LABOUR AND VICARIOUS LIABILITY
Labour – Unfair discrimination – Racial harassment – Vicarious liability – Police services – Officers making false accusations and racially harassing superior officer – Police services failing to investigate and take necessary steps – Employment Equity Act 55 of 1998, ss 6 and 60.
Solidarity obo Oosthuizen v SA Police Service [2023] JS1030-17 (LC) at [33]-[54]
Facts: Colonel Oosthuizen was the Commander of Human Resources at the Klerksdorp police station. An incident took place with Warrant Officers Tikoe and Mphana who were not happy when she instructed WO Tikoe to complete a leave form and when she issued WO Mphana with a verbal warning for absenteeism. During the altercation the two WOs threatened and intimidated Col Oosthuizen and accused her of calling them “kaffirs”.
Application: Solidarity, acting on behalf of Col Oosthuizen, is challenging the conduct of the police service, the Minister and the National Commissioner in failing to deal with her grievances pertaining to the unfair discrimination that was perpetrated by WOs Tikoe and Mphana.
Discussion: How a SAPS intern overheard the two WOs conspiring to falsely accuse her of calling them “kaffirs”; her request for disciplinary proceedings against them; how instead of dealing with her grievance she was transferred pending investigation against her; that she was charged and acquitted of using the word “kaffir”; the history of the proceedings against the two WOs and that they were finally dismissed; and whether the respondents are vicariously liable in terms of section 60 of the Employment Equity Act 55 of 1998 for the racial harassment and bullying perpetrated by the WOs.
Findings: Instead of dealing with the WOs ill-discipline the SAPS entertained their grievance based on false allegations of racism against Col Oosthuizen. She was racially harassed by the WOs which was motivated by insubordination and animus. The SAPS dismally failed to investigate the racial confrontation and take necessary steps to eliminate it and instead did everything in its power to protect the perpetrators of racial harassment. For about a year, Col Oosthuizen was disparaged and humiliated by the racial harassment perpetrated by the two WOs with impunity. The SAPS is therefore vicariously liable for the actionable racial harassment.
Order: The respondents are directed to pay Col Oosthuizen compensation of R300,000 and the SAPS shall tender an apology to her for the indignity she has suffered.
NKUTHA-NKONTWANA J
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SERVICE ON GUARD AT COMPLEX
Civil procedure – Service – Combined summons – Domicilium chosen for instalment sale agreement – Service on security guard at complex valid and effective – Telephonically advising of change of address insufficient.
Sibeko vs Shackleton Credit Management [2022] ZAGPJHC 1036 at [15]-[27]
Facts: Mr Sibeko concluded an instalment sale agreement for the purchase of a motor vehicle with Wesbank which ceded the agreement to Shackleton. In terms of the agreement he chose a domicilium citandi et executandi as the address for service on him of legal process. A copy of a combined summons was served by the sheriff on a security guard at the address, which was a complex.
Application: Mr Sibeko seeks rescission of the default judgment, that the service of the summons be declared invalid, and the setting aside of any process issued pursuant to the judgment.
Discussion: The contention that service on the security guard at the entrance to the security complex at the domicilium address did not accord with any of the competent methods of service; and the contention by Mr Sibeko that he telephonically informed Shackleton that he was no longer living there.
Findings: The obligation rested upon the applicant to update the domicilium address in accordance with the requirements of a valid amendment to the agreement. The telephonic conversation did not do so. Shackleton was well within its rights to serve the combined summons on Mr Sibeko at the domicilium address. Given the difficulties of a sheriff accessing a security complex in the absence of the occupant, service at the domicilium address by way of the process being handed to the security guard at the complex was valid service.
Order: The application is dismissed with costs.
CRUTCHFIELD J
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INTERDICT AND ELECTRICITY SUPPLY
Constitution – Violation of fundamental rights – Eskom reducing bulk supply of electricity to municipalities – Residents not having to prove a specific constitutional right to be supplied with electricity – Multiple rights in Bill of Rights affected – Interdict against Eskom prohibiting reduction of supply pending review.
Eskom Holdings v Vaal River Development Association [2022] ZACC 44 at [254]-[310]
Facts: Eskom implemented rotational load reduction to the supply of bulk electricity to two dysfunctional municipalities which had failed to pay for the supply. The residents were aggrieved because they had been paying the municipalities for the electricity. Not only did it impact their businesses, but it affected hospitals and old age homes and compromised the drinking water and sewerage disposal, leading to river pollution. The High Court granted an interim interdict prohibiting Eskom from reducing the electricity supply.
Appeal: Against the Supreme Court of Appeal’s dismissal of Eskom’s appeal against the judgment of the High Court.
Discussion: Whether, pending the finalisation of review proceedings that the residents intend instituting, the court could allow the effects of Eskom’s conduct to persist and allow the residents to be subjected to a violation of fundamental rights; the flaw in the reasoning of the minority judgment that the residents should have proved a specific constitutional right to be supplied with electricity by Eskom; that multiple rights protected in the Bill of Rights can be violated by a single action and that those rights are not always squarely or perfectly correlative; internal remedies and section 7(2) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA); the principle of subsidiarity and the Electricity Regulation Act 4 of 2006; and the requirements for an interim interdict.
Findings: A decision was taken substantially reducing the supply of electricity which resulted in a human catastrophe characterised by gross violations of the residents’ fundamental rights. The residents were not given notice before the decision was taken. No fair process of whatever nature preceded the decision. The residents have shown that they have a viable case in the intended PAJA review. The asserted rights, such as to dignity, life, education and an environment that is not harmful, have been established.
Order: The appeal is dismissed with costs.
MADLANGA J (majority) at [189]-[310]
UNTERHALTER J (minority) at [1]-[188]
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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