Media 24 Limited and Another v Grobler

The respondent, a 33-year-old secretary, was employed by Nasionale Tydskrifte Ltd (Tydskrifte), a wholly-owned subsidiary of the first appellant. The second appellant was a trainee manager employed by the first appellant. Over a period of approximately five months, the respondent was subjected to sexual harassment by the second appellant, including: the 'lift incident', the 'Landbousaal incident' (where he kissed her without consent and she scratched his back), the 'coffee jar incident', the 'fingerbiting incident', and the 'flat incident' (where he accompanied her to view her flat ostensibly to purchase it, but made sexual advances and had a firearm with him). The respondent complained to her manager Van As early on, but he failed to take action. She subsequently laid a formal charge after the flat incident. The respondent suffered severe psychological trauma as a result, which the High Court found manifested as post-traumatic stress disorder. The High Court held both appellants jointly and severally liable for damages of R776,814.

• Whether the second appellant was guilty of sexually harassing the respondent
• Whether the first appellant was vicariously liable for the second appellant's acts of sexual harassment
• Whether Tydskrifte (the respondent's employer) breached a legal duty to maintain a working environment free from sexual harassment
• Whether the respondent suffered a recognised psychiatric injury compensable in law
• Whether the High Court's jurisdiction was excluded by section 157 of the Labour Relations Act 66 of 1995
• Whether the High Court's jurisdiction was excluded by section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993

The appeals of both appellants were dismissed with costs. The High Court's judgment awarding R776,814 in damages jointly and severally against both appellants was upheld.

An employer owes a common law delictual duty to its employees to take reasonable care for their safety, which includes a duty to protect them from psychological harm caused by sexual harassment by co-employees. This duty is independent of any contractual obligations and arises from the legal convictions of the community as determined by the courts. Where an employer, through its managerial employees, negligently fails to take reasonable steps to prevent sexual harassment after receiving complaints, it will be liable in delict for compensable psychiatric harm suffered by the victim as a result. The High Court's jurisdiction to hear such delictual claims is not excluded by section 157 of the Labour Relations Act 66 of 1995, as the claim concerns the unlawfulness of conduct rather than unfairness in employment practices. Similarly, section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 does not exclude jurisdiction where the ultimate injurious event occurred outside the course of employment, even if preceded by workplace harassment.

The Court left open the question of whether the first appellant would have been vicariously liable for the second appellant's acts of sexual harassment under an extended test of vicarious liability, as it was unnecessary to decide this issue given the finding of direct liability through breach of legal duty. Farlam JA noted that the High Court judge had conducted a comprehensive review of developments in vicarious liability for sexual harassment in other jurisdictions (USA, Canada, UK, Australia, New Zealand) and had suggested that constitutional considerations might justify developing the common law of vicarious liability in this area. However, this issue did not require determination. The Court also noted without deciding that employees who contract psychiatric disorders as a result of sexual harassment in the course of employment might be able to claim compensation under section 65 of the Compensation Act, but that those were not the facts of this case. The Court expressed the view that while the Code of Good Practice on Sexual Harassment provides internal workplace remedies, item 7(6) of the Code preserves victims' rights to pursue separate civil claims for damages.

This is a landmark case in South African law establishing that: (1) Employers owe a common law delictual duty to employees to take reasonable steps to maintain a workplace free from sexual harassment, extending beyond mere physical safety to include protection from psychological harm. (2) Employers can be held liable in delict for negligent breach of this duty where managerial employees fail to act on complaints of harassment. (3) Such delictual claims are not excluded by the Labour Relations Act's jurisdiction over 'unfair labour practices' - employees retain the right to bring common law damages claims. (4) The case recognizes sexual harassment as a serious violation of dignity and bodily integrity that can cause compensable psychiatric harm. (5) It affirms that there can be concurrence between contractual and delictual remedies in the employment context. The judgment demonstrates judicial recognition of the severity of sexual harassment and the legal convictions of the community requiring employer accountability.