Crying ‘racist’ without cause makes you racist yourself
In this very interesting case, SAPS Colonel A Oosthuizen was accused of racism by two Warrant Officers, WOs Tikoe and Mphana, on 27 March 2017, after taking disciplinary action against them.
Oosthuizen instructed Tikoe to fill in a leave form after finding that he had filled in the Z8 form as if he was at work on 24 February 2017, when he wasn’t, and issued Mphana with a verbal warning relating to absenteeism. Her actions sparked an altercation during which the two warrantofficers threatened and intimidated Col. Oosthuizen and accused her of calling them the “k-word”.
Oosthuizen reported the incident to the Station Commander, who mandated an investigation with a view to taking disciplinary action against the warrant officers. Meanwhile, Tikoe opened a case of crimen injuria against Oosthuizen for calling them the “k-word”, and Oosthuizen opened a case of intimidation against the two warrant officers. A SAPS intern, Ms Sechele, at this point came forward and admitted to hearing the warrant officers plotting to falsely accuse Oosthuizen of using the “k-word”, which prompted Oosthuizen to open a criminal case of crimen injuria, criminal defamation, and perjury against the two warrant officers.
The initial investigations against the warrant officers resulted in recommendations that disciplinary action be taken against them on serious charges. SAPS, however, failed to follow through with these recommendations, as the Provincial Commissioner agreed with POPCRU to suspend the disciplinary actions against the warrant officers. Instead, Oosthuizen was temporarily transferred and investigated, resulting in a recommendation that she be charged for using the word the “k-word”. She was acquitted of all charges.
There were various grievances back and forth, and Oosthuizen questioned SAPS’s decision not to take action against the warrant officers. After Solidarity got involved, the warrant officers were finally charged on 19 March 2018. Mphana was found not guilty, and Tikoe, who pleaded guilty, was given a written warning and one day leave without pay. Oosthuizen challenged this outcome as she was never called as a witness despite being the complainant.
On 23 October 2020, the warrant officers were found guilty by the Regional Court of the Northwest Regional Division of, amongst others, assault, contravening section 9 of the Justice of the Peace and Commissioner of Oaths Act, obstructing the administration of justice, and crimen injuria. This led to them being charged internally and dismissed.
Oosthuizen had referred SAPS’s actions to the Labour Court, claiming unfair discrimination under section 6(1) of the EEA, and claiming that the employer was vicariously liable as per section 60. The Labour Court concluded that Oosthuizen had clearly been racially harassed by the warrant officers, and that SAPS was made aware of actionable harassment perpetrated by the warrant officers as soon as it took place. Even though steps were initially taken to address the matter, the recommended disciplinary measures were abandoned. SAPS dismally failed to investigate the racial confrontation and take necessary steps to eliminate it. Conversely, SAPS did everything in its power to protect the perpetrators of racial harassment.
The Court found SAPS vicariously liable for Oosthuizen’s harassment, and she was awarded compensation in the form of a solatium for the racial harassment which negatively impacted her dignity. The Court also ruled that compensation was justified in light of SAPS’s biased approach in manipulating the warrant officers’ disciplinary hearing and outcome. Oosthuizen was awarded R300 000 in compensation, and SAPS was ordered to tender a written apology to Oosthuizen for the indignity she suffered.
Solidarity obo A Oosthuizen vs South African Police Service and others 3 BLLR 258 (LC)
