In a landmark move this Women's Month, Chief Justice Mandisa Maya introduced a comprehensive Sexual Harassment Policy for the Judiciary, a powerful reminder that institutions must exemplify confidence, dignity, and justice from within. "This policy is a necessary and urgent intervention", she said, emphasising that "sexual harassment has no place in the halls of justice".
Beyond grievances, zero tolerance for sexual harassment in the workplace requires a purpose-built policy. It is not enough to rely solely on a grievance policy, the Employment Equity Act (EEA) expressly demands proactive steps to prevent and eliminate harassment, including sexual harassment in the workplace. Employers must adopt a dedicated policy outlining reporting mechanisms, confidentiality, disciplinary measures, and support systems for affected employees.
In terms of the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace ("the Sexual Harassment Code") an employer should, subject to any existing collective agreement and applicable statutory provisions, adopt a sexual harassment policy, which should take cognisance of and be guided by the provisions of the Sexual Harassment Code.
The SCA has held that the duty of employers under the common law must logically also include the duty, under appropriate circumstances, to protect employees from the psychological harm which could possibly be caused by sexual harassment by co-employees (Media 24 Ltd and another v Grobler 2005 (6) SA 328 (SCA)). The SCA in the Media 24 case also held that the legal convictions of the community require an employer to take reasonable steps to prevent sexual harassment of its employees in the workplace and to be obliged to compensate the victim for harm caused thereby, should it negligently fail to do so.
Without a clear sexual harassment policy in the workplace, the risk of claims, including constructive dismissal, escalates.
Chief Justice Maya's policy reinforces the core constitutional values of dignity, equality, and justice, principles equally relevant to private employers. The judiciary's example underlines that policy is not just paperwork, it is a covenant.
How HR Managers should lead the way
- Conduct risk assessments for sexual harassment exposure in the workplace.
- Implement a comprehensive sexual harassment policy.
- Train employees at all levels on recognising, reporting, and dealing with sexual harassment.
- Ensure impartial and prompt investigations by trained investigators.
- Protect complainants from retaliation and document any follow-up actions clearly.
Failing to actively prevent sexual harassment does not only harm individuals, but it also erodes brand reputation, invites legal risk, and opens claims of a toxic workplace. While the judiciary sets a compelling precedent, private employers must catch up and lead by example as there is a statutory requirement to do so.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
