What is sexual harassment?
Sexual harassment can be defined as unwelcome and unwanted sexual advances, requests for sexual favours, and other verbal or physical contact of a sexual nature that creates a hostile or offensive environment. It can also be seen as a form of violence against women (and men, who can also be sexually harassed) and as discriminatory treatment. A key part of the definition is the word “unwelcome”.
Sexual harassment can take a variety of forms. It includes both physical violence and more subtle forms of violence such as coercion – forcing somebody to do something they don’t want to. It can take a long-term form – repeated sexual “jokes”, constant (unwanted) invitations to go on a date, or unwelcome flirting of a sexual nature. And it can be a one-off incident – touching or fondling somebody inappropriately, or even sexual abuse or rape.
Is the sex of a person directly linked to their harassment?
Yes – sexual harassment is behaviour which relates directly to the sex of the person who is being harassed. This is why it can be seen as discriminatory.
According to a study conducted by the International Labour Organisation (ILO), ”Sexual harassment is inextricably linked with power and often takes place in societies which treat women as sex objects and second-class citizens.” A common example of this is when women are asked for sexual favours in return for being given a job, or a promotion, or a raise. Another example is street harassment, which can range from cat-calls and whistling through to unwelcome and offensive language and also sexual abuse and rape.
Importantly, sexual harassment is not the same as a mutually-agreed flirtation or relationship. It is an action which is unwelcome, causes offense and distress, and can, in some situations, be physically and emotionally dangerous. The victim can feel intimidated, uncomfortable, embarrassed, or threatened.
What can be categorised as sexual harassment?
There are different legal definitions of sexual harassment in different countries and jurisdictions, but the most common forms of sexual harassment include:
- Telling sexual or dirty jokes
- Displaying or distributing sexually explicit drawings or pictures
- Letters, notes, emails, telephone calls, or material of a sexual nature
- “Rating” people on their physical attributes
- Sexual comments about a person’s clothing, anatomy, or looks
- Whistling or cat-calling
- Sexually suggestive sounds or gestures such as sucking noises, winks, or pelvic thrusts
- Direct or indirect threats or bribes for unwanted sexual activity
- Repeatedly asking a person out for dates, or to have sex
- Name-calling, such as bitch, whore, or slut
- Staring in an offensive way (staring at a woman’s breasts, or a man’s buttocks)
- Unwanted questions about one’s sex life
- Unwanted touching, hugging, kissing, fondling, brushing up against somebody
- Stalking a person
- Touching oneself sexually for others to view
- Sexual assault
Where does sexual harassment take place?
Sexual harassment can take place anywhere – at work, at university, on the street, in a shop, at a club, while using public transport, at an airport, even in the home. Basically, it is unwelcome sexual attention that can take place in any public place, and also in private spaces.
Do only men harass women?
No. Women can sexually harass men as well, men can sexually harass other men, and women can sexually harass other women. There is no gender bias in harassers. Harassers can be an employer, a work colleague, a client, a customer, a stranger, a relative, a so-called “friend”, a gang of people, or a person interviewing you for a job. There is no “blueprint” for who a harasser is, there are many different perpetrators.
The law provides for means-tested old age grants for permanent residents of South Africa aged 60 and over. A worker is entitled to an old age grant (means-tested) if his/her annual income is below a certain amount. The old age pension from April 2015 is 1410 Rand for pensioners aged 60-74 and 1430 Rand for pensioners aged 75 or older. If the pensioner resides in a care facility under contract to the state for more than three months, the pension is reduced to 25% of the maximum amount.
A constant attendance allowance of 280 rand per month is also paid if the person receiving the old age grant requires the constant attendance of others to perform daily functions.
Sources: §10 of the Social Assistance Act 13 of 2004 (last amended in 2010)
Dependents’ / Survivors’ Benefit
Survivors’ benefits (1410 rand per month) are payable to workers as provided under the Unemployment Insurance Act. On the death of a worker, the spouse or life partner can claim dependent’s benefits. The dependent children can also claim this benefit if there is no spouse or life partner or if the spouse or life partner does not claim the benefit within 6 months of the worker’s death.
Source: §14 & 30-36 of the Unemployment Insurance Act, 2001 (last amended in 2003)
The above laws provide for invalidity benefits in the case of non-occupational accident/injury/disease resulting in permanent invalidity. If a citizen or permanent resident aged 18-59 years is assessed with temporary disability for more than six months, that person is entitled to the means-tested disability benefit of up to R1410 per month, applicable from April 2015. The benefit is considered permanent if a citizen is assessed as medically disabled for more than 12 months.
Source: §9 of the Unemployment Insurance Act, 2001 (last amended in 2003) Regulations on Social Security Unemployment Insurance Act, 2001
Work and Wage
In accordance with the Basic Condition of Employment Act (BCEA), the Minister of Labour may set minimum terms and conditions of employment including minimum wages. There is no single national minimum wage in South Africa. Minimum wages are set at the sectoral level and area level. Minimum wages are set for vulnerable sectors; the sectors, which have low union density or where market wages are quite low. Sectoral determination for setting minimum wages is done in consultation with the Employment Conditions Commission.
Minimum wage is set for the following sectors: domestic work, contract cleaning, private security, wholesale & retail, farm work, forestry, taxi, learnership, hospitality, civil engineering and the work of children in the performance of advertising, artistic and cultural activities. The Employment Conditions Commission advises the Minister of Labour on various issues including sectoral determinations regarding minimum wages. The Basic Conditions of Employment Act requires that while advising the Minister on publication of a sectoral determination, the Commission must consider in respect of the sector and area concerned the ability of the employer to carry on their business successfully; the operation of small, medium or micro enterprises and new enterprises; the cost of living; the alleviation of poverty; conditions of employment; wage differentials and inequality; the likely impact of any proposed condition of employment on current employment or the creation of employment; the possible impact of any proposed conditions of employment on the health, safety or welfare of workers; and any other relevant factor.
After considering the report and recommendations of the Commission, the Minister may make a sectoral determination for one or more sector/s and area/s and provide for the adjustment of remuneration by way of minimum remuneration or minimum increases.
Source: § 54-55 of the Basic Conditions of Employment Act 1997 (last amended in 2014)
Freedom to Join and Form a Union
The South African Constitution and labour laws provide for freedom of association and allow workers and employers to join and form unions. This right is regulated by the Labour Relations Act.
In accordance with the BCEA, a trade union is an association of workers whose principal purpose is to regulate relations between workers and employers, including any employers’ organizations.
Every member of a trade union has a right to participate in its lawful activities; to participate in the election of any of its office-bearers, officials or trade union representatives; to stand for election and be eligible for appointment as an office bearer or official and, if elected or appointed, to hold office; and to stand for election and be eligible for appointment as a trade union representative and, if elected or appointed, to carry out the functions of a trade union representative in terms of this Act or any collective agreement. Trade unions may draw up their own statutes and administrative regulations, as long as these are not contrary to laws in effect. Unions have the right to participate in forming and joining a federation of trade unions; and to affiliate and participate in the affairs of any international worker’s organisation or international employers’ organisation or the International Labour Organisation, and contribute to, or receive financial assistance from, those organisations.
The unions must get registered with the Ministry by filing their statutes and rules; a prescribed form (properly completed); and any further information required by the Registrar. A trade union is registered if the Registrar is satisfied that the organisation has fulfilled all the requirements and issues a registration certificate to the organization. The registrar also sends the certificate and a certified copy of the registered constitution to the applicant. Filing of a copy of resolution and a certificate signed by its Secretary stating that the resolution complies with its constitution has to be done again in case of any change in statutes and administration.
An employer is not allowed to interfere in a trade union’s affairs. An employer may deduct union dues from the wages of the members only after their written consent. Discriminatory behavior is prohibited for the employer on the basis of union affiliation or participation in union activities.
Source: §23(1-4) of the Constitution of the Republic of South Africa 1996 (last amended in 2012); §4-22 & 95-101 of the Labour Relations Act No. 66 of 1995 (last amended in 2014)
Freedom of Collective Bargaining
The right to collective bargaining is recognized by the Constitution and regulated by the Labour Relations Act. The law defines collective bargaining as a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand by one or more employers; one or more registered employers’ organisations; or one or more employers and one or more registered employers’ organisation. Bargaining councils are formed by registered trade unions and employers’ organisations to deal with collective agreements, attempt to solve labour disputes, and make proposals on labour policies and laws. They may also manage pension funds, sick pay, unemployment and training schemes, and other such benefits for their members.
A collective bargaining agreement is a legally enforceable instrument, which generally lasts as long as each party’s bargaining cycle. However, it could also be a long-lasting agreement, or one which is terminated after reasonable notice by either party.
Source: § 23(5) of the Constitution of the Republic of South Africa 1996 (last amended in 2012); §11-30 of the Labour Relations Act No. 66 of 1995 (last amended in 2014)
Right to Strike
The right to strike is provided under the Constitution and is regulated under the Labour Relations Act. South African law does not place much restriction on the right to strike.
Compulsory recourse to arbitration, long and complex conciliation and mediation procedures prior to strike actions generally restrict the right to strike. There is a compulsory 30-day mediation period before lawful strike action may be taken. Members of a union must inform the employer, in writing, at least forty eight hours prior to their intention to strike. Notice is given to the relevant council if a dispute relates to a collective agreement to be concluded in a council; or to the relevant employer’s organisation if an employer is a member of an employer’s organisation that is a party to the dispute. Notice is given to the opposite party at least seven days prior to the commencement of the strike where the State is the employer.
Striking is prohibited for workers engaged in essential services or maintenance services. Striking is also prohibited for workers bound by an agreement that requires disputed issues to be referred to arbitration; or bound by a collective agreement or an arbitration award that regulates the disputes in question; or the issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court in terms of this Act or any other employment law.
A trade union may call a secondary strike in support of a lawful strike (primary strike) if seven days notice of the commencement of the secondary strike has been given to the secondary employer. The secondary strike may pressurize the employer to resolve the dispute that gives rise to a primary strike.
Employers also have the right to lockout workers. This right is subject to the same rules and restrictions as the right to strike. In a protected strike or lockout workers or employees are guaranteed immunity from the reaches of the civil law i.e. they do not constitute a breach of contract. An employer is not obliged to remunerate an employee for services not rendered during a strike and workers are protected from dismissal.
In an unprotected strike or lockout, the affected party can approach the Labour Court for an interdict or order restraining a strike or lockout. The Labour Court can also order the payment of just and equitable compensation in the circumstances. Participation in an unprotected strike may constitute a fair reason for dismissal.
Picketing is allowed to registered trade union members and supporters for the purpose of peaceful strike. Picketing is authorized in any place to which the public has access but outside the premises of an employer; or with the permission of the employer, inside the employer‘s premises.
Source: § 23(2) of the Constitution of the Republic of South Africa 1996 (last amended in 2012); § 64-77 of the Labour Relations Act No. 66 of 1995 (last amended in 2014)
Regulations on Trade Unions
Constitution of the Republic of South Africa, 1996 Labour Relations Act 66 of 1995, last amended in 2002