Commonwealth Law Bulletin

ISSN: 0305-0718 (Print) 1750-5976 (Online) Journal homepage: https://www.tandfonline.com/loi/rclb20

Sexual harassment in the workplace and women’s

access to justice: lessons for Botswana from a
South African perspective

Tshepo Mogapaesi

To cite this article: Tshepo Mogapaesi (2019) Sexual harassment in the workplace and women’s
access to justice: lessons for Botswana from a South African perspective, Commonwealth Law
Bulletin, 45:3, 431-453, DOI: 10.1080/03050718.2020.1737552

To link to this article: https://doi.org/10.1080/03050718.2020.1737552

Published online: 17 Mar 2020.

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Commonwealth Law Bulletin, 2019
Vol. 45, No. 3, 431–453, https://doi.org/10.1080/03050718.2020.1737552

Sexual harassment in the workplace and women’s access to

justice: lessons for Botswana from a South African perspective‡
Tshepo Mogapaesi†

Law, Gaborone University, Gaborone, Botswana

Sexual harassment in the workplace remains a less legislated concept in

Botswana. In particular, Botswana’s labour legislative framework does not
adequately speak to how sexual harassment in the workplace ought to be
handled. Despite this, international law characterises sexual harassment as a
form of discrimination and a form of violence against women. The absence
of specific laws on sexual harassment makes the burden even more difficult
for women employed in Botswana’s private sector to seek justice against
colleagues and/or employers who sexually harass them.

1. Introduction
Sexual harassment is known to be a common occurrence in workplaces. The
International Labour Organisation (ILO) sees sexual harassment in the workplace
as a major concern, more particularly affecting women.1 This prompted the
Organization to classify this conduct as a form of discrimination that may jeopard-
ise the workplace health and safety of affected workers. Following this, the ILO
has previously submitted that sexual harassment can be addressed under the auspi-
ces of the Convention on Discrimination (Employment and Occupation) No. 111
of 1958 which seeks to address occurrences of discrimination in the workplace.
Furthermore, the Organisation has found the Convention on Occupational Health
and Safety2 to be applicable to cases of sexual harassment in the workplace. Of
recent, the ILO has adopted the Convention Concerning the Elimination of

Email: [email protected]
†
Current address: Department of Law, University of Botswana, Botswana.
‡
This paper is based on an adaptation of chapters from the author's dissertation submitted
in partial compliance with the requirements for the degree LLM (Labour Law), Faculty of
Law, Potchefstroom Campus of the North-West University, South Africa. Portions of this
article were presented at the Programme Point Sud's Workshop on Gender and Judging in
Pluralistic Societies: A Comparative Assessment of Access to Justice for Women Across
Africa held in Accra, Ghana in August 2019.
1
Report of the Director-General "Equality at Work: The Continuing Challenge" Report
I(B) 2011 International Labour Conference 100th Session at ILO: Equality at Work:
The Continuing Challenge 2011 Report I(B) at para 106. (Hereafter ILO: CEACR
Report III (Part 4B) 1996).
2
Convention No. 155 of 1981. This paper does not discuss this Convention nor sexual
harassment as an occupational health and safety hazard.

ß 2020 Commonwealth Secretariat

432 T. Mogapaesi
Violence and Harassment in the World of Work3 which specifically seeks to
address incidences of violence and harassment in the workplace.
Despite this, far little attention has been paid to the occurrence of sexual har-
assment in Botswana within the labour legislative context. Little is known about
the occurrence of this conduct, and the non-existence of outright laws may con-
tribute to this. Currently, employees in the public sector are the only class of
workers who are provided specific protection against this conduct.4 It is not clear
why the Government has not yet seen the need to enact specific sexual harassment
laws to govern employees in the private sector.
In this paper, the author seeks to advance the understanding of sexual harass-
ment in the workplace from the perspective of another jurisdiction. In this regard,
the paper makes suggestions for reform by using South Africa as an example
from which Botswana can draw lessons. This study uses South Africa’s employ-
ment equity laws as a model that Botswana can use to improve its approach to
sexual harassment. South African employment equity laws are exemplary in that
they oblige employers to ensure that they have sexual harassment policies in place
and that all employees are aware of its existence. The effectiveness of this
approach is further improved by the fact that policies are required to ensure that
those who report incidences of sexual harassment are protected against victimiza-
tion in the workplace. South African courts also play an important role in their
development of the common law on vicarious liability which allows an employer
to be held vicariously liable for the conduct of an employee who sexually harasses
others. The courts are also instrumental in awarding damages to victims who suc-
cessfully prove cases of sexual harassment. The author argues that the approach
adopted by South Africa assists in encouraging female employees to report cases
of sexual harassment, and subsequently plays a role in ensuring their access to
justice against the perpetrators.

2. Defining sexual harassment and identifying international

minimum standards
Harassment of a sexual nature in the workplace is not a new phenomenon.
Research shows that sexual harassment has been known to exist since women
entered and took active participation in the labour market.5 Whereas its existence
was indisputable, Halfkenny6 notes that sexual harassment became an issue for
discussion following the work of Kathrine MacKinnon in the United States of
America in the 1970s. Prior to this, it seems most nations had not set in place
laws that sanction sexual harassment.

3
Adopted by the ILO Conference at its 108th session in Geneva on June 2019. This
Convention is not yet in force.
4
See section 38 (1) and (2) of the Public Service Act 13 of 1998.
5
Louise Fitzgerald, "Sexual Harassment: Violence against Women in the Workplace"
(1993) 48 American Psychologist 1070–1076; Polly Halfkenny, "Legal and Workplace
Solutions to Sexual Harassment in South Africa: The South African Experience" (1995)
16 Industrial Law Journal 4.
6
Halfkenny supra (n 5) 3.
 Commonwealth Law Bulletin 433
In her various studies of sexual harassment, Mackinnon7 defined sexual har-
assment as “the unwanted imposition of sexual requirements in the context of a
relationship of unequal power”. Drawing from this definition, two forms of sexual
harassment in the workplace have been identified and it is important to distinguish
these. Firstly, senior employees (and employers) yield economic power that puts
them in a position to demand sexual favours from their juniors with the promise
of employment opportunities and career progression.8 In this instance, harassment
is perpetrated with the goal of influencing decisions taken in the workplace (such
as the process of employment, training, promotion and dismissals) in exchange
for sexual favours.9 This is quid pro quo sexual harassment. Secondly, sexual har-
assment may occur amongst work colleagues who are in similar positions, or even
at times, may be directed at seniors.10 This is hostile work environment harass-
ment.11 In this case, the harassing conduct creates an environment that is intimi-
dating, offensive and oppressive, and does not necessarily involve the abuse of
economic power with the view to influence workplace decisions.
There is a consensus amongst academics that whilst there are usually no statis-
tics to measure its prevalence, sexual harassment remains common in the work-
place. Studies have also shown that men and women alike may fall victim to
sexual harassment,12 but that in most cases women are on the receiving end.13 In
addition to this, research shows that it is not all occurrences of sexual harassment
that are reported nor prosecuted. Various factors have been seen to exacerbate
this. Firstly, sexual harassment is a form of sexual violence against women.14 For
this reason, like other forms of sexual violence, victims may fear reporting due to
the social stigma that comes with reporting this form of conduct. The World
Health Organisation’s report on sexual violence attests to the fact that women do
not generally report any form of sexual violence due to amongst others, fear of
reprisals, fear and/or risk of disbelief, being blamed for the perpetrator’s conduct
and the lack of adequate support systems.15 Similarly, it can be assumed that

7
Catharine Mackinnon, Sexual Harassment of Working Women (Yale University Press
1979) 217–218.
8
Annali Basson, 'Harassment in the Workplace' in Elize Strydom (ed), Essential
Employment Discrimination Law (Juta 2004) 228–257; Halfkenny supra (n 5) 4;
Mackinnon supra (n 7) 217–218.
9
Basson supra (n 8) 228; Report of the Committee of Experts on the Application of
Conventions and Recommendations "Special Survey on Equality in Employment and
Occupation in respect of Convention No.111" Report III (Part 4B) 1996 International
Labour Conference 83rd Session at para 39 (hereafter ILO: CEACR Report III (Part
4B) 1996).
10
Basson supra (n 8) 228–257.
11
Basson supra (n 8) 228–257.
12
Halfkenny supra (n 5) 4–5; ILO: Equality at Work: The Continuing Challenge 2011
Report I (B) supra (n 1), at paras 106–107.
13
Halfkenny supra (n 5) 5; ILO: Equality at Work: The Continuing Challenge 2011
Report I (B) para 106.
14
Fitzgerald supra (n 5) 1070; Polly Halfkenny "Legal and Workplace Solutions to
Sexual Harassment in South Africa: The South African Experience" (1996) 17
Industrial Law Journal 213 at 214.
15
World Health Organisation Understanding and Addressing Violence against Women
2012 at 1.
434 T. Mogapaesi
sexual harassment is less reported because there are little to no support systems
for victims in the workplace, and that reporting may bring with it the possibility
of being shamed and in certain instances, to dismissal and a loss of eco-
nomic survival.
MacKinnon16 argues that sexual harassment is a form of sex discrimination
primarily because it hinders women in obtaining, enjoying and sustaining their
occupation. She argues that women suffer workplace detriment because of their
sex, thus their successes and/or enjoyment of the workplace depends on men.
Likewise, Convention No. 111 has been identified by the ILO’s Committee of
Experts on the Application of Conventions and Recommendations (CEACR) as
the relevant minimum standard to address sexual harassment in the workplace.
The Convention is generally intended to address the elimination of all forms of
discrimination in the workplace. However, the CEACR has identified sexual har-
assment as a form of discrimination (on the basis of sex) that has the capability of
nullifying equality of opportunity in the workplace.17 In this regard, the conduct
is seen as a form of indirect sex discrimination which though not overt, neverthe-
less arises as a consequence of belonging to a certain gender.18
The Convention requires member states to declare and pursue a national pol-
icy that will work towards promoting equality of opportunity and treatment with a
view to put an end to any form of discrimination. The Convention is backed by a
Recommendation which highlights that measures member states adopt to combat
and prevent sexual harassment may be in the form of legislation, national policies
and through collective labour agreements.19 Convention No. 111 ought to be read
with the Convention Concerning the Elimination of Violence and Harassment in
the World of Work20 which is a recent standard developed by the ILO. The latter
Convention is intended to assist ILO members to deal with issues of gender-based
violence in the workplace, including sexual harassment.
The Convention on Violence and Harassment is unique in that it requires
member states to adopt gender-responsive approaches when dealing with sexual
harassment. Consequently, preventative and responsive measures ought to be cog-
nisant of the intersection between sexual harassment and gender dynamics in the
workplace.21 The Convention is ground breaking in that it seeks to extend cover-
age to a wide variety of workers, including those in the informal economy.22
Notably, the Convention requires that national laws must extend coverage to other
workers in the workplace irrespective of their contractual status.23 For this reason,

16
MacKinnon supra (n 7) 218.
17
Report of the Committee of Experts on the Application of Conventions and
Recommendations "Special Survey on Equality in Employment and Occupation in
respect of Convention No.111" Report III (Part 4B) 1996 International Labour
Conference 83rd Session at para 23. (hereafter ILO: CEACR Report III (Part
4B) 1996).
18
ILO: CEACR Report III (Part 4B) 1996) supra (n 18), at paras 37–38.
19
Discrimination (Employment and Occupation) Recommendation No. 111 of 1958.
20
Convention No. 190 of 2019, hereafter referred to as the Convention on Violence
and Harassment.
21
Article 4(2).
22
Article 2.
23
Article 2.
 Commonwealth Law Bulletin 435
workers such as interns, volunteers and apprentices (who are normally exempt
from anti-sexual harassment laws) will be protected against acts of sexual harass-
ment.24 Interestingly, the Convention recognises that dismissed workers may also
be victims of sexual harassment thus warranting a need to extend protection to
them as well. The blanket scope of coverage extended by the Convention also rec-
ognises that workers of a company that has been contracted to provide a service
in another firm may be subjected to acts of harassment by the employees of the
contracting firm and that national laws must be able to respond to this.25
Note must be taken that the Convention on Violence and Harassment does not
define sexual harassment. However, a definition proffered by the CEACR under
the auspices of Convention No. 111 indicates that:

Sexual harassment or unsolicited sexual attention includes any insult or

inappropriate remark, joke, insinuation and comment on a person’s dress,
physique, age, family situation etc; a condescending or paternalistic attitude
with sexual implications undermining dignity; any unwelcome invitation or
request, implicit or explicit, whether or not accompanied by threats; any
lascivious look or other gesture associated with sexuality and any unnecessary
physical contact such as touching, caresses, pinching or assault.26

Sexual harassment also finds definition in other international instruments, and

has also been defined by other international bodies. In particular, the Committee
on the Elimination of Discrimination against Women27 posits that:

Sexual harassment includes such unwelcome sexually determined behaviour as

physical contact and advances, sexually coloured remarks, showing pornography
and sexual demands, whether by words or actions. Such conduct can be
humiliating and may constitute a health and safety problem; it is discriminatory
when the woman has reasonable ground to believe that her objection would
disadvantage her in connection with her employment, including recruitment or
promotion, or when it creates a hostile working environment.28

From a regional perspective, the Southern African Development Community’s

Protocol on Gender and Development29 defines sexual harassment “as any unwel-
come sexual advance, request for sexual favour, verbal or physical conduct or ges-
ture of a sexual nature, or any other behaviour of a sexual nature that might
reasonably be expected or be perceived to cause offence or humiliation to another
whether or not such sexual advance or request arises out of unequal power

24
Article 2.
25
Article 2.
26
ILO: CEACR Report III (Part 4B) 1996) supra (n 18), at para 39.
27
This Committee monitors the Convention on the Elimination of all Forms of
Discrimination against Women (CEDAW). The CEDAW was adopted by the United
Nations in 1979 to address discrimination against women and promote their rights.
28
CEDAW General Recommendation No. 19: Violence against Women (adopted
in 2012).
29
Hereafter referred to as the SADC Gender Protocol. This Protocol was adopted by the
SADC in August 2008. It is binding instrument and progress made by SADC members
to meet the targets and goals in this Protocol is monitored by the SADC Gender and
Development Monitor.
436 T. Mogapaesi
relations”. Unlike the CEDAW, the SADC Gender Protocol categorically compels
state parties to enact legislation and adopt and implement policies, strategies and
programmes which define and prohibit sexually harassing conduct in all
spheres.30 Further, emphasis is made in the Protocol of the need to have deterrent
sanctions for perpetrators.31 This arguably compels a state party to not only have
sanctions that gloss over the conduct, but that send a clear message towards to-be
offenders that sexual harassment, whatever form it takes will attract serious penal-
ties. Over and above this, state parties to the Protocol are required to ensure that
adjudicating bodies hearing sexual harassment complaints should be equally com-
prised of both men and women.
From the above definitions, a conclusion may be drawn that in order to consti-
tute sexual harassment, the conduct must be unwelcome, and may be characterised
by sexual advances, requests for sexual favours, remarks and gestures of a sexual
nature as well as physical contact. There is agreement that the conduct may have
the undesirable effect of nullifying equality of opportunity in the workplace, that it
may be humiliating as well as make the work environment hostile on the part of
the victim. Furthermore, the identified international standards indicate that sexual
harassment ought to be given the attention it deserves in both law and practice.

3. Access to justice: an elusive concept?

Access to justice is a basic principle of the rule of law recognised in international
law. Normally, the term is used to refer to judicial protection; which entails an indi-
vidual’s right to seek a remedy before an impartial court of law.32 It is further noted
that the term has also evolved to include access to legal representation. These inter-
pretations are narrow, and the argument that the term should be interpreted to
include societal barriers whether political, economic and demographic that hinder
access to justice is valid.33 The author does not seek to unravel what access to just-
ice means. However, it remains important to point out to the reader what the author
envisions access to justice should be where sexual harassment is concerned.
It has been argued that access to justice communicates the idea that some
form of barrier ought to be identified and ultimately be removed.34 Thus, hindran-
ces to justice may come in various forms and it is argued in this paper that a lack
of clear laws on sexual harassment is in itself a hindrance that may adversely frus-
trate both employers’ and employees’ efforts to resolve this misconduct in the
workplace. The social stigma that arises from laying a sexual harassment com-
plaint is an additional hindrance in the midst of legal uncertainty. Laws on sexual
harassment are important because they are specifically tailored to address this mis-
conduct, which has psychological and emotional repercussions on victim

30
Article 22.
31
Article 22.
32
Francesco Francioni, "The Rights to Access to Justice under Customary International
Law" in Francesco Francioni (ed), Access to Justice and Human Rights (Oxford
University Press 2007) 13.
33
Estelle Hurter, "Access to Justice: To Dream the Impossible Dream?" (2011)
Comparative and International Law Journal of Southern Africa 413–415.
34
Hurter supra (n 33).
 Commonwealth Law Bulletin 437
employees. Sexual harassment laws will improve access to justice for victims
because their implementation will require that measures be put in place to make
the reporting of complaints more bearable for the victim and guarantee the affected
employee protection from victimization. Measures will also include awareness
raising strategies in the workplace, to inform all employees of their rights and
encourage employees to report sexual harassment without fear. In addition, they
will include appropriate remedies that are guaranteed to assist the victim and the
alleged offending employee to proceed with their working lives. These sentiments
align with the ideals expressed in the ILO Convention on Violence and
Harassment35 and the SADC Gender Protocol,36 which call on state parties put in
place gender responsive mechanisms of dealing with sexual harassment.
Alternative avenues may be sought in the absence of outright laws on sexual
harassment as will be discussed below. However, such remedies still fall short of
addressing sexual harassment comprehensively as it is not a mere misconduct per-
petrated by an employee against an employer. It is a misconduct that adversely
affects another employee and by extension, has the potential to affect the business
and reputation of the employer.37
As a member of the community of nations, Botswana is a democracy founded
on the respect of the rule of law. Hence, the Constitution of the Republic of
Botswana recognises the human right of every person in the Republic to the equal
protection of the law.38 Section 3(a) of the Constitution provides:

… every person in Botswana is entitled to the fundamental rights and freedoms

of the individual, that is to say, the right, whatever his race, place of origin,
political opinions, colour, creed or sex but subject to respect for the rights and
freedoms of others and for the public interest … to life, liberty, security of the
person and the protection of the law.

By virtue of this provision, it should be implied that even in the absence of outright
laws on sexual harassment in Botswana, the expectation is that victims of this conduct
must be able to obtain redress before dispute resolution forums in the workplace as
well as before courts of law. This notwithstanding, the enactment of specific laws on
sexual harassment will give an even desirable effect to the resolution of disputes on sex-
ual harassment for both the victims and those accused of sexually harassing conduct.

4. Botswana’s silent framework and the resultant lack of access to justice

for victims
According to a study conducted by Gender Links Botswana, there is generally a
high prevalence of gender-based violence in Botswana.39 Amongst other forms of

35
Article 4(2).
36
Article 22(2).
37
Robert Husbands, "Sexual Harassment in Employment: An International Perspective"
(1992) 48 International Labour Review 540.
38
See further Attorney General v Dow 1992 BLR 119 (CA) at 142; Mmusi and Others
v Ramantele and Another 2012 (2) BLR 590 (HC) at 617–620.
39
See generally, Gender Based Violence Indicators Study: Botswana (Gender Links
2012) 32.
438 T. Mogapaesi
gender-based violence, this study demonstrates that sexual harassment in the
workplace is more prevalent than harassment that occurs in other settings such as
in public and in schools.40 Furthermore, like other forms of violence against
women, sexual harassment occurs as a result of patriarchal attitudes against
women. The problem is further exacerbated by lethargy on the part of
Government to enact specific laws that speak to sexual harassment in
the workplace.
In 2018, Statistics Botswana released a report comparing estimates of formal
sector employment in Botswana. According to this survey, the private sector and
parastatals are the biggest employers with an estimated 52% the total workforce.41
Government accounts for a total of 48% of the workforce. If reliance is to be
placed on this statistic, the private sector (and parastatals) employ a majority of
the working population and these employees’ workplace rights are covered by the
Employment Act (EA). Note has to be taken that certain categories of individuals
employed by the Government may also be classified as employees under the EA
pursuant to regulations promulgated under the Act. Consequently, some public
servants may in actual fact have to rely on the EA as the legislation speaking to
their conditions of work.42

4.1. The Employment Act

Botswana is a member of the ILO and a signatory to Convention No. 111.
Further, the country acceded to the CEDAW in 1996 and recently ratified the
SADC Gender Protocol on 10 May 2017. Despite being a state party to these
instruments, the country has made little progress in so far as establishing sexual
harassment laws for employees in the private sector. As indicated above, the
Employment Act (EA) of Botswana43 is the chief legislation governing employ-
ment contracts in the private sector. The Act is currently mum on the issue of sex-
ual harassment. As it stands, the Act does not establish minimum standards that
bind employers to deal effectively with sexual harassment; nor does it give guid-
ance to employees on the steps to take should they fall victim to this conduct.
This state of affairs leaves employees uncertain of the existence of legal recourse
nor the availability of remedies against perpetrators.
Presently, employees in the public service are assured of a degree of protec-
tion should they be faced with sexual harassment. This protection flows from sec-
tion 38(1) of the Public Service Act (PSA) which classifies sexually harassing
conduct as a misconduct against which disciplinary action will be taken. The Act
proceeds to define sexual harassment as:

… any unwanted, unsolicited or repeated sexual advance, sexually derogatory

statement or sexually discriminatory remark made by an employee to another,
whether made in or outside the workplace, which is offensive, or objectionable
to the recipient, which causes the recipient discomfort or humiliation, or which

40
Supra (n 36) 56.
41
Formal Sector Employment Survey March 2018 (Statistics Botswana) 3–4.
42
Section 2 EA.
43
Act 29 of 1982.
 Commonwealth Law Bulletin 439
the recipient believes interferes with the performance of his or her job security
or prospects, or creates a threatening or intimidating work environment.44

In light of this state of affairs, employees who do not fall under the category
of employees under the PSA are exempt from claiming any such protection that
may flow from this provision and resultant structures that may ensure their access
to justice. Despite the lack of provisions in the EA, other avenues may be
explored to seek redress against sexual harassment in the workplace. Unfair dis-
missal provisions in section 23(d) and (e) of the EA which prohibit dismissal of
an employee on the basis of their gender and for reasons that do not affect that
employee’s ability to discharge their mandate under the employment contract are
a typical example. Additionally, provisions on constructive dismissal as provided
under section 26(2) are significant in strengthening sexual harassment claims.
Constructive dismissal entitles an employee to terminate an employment contract
without notice due to a breach of the contract by the employer. Section 26(2) of
the EA lists various grounds upon which a constructive dismissal may be relied
on, which includes termination of a contract without notice due to ill treatment of
the employee by the employer or employer’s representatives.45
Because the Act does not set boundaries of what constitutes ill treatment, rea-
sonable grounds exist to classify sexual harassment as a form of ill treatment
upon which a constructive dismissal may validly be claimed. Essentially, the
employee would argue that due to the employer’s sexual advances it was unbear-
able for her to continue being employed and as such although the employer did
not directly dismiss her, the unlawful conduct of such employer led her to resign.
This is equally applicable to situations where the harassing conduct is perpetrated
by the employer’s representatives or the victim’s colleagues. In this case, the
employee would argue that a colleague harassed her and she accordingly lodged a
complaint of which the employer failed to take reasonable steps to avert and dis-
cipline that conduct, and that there was no indication that the employer would
eliminate the conduct thus rendering the work environment unbearable.
Whilst the remedy sounds reasonable, it has shortcomings which may affect a
victim’s access to justice. According to the common law, constructive dismissal
does not entitle an employee to claim compensation unless she can successfully
prove that the dismissal was procedurally and/or substantively unfair.46 Further,
constructive dismissal brings a degree of uncertainty in that an employee’s resig-
nation is based on an assumption that the employer has no reasonable prospect of
ceasing the harassing conduct.47 If the employee is wrong in that assumption then
her resignation will be considered as voluntary.48 In this regard, an employee
ought to prove that she exhausted the grievance mechanisms set out in the work-
place to address sexual harassment before resorting to terminating her contract of
employment in order for her to successfully claim that she has been constructively

44
Section 38(2) PSA.
45
Section 26(2)(d).
46
Motlhanka v BCL Limited [2010] 2 BLR 10 (IC) at 14–16.
47
Pretoria Society for the Retarded v Loots 1997 18 ILJ 981 (LAC) 985; Motlhanka v
BCL Limited supra (n 46).
48
Pretoria Society for the Retarded v Loots supra (n 47).
440 T. Mogapaesi
dismissed.49 This may result in a denial of justice especially in circumstances
where an employer does not have effective sexual harassment mechanisms in
place. Notably, job applicants and all workers who are not classified as employees
under the EA cannot utilise these mechanisms.

4.2. The Code of Good Practice: Sexual harassment in the workplace

The Code of Good Practice: Sexual Harassment in the Workplace as formulated
under section 51(1) of the Trade Disputes Act is also relevant to discussions on
sexual harassment. The Code exists as an unattached document kept by the Office
of the Commissioner of Labour. A few progressive provisions in the Code are sig-
nificant. For example, the Code requires every employer to devise a policy state-
ment that incorporates and reflects the objects and provisions of the Code.50 This
policy is to be made available to all employees and must be displayed in such a
manner that non-employees who visit the employer’s establishment also access
it.51 The Code extends coverage against acts of sexual harassment to job appli-
cants, contractors and clients.52 The Code classifies sexual harassment as a serious
misconduct warranting a dismissal without notice in terms of section 26(1) EA.53
It also gives the victim an option to either press criminal charges or institute a
delictual claim against the perpetrator notwithstanding that the employer has com-
menced with normal disciplinary procedures for dealing with sexual harassment
within the workplace.54
Whilst the Code presents an appropriate approach for dealing with sexual har-
assment, the following limitations were found to be inherent in its application.
The Code does not give rise to binding legal obligations on employers. It requires
employers to formulate and implement policies as a matter of “good practice and
ethics”. This fails to take cognisance of the fact that sexual harassment is a reality
in the world of work that needs to be eliminated. The Code also fails to provide
enforcement mechanisms to ensure that every employer adheres to the obligation
to have a functional sexual harassment policy. There is no mechanism to monitor
employers’ progress in eliminating sexual harassment and some employers may
not see the need to invest resources in tackling this conduct.
All things considered, Botswana’s labour law framework on sexual harass-
ment is insufficient and demonstrates a failure by the Government to implement
the standards proposed under the abovementioned international instruments. The
ILO has on a number of occasions called on the Government to take swift action
to include specific sexual harassment provisions within the EA.55 The framework
is not alive to the fact that sexual harassment is a form of violence against women

49
Motlhanka v BCL Limited supra (n 46) 14–16.
50
Item 6.1.
51
Item 6.2.
52
Item 2.
53
Item 2.3.
54
Item 7.8.1.
55
<https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_
COMMENT_ID,P11110_COUNTRY_ID,P11110_COUNTRY_NAME,P11110_
COMMENT_YEAR:3298516>,103303, Botswana, 2016 accessed 29 July 2019.
 Commonwealth Law Bulletin 441
that is more often than not, difficult to report. On this note, the ILO has suggested
to the Government of Botswana that the mere fact that there is little reported cases
on sexual harassment does not mean that this form of harassment does not
occur.56 The ILO has submitted that this could possibly reflect a lack of aware-
ness on employers and employees about sexual harassment and a lack of an
appropriate legal framework to address this conduct.57 Consequently, it is submit-
ted that the absence of outright laws makes the burden even more difficult for
women employed in Botswana’s private sector to seek justice against colleagues
and/or employers who sexually harass them.

5. South Africa’s approach to sexual harassment

5.1. The Employment Equity Act (EEA)58
South Africa is a member of the ILO and the country ratified Convention No.111
in 1997. The country is also a signatory to the CEDAW and the SADC
Gender Protocol.
Despite its remarkable human rights framework, South Africa continues to
have high levels of cases of gender-based violence, particularly affecting women
and children.59 Women in the workplace are no exception as sexual harassment
cases continue to be reported, and some prosecuted.60 In the era preceding 1997,
South Africa did not have specific sexual harassment laws. Victims of sexual har-
assment had to rely on common law courts to grant remedies against perpetrators
and employers.61 Furthermore, victims have also previously popularly relied on
constructive dismissal to claim compensation.62 Section 186(1) of the Labour
Relations Act63 allows an employee to terminate her contract of employment and
claim compensation for constructive dismissal where the employer makes contin-
ued employment intolerable.
Currently South Africa has a plethora of legal avenues that may be implored
in an endeavor to obtain justice against sexual harassment in the workplace. Some
of these are not considered in this paper. For example, the right to fair labour
practices (and other rights of a general nature) as provided by the Constitution of
the Republic of South Africa, 1996 as well as the Protection from Harassment Act
17 of 2011 form part of this framework. These avenues may be used to argue
against sexual harassment from a general point of view. The Protection from

56
Supra (n 55).
57
Supra (n 55).
58
Act 55 of 1998.
59
Yaliwe Mothepane and others, "SADC Gender and Development Protocol: An
Evaluation of Equality, Empowerment and Gender Based Violence in South Africa"
(2013) Gender and Behaviour 5184.
60
Mohamed Alli Chicktay, "Sexual Harassment and Employer Liability: A Critical
Analysis of the South African Legal Position", (2010) Journal of African Law 283–284.
61
See para 5.3 below where the Industrial Court of South Africa handed down a
judgement on sexual harassment in the absence of a legal framework on the matter.
62
See in particular Ntsabo v Real Security CC 2003 24 ILJ 2341 (LC). Hereafter
referred to as the Ntsabo-case.
63
Act 66 of 1995 (hereafter the LRA).
442 T. Mogapaesi
Harassment Act speaks to the prohibition of various forms of harassment not
restricted to the workplace.
The EEA is a significant piece of legislation which this paper focuses on
because it establishes a specific framework that addresses sexual harassment in
the workplace in South Africa. The Act was enacted to specifically incorporate
the provisions of Convention No. 111. Section 2 provides that the Act must be
interpreted in conformity with the international law obligations of the Republic,
more particularly those imposed under Convention 111. Moreover, one of the pri-
mary purposes of the Act is to “achieve equity in the workplace by promoting
equal opportunity and fair treatment in employment through the elimination of
unfair discrimination.”64
The model presented by the EEA is a direct mirror of the provisions of
Convention No.111. Note that article 1(1)(a) of the Convention provides that dis-
crimination includes any distinction, exclusion or preference on the basis of,
amongst others, race, colour, sex, religion, which has the effect of nullifying or
impairing equality of opportunity. The ILO has also highlighted that the grounds
listed are not exhaustive and that members should consider themselves not
restricted to give an extension in national legislation.65 The Act adopts a more
similar definition and extension of the grounds of discrimination by provid-
ing that:

No person may unfairly discriminate, directly or indirectly, against an

employee, in any employment policy or practice, on one or more grounds,
including race, gender, sex, pregnancy, marital status, family responsibility,
ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV
status, conscience, belief, political opinion, culture, language and birth.66

From the sentiments expressed at the international level by the ILO it can be
argued that section 6(1) can suffice on its own in making an argument against sex-
ual harassment, seeing that it specifically speaks to a prohibition of discrimination
on the basis of sex.67 Whereas the question whether sexual harassment is discrim-
inatory remains moot,68 the general view held by academics in South Africa69 is
in consonance with that expressed by the ILO70 and that held by MacKinnon.71
Notwithstanding the generality of section 6(1) of the EEA, section 6(3) addition-
ally provides that harassment of an employee constitutes an unfair
discrimination. Since the provision proscribes workplace harassment in a general

64
S 2(a).
65
ILO: CEACR Report III (Part 4B) 1996 supra (n 18), at para 25.
66
S 6(1).
67
See para 2 above.
68
See generally the Ntsabo-case 2003 24 ILJ 2341(LC) 2377 where Pillay AJ opined
that the debate on sexual harassment being a form of sex discrimination raises both
academic and technical arguments and remarked that the arguments have "no clear
persuasive direction."
69
See amongst others Halfkenny 1995 (16) ILJ 2; Cooper 2002 (23) ILJ 1–2.
70
ILO: CEACR Report III (Part 4B) 1996 supra (n 18), at para 35.
71
See para 2 above.
 Commonwealth Law Bulletin 443
sense, it can be argued that sexual harassment falls within the ambit of such
harassment.72
Section 5 places a duty on every employer to take steps to promote equal
opportunity in the workplace by eliminating unfair discrimination in any employ-
ment policy or practice. It would then arise as a direct consequence that such steps
would include formulating and implementing working policies that set out the
procedure to combat and address issues of sexual harassment. To ensure compli-
ance with this requirement, section 60 introduces statutory vicarious liability73 of
the employer where an employee is found to have carried out sexually harassing
conduct while at work. Section 60(1) provides:

If it is alleged that an employee, while at work, contravened a provision of this

Act, or engaged in any conduct that, if engaged in by that employee’s
employer, would constitute a contravention of a provision of this Act, the
alleged conduct must immediately be brought to the attention of the employer.

Therefore, should an employee be sexually harassed, she must lodge a com-

plaint with the employer. The employer must give the report the necessary atten-
tion by taking appropriate steps to eliminate the offending conduct and ensuring
that the provisions of the Act are complied with.74 This would entail conducting
an enquiry on whether sexual harassment has indeed taken place, carrying out the
necessary disciplinary hearing and thereafter imposing the appropriate sanction to
remedy the wrong. If it can be proven that the employer failed to take these steps,
the Act provides that the employer will be deemed to have also acted in contra-
vention of the Act.75 The Labour Court in the Ntsabo-case76 highlighted that sec-
tion 60 imputes liability to the employer because unfair discriminatory practices
on the grounds listed under section 6(1) are not only limited to acts or omissions
on the part of the employer. The Act takes cognisance of the reality that such
practices may occur amongst employees themselves. As result, where the
employer is made aware of conduct contravening the Act and it fails to act
accordingly, it should be deemed to be a contravention of the Act on the part of
the employer. As noted above, this provision motivates employers to promote the
attainment of equality of opportunity and treatment in the workplace, thus the
employer may only escape liability if it proves that it took all the reasonably prac-
ticable steps to ensure non-contravention of the Act by an employee.77
Another detail presented by the EEA is with regard to orders and awards that
the court is empowered to make. The issue of award of damages in a sexual har-
assment suit is important because the offending conduct has always been deemed
as impinging on the dignity of the victim78 and as having psychological effects.
As much as an employee could be awarded damages under the LRA preceding

72
Grogan Employment Rights 232; Basson "Harassment in the Workplace" 228–257.
73
Piliso v Old Mutual Life Assurance Co (SA) Ltd & Others 2007 28 ILJ 897.
74
S 60(2).
75
S 60(3).
76
2003 24 ILJ 2341(LC) 2382. Section 6(1) of the Act makes use of the word "no
person", which should be construed broadly, to include fellow employees.
77
S 60(4).
78
Cooper 2002 (23) ILJ 1-2; Halfkenny 1995 (16) ILJ 4.
444 T. Mogapaesi
the enactment of the EEA, it could be argued that the damages were suited for
unfair dismissal. They did not take cognisance of the emotional and psychological
effects that sexual harassment had on the victim.
Section 50(2) of the EEA gives the court powers to make any “appropriate
order that is just and equitable in the circumstances” and this may include pay-
ment of compensation79 and damages80 by the employer. That the court is given
power to make an appropriate order that is just and equitable by taking into
account the circumstances of a case gives the court room to ponder on the peculiar
nature of sexual harassment and its effects on victims. It gives the court an oppor-
tunity not to award damages only for unfair dismissal arising out of a constructive
dismissal (if a victim pleads this in her case), but also to award patrimonial dam-
ages, contumelia inclusive. In the Ntsabo-case,81 the court took its time to ponder
on the realities presented by the effects of sexual harassment on the victim. As a
result, the court was not reluctant to award the victim patrimonial damages, gen-
eral damages and contumelia after having considered the psychological effects of
the harassment on the victim, and the exacerbating effect of the company’s failure
to react to her complaints. Because the applicant had alleged constructive dismis-
sal in terms of section 186(1)(e) of the LRA, the court additionally awarded her
compensation for her unfair dismissal in terms of section 194(1) of the LRA.82
Flowing from this, the application of the EEA to sexual harassment cases does
not bar employees from relying on dismissal provisions under the LRA. Where
unfair dismissal arising out of sexual harassment has been proven, the court will
make an order under both Acts bearing on the dismissal and the harassment.

5.2. The Code of Good Practice on Handling Sexual Harassment Cases83

The provisions of the EEA discussed above must be read with the Code of Good
Practice on Handling Sexual Harassment. For ease of reference, the Code is
annexed to the EEA. The Code sets out comprehensive guidelines on how to han-
dle sexual harassment in the workplace. In terms of item 1, the Code was formu-
lated to encourage and promote the formulation of sexual harassment policies that
will lead to the creation of workplaces free of sexual harassment. Item 4 pro-
vides that:

Sexual harassment is unwelcome conduct of a sexual nature that violates the

rights of an employee and constitutes a barrier to equity in the workplace …

According to the Code, employees, job applicants, clients and employers are
listed as potential perpetrators and/or victims of sexual harassment.84 Albeit the
extension of coverage to persons who are not employees under item 2(1), the

79
S 50(2)(a).
80
S 50 (2)(b).
81
2003 24 ILJ 2341(LC) 2379–2385.
82
2003 24 ILJ 2341 (LC) 2380.
83
Published under GenN1357 in GG 27865 of 4 August 2005 (hereafter referred to as
the Code or the Code of Good Practice on Handling Sexual Harassment).
84
Item 2.
 Commonwealth Law Bulletin 445
Code provides that this provision should not be interpreted as giving an employer
the authority to discipline such persons.
Item 5 gives a wide list of conduct that may be classified as forms of sexual
harassment. Physical conduct of a sexual nature, which may comprise unwanted
physical contact including touching, sexual assault and rape are considered forms
of sexual harassment.85 By bringing sexual assault and rape (which are commonly
prosecuted as criminal offences) within the confines of the Code is an indication
that harassed employees are not prohibited from pressing separate criminal
charges. In addition, the fact that a harassed employee has pressed criminal
charges should not bar an employer from disciplining an employee who is found
guilty of sexual harassment. According to item 5.3.1.2, unwelcome suggestive
messages, innuendos, hints, sexual advances and sending of sexually explicit text
by electronic means or otherwise all constitute verbal forms of sexual harassment.
In addition, non-verbal forms of sexual harassment are characterised by displays
of sexually explicit pictures and objects or the sending of such through electronic
and other means.86
Quid pro quo harassment is also recognised as a form of sexual harassment. In
terms of item 5.2.3.2, this form of harassment occurs when an individual in a pos-
ition of authority (this may be an owner, employer or supervisor) attempts to or
actually influences decisions taken in the workplace, usually pertaining to the con-
ferment of a benefit in exchange for sexual favours. The reward of only employ-
ees who respond positively to sexual advances by a person in authority while
prejudicing deserving employees who do not succumb to such advances is consid-
ered sexual favouritism and constitutes a form of sexual harassment.87 In this
case, a reward refers to employment benefits such as promotions, salary incre-
ments and training.
Employers are encouraged to formulate sexual harassment policies which
highlight that it is the right of every employee, job applicant or other person to be
treated with dignity and that sexual harassment is prohibited, notwithstanding the
form it takes. The policy should also highlight that a sexually harassed person has
the right to report such conduct and that appropriate action will be taken against
it.88 It is the duty of the employer to implement the policy and educate employees
on any matters relating to sexual harassment in the workplace.89
Bearing in mind the sensitive nature of sexual harassment and that it may be
difficult for the harassed person to personally lodge a complaint with the
employer, the Code allows for the appointment of a person outside the line of
management to whom sexual harassment complaints may be made.90
Alternatively, a victim must be informed of an option to take the informal proced-
ure in dealing with the harasser.91 This involves giving the harassed employee or
an appropriate person an opportunity to talk to the harasser and explain that the

85
Item 5.3.1.1.
86
Item 5.3.1.3.
87
Item 5.2.3.2.
88
Item 6.
89
Items 1.3 and 11.2.
90
Item 8.4.
91
Item 8.6.
446 T. Mogapaesi
harassing conduct is unwelcome, offending and interferes with the work of
employees. The Code provides that a formal procedure may be followed
either with or without first following the informal procedure. The employer’s sex-
ual harassment policy should specify the person to whom a complaint may be
made and the time frame which allows the grievance to be dealt with exped-
itiously.92 It should also provide that should the matter not be satisfactorily
solved, the harassed employee may approach the CCMA in terms of item 8.7.3.4
of the Code.
Provision for additional paid sick leave is suggested under item 10.1 of the
Code where an employee’s normal sick leave entitlement has been exhausted in
cases of serious sexual harassment where the employee requires trauma counsel-
ling in accordance with medical advice.
The Code serves an instructive purpose to the implementation of the
provisions of the EEA. The Court in the Ntsabo-case93 held that in interpreting
the provisions of the EEA, the Code is one of the instruments that must be
referred to. This is evident from section 3(c) of the EEA, which requires any rele-
vant code of good practice to be considered when interpreting the Act.
Whereas the employer cannot be penalised for a failure to follow the guidelines
of the Code, this does not mean that liability under the EEA is escaped. In
essence, the EEA and the Code have to be read together. The Code should be
seen as an extension of the provisions of the EEA in so far as sexual harassment
is concerned.
A comparison of the South African Code of Good Practice on Handling
Sexual Harassment and Botswana’s Code of Good Practice: Sexual Harassment in
the Workplace reveals that the two Codes are distinct. The South African Code
readily recognises sexual harassment as a violation of the rights of employees,
whereas that of Botswana does not outright specify so. Sexual harassment perpe-
trated through electronic means is also recognised under the South African Code
whilst within the Botswana Code it is not. Furthermore, provision of additional
leave is not provided for under the Botswana Code, while in South Africa it may
be implemented in appropriate circumstances. Most significantly, the South
African Code is backed by the legislative power of the EEA and is annexed to
this Act, thus guaranteeing accessibility employers and employees. As will be
seen from the case law, whilst the South African Code is equally not binding, it
appears that any employer that seeks to ensure compliance with the provisions of
the EEA will need to ensure that their sexual harassment policy complies with
this particular Code. On the other hand, the Code for addressing sexual harass-
ment in Botswana exists as a separate document kept by the Labour
Commissioner’s office and there is no indication of a mechanism put in place to
monitor its accessibility to employers and employees. The significance of the
Code remains to be seen should the Industrial Court of Botswana make a pro-
nouncement on sexual harassment in the future.

92
Item 8.7.3.
93
2003 24 ILJ 2341(LC) 2378.
 Commonwealth Law Bulletin 447
5.3. South African courts’ contribution to addressing sexual harassment in
the workplace
The enactment of sexual harassment laws should not be seen as an end in itself.
Laws serve a better purpose if they are capable of interpretation and development
by the courts. According to Aeberhard-Hodges,94 the courts’ interpretation of sex-
ual harassment laws gives reality to sexual harassment as a prohibited practice in
the workplace. Therefore, whereas Botswana may derive lessons from the legisla-
tive framework of South Africa, the role that the South African courts have played
in interpreting the laws also has to be noted. When faced with matters within any
area of the law that is undeveloped in Botswana or where there are no binding
authorities within the jurisdiction, the courts of Botswana are more inclined to
apply South African court decisions to develop the common law.95 It arises there-
fore that the lessons that may be learnt by Botswana are not restricted to the
South African legislative framework. The decisions of the courts of South Africa
may also inform the development of Botswana’s jurisprudence in so far as sexual
harassment is concerned.
Over and above interpreting sexual harassment laws, the courts of South
Africa have always stepped in to protect the human rights of employees where
there is evidence that harassment has been perpetrated. The overwhelming com-
mitment of the courts to protect and uphold the human rights of employees in
cases of sexual harassment is demonstrated as early as 1989 through the case of
M v J96 wherein the Court highlighted that sexual harassment is a violation of the
human rights of affected employees. At the moment, Botswana Courts have not
had the opportunity to make a ruling in a matter concerning sexual harassment in
the workplace. It remains to be seen whether the Courts will be as proactive as
those in South Africa when faced with this issue, in particular under the current
environment where there are no specific provisions in the EA. South African
Courts continue to be proactive in developing the common law on sexual harass-
ment in the workplace and a few of these decisions warrant a discussion.
Interesting developments were made particularly by the South African
Industrial Court in the M v J case.97 The applicant in this case was employed by
the respondent as an engineering manager and had authority over around three
hundred and fifty employees of the respondent. During the course of his employ-
ment, the applicant was charged with and found guilty of sexual harassment by
the respondent and dismissed. He approached the Court to challenge the substan-
tive fairness of his dismissal and sought an order for reinstatement. The Court
established that sexual harassment, whether between members of the same or
opposite sex, is a matter not to be taken lightly which every employer should treat
with the requisite seriousness.98 According to the Court, sexual harassment viola-
tes an individual’s right to bodily integrity and personality and finds protection in

94
Jane Aeberhard-Hodges "Sexual Harassment in Employment: Recent Judicial and
Arbitral Trends" (1996) 135 International Labour Review 499–534 at 503.
95
See generally Charles Manga Fombad and Emmanuel Quansah The Botswana Legal
system (Butterworths Durban 2006) 55–56.
96
1989 10 ILJ 755 (IC) (hereafter the J v M-case).
97
Supra (n 96).
98
1989 10 ILJ 755 (IC) 757.
448 T. Mogapaesi
the South African legal system both criminally and civilly.99 Whereas the
Industrial Court was readily available to deal with such matters, it did not bar
employees from pressing criminal charges or bringing claims for damages in
delict in criminal and civil courts.
The Court in the M v J-case proceeded to hold that sexual harassment creates
an intimidating, hostile and offensive work environment, which in most occur-
rences leads the victim to resort to resigning or shrouding the harassing conduct
in secrecy due to the fear of reprisals that may arise if they report the incident.
The Court further borrowed lessons from the American and English jurispru-
dence; that sexual harassment is a form of sex discrimination and also a form of
constructive dismissal in English law.100 Since evidence of the sexual harassment
was placed before the Court, it was held after a consideration of these principles
that the applicant’s dismissal was substantively fair.
Following the enactment of the EEA, South African courts have more often
than not played a supervisory role in ensuring the proper application of this Act
and compliance with the Code of Good Practice on Handling Sexual Harassment.
In the Ntsabo-case,101 the Court reaffirmed the importance of the Code by stating
that whereas it is not binding law, an employer may not by virtue of this escape
its obligations to promote a workplace free of unfair discriminatory practices
under the EEA. The Court in essence established that the Code must be referred
to as an extension of provisions of unfair discrimination under the EEA. In Gaga
v Anglo Platinum Ltd & Others102 where it arose during an employee’s exit inter-
view that she had been subjected to harassment by one of her seniors, the
Commission for Conciliation, Mediation and Arbitration held that her claim had
to be dismissed because all along she had failed to report the harassing conduct,
thus indicating that she was never at any material time offended by it. On appeal,
the Labour Appeal Court held that the Code of Good Practice does not require
that sexually harassing conduct be offending for it to constitute sexual harass-
ment.103 According to the Court, the incidence of repeated unwelcome remarks is
enough to constitute sexual harassment within the requirements of the Code.
The courts have also held that the proper sanction for harassment is dismissal
as it is a form of misconduct. In the Gaga v Anglo Platinum-case,104 the Court
expressed utmost displeasure at harassment perpetrated by employees in senior
positions over their juniors. The court had this to say:

By and large employers are obliged to regard sexual harassment as a serious

misconduct normally warranting a dismissal … It is appropriate for this court
and employers to send out an unequivocal message: senior managers who
perpetrate sexual harassment do so at their own peril and should more often
than not expect to face the harshest penalty.

99
1989 10 ILJ 755 (IC) 757.
100
1989 10 ILJ 755 (IC) 757–758.
101
2003 24 ILJ 2341(LC) 2378.
102
2012 33 ILJ 329 (LAC). Hereafter Gaga v Anglo Platinum-case.
103
Supra (n 102) 342.
104
Supra (n 102) 346.
 Commonwealth Law Bulletin 449
However, whether or not a dismissal is appropriate will depend on the circum-
stances of each particular case. The Court held that it is obliged to have regard for
the nature and gravity of the infringing conduct and its impact on the victim. The
relationship between the harasser and the victim and the position and responsibil-
ities of the perpetrator must also be considered.105
Furthermore, sexual harassment has been viewed by the South African Courts
as an element that could jeopardise a safe working environment that every
employee is entitled to. In fact, in the case of Mokone v Sahara Computers (Pty)
Ltd,106 the Court held that the failure of an employer to address a report of sexual
harassment or have appropriate measures in place to address sexual harassment
constitutes a breach of that employer’s duty to provide a safe working environ-
ment to his employee.107 This case also demonstrates that there are circumstances
where an employer has a sexual harassment policy in place but fails to use it
effectively or even treats sexual harassment complaints with negligence. The
South African High Court in this case demonstrated that it can exercise its powers
to award remedies to a victim of sexual harassment where the employer’s man-
agement and disciplinary structures are insufficient to do so.108
One of the principles introduced into the South African legal system is the
concept of vicarious liability of the employer for sexual harassment under the
common law. The concept is a construct of the American and Canadian courts,
but was received into this jurisdiction through Grobler v Naspers Bpk.109
Arguments against vicarious liability of the employer in a sexual harassment mat-
ter as enunciated in Grobler v Naspers Bpk where it was stated that when an
employee sexually harasses the other, he cannot be said to be within the course
and scope of his employment. It was argued with a plethora of South African
authorities that such employee should be deemed to be on a frolic of his own and
that it was never part of his job description to sexually harass a colleague. The
Court boldly departed from these precedents and submitted that the Constitution
gives it inherent powers to develop the common law taking into account the inter-
ests of justice. The Court proceeded to hold that South Africa, like other common
law jurisdictions, was prepared to receive the vicarious liability rule with respect
to sexual harassment on policy considerations in order to discharge their duty to
protect the human rights of women in the workplace. When an employer is found
vicariously liable, the Court will order that the employee and employer are jointly
and severally liable to pay damages to the victim.

105
2012 33 ILJ 329 (LAC) 346.
106
2010 31 ILJ 2827, 2835.
107
Sexual harassment as an occupational health and safety hazard is not extensively
considered in this paper. Note also that South Africa is signatory to the ILO
Convention on Occupational Health and Safety. Thus, it has previously been argued
that the Occupational Health and Safety Act 85 of 1993 is relevant to addressing sexual
harassment in the workplace.
108
Supra (n 106).
109
2004 25 ILJ 439 (C). The judgement of the Court is written in Afrikaans, the
English commentary on the case can be accessed from Witcher "Two Roads to an
Employer's Vicarious Liability for Sexual Harassment: S Grobler v Naspers Bpk en 'N
Ander Ntsabo v Real Security CC" (2004) 25 Industrial Law Journal 1907–1924.
450 T. Mogapaesi
6. Concluding remarks: key lessons for Botswana
It has been demonstrated in this paper that South Africa has made significant
strides in establishing a legislative framework that aims to ensure the attainment
of equality of opportunity in the workplace especially in the area of sexual harass-
ment. The courts’ application of the legislation also demonstrates significant pro-
gress and a need to protect the human rights of victims. Despite a high prevalence
of violence against women, South Africa remains a good example from which a
country with a less developed legal framework on sexual harassment may derive
lessons. As will be demonstrated below, the South African framework can indeed
assist in addressing some of the gaps identified in the Botswana model.
It is clear from the evidence presented in this paper that sexual harassment in
the workplace is neither a theoretical concept nor an issue to be left for academic
discussion only. The recognition of this problem on the international and national
plane demonstrates its reality and prevalence in the workplace and most signifi-
cantly, the need to combat it. Sexual harassment has been characterised as consti-
tuting a violation of the fundamental human right not to be discriminated against
on the basis of sex, alongside other fundamental human rights like the right to dig-
nity and freedom and security of the person. Flowing from these sentiments, giv-
ing it the necessary attention and audience is not overestimated.
The ratification of Convention No. 111 has been of miniature inspiration in
formulating and shaping sexual harassment laws in Botswana’s private sector.
The major problem with the legal framework in Botswana is that the EA is silent
on sexual harassment. It is not clear as to whether this expresses a view that sex-
ual harassment in private sector employment is non-existent or an ancillary issue
that does not warrant the existence of specific sexual harassment laws. However,
the observations made at international law and in South Africa demonstrate that
this argument cannot be correct. Botswana is a signatory to the Convention and
this gives rise to an expectation that legislation moving towards the elimination of
discrimination will be adopted, in particular, legislation that outlaws sex-
ual harassment.
In contradistinction, the EEA in South Africa expresses that an act of ratifica-
tion alone is not enough, but must be accompanied by an incorporation of inter-
national standards into national law so as to give effect to obligations incurred
under the Convention. The EEA reflects a direct incorporation of the provisions
of Convention No.111 and because its scope extends across public and private
sector employment, all employees are covered. The Act does not only prohibit
discrimination on the basis of sex, but goes a step further to classify harassment
as a form of discrimination.
Given the loophole in the EA, employees may rely on the channels of dismis-
sal based on discriminatory grounds or constructive dismissal under sections 23
and 26. Nevertheless, the setback in these provisions is that they do not extend
coverage to job applicants. By extending coverage to job applicants, the
Convention Concerning the Elimination of Violence and Harassment demon-
strates that this class of individuals also stand to be affected by sexual harassment.
The provisions of the EA do not fully reflect this international standard. On the
other hand, the EEA extends coverage to job applicants, thereby incorporating the
international standard.
 Commonwealth Law Bulletin 451
Additionally, when relying on constructive dismissal to pursue a sexual har-
assment suit, an employee is only likely to be awarded compensation for the dis-
missal, save where she pursues a delictual claim against the harasser or employer.
This approach turns a blind eye to the need to award damages for the emotional
trauma caused by the harassment. Since the issue before the courts will require a
discussion of constructive dismissal principles, there is little challenge on the
court to dwell on employment equity and sexual harassment and its effects on
employees. The lack of legislation providing for equitable damages does not give
the court an opportunity to reflect on the realities of sexual harassment and its
effects on employees. Compensation for dismissals is not true to the overwhelm-
ing effects of sexual harassment on employees, and more often than not, it would
take a progressive court to not only dwell on the dismissal, but to divert attention
to consider the issue of sexual harassment in the suit.
The South African framework sets an example in this regard in that whilst
employees have the opportunity to rely on other avenues such the right to fair
labour practices and constructive dismissal, the option to seek an award of equit-
able damages remains intact and consequently plays an important role in the real-
isation of workplaces free of sexual harassment. The EEA gives a court the power
to award equitable damages,110 and in the process a court is inevitably given the
opportunity to reflect on the effects of sexual harassment. South African courts
have gone as far as awarding compensation for the dismissal and in addition
awarded damages for patrimonial loss and contumelia. Moreover, the EEA helps
in addressing sexual harassment as a form of discrimination in the workplace, an
aspect which constructive dismissal provisions cannot achieve alone.111
Notwithstanding that Convention No. 111 is flexible in terms of policies that
members may adopt to eradicate sexual harassment in the workplace, it has been
demonstrated from South Africa that laws that speak to sexual harassment serve a
much more valuable purpose in doing so. Even if an argument was to be made
that Botswana’s Code of Good Practice on Sexual Harassment was sufficient on
its own, the ILO has continuously recommended the adoption of sexual harass-
ment provisions into the EA or another piece of legislation specifically directed at
the private sector. As much as the need for such laws was identified under the
public sector, there has been no argument motivated for their absence in the pri-
vate sector. Reliance cannot be placed on the Code solely, seeing that it only sets
out guidelines and lacks binding force.
Botswana’s Code also fails to provide an enforcement mechanism. Employees
are not bound to formulate and implement sexual harassment policies, but they
may only do so as a matter of good practice. The problem is further exacerbated
by the lack of an Act that backs the implementation of the Code. In South Africa,
the Code of Good Practice on Handling Sexual Harassment is backed by the
EEA. The Courts have endorsed the significance of the Code and the role it plays
in sexual harassment suits, albeit its lack of a binding force. The Code has been
used by the Courts as an expansion of the provisions of the Act on sexual harass-
ment. Because it is backed by legislation, the South African Code is susceptible

110
Section 50(2).
111
Section 6(3).
452 T. Mogapaesi
to frequent application and enforcement before the Courts. It also comes as an
annexure to the EEA, thereby making its accessibility to employers and employ-
ees simple.
Notwithstanding that litigants in Botswana may lay separate criminal charges
or pursue a delictual claim (as is equally the case in South Africa), it has to be
highlighted that this approach will arguably contribute little to the development of
common law principles on sexual harassment in the workplace. The lack of laws
and judicial precedent on sexual harassment in the workplace contributes to a fear
in employees to act against harassers because they do not know that it is a viola-
tion of their human rights and the proper forum to which a complaint may be
made. On the other hand, where there are specific laws, harassed employees are
well informed and this encourages the laws to be tested and developed further
before the courts.
A civil law approach within labour dispute resolution mechanisms remains
preferable because the burden to prove “guilt” in a criminal case is heavier,
whereas in civil cases, the victim needs to only prove on a balance of probabilities
that a civil wrong was committed.112 In order to prove that the accused had a
guilty mind, a criminal law approach requires the state and the complainant must
prove beyond a reasonable doubt that the accused committed the offence.113
Furthermore, a criminal approach would require that the state takes charge of
prosecuting the matter on behalf of the victim and the employer, which may not
assist in improving dispute resolution mechanism within the workplace in so far
as sexual harassment is concerned. Finally, labour dispute resolution mechanisms
in Botswana such as the Industrial Court is better placed to deal with issues of
sexual harassment as it is a court of law and equity,114 that is not strictly bound
by rules of evidence or procedure in civil or criminal proceedings115 and is cap-
able of applying ILO Conventions even if they have not been ratifieds116
In order to make legislation effective, it must be susceptible to interpretation
and application by the courts. The courts must be given the power to develop both
statutory and common law and in doing so must not shy away from stepping in to
protect the human rights of workers. For example, the Court’s adoption of the vic-
arious liability principle into the South African common law in the Grobler-
case117 and the endorsement by the Court in the Gaga v Anglo Platinum-case118
of dismissal as a proper sanction for sexual harassment set a precedent for the role
the courts can play in putting the law into practice. This demonstrates the Courts’
role in acting as a mechanism to ensure the implementation of the South African
Code of Good Practice on Handling Sexual Harassment. It also demonstrates that

112
Ranna v Tyre Fix Pty (Ltd) 2012 (2) BLR 258 (IC); Davies v Equipament Sales
ampamp Services Pty (Ltd) 2012 (2) BLR 423 (IC).
113
See amongst others Ndumo v The State 1997 BLR 738 (CA); The State v Opaletswe
2012 (2) BLR 168 (HC).
114
Section 14(1) Trade Disputes Act.
115
Section 22(1) Trade Disputes Act.
116
See amongst others David v Auto & General Supplies 2007 (3) BLR 265 (IC);
Moatswi and Another v Fencing Centre (Pty) Ltd 2002 (1) BLR 262 (IC).
117
Supra (n 109).
118
Supra (n 102).
 Commonwealth Law Bulletin 453
the courts should always play a pro-active role in developing the common law to
protect the human rights of employees.
In conclusion, much still needs to be done as far as improving the legal frame-
work of Botswana, more particularly in aligning the EA with the ideals expressed
in Convention No. 111 in so far as sexual harassment is concerned. Alternatively,
employment equity legislation may be adopted to encompass all forms of discrim-
ination in the workplace.
There is a need for the realisation that sexual harassment is a human rights
issue and legislation giving it this status and imposing certain obligations on
employers will instil in them keen interest to formulate and implement sexual har-
assment policies. It is therefore recommended that employment equity legislation
that incorporates the provisions of Convention No.111 and specifically outlaws
sexual harassment be adopted. Furthermore, this will back up the Code of Good
Practice on Sexual Harassment, which extends protection to job applicants.
Moreover, employment equity legislation will make provision for the awarding of
equitable damages, thus restoring hope that in addition to other damages, a har-
assed employee will be compensated for the emotional effects of sexual harass-
ment. The courts also need to play a pro-active role by borrowing principles from
the South African courts to develop their own jurisprudence concerning sexual
harassment in the workplace.

Disclosure statement
No potential conflict of interest was reported by the author(s).

Notes on contributor
Tshepo Mogapaesi holds a Master of Laws and Doctor of Laws in Labour Law. She is
currently a lecturer in Law at the University of Botswana. She has an interest in femin-
ist discourses, and uses her training in labour law to interrogate gender issues and the
law in the workplace.

ORCID
Tshepo Mogapaesi http://orcid.org/0000-0002-8781-7667