Durban - A single “slanderous” e-mail accusing a manager of gender bias has come under the legal spotlight in one of the first cases unpacking the provisions of South Africa’s relatively new anti-harassment laws.
And while the KwaZulu-Natal judge tasked with considering the matter agreed that the content of the e-mail was not true, she said the law required that there be some “repetitive element” to the conduct or, if it was a single act, that it must be “overwhelmingly oppressive” and have the same impact on its victim as if being “physically stalked”.
The case before Judge Mohini Moodley (with Judge Johan Ploos van Amstel concurring) was an appeal by a Mondi employee against a finding by a magistrate that her actions, in sending out the e-mail about her supervisor, constituted “harassment in the workplace”.
The magistrate granted a final protection order against her, interdicting her from defaming the manager and his colleagues, making false accusations of gender-based attacks and sending malicious defamatory e-mails.
The e-mail in question was sent out following a meeting about training. In it, she alleged that the meeting had become abusive.
“I was verbally and emotionally abused... I was still shaken two hours after the ordeal. I am still shocked at the way I was attacked... four men attacking a female with an EE (employment equity) representative promoting it as well,” she wrote.
The supervisor, one of those she named, made application for a protection order in terms of the Protection from Harassment Act. He said the e-mail was slanderous, dishonest and malicious.
He said he believed the employee might try to spread “more lies” about him and he was concerned that with a retrenchment process under way, he might be targeted as an “abuser of women who regularly denies people their rights and dignity”.
When the matter came to trial, his version was backed up by a witness who also attended the meeting although the employee persisted with her allegations that the meeting was “very abusive”.
In her ruling, the magistrate found that the act “had a very wide interpretation” and although only one e-mail had been sent “it was sufficient to constitute harassment”.
Analysing the evidence Judge Moodley agreed there was no convincing evidence of the abuse complained of. However, she said, as the act only came into effect three years ago, there was little jurisprudence on it and on the definition of “harassment”.
Based on an examination of international legislation, the South African Law Reform Commission had recommended the definition include a recurring element of the conduct.
While this, ultimately, had not been included in the wording, “in my view the conduct engaged in must necessarily either have a repetitive element which makes it oppressive and unreasonable, thereby tormenting or inculcating serious fear or distress in the victim”.
“Alternatively, the conduct must be of such an overwhelmingly oppressive nature that a single act has the same consequences,” she said.
She said the employee had allowed her emotions to cloud her perception, but her conduct was not so “objectively oppressive” or had the gravity to constitute harassment.
The judge upheld the appeal and set aside the magistrate’s ruling.
The Mercury