Authored By: Gugulethu Zamashenge Nyembe
University of Johannesburg
Abstract
The phenomenon of sexual harassment in the workplace remains a serious infringement of human dignity, equality, and fair labour practices in South Africa, despite the existence of a robust body of legislation aimed at addressing it. This research critically evaluates employer liability for sexual harassment in the workplace, as well as the practical viability of the available remedies. The analysis, based on the Employment Equity Act 55 of 1998, the Labour Relations Act 66 of 1995, and leading court cases, concludes that although the courts have strengthened the concept of employer liability, its practical effectiveness remains hindered by ongoing enforcement challenges.
1. Introduction
Sexual harassment in the workplace constitutes a violation of human rights and South African labour law.1 It infringes on the rights to dignity and equality entrenched in the Constitution of the Republic of South Africa, 1996.2 While sexual harassment frequently occurs within relationships characterised by power imbalances, it is not confined to them — peer harassment is equally recognised under South African law.3 Despite a comprehensive constitutional and legislative framework, sexual harassment remains a pervasive problem in South African workplaces, with enforcement remaining inadequate in practice.4 This article examines the circumstances under which an employer may be held liable for sexual harassment committed in the workplace, and evaluates the remedies available to victims.5
2. Research Methodology
This article employs a qualitative doctrinal legal research methodology, examining and interpreting relevant legal provisions in order to clarify how employers can be held liable for workplace sexual harassment and what remedies victims may expect. In addition to primary sources — legislative provisions and court judgments — the article draws on secondary sources, including the work of labour law specialists and articles from prominent journals such as the Industrial Law Journal and the South African Mercantile Law Journal.
3. Statutory Framework Governing Employer Liability
The Employment Equity Act 55 of 1998 prohibits unfair discrimination on a range of listed grounds, including sex and gender, which expressly encompasses sexual harassment.6 Section 60 of the Act is particularly significant: it imposes a direct obligation on employers to take appropriate steps to prevent and address harassment in the workplace, and creates the basis for employer liability where those steps are not taken.7
The Labour Relations Act 66 of 1995 ensures that any disciplinary action arising from a harassment complaint is procedurally and substantively fair.8 In serious cases, dismissal may be an appropriate sanction, but the Act protects the rights of both the complainant and the accused throughout the disciplinary process.9
The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (GN 1890 in GG 46056 of 18 March 2022) governs the preventative dimension of employer liability.10 Although the Code does not have binding legislative force, it is highly persuasive — courts regularly apply its guidelines when assessing whether an employer has fulfilled its duty of care.11
4. Judicial Development of Employer Liability
South African courts have developed a substantial body of case law addressing employer liability for workplace sexual harassment, progressively expanding the obligations imposed on employers.
In Grobler v Naspers Bpk,12 the Cape High Court held that employers bear a duty to create and maintain a working environment free from sexual harassment. This judgment was significant in anchoring employer liability in the law of delict, establishing that an employer who fails to prevent harassment may be held delictually liable for the harm suffered by an employee.
The Supreme Court of Appeal affirmed and extended this position in Media 24 Ltd v Grobler.13 The Court held that an employer who has actual or constructive knowledge of ongoing harassment and fails to intervene may be held both vicariously and delictually liable. This judgment confirmed that wilful inaction — not merely active wrongdoing — is sufficient to ground employer liability.
In Liberty Group Ltd v M,14 the Labour Appeal Court addressed the particular vulnerability created by hierarchical workplace relationships, holding that employers may be liable where a senior employee harasses a subordinate. Importantly, the Court confirmed that an employer cannot escape liability simply by claiming ignorance of systemic failures in its harassment prevention procedures.
The Labour Appeal Court returned to these themes in E v Ikwezi Municipality,15 emphasising that procedural compliance is itself a substantive obligation. An employer’s failure to follow proper grievance and disciplinary procedures in response to a harassment complaint may independently constitute a basis for liability.
Finally, in Masiya v Director of Public Prosecutions, Pretoria,16 the Constitutional Court reaffirmed the foundational importance of human dignity in the context of sexual violations. While not a workplace case, the judgment provides constitutional grounding for the courts’ expansive approach to employer liability — reinforcing that the right to dignity demands more than formal legal prohibition of harassment.
5. Effectiveness of Current Legal Remedies
While the legal framework is well-established, its practical effectiveness is less certain.17 Victims may seek compensation through the Labour Court and the Commission for Conciliation, Mediation and Arbitration (CCMA); however, such awards are often insufficient to address the full extent of the psychological and professional harm suffered, and may not function as a meaningful deterrent to employers.18
Underreporting remains a persistent and serious problem, driven by power imbalances and fear of reprisals. Van Eck further argues that internal grievance procedures frequently operate to protect institutions rather than the victims they purport to serve.19 This institutional capture of complaints mechanisms means that even employees who do report harassment may not receive an effective internal remedy.
Most available legal options are reactive rather than preventative. Although the 2022 Code adopts an expressly preventative orientation, poor monitoring and inconsistent implementation mean that its aspirations risk remaining theoretical.20 Without meaningful enforcement of preventative obligations, the legislative framework — however well-designed — will continue to fall short of its aims.
6. Conclusion
South Africa possesses an established constitutional and legislative framework for addressing workplace sexual harassment, supported by a growing body of case law that reflects judicial willingness to hold employers accountable.21 Nevertheless, significant challenges in enforcement, reporting, and deterrence persist.22 Legislative development alone is insufficient — what is required is improved preventative compliance and rigorous enforcement if employer liability is to achieve its ultimate aim of eradicating sexual harassment from the South African workplace.23
Bibliography
Cases
E v Ikwezi Municipality 2016 37 ILJ 1799 (LAC).
Grobler v Naspers Bpk (2004) (4) SA 220 (C).
Liberty Group Ltd v M (2017) 38 ILJ 1318 (LAC).
Masiya v Director of Public Prosecutions, Pretoria (2007) (5) SA 30 (CC).
Media 24 Ltd v Grobler (2005) (6) BLLR 539 (SCA).
Legislation
Employment Equity Act 55 of 1998.
Labour Relations Act 66 of 1995.
Constitution
Constitution of the Republic of South Africa, 1996.
Books
John Grogan, Workplace Law (13th edn, Juta 2023) 245.
Journal Articles
A van Eck, ‘Sexual Harassment in the Workplace: An Ongoing Challenge’ (2018) 39 ILJ 1.
Government Notices / Codes
Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace GN 1890 in GG 46056 of 18 March 2022.
Footnotes
1 Labour Relations Act 66 of 1995 s 185.
2 Constitution of the Republic of South Africa, 1996 ss 9 and 10.
3 Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace GN 1890 in GG 46056 of 18 March 2022.
4 John Grogan, Workplace Law (13th edn, Juta 2023) 245.
5 Employment Equity Act 55 of 1998 s 60.
6 Ibid s 6(1)–(3).
7 Ibid s 60.
8 Labour Relations Act 66 of 1995 s 185.
9 Ibid s 188.
10 Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (n 3).
11 Ibid.
12 (2004) (4) SA 220 (C).
13 (2005) (6) BLLR 539 (SCA).
14 (2017) 38 ILJ 1318 (LAC).
15 2016 37 ILJ 1799 (LAC).
16 (2007) (5) SA 30 (CC).
17 A van Eck, ‘Sexual Harassment in the Workplace: An Ongoing Challenge’ (2018) 39 ILJ 1.
18 Labour Relations Act 66 of 1995 s 191.
19 Van Eck (n 17).
20 Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (n 3).
21 Constitution of the Republic of South Africa, 1996 ss 9–10.
22 Van Eck (n 17).
23 E v Ikwezi Municipality (n 15).
