- Evelyn Kedibone Mokobane said her former manager made unwelcome sexual remarks and advances.
- She took issue with the department’s decision not to suspend him, its handling of the investigation, and what she said was a failure to address interference with witnesses.
- The Equality Court agreed with the department’s objection, dismissed her application, and ordered her to pay legal costs on Scale A.
Evelyn Kedibone Mokobane took her case to the Equality Court under the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000, claiming the Gauteng Department of Education unfairly discriminated against her after she reported her former manager, Mr Seabi, for sexual harassment on 11 October 2022.
Mokobane said Seabi continued to make sexual remarks and advances even after she made it clear his behaviour was unwelcome. But her case before the court focused on how the department responded after she reported him.
She objected to the department’s decision not to suspend Seabi while they investigated her complaint. She argued that having him remain at work allowed him to interfere with witnesses. According to Mokobane, Seabi allegedly colluded with another victim.
She said a witness overheard their conversation and told labour officials, but nothing was done. She also accused senior department officials of bias and unethical behaviour, saying they ignored her repeated requests for a transfer.
Mokobane wanted the court to order the department to restart the disciplinary process with an independent panel that specialises in sexual harassment. She also asked for action to be taken against senior officials, accountability for those who ignored her transfer requests, and compensation for the psychological harm she said she and her partner suffered.
Department argues that dispute belongs in labour law
The department objected early on, arguing that the dispute was an employment matter and should be handled through existing labour law channels. It said the complaint was about how it handled an internal sexual harassment grievance, including whether to suspend or discipline an employee.
Mokobane disagreed, arguing this was not a typical labour dispute but a case of systemic and institutional discrimination based on gender and status within the department. She pointed to Sections 6 and 8 of PEPUDA, which ban unfair discrimination and harassment. She argued the department failed to respect her rights, follow procedure, or address abuses of authority.
Judge explains limits of Equality Court jurisdiction
Judge NP Mali, considering the department’s objection, looked closely at the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, issued under the Employment Equity Act of 1998.
The code recognises sexual harassment as unfair discrimination based on sex, gender or sexual orientation. But it also distinguishes between harassment that comes from workplace policies and situations where PEPUDA might apply outside the direct employer-employee relationship.
This includes cases where the harasser is not an employee or employer, where harassment happens outside the employer’s control, complaints from the public against staff, or where workers do not fit the legal definition of an employee under the Labour Relations Act. Judge Mali found that none of these exceptions applied to Mokobane’s case.
The judge said the heart of the matter was not Seabi’s alleged behaviour, but rather how the department handled the internal complaint, including its decision not to suspend him and the failure to act on reports of interference with witnesses.
This, the judge found, was all about employment policies and practices, which are covered by the workplace harassment Code and the Labour Relations Act. The judge also found that the department’s failure to suspend or discipline Seabi did not, on its own, prove discrimination or harassment by the employer.
Judge Mali also looked at the remedies Mokobane wanted, and found that restarting disciplinary proceedings, holding senior managers accountable, and awarding compensation for psychological harm all fell under labour law and the employment relationship. The Equality Court, she said, was not allowed under PEPUDA to supervise internal disciplinary or management decisions by employers.
CCMA and Labour Court identified as appropriate forums
The judge pointed to Section 7 of the workplace harassment code, which says that complaints not resolved through internal processes can go to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation. If the dispute still isn’t resolved, either side can take it to the Labour Court within 30 days after getting the certificate from the commissioner.
Judge Mali concluded that Mokobane had not shown discrimination on a clear prohibited ground that would allow the court to give relief under PEPUDA. So the Equality Court did not have the power to decide on the application.
The judge also found that Section 20(3) of PEPUDA did not allow her to send the matter to another forum, leaving Mokobane to decide her next steps. The department’s objection was upheld, Mokobane’s application was dismissed, and she was ordered to pay legal costs on Scale A.
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