South Africa

MAVERICK CITIZEN: UNCOOPERATIVE GOVERNANCE: Dr Beyers Naudé municipality to pay clerk R4-million in sexual assault lawsuit

The road to Graaff-Reinet in the Eastern Cape. (Photo: Theo Jephta)

A sexual assault at the municipal offices in the Eastern Cape town of Jansenville — followed by a bungled process where the perpetrator was suspended for two weeks — will now cost ratepayers R4-million in court-ordered damages. The man, who in 2009 received a final warning for stealing a water tank, remains a municipal employee.

After a drawn-out lawsuit that took 11 years to conclude, the Dr Beyers Naudé local municipality in Graaff-Reinet has been ordered by the Makhanda High Court to pay out R3.9-million in damages to a former clerk who was sexually assaulted by her manager.

The Jansenville woman, whose identity is being protected, sued the municipality after her manager, Xola Jack, grabbed her and pushed his tongue into her mouth. She was 23 years old at the time.

The woman worked at the Ikwezi municipality in Jansenville. This municipality was amalgamated with the Baviaans and Camdeboo municipalities in 2016 to form the Dr Beyers Naudé local municipality.

The woman’s direct supervisor was Xola Vincent Jack. He was stationed at Klipplaat but often travelled the 20km to Jansenville.

The court found that on 16 November 2009, the woman was sexually assaulted by Jack who grabbed her and tried to push his tongue into her mouth.

The assault was described in one of the judgments on the matter: “She clenched her teeth and tried unsuccessfully to push him away. After a minute or so he desisted, leaving her with a mouthful of his saliva. She immediately wiped the saliva off her mouth. 

“He then also tried to wipe her mouth with his hand but she knocked it away. He then mumbled something which she could not hear and then told her to make copies of certain items from a council agenda. Before leaving her office he told her that he was going to get a cold sore the next day because he had kissed her.”

The assault, and the manner in which it was subsequently addressed internally by the municipality, culminated in the woman resigning with effect from November 2010. 

“At the time that she resigned in 2010, she was a vibrant 23-year-old woman… Much water has since flowed under the bridge and it became apparent that the course of the life of the deeply traumatised 34-year-old woman who testified at the trial on quantum in late July 2020 had been much changed as a result of the assault,” acting judge Peter Kroon said.

He pointed out that the municipality had made the woman an offer in 2020 to have her job back. 

According to this offer, the municipality offered to move/transfer Jack “to one of the satellite offices of the Dr Beyers Naudé municipality, and instruct Mr Jack that he may not have any contact with [her]”.

She declined the offer.

Kroon said evidence before the court was that the 2009 assault “had come as a shock” to the municipality as it operated as a family, and it “had not encountered an event of that kind before”. 

“There was no evidence that the municipality had a sexual harassment policy in place as required by law at the time the assault occurred, which meant that the municipality had no direction or clarity as to the rights of an employee who has reported an incident of sexual harassment and what assistance was available to her. 

“There were also no procedures in place either in respect of the alleged victim or the alleged perpetrator and no disciplinary sanctions were stipulated to be imposed in the event that an employee was to be found guilty of sexual harassment,” Kroon said. 

“After the assault it would seem that a degree of panic set in and the distraught woman was placed on what was termed ‘special leave’ for two days whilst the municipality pondered as to what procedure should be followed in dealing with Jack, who remained in the workplace. 

“She was informed that she was required to be back at work by Friday of the same week. Although she was clearly traumatised by what had happened to her, she was, extraordinarily so, instructed to communicate with Jack and to inform him that she would be absent from work for two days. She performed this task by sending him an SMS message. 

“Whilst she was on this special leave, Jack telephoned her enquiring, in reproachful vein, as to why she was not at work. She responded by informing him that she was sick and Jack in turn responded by stating that she did not sound sick. She offered to furnish him with a sick certificate. He also asked her where the key to her office was. After the conversation, the woman trembled and burst into tears.

“Thus the woman, whose personhood and dignity had only two days earlier been so egregiously violated by her male superior who was unable to control his base sexual urges, found herself in the humiliating and degrading position where she had to account to her assailant, and where her assailant was seeking to reinforce his control over her by cynically interrogating the reasons for her absence in what I regard as a show of toxic masculinity exacerbated by the power imbalance between the two,” Kroon remarked. 

In November 2009, Jack was asked to provide reasons why he should not be suspended. He denied the assault. The municipality then took a decision not to suspend Jack.

She was eventually forced to resign after the municipality told her there was nothing they could do to “keep him away from her”. Describing the municipality’s legal strategy in the high court, Kroon said that it was “devoid of introspection, humility or compassion”.

“No satisfactory reasons were furnished for this decision. When questioned about it, the refrain from the municipality was that Jack also had rights and it did not want to infringe those rights or to create an impression of bias towards the woman.”

“There is a perverse irony where the victim is instructed, albeit for a short time, to leave the workplace whilst the perpetrator remained in his position,” Kroon said.

Jack was then told to remain in Klipplaat and not have any contact with the woman. 

“The municipality was not able to ensure that Jack did not have contact with the woman prior to the holding of the disciplinary hearing. Jack would arrive at the Jansenville offices, often unannounced, and the woman would either find herself in the presence of Jack or in earshot of him. Her reaction on these occasions and when she became aware that Jack was in the vicinity, was to lock her door,” Kroon added

In February 2010, three months after the incident, Jack was charged with “gross misconduct”. 

Jack was found guilty of gross misconduct in May 2010. His punishment was a two-week suspension.

The presiding officer recorded that the only reason he did not give Jack a final written warning (as opposed to the short period of suspension without pay) was that Jack was already on a final written warning for theft — the evidence was that Jack had stolen a water tank from the municipality.

The judge described the decision as “mind-boggling”.

Kroon said the effect of the finding was that Jack was at liberty to resume his duties with ‘… a clean slate’.” 

“The assault committed by Jack was not the type of conduct which could have been extinguished or wished away… The municipality had a duty not only to show courtesy and respect to the woman, but further to provide her with a safe working environment. 

“It was obliged to have taken steps to protect her from the person who had assaulted her and who remained in the workplace. 

“The presiding officer found that a male superior had committed a sexual assault on one of his female subordinates and that he had falsely denied committing that assault. The stance adopted by the municipality that, in those circumstances, there were no measures which it could implement to protect her, was most unfortunate and regrettable. 

“The municipality abdicated its responsibilities to protect her and adopted a supine approach of bovine resignation,” Kroon said.

According to papers before court, the woman had tried to appeal against the ruling on the basis that the sanction was shockingly lenient, but she did not even receive an answer from the municipality. 

“She was thereafter left to fend for herself,” Kroon said in his judgment. 

“The municipality took no steps to support or empower her. She was offered no counselling or any other assistance. There was no communication to her co-employees affirming support for her and condemning the conduct of Jack, and no communication recording that conduct of that nature was unacceptable and in future would attract the sanction of dismissal. 

The mayor of the Dr Beyers Naudé municipality, Deon de Vos, said in a statement that the municipality could ill afford the damages payment. 

“Rather, if anything, the message was that victims of sexual assault who were brave enough to come forward would not receive redress. The unrepentant perpetrator, Jack, was allowed to roam free in the workplace with unfettered access to her,” Kroon wrote.

“It is not in dispute that the woman thereafter endeavoured valiantly to grin and endure the situation in which she then found herself. She was however not able to cope… Bereft of any support from her employer, like many sexual assault victims she developed post-traumatic stress disorder.

“The conduct of the municipality was truly an illustration of how not to manage a sexual assault in the workplace. 

“The failure by the municipality to take steps to protect the woman had catastrophic consequences for her emotional and psychological wellbeing and her employment became unendurable,” Kroon wrote.

She was eventually forced to resign after the municipality told her there was nothing they could do to “keep him away from her”. Describing the municipality’s legal strategy in the high court, Kroon said that it was “devoid of introspection, humility or compassion”.

“There was… no acknowledgement of organisational failure and no indication that the municipality had reformed… There was no evidence that, since the assault, the municipality had learned lessons or had even taken the trouble to put in place a sexual harassment policy,” Kroon said.

He said that all the expert witnesses who testified before the court were in agreement that, after the assault, the woman had shown “remarkable courage in trying to break through her feelings of fear, shame and powerlessness”. 

He said the woman, who was described by the municipal manager at the time as one of the “stars” on his staff, became a different person. 

“The world is now a daunting place wherein she often feels overwhelmed and must, at times, fight against the desire for oblivion. Her self-confidence and self-esteem have been shattered and her independence acutely compromised. She has been stripped of her natural joy. It seems she must henceforth move timidly through life, always guarded.

“A judgment of this nature would not be complete without something being said about the harm suffered by victims of sexual assault. A sexual assault on a woman is a horrendous act and constitutes a heinous violation of a woman’s dignity, privacy and bodily integrity. 

“It damages her reputation. It denies her intrinsic worth, her equality. It dehumanises her. It makes her into an object. 

“The scourge of workplace sexual harassment is more often than not gender-specific. A sexual assault by a male superior on a female subordinate is a deplorable abuse of power and is a terrifying vehicle utilised by the superior to sexualise his control over the victim in a show of pernicious patriarchal dominance.

“What the evidence in this matter has confirmed is that sexual assault is a crime of a different kind given the devastation it leaves in its wake. The damage suffered is internal and unseen. Victims of sexual assault carry their sorrow with them,” Kroon said.

He said the Dr Beyers Naudé local municipality’s offer that she could return to work in Jansenville and would be retrospectively compensated “was in truth a self-serving and calculated litigation tactic. It was par excellence an exercise in damage control to avoid liability in respect of her claim for future loss of earnings.”

The municipality had agreed to pay the woman’s past psychiatric, medical and associated expenses of R31,000 and future psychological, medical, hospital and related expenses of R30,000 as well as general damages of R400,000.

Kroon ordered that the municipality pay another R3.6-million in terms of loss of past and future earnings.

The mayor of the Dr Beyers Naudé municipality, Deon de Vos, said in a statement that the municipality could ill afford the damages payment. 

He said it would try its “utmost” to recover the money from Jack.

“The sexual harassment policy of the Dr Beyers Naudé local municipality is in place and mandatory workshops are held within the first five days of employment, with a subsequent assessment to ensure that new recruits are aware of how we expect them to conduct themselves,” De Vos said. DM/MC

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