Abstract

Sexual harassment is strictly prohibited as a form of unfair sex discrimination in the workplace by the Employment Equity Act 55 of 1998 as amended by the Employment Equity Amendment Act 47 of 2013. To ensure proper adjudication of such cases, presiding officers should consider the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace of 2005 in relevant matters. The code provides the key elements that need to be considered when determining whether certain conduct constitutes sexual harassment. Closer scrutiny of South African case law, however, shows that multiple presiding officers fail properly to take the code into account, causing inappropriate conclusions. By not applying the code to cases of alleged sexual harassment, the facts could be misconstrued, leaving the victim with no protection from sex discrimination and their right to privacy and dignity infringed.