GRAAFF-REINET NEWS - The Makhanda High Court ruled on 13 April 2021 that the Dr Beyers Naude Local Municipality (first respondent) and Xola Vincent Jack (second respondent) must jointly pay the plaintiff in a sexual harassment case R4-million for, inter alia, past and future loss of earnings and medical expenses.
The ruling follows the sexual assault of a former employee of the Ikwezi Local Municipality at the hands of Jack in 2009, her immediate supervisor at the time.
Judgement in favour of the plaintiff in this matter was already delivered on 31 March 2016 when Judge Pickering declared that the Ikwezi Local Municipality and Xola Vincent Jack are jointly and severally liable for the damages that the plaintiff may prove she has suffered as a result of the sexual assault at the offices of the Ikwezi Local Municipality in Jansenville.
Following this judgement, on 3 August 2016, the Ikwezi-, Baviaans- and Camdeboo local municipalities were amalgamated into one local municipality, the Dr Beyers Naude Local Municipality (DBNLM).
This means that these local municipalities ceased to exist and were replaced by the DBNLM as an entirely new entity who then applied for leave to appeal against the judgement, primarily based on the fact that the plaintiff's psychiatrist submitted reports to the office of the Compensation Commissioner in terms of COIDA during 2011 and 2012.
The DBNLM attempted to incorporate a special plea in terms of section 35 of COIDA that would prohibit the plaintiff from claiming damages for any occupational injury or disease based on the apparent pending COIDA claim.
In this regard the court noted that there was a complete failure by the DBNLM's legal representatives to appreciate from the outset that COIDA might be applicable, and this failure persisted for three and a half years after judgement has been delivered.
The court then stated that the fact that a COIDA claim has been lodged is irrelevant to the issue of whether or not COIDA applies. Of significance, however, is that the DBNLM and its legal representatives were informed of the COIDA claim in June 2019 and yet it took another four months before the opinion of senior counsel regarding the prospects of success with an application for leave to appeal was sought.
Even after the opinion of senior counsel was received on 28 October, there was a further unexplained delay of 22 days before the application for leave to appeal was launched.
Judge Pickering also held that the DBNLM's attempts to lay some of the blame on the plaintiff for its failure to appreciate the possible application of section 35 of COIDA are, in his view, disingenuous and he rejects them.
With this in mind, as well as the fact that the plaintiff has waited 10 years for justice and to obtain redress for the grievous wrong perpetrated upon her, the application for condonation of the late filing of the appeal was refused and the application for leave to appeal was dismissed with costs.
After this, trial on quantum (to determine the amount of damages payable to the plaintiff) commenced after having been postponed for a considerable period of time.
The mayor of the DBNLM, Deon de Vos, denounced the sexual assault incident in the strongest terms and emphasized that the distasteful incident, which he describes as a "haunting legacy", should have been managed more professionally.
However, it has been brought to the attention of the Graaff-Reinet Advertiser that, despite the incident of sexual harassment, the fact that Jack has been found guilty and suspended for two weeks by a Presiding Officer from Ikwezi municipality on 11 May 2010, the subsequent High Court judgement on 31 March 2016, as well as the fact that he also received a final written warning for theft in 2010, Xola Vincent Jack is still on the payroll of the DBNLM.
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