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Article by listed attorney: Fawzia Khan

Stresses in the workplace are not an unusual occurrence. Just ask Jeremy Clarkson, of the ex Top Gear fame, who assaulted his producer following an altercation about his food. Clarkson reported recently that the incident was caused at a time he was suffering enormous stress. He said this was after a cancer scare when his doctor told him that a lump on his tongue was probably cancerous and needed to be checked out. Clarkson, for anyone not on this planet, was suspended from the BBC, following the assault incident. Soon thereafter the popular show Top Gear was axed. Assaulting a co-worker would not be tolerated in South Africa, as it was not countenanced in Clarkson’s case either.

It’s true that working in close proximity with your fellow co-workers day in and day out, chasing deadlines and targets can result in tensions building up. However if relationships between co-workers become strained and are left unchecked, it could become potentially toxic and destructive. This would not only result in poor performance and a decline in the profitability of the employer company, but would also lead to low morale amongst colleagues. Almost every manager’s task would also include managing relationships between co-workers. Often at the first sign of trouble brewing in the workplace, quick and appropriate action needs to be taken to avoid further long term problems later on. In this way workers are encouraged to always work at their optimum.

What happens if a co-worker racially abuses or makes insulting, derogatory or hurtful statements to another worker? In the case of Van Der Westhuizen v Motlogelwa, the Gauteng High Court delivered its judgment on 20 March 2015, when it found that a woman, Van Der Westhuizen was defamed and that she suffered damages to her name and reputation. This case involved an ex-employee who insulted her after he was retrenched from the company.

To succeed in a defamation claim, a plaintiff needs to prove that certain  statements, whether oral or in writing, were wrongful and unlawful, made with the intention to harm the plaintiff and that was publication of those statements. A statement would be considered defamatory, if from the perspective of the reasonable man, it lowers the esteem in which a person is held in society.

A statement, which ridicules, humiliates, belittles or is contemptuous of another, would be regarded as ticking the elements needed for a claim of defamation. A defence to defamation would be that the statement was not made with the intention to harm or that it was not unlawful or wrongful.

Van der Westhuizen was employed as a human resources manager for a specialized IT software company. A co-worker Ntshabele, a business analyst, was retrenched from the company in June 2013.

On 25 June 2013 Van Der Westhuizen was asked to arrange for Ntshabele to sign certain documents relating to his retrenchment and to return certain property belonging to the company, including his laptop. She said that Ntshabele then hurled insults at her, calling her a liar and blamed her for his retrenchment. He refused to return the company property to her. A number of co-workers and members of the public witnessed the incident. Later that day when he was about to leave the company premises, Ntshabele accused Van Der Westhuizen of being “a racist”, “a liar” and again blamed her for his retrenchment. He also called her an “unintelligent white girl” and to threatened to “teach her a lesson”. Van Der Westhuizen claimed that she felt very humiliated and frightened. The court heard that after the incident “she immediately went to the boardroom, closed the door in order that no-one could see her and burst into tears. She had to retain her full composure in order to face her fellow-employees after the incident”.  She then sued Ntshabele for defamation of character and claimed damages for pain and suffering and damage to her reputation.

The court said that the conduct of Ntshabele was of “a serious nature” and fact that the statements were made in front of other employees of the company, “clearly infringed her sense of self-worth (dignitas) and were intended to insult, humiliate and belittle her in the presence of her co-employees. The court found that Van Der Westhuizen the claim of defamation of character and awarded her R50 000,00 in damages.

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