A SAPS colonel was accused of racism by two warrant officers who had conspired against her. The Labour Court found that they had racially abused her and that her employer, the South African Police Service (SAPS), had protected the perpetrators and blamed the victim, in contravention of the Employment Equity Act (EEA).

Solidarity obo A Oosthuizen vs South African Police Service and others 3 BLLR 258 (LC)

Case summary

Solidarity, on behalf of Colonel A Oosthuizen, filed an action challenging the conduct of the first to third respondents (the SAPS, the Minister and the National Commissioner) for failing to deal with her grievances pertaining to the unfair discrimination perpetrated by Warrant Officers Tikoe and Mphana. The trial commenced on 19 April 2021 and was part heard on 21 April 2021. It resumed on 13 June 2022 and was still part heard on 17 June 2022. It sat for the last time on 12 to 14 September 2022.

The genesis of the contestation is an incident that reportedly took place on 27 February 2017, when WOs Tikoe and Mphana allegedly racially abused Col. Oosthuizen. She reported the incident to her superior, who issued an instruction that the matter must be investigated. On 1 March 2017, WO Tikoe opened a case of crimen injuria against Col. Oosthuizen, alleging that she called him and WO Mphana “kaffirs”. On the other hand, Col. Oosthuizen opened a case of intimidation against the two. On 7 March 2017, Tikoe and Mphana lodged a grievance against Col. Oosthuizen, alleging that she called them “kaffirs” and often called blacks “kaffirs”.

On 13 March 2017, Captain Du Plessis issued his investigation report, wherein he found that the complaint against Mphana was serious and recommended that disciplinary action be taken against him. On 16 March 2017, Lt. Col. Weydeman issued his investigation report, wherein he found that the allegations against Tikoe were also serious and that disciplinary action must be taken against him.

On 15 March 2017, Col. Oosthuizen was approached by an intern at SAPS, who informed her that she overheard the two warrant officers conspiring to falsely accuse her of calling them “kaffirs”.

The main issue was whether the first to third respondents failed to act in accordance with Section 60 of the Employment Equity Act (EEA) and are vicariously liable for contravening the provisions of the act. Judge Nkutha-Nkontwana found that WOs Tikoe and Mphana did unfairly discriminate against Col. Oosthuizen.

The judge also noted an emerging trend of false claims of racial or sexual harassment by subordinates against their superiors in order to avoid being disciplined. The judge found that the respondents failed to act in accordance with Section 60 of the EEA, as they did not adequately address the racial harassment complaint and, as a result, they are vicariously liable for the conduct of their employees.

In this case, it was common knowledge that actionable harassment was committed by WOs Tikoe and Mphana, but despite the swift initial steps taken by the SAPS to investigate the insubordinate conduct, the investigation reports recommending disciplinary action against the two WOs were abandoned. A certain Capt. Morris’s investigation report was never implemented, despite finding a prima facia case of racial harassment against the two WOs. The initiator and the chairperson of the disciplinary hearing of the two WOs conceded that the two WOs were never charged for making false allegations of racism and discrimination.

Brigadier Sibeko, the respondents’ main witness, conceded during cross-examination that Col. Gause (the initiator) was not given all of the investigation reports. Brig. Sibeko’s view was that Capt. Morris’s report was not informative and, so, she decided to extract some of the informative statements from the reports of Col. Weydeman and Capt. Du Plessis. Unfortunately, she abused her discretion in order to suppress critical evidence and manipulate the outcome of the disciplinary hearing against WOs Tikoe and Mphana.

After a careful analysis of the respondents’ defence, it became clear that they are oblivious to their statutory duties in terms of Section 60 of the EEA. The respondents acted in a partial manner by protecting the perpetrators at the expense of the victim. The employer must show that it took reasonable precautions to prevent and promptly correct the inimical behaviour, and that the employee unreasonably failed to take advantage of the employer’s preventive or corrective opportunities. In conclusion, the SAPS failed to investigate the racial confrontation and take the necessary steps to eliminate it. Instead, they did everything in their power to protect the perpetrators of racial harassment.

The ruling of the judge in this case was that the SAPS was vicariously liable for the racial harassment that Col. Oosthuizen suffered at the hands of WOs Tikoe and Mphana, and that the SAPS had failed to take adequate steps to eliminate the harassment once it had been reported and, furthermore, had not complied with its statutory duties under Section 60 of the EEA, and had acted in a partial manner by protecting the perpetrators of the harassment at the expense of the victim. As a result, the judge ordered SAPS to pay Col. Oosthuizen damages for the harm suffered as a result of the harassment as well as her legal costs.

Written by Labour Guide