sexual health and human rights in the african region - The ICHRP

[103] South Africa, Kenya Tanzania and Zimbabwe aside, sexual harassment is not
regulated by harassment-specific legislation in the countries that were surveyed,
therefore, pointing to a conspicuous gap in human rights protection. In the
majority of African countries the only legal protection against sexual harassment
is when the nature of the harassment can be conflated with existing common law
crimes such as sexual assault or crimen inuria or constitutes conduct that
warrants invoking domestic violence legislation. As alluded to earlier, members
of the Southern African Development Community are required to have adopted
sexual harassment-specific legislation by 2015.
[104] In respect of South African jurisprudence, at a constitutional level, sexual
harassment can be understood as implicitly prohibited by section 10 of the
Constitution which recognizes the right to human dignity. At a legislative level,
section 6(3) of the Employment Equity Act provides that harassment of an
employee constitutes unfair discrimination. The Equality Act, which provides
that no person can be subjected to harassment. 360 Furthermore, the Equality Act
defines harassment as
‘unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or
intimidating environment or is calculated to induce submission by actual or threatened adverse
consequences and which is related to—
(a) sex, gender or sexual orientation; or
(b) a person’s membership or presumed membership of a group identified by
one or more of the prohibited grounds or a characteristic associated with
such group implicitly includes sexual harassment in its ambit. 361
[105] Harassment is a significant concern in the employment sector. The South African
Department of Labour has published a Code of Good Practice on the Handling of
Sexual Harassment Cases. 362 The Code of Good Practice provides, inter alia,
that:
3. Definition of sexual harassment
(1) Sexual harassment is unwanted conduct of a sexual nature. The unwanted nature of sexual
harassment distinguishes it from behaviour that is welcome and mutual.
(2) Sexual attention becomes sexual harassment if:
(a) The behaviour is persisted in, although a single incident of harassment can constitute sexual
harassment; and/or
(b) The recipient has made it clear that the behaviour is considered offensive; and/or
(c) The perpetrator should have known that the behaviour is regarded as unacceptable.
4. Forms of sexual harassment
360 Section 11 of the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000.
361 Section 1 (xiii) of the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000.
362 Code of Good Practice on the Handling of Sexual Harassment Cases (1995). Published as an annexure
to the Labour Relations Act No 66 of 1995.
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