Authored By: Sindisiwe Mkhono
University of Fort Hare
Abstract
In the ongoing case of Ms A Mengo v Judge President S M Mbenenge1, the respondent claimed that he was being led on by the applicant in the context of their conversations. The issue that causes loopholes in the argument made by the respondent is whether his mistaken belief constitutes a valid defence in sexual harassment cases. This paper evaluates the grounds that constitute sexual harassment and how wanted conduct plays a role in the acquittal of the offence.
Keywords: Grounds of sexual harassment, reasonable belief in consent
Introduction
In the Labour Court judgement case of SA Metal Group (Pty) Ltd v Commission for Conciliation Mediation and Arbitration2, it was held that, with reference on the case of Gaga v Anglo Platinum Ltd3, the prohibition on sexual harassment targets, inter alia, repugnant displays of inappropriate power by superiors over their subordinates. There is no justification for the subordinate’s ambivalence or even momentary flattery from the attention, especially if she expresses her dissatisfaction at some point during a continuing circumstance. At the very least, the persistence of the initial behaviour is undesirable.4
This case bought about the issue of how the term sexual harassment is defined and whether one can be convicted of the offence in instances whereby the applicant to the case did not immediately report the incidents leading to the harassment earlier.
This paper looks at one component of determining sexual harassment that involves unwelcome conduct: this refers to the lack of interest by the latter with reference to the advances made by the said respondent, whether verbally or by showing signs of discomfort. In other words, this ultimately refers to the lack of consent being present to establish whether the offence is present therein. For example, in a situation whereby both parties were flirting prior or after employment in cases of harassment in the workplace or in instances whereby the latter did not report incident as soon as it happened, it does not mean that the employer must assume that the latter is consenting or is interested in further advances that include the context of a sexual nature. The prosecutor must in this case prove beyond reasonable doubt that the latter was not comfortable and that the conduct was unwanted by the applicant.
Consequently, the question of unwelcome conduct has a broad spectrum, as several issues may arise: the mistaken belief in the latter being interested in his advances, reasonable belief on the latter being interested. The focus of this paper aims to investigate whether late reporting of a sexual harassment case and mistaken belief of interest constitutes acquittal of the offence.
Furthermore, this paper is structured as follows: the legal position of sexual harassment offence in relation to relevant statutory provisions, the case’s second section then examines the lower courts and the court’s rulings, the appellant’s or convict’s acquittal, and the reasoning behind the court’s ruling. The third part explores the component of unwanted conduct by the applicant looking further into the mistaken belief, reasonable belief.
Main body
Legal Framework
The Code of Good Practice on sexual harassment provided by the CCMA defines sexual harassment to refer to an unwanted sexual behaviour, with the unwanted behaviour differentiating between a behaviour that is welcomed from one that is mutual [5].
In order to determine whether a conduct constitutes sexual harassment, the following factors must be established: harassment on a prohibited ground, unwelcome conduct6, nature and extent of the conduct, impact of the conduct [7].
With regards to harassment on a prohibited ground, inference to the harassment being on the ground of sex and gender8and in terms of s6(1) of the Employment Equity Act 55 of 19989is made. Any ground where the harassment occurs undermines the latter’s human dignity and has a significant impact on a person’s ability to enjoy their rights and freedoms equally10.
In terms of unwanted conduct, this includes instances whereby the employee would inform other colleagues of the incidents and asks for their interference. Unwanted conduct among other things refer to: nonverbal sexual harassment, such as the inappropriate display of sexually explicit images; verbal sexual harassment, such as sexual advances, sexually suggestive remarks, sex-related jokes or insults, inappropriate and inappropriate enquiries about someone’s sex life, or suggestions and hints; In exchange for It is considered harassment when a respondent tries to sway the hiring process in return for sexual favours11.
Judicial Interpretation
In the case of Department of Health Western Cape v Public Health and Social Development Sectoral Bargaining Council12, where a stuff member sent inappropriate messages that were explicit in nature to a student, the court held that misconduct can be deemed an offence without being fully described in a disciplinary code. It was determined that the actions, especially those of an authoritative figure, constituted sexual harassment and damage to the employer’s reputation13.
In determining whether the conduct was unwanted, the 2005 Code used the subjective approach whereby and the objective approach as established in the case of Bandat v De Kock14.
In the case of SA Metal Group (Pty) Ltd v CCMA15, where the commissioner acquitted the accused of the offence because the employee failed to inform the employer of her discomfort and that the verbal banter was unwelcome, the Labour Court, citing the Code, determined that the employee’s remarks qualified as verbal sexual harassment because they were inappropriate and included suggestions, hints, and conduct16.
The court further held that as per reference to the 2022 Code, the is no need for a verbal communication for the unwanted conduct for it to constitute sexual harassment and concluded that, with regard to the impact of the complainant’s actions in reaction to the employee’s verbal teasing, the complainant’s behaviour is not an excuse, even though the complainant may appear ambivalent or even momentarily delighted by the attention17.
In cases where the accused reasonably or mistakenly believed that the latter wanted the conduct to occur, tests as established in the case of Pretorius v Britz18 include whether:
“(1) was there any quid pro quo sexual harassment e.g, unwelcome sexual advances, requests for sexual favours and other verbal or physical conduct of a sexual nature which may have led to: (a) submissions to such conduct made either explicitly or implicitly a term or condition of an individual’s employment or, (b) submissions to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, (c) was there any “hostile environment” sexual harassment? For example, unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature that may lead or has a purpose of an effect of unreasonable interfering with the employees’ work performance or creating an intimidating, hostile or offensive working environment.”19
Furthermore, upon establishment of these tests, the court held that the offence did in fact occur.
Conclusion
Therefore, on cases of such nature, in relation to the Code of Good Practice, the court must in their decision consider the nature of the conduct and investigate different ways in which the offence can be interpreted based on the different ways in which the offence takes place. There must be a distinction drawn from flirting and sexual harassment and workplaces must most importantly establish policies that can help the justice system deter such offences from occurring.
Bibliography
Case laws
Ms A Mengo v Judge President S M Mbenenge CASE NO JSC 1059/2022
SA Metal Group (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (C350/13) [2014] ZALCCT 68; (2014) 35 ILJ 2848 (LC) (15 April 2014) para 15
Gaga v Anglo Platinum Ltd (2012) 33 ILG 329 (LAC)
SA Metal Group (Pty) Ltd v CCMA and Others (CC50/13)
South African Human Rights Commission v Qwelane (Freedom of Expression Institute and another as amici curiae) and a related matter [2017] ZAGPJHC 218 (EqC, GJ); 2018 (2) SA 149 (EqC, GJ);
Department of Health Western Cape v Public Health and Social Development Sectoral Bargaining Council and Others (C307/2022) [2024] ZALCCT 48 (24 July 2024)
Bandat v De Kock (2015) 36 ILJ 979 (LC)
Pretorius v Britz [1998] JOL 1550 (CCMA)
Official websites
Kirsten Caddy et al., “Recent Judgements Dealing With Sexual Harassment in the Workplace) para.5 ( 22/07/2025, 22:30)https://labourguide.co.za/general/recent-judgements-dealing-with sexual-harassment-in-the-workplace
Legislation
Item 3(1) of the Code of Good Practice (2005)
See Item 5 of the Amended Code of Good Practice on Handling Sexual Harassment Cases in the Workplace (2022)
See Item 5 (5.1) of the Amended Code
Employment Equity Act 55 of 1998
1 Ms A Mengo v Judge President S M Mbenenge CASE NO JSC 1059/2022
2 SA Metal Group (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (C350/13) [2014] ZALCCT 68; (2014) 35 ILJ 2848 (LC) (15 April 2014) para 15
3 Gaga v Anglo Platinum Ltd (2012) 33 ILG 329 (LAC)
4 SA Metal Group (Pty) Ltd v Commission for Conciliation Mediation and Arbitration, para 5
5Item 3(1) of the Code of Good Practice (2005)
6 See Item 5 of the Amended Code of Good Practice on Handling Sexual Harassment Cases in the Workplace (2022)
7 SA Metal Group (Pty) Ltd v CCMA and Others (CC50/13)
8 See Item 5 (5.1) of the Amended Code
9 Employment Equity Act 55 of 1998
10 South African Human Rights Commission v Qwelane (Freedom of Expression Institute and another as amici curiae) and a related matter [2017] ZAGPJHC 218 (EqC, GJ); 2018 (2) SA 149 (EqC, GJ);
11 See Item 5(5.3) of the Amended Code (2022)
12 Department of Health Western Cape v Public Health and Social Development Sectoral Bargaining Council and Others (C307/2022) [2024] ZALCCT 48 (24 July 2024)
13 See (C307/2022) [2024] ZALCCT 48 (24 July 2024)
14 Bandat v De Kock (2015) 36 ILJ 979 (LC)
15 SA Metal Group (Pty) Ltd v CCMA and Others (CC50/13)
16 See SA Metal Group (Pty) Ltd v CCMA
17 Kirsten Caddy et al., “Recent Judgements Dealing With Sexual Harassment in the Workplace) para.5 (22/07/2025, 22:30) https://labourguide.co.za/general/recent-judgements-dealing-with-sexual harassment-in-the-workplace
18 Pretorius v Britz [1998] JOL 1550 (CCMA)
19 See Pretorius v Britz
