South Africa is characterised by ongoing state corruption and fraud, and massive poverty and unemployment, with 49,2% of the population living below the poverty line. Women occupy the lowest levels of the economy, earning less than men and making up the highest numbers of the unemployed. More women than men live in conditions of rural poverty outside the formal economy.
In the workplace, access by women to positions of power and authority remains skewed in favour of men, with fewer women occupying managerial or senior positions. In this context gender-based violence continues to prevail, thriving off these unequal power relations. Entrenched patterns of patriarchy and heteronormativity remain unchallenged and the workplace is a place where sexual violence remains one of the most hidden forms of abuse of power, the victims of whom are generally the most vulnerable, and mostly women, particularly and in the main black women.
The #MeToo movement in the United States broadly responded to rampant sexual harassment and gender-based violence and is illustrative of the difficulties women have in confronting men who hold power. Through a constellation of events women were able to come together and reveal their abuse despite the risks associated with taking the step.
The movement had the strength to unseat some of the most powerful men in the entertainment industry, among others, and to create a no-tolerance ethos. It will require ongoing vigilance and scrutiny to prevent old patterns from re-emerging and there will be set-backs, the most highlighted being the appointment of Brett Kavanaugh to the US Supreme Court. But despite this, the movement has had an effect on patterns of power, unsettling and disturbing historical gender relations and creating avenues for women to come forward.
South Africa has a long way to go. People in positions of leadership and authority who have had sexual misconduct allegations levelled against them, appeal to other powerful people to rally to their support. They manage to convince powerful people to believe that they could never be guilty of transgressions such as these and that the accusers are seeking to remove them from power because they have become disgruntled. They may say that the accusers are unstable and aggressive. Or the accusers are concocting these stories because they are people seeking revenge. If they are white and the accusers are black, the accusers are trying to cleanse the organisation of white leadership.
There are those who firmly believe that a person who has promoted social justice; a person who is a leading intellectual; a person who is a brilliant artist, actor or well-known politician; a person who heads a company or organisation; or a person who has been a strong, competent member of our society, cannot and would not ever do something as loathsome as sexually abuse or harass someone.
People accused of sexual harassment frequently deny that the behaviour they are accused of constitutes sexual harassment. It is worth considering what the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace, Notice 1357 of 2005 defines as behaviour that constitutes sexual harassment.
A key aspect of sexual harassment is that it is unwelcome and unwanted conduct of a sexual nature. It causes discomfort and makes a person feel offended, humiliated or intimidated. The code provides that sexual harassment may take the form of physical, verbal or nonverbal conduct. It may be subtle and underhand and frequently invisible to anyone other than the victim. It is secretive and kept under wraps.
Physical acts of harassment are more obvious than nonphysical forms. They range from the lightest touch on a part of one’s body that is inappropriate, a hug that lasts too long, a person standing too close and rubbing up against one — but could be far more serious. Such acts could include sexual assault or rape.
Verbal misconduct is considered by some to be perfectly acceptable, but is a form of sexual harassment that can cause extreme discomfort to the victim. This could include suggestive and lewd compliments, such as: “I like your dress, it shows your curves” or “Oh my, that’s a sexy top, makes you look really hot”. Or it could include ongoing pressure to go on a date.
In Mzi Gaga vs Anglo Platinum Limited and Others, a case heard in the Labour Appeal Court in 2011, the judge found that a human resources manager harassed his personal assistant for two years and was guilty of misconduct. He passed comments of a sexual nature and propositioned her to engage in a sexual relationship.
The propositions began within months of her commencing employment. At first they were not direct, but were in the form of innuendos. He would suggest that they meet after work. As time went on he became more direct and said they should “do it”. He persisted in his propositions despite his requests being declined. At the company’s Christmas party, he suggested that they visit a hotel after the party. On Secretary’s Day he proposed that they go to a hotel to “do it”. He often commented on her appearance and clothing.
She did not complain for two years, because she was not aware that she could. Besides, she was his assistant, in a subordinate position to him. Only when she read the Anglo Platinum’s sexual harassment policy did she realise that for the past two years she had been subjected to sexual harassment. She learnt about the policy at her exit interview, and this, to some extent, freed her to lodge a complaint because she was no longer his junior.
Even the first innuendo was a form of unwanted sexual harassment; even if he had not persisted for two years but had done so on just one occasion, he would have been guilty of misconduct, according to the set out in the code. This same standard is set out in the Anglo American sexual harassment policy covering the company’s employment conditions. The code states that even one incident constitutes sexual harassment.
Other verbal forms of harassment include homophobic or sexist name-calling and any demeaning and undermining comment to someone based on their gender or sexual orientation constitutes harassment. For example, calling someone incompetent because they are a woman or queer.
The code considers nonverbal conduct of a certain kind as sexual harassment. This might be displaying pornography or sexually suggestive pictures at work, leering, whistling and sending sexually explicit messages by electronic means, sometimes called sexting.
Frequently, nonreporting is viewed by perpetrators as a sign that the story must have been made up. If it wasn’t made up, they ask why it took so long for the victim to say anything. If it really happened, they explain, she would have reported it sooner.
In Rustenburg Platinum Mines Limited vs UASA obo Pietersen and Others, a 2018 a case held in the Johannesburg Labour Court, Judge Edwin Tlhotlhalemaje said one must look deeply and objectively into why incidents of sexual harassment are not immediately reported. There may be many reasons. For instance, the complainant may be disbelieving and therefore in a state of paralysis accompanied by guilt, confusion, shame, helplessness or outright terror. Many may fear a backlash or that they might lose their job or be victimised. Other fears include causing upset in the workplace, and worry that their allegations may not be believed. They might fear negative labelling, feel pity for the harasser for whatever reason, hope that the ordeal will go away and that it is a once-off incident, or they may fear publicity and the prospect of having to be cross-examined.
What is clear, is that when the powers that be collude and stand together to defend one another, and when they deny the possibility that one of them might have committed acts of sexual harassment, this undermines women who have experienced it and those who assist and support them.
Set up by the University of the Witwatersrand in 2013, the Wits Gender Equity Office (GEO) is an example of a progressive unit that addresses the issue and supports victims of sexual harassment and metes out appropriate punishment for perpetrators, using the framework established in law through both the code and the long string of cases. Such units should be set up in all major institutions, because they open up avenues for victims to speak up.
Yet, recently the GEO has come under fire. It has been accused of being “unprofessional”, having gone “rogue”, “shooting from the hip” and not having the “legal savvy” to work within a rule of law framework. (See Daily Maverick article by Ufrieda Ho, April 16 2019).
The attack on an office such as the GEO, while unacceptable, is to some extent to be expected. Units such as these open themselves up to being challenged. By doing their job properly they unsettle the powerful, and it is almost inevitable that there would be push-back from people who have been disciplined and in some instances, dismissed. When this happens, it requires strong leadership in the organisation to ensure that such units, and the staff who work in them, are protected. It is a great pity that there is an absence of such leadership at Wits.
Erica Emdon is an attorney and the director of The Public Interest Practice