhandekano concedes that the second applicant was indeed misaligned in her position and appropriately deserved to be upgraded.

[17] It is common cause that the second applicant testified that she lodged her first formal grievance with the respondent during March 2012 and received no response to this grievance, at least not immediately or within a reasonable time. It is pertinent to mention that the second applicant, in her grievance, did not mention what she perceives as an inappropriate invitation to Tshivhandekano’s house and the first time that this allegation was mentioned was in the referral to this Court in 2017. She could not lodge another grievance as it was apparent that no one was coming to her rescue. Subsequent to the grievance, she received a warning from Tshivhandekano occasioned by her section backlog which according to her was unwarranted as her unit did not have any backlog. She neither accepted nor signed for the warning and has no idea what became of it. During a meeting in December 2014, Tshivhandekano expressed his concerns in the said meeting, that a client, Tylogix’s application for prospective mining rights was suspicious as the application was lodged hardly a day after Delmas Coal rights had lapsed. She was accused of furnishing confidential information to Tylogix and it was apparent that the RM sought to victimise her and push her to resign. The second applicant also sought to attend a course however Tshivhandekano refused to approve this, stating that

there was instead a backlog that needed her attention. Once again and unless indicated, all these issues remain opposed by the respondent.

[18] It also appears that in November 2014, when Delmas Coal mining rights had lapsed, she came to learn of their renewal application which was submitted to the head office through the office of the DDG instead of the regional office. Tshivhandekano refused to entertain this application despite case law prescribing that the DDG is the decision maker therefore the application had been properly submitted instead, Tshivhandekano sought to close down Delmas Coal. His intention was rather clear that he wanted Tylogix to get approval as he had a financial interest in the company. When she gave a legal opinion to the DDG in line with sections 102 and 103 of the Mineral and Petroleum Resources Development Act[8] (MPRD Act) on the Delmas Coal renewal application, Tshivhandekano accused her of misleading the department where after he immediately

entreated investigation into the matter[9]. The matter was investigated and despite a recommendation that all the officials be called to account, no action was taken against her. During November 2015, Tshivhandekano instructed Oscar to do the same section 103 submission but he had refused because it came from her. I’m inclined to determine that this is an operational issue and its relevance to this case is highly questionable.

[19] These unsubstantiated insinuations and talks from Tshivhandekano were repeated and perpetuated in two 2016 meetings where in one of the meetings, the second applicant was even accused of plotting and engineering the assassination of Pandavu. He now carries a gun in an attempt to protect himself. the second applicant was due to attend an Environmental Management Resources Inspector’s course (course) but Tshivhandekano cancelled her 10 days’ leave, despite him and other colleagues having benefitted from and enjoyed the same course and amount of leave and ordered her back to the office to which she nonetheless refused. She now fears for her life as she opined she and her son are being followed by unknown suspects. This is disputed.

[20] During October 2016, the second applicant launched a second grievance and the respondent’s Labour Relations officer responded[10] by informing her that the grievance cannot be investigated as it did not conform to the prescripts of the Labour Relations Act[11], but it was rather of a criminal nature. According to the second applicant, she sought to contact the DDG Corporate Services about her grievances and only then was she consulted by Hlongwane. In terms of the respondent’s investigation report,[12] incompatibility was discovered between the two and a conciliation process was recommended in order to amicably resolve this conflict of personalities. Despite the recommendation, to date, no conciliation was held. Tshivhandekano on the other hand unreasonably felt undermined by the second applicant and had motivated for her attendance of a wellness program so she can get professional

assistance.[13]

[21] I must indicate that the Tylogix and Delmas Coal mining rights issue is really not of any significant assistance to this Court, instead, it is an operational issue on which colleagues maintain different opinions on applicable correct procedures. Similarly, Tshivhandekano’s involvement or interest in Tylogix, if at all or anything pertaining to Tylogix, is irrelevant for the determination of this case. I must also specifically indicate that there was no evidence or submission made by the second applicant that she construes, especially the invitation to his house as a sexual/romantic advance or even indicated to Tshivhandekano that she dislikes this. In fact, in her own words, she stated that she “did not take the talks to heart and let them slip and did not want to entertain the invites to his house”. This is exasperated by the fact that this was never raised in any of her grievances. A further irrelevant issue is whether Ralushai was shown confidential documents by the second applicant as this not only pertains to the mining rights renewal applications but is in fact a disciplinary issue.

Evaluation of the evidence

Was there unfair discrimination in this matter?

[22] The second applicant has the duty to prove that there was unfair discrimination. In Matjhabeng Municipality v Mothupi NO and Others[14], the Court said:

‘It is clear from the foregoing paragraphs that a litigant who founds a cause of action on unfair discrimination based on an unlisted ground bears the onus to establish the discrimination and to prove that such discrimination is unfair.’

[23] In Shoprite Checkers (Pty) Ltd v JL and Others,[15] the Court held that:

“What emerges from the jurisprudence and the commentary is that the failure of an employer to take all reasonable practicable proactive steps to ensure employees do not contravene the EEA, is not a separate basis for holding it liable for sexual harassment or other acts of unfair discrimination, but if the employer has done so it can raise this as a defence. Items 7 and 8 of the Code set out the type of measures that ought to be taken for an employer to avail itself of the defence, but its failure to do so will not render it liable for an employee’s misconduct. It will only deprive it of a possible defence.”

[24] The legislative framework governing discrimination in terms of section 60 of the EEA is quoted in paragraphs 2 and 3 supra. If the principles of the Ehlers and Potgieter cases above are anything to go by, then the first significant principle to be determined is whether there was discrimination. In this case, the second applicant’s claim revolves around continued harassment and unfair treatment. If I determine that there was none, then the applicants’ claim falls to be dismissed on this aspect alone. In other words, there will be no need to go further into determining whether this was immediately brought to the attention of the respondent and whether the respondent failed to take reasonable steps in order to combat such acts.

[25] During her testimony, she commenced that at least one of the issues raised was Tshivhandekano’s engagement with her on personal matters which were irrelevant for work purposes. This inclines me to revisit my question that if a colleague elects to share his personal life, his children and his desires to have more children, can this then fall under the definition of harassment and if it is, how? Even if I were to accept that Tshivhandekano indeed conversed with the second applicant on a personal level, it was however not made clear by the second applicant how this piece of evidence is construed and how it should in fact come to the assistance of this Court in determining the burning issues. Getting personal at a workplace level can be twofold, acceptable and unacceptable. My strongest view is that it is acceptable as it may be key to growing employee engagement and may be a way to improve overall job satisfaction. Taking time to know one’s employees (especially as a manager/supervisor) and

being vulnerable may be ideal to show that you care. This may assist in many ways if and when employees experience domestic issues they would be likely to open up, discuss issues, request your understanding and of course, request time off. In my opinion, the

workplace is a fundamental secondary home where many employees spend most of their lifetime and if it is not welcoming, and is on strictly business terms, it might prove to be very inhospitable. It should however be clear that invading a colleague’s personal space such as touching, blocking someone’s path, suggestive hugging or patting, inappropriate compliments, and bedroom discussions, amongst others, may be construed as sexual harassment.

Invitation by RM to his house

[26] The above issue is intertwined with the one of an alleged invitation to Tshivhandekano’s house. The alleged invitation to Tshivhandekano’s house is not corroborated by any witness, and of particular interest is the fact that this has not been stated in any of the second applicant’s grievances. I am inclined not to entertain Juanita du Plessis’ presence in the trip to the caves as, in the second applicant’s own evidence, Ms du Plessis could not have grasped the conversation as it was held in vernacular; in any event Ms Du Plessis was not called to corroborate this version. Even if I were to accept that there was indeed such an invitation, in her own terms the second applicant submitted that Tshivhandekano

invited her to his house in a clear expressed attempt to sell her some clothing merchandise and to show her his posh lifestyle. At no point did she insinuate that such an invitation was tantamount to sexual or romantic advances and if she were to, I would seriously fail to comprehend how a published lavish lifestyle and side hustle can be construed as such. Tshivhandekano on the other hand testified, which testimony remains unhampered, that his clothing side hustle is common knowledge amongst the colleagues and in fact some do buy from him. The second applicant, in her own version, testified that she simply ignored the “inappropriate” invitation and did not accede to the invite. Further and once again, not only did she raise this in her grievance but she did not even relate this to anyone (colleagues). The second applicant opted not to make a fuss of it and resolve it herself by ignoring the invite and not acceding. Of great importance is that no shred of evidence was presented to this Court that the invitations persisted.

[27] This alleged invitation is not attached to any dates. The second applicant was appointed and commenced her employment at the respondent’s

Mpumalanga Region in December 2010 and in terms of her version, the RM would call her into his office and instead of discussing official business, he would gloat about his rich and personal life. The second applicant’s first grievance was launched in January 2012[16]. One can therefore assume that these were happening between December 2010 and January 2012 which is a period of more than a year. In any event, this incident is not even listed in the said grievances therefore it raises serious questions as to when exactly the invitation was made. I am inclined to conclude that the alleged conduct was not brought to the attention of the employer within the contemplation of section 60 (1) of the EEA. Is an invitation by a colleague to another’s house wrong, especially where the expressed essence thereof is to sell clothing merchandise? Can this be reasonably construed as harassment within the prescripts of section 60 of EEA, the answer is a simple no. It therefore does not matter whether same was brought to the attention of the respondent as instantaneously as possible as this claim stands to be dismissed.

[28] I must raise my serious concerns about the second applicant’s omission to raise this invitation in her grievances. If indeed Tshivhandekano has crossed the line and this leaves the second applicant in an unsettled state, it was incumbent upon her to immediately bring this to the attention of the respondent, at best at a later stage, especially in her grievances. This was not done. The second applicant enjoys a flawless relationship with the DDG and Chief Directors but could not take them into their confidence about Tshivhandekano’s misdeed. The point is that the respondent was not aware of this issue in particular and only came to know about it at the trial hereof.

Misalignment of position

[29] The pertinent evidence that was presented before this Court by the second applicant is that Tshivhandekano refused to authorise her position upgrade and pushed her motivation aside. I must indicate that whilst the second applicant, throughout the trial, testified that Tshivhandekano would unfairly and unreasonably refuse to authorise some of her applications such as the upgrade and leaves, the second applicant seemed to have alternatives to authorise her requests away from her supervisor[17]. In her own terms, she nonetheless received her upgrade without Tshivhandekano ’s authorisation[18]. The question then becomes how did this affect her? Similarly, her testimony was that Tshivhandekano sought to cancel her special ten days leave and she simply ignored him and refused to return to the office. Sekgetho and Tshivhandekano’s relationship is clearly one of incompatibility more than anything.

[30] There is clearly power at play here and whilst Tshivhandekano seeks to show the second applicant who is in charge, the second applicant on the other hand seeks to show him that she can still obtain what she wants without him. I pause to state that this then nicely brings me to concur, with the outcome of the grievances, that not only was the evidence provided inconclusive, but the issue between the two is more of incompatibility than anything. This is corroborated by the second applicant’s raised issues in an email of 19 November 2014[19] and then a request for investigation hardly a day later by Tshivhandekano[20].

[31] I, therefore, do not see how this should even be raised in this Court. Mabaso who is the applicants’ witness in fact conceded that Tshivhandekano mentioned qualifications in the meetings when the Department was conducting a countrywide skills audit. In actual fact, most witnesses testified that the issue of qualifications was a national issue and not necessarily towards the second applicant alone. This explains why and how the second applicant got the upgrade without Tshivhandekano’s approval.

Monday Management meetings

[32] It is common cause that the respondent’s regional office held management meetings on Mondays. The second applicant’s

allegations of harassment allegedly happened in those meetings[21]. The respondent conducted an investigation and the second applicant requested that four employees be interviewed viz; Maphopha, Phasha, du Plessis and Santo. They were interviewed and statements were taken from them. All these employees requested by the second applicant disputed that Tshivhandekano called the second applicant names or in any way harassed her. Tshivhandekano’s

evidence to the investigator was corroborated by the witnesses that the second applicant herself requested. The same thing applies in this trial. The respondent called numerous relevant witnesses who testified that the second applicant’s allegations were false and that no such harassment ever took place in Monday meetings. In terms of the witnesses, the issues discussed at the meetings were lucid and operational issues where the second applicant would be called upon to explain inaccurate statistics amongst others. The same applies to so-called duvet/sexual promotions which version all the respondent’s witnesses contradicted.

[33] As the RM, Tshivhandekano is within his right to raise his dissatisfaction on operational issues as such incompetence, backlog, inaccurate statistics, etc. as soon as he identifies such. He takes the ultimate responsibility for all operations at the Mpumalanga Region. How this is harassment is not clear; in actual fact, this cannot be harassment. Similarly, Tshivhandekano should take the second applicant to task as and when he realises all these issues and this is where the written warning[22] comes into the picture. The second applicant avers that these dissatisfactions were unwarranted and unfair in nature as Tshivhandekano was reactive towards her for non-accession to his moves. This cannot be, at least there is no evidence to support this. As indicated, the issues between the two are operational in nature hence, the warning and indeed not personal as testified by the respondent’s various witnesses. In terms of the warning, it is clear that the second applicant is being disciplined for professional misconduct which encompasses, amongst others, not meeting set targets, inaccurate statistics, lack of quality assessment and delays in the finalisations of applications.

Other issues

[34] I have already dealt with the issue of the second applicant’s course attendance that the second respondent sought alternative powers to authorise her special leave. In her own terms, Tshivhandekano approved the leave and sought to cancel same but she blatantly

refused to heed an instruction to return to the office as she felt entitled to the special leave. The second applicant seems to have her way of handling Tshivhandekano, creating animosity, insolence and insubordination in the process yet she runs to this Court on baseless claims of harassment. This is the same approach she employed when she dealt with the issue relating to sections 102 and103 of the MPRD Act and the content in the email of 19 November 2014[23]. This is simply a personality clash issue, alternatively, a difference of opinions in operational processes. I am not persuaded that the second applicant has managed to make out a case of discrimination therefore her claim stands to be dismissed.

[35] As I have already indicated, in the event of failure to make out a case for discrimination, the issue of whether such was reported to the employer and the latter failed to do anything naturally falls away. For completeness’ sake, the second applicant reported these issues to the respondent by way of grievances and the evidence presented before this Court is that the second applicant in fact suggested some witnesses be interviewed only for the very same witnesses to testify against her in the grievance process. The respondent made a determination that the matter should be conciliated and that there is simply no harassment. I concur with the determination of the respondent. As far as the issue of the conciliation whether it was actioned or not, I will not be entertaining that fray as it does not assist this Court at all. The grievance outcome was made in an attempt to resolve the personality clash established between the two and the respondent’s omission to execute same cannot be equated to harassment.

[36] It is common cause that the second applicant has never fallen pregnant during her tenure with the respondent. If there were utterances about women falling pregnant and tempering with the smooth operations of the respondent, this was clearly not directed at the second applicant. This issue then becomes irrelevant for determination.

[37] It remains one of the issues that this Court is called upon to determine that Tshivhandekano uttered rather bitter words that Rapoo had promoted useless people and that these were duvet promotions. Rapoo is based in the North West and happens to be second applicant’s former direct boss. She is the only one who had worked with Rapoo, therefore these utterances were referring to her to which the respondent disputes. In its response, the respondent avers that the second applicant had outburst and desperate tendencies, especially if she did not get her way in Monday meetings. Mabaso, the applicants’

witness, in fact, conceded that Lerato also comes from Rapoo’s camp and that the second applicant is not the only one. As indicated, the respondent’s witnesses all were steadfast that this was never uttered in any of the meetings therefore this raises a question as to whom this Court should believe between the two. In my opinion, the respondent’s witnesses were very consistent in their testimonies and left the Court into accepting their version as true. On the other hand, Mabaso was the only witness who testified for the second applicant, who has left the department some many years ago and who cannot testify to the kind of relationship Tshivhandekano and Sekgetho have.

[38] This then brings me to the issue of Panduva’s evidence and whether it was relevant to this Court. If there are rumours that someone seeks to assassinate Panduva and the second applicant is the mastermind, how is this harassment or discrimination? I find this to be irrelevant for determination. The second applicant sought to bombard the Court with lots of irrelevant issues in her quest to bolster her case. This is an abuse of the Court’s time and system. Most of the issues, if not all, are operational issues and must be determined as such.

[39] There is further the issue of the warning issued to the second applicant. I’m inclined to find that this warning pertains to the operational issues of the respondent and should the second applicant feels it was unwarranted, she has legal recourse. In any event, in her own testimony, she stated that she refused to accept the warning, refused to sign for it, ignored it and does not know what became of it.

[40] In the end, the evidence before this Court is quite persuasive that the second applicant’s grievances were attended to and accordingly were dealt with in terms of the outcome of the 19 April 2017 grievance meeting. It is repeated that the second applicant submitted proposed witnesses to the department and these witnesses were in fact interviewed in order to get to the bottom of the issue. I am thus not satisfied that the applicants have made out a persuasive discrimination case in terms of section 60 of the EEA so as to hold the respondent accountable.

[41] In the premises I make the following order:

Order

1. The applicants’ claim is dismissed.

2. There is no order as to costs.

M M Ntsoane

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicants:

T Ntshebe of Ntshebe Incorporated

For the Respondent:

M B Matlejoane

Instructed by:

State Attorneys

[1] See: National Union of Metal Workers of South Africa (NUMSA) and Another v Passenger Rail Agency of South Africa (2021) 42 ILJ 2637 (LC).

[2] The Constitution of the Republic of South Africa,1996

[3] Act 55 of 1998.

[4] See: Liberty Group Limited v M (2017) 38 ILJ 1318 (LAC).

[5] GNR 1890 of 18 March 2022.

[6] (2010) 31 ILJ 2383 (LC) at para 49.

[7] (2009) 30 ILJ 1322 (LC) at para 46. See also: Moatshe v Legend Golf and Safari Resort Operations (Pty) Ltd [2014] 12 BLLR 1213 (LC).

[8] Act 28 of 2002.

[9] Bundle B p 50.

[10] Bundle B p 16.

[11] Act 66 of 1995, as amended.

[12] Bundle B p 20 – 25.

[13] Bundle B Page 17

[14] (2011) 32 ILJ 2154 (LC) at para 40. See also Chizunza v MTN (Pty) Ltd and Others (2008) 29 ILJ 2919 (LC).

[15] (2022) 43 ILJ 903 (LC) at para 71.

[16] Bundle A p 2.

[17] Bundle A p 14 – the second applicant sought intervention from the HR.

[18] Bundle A p 14.

[19] Bundle A pp 7 – 8.

[20] Bundle A pp 9 – 10.

[21] Bundle A p 7.

[22] Bundle A pp 34 and 35.

[23] Bundle A p 7.