A HOUSING Development Agency (HDA) official is demanding R7 million in damages from the state-owned entity after she claimed she was gang-raped by some of her bosses and had sex with them for a promotion.
The official, who cannot be identified as she is allegedly a rape victim, states in the South Gauteng High Court in Johannesburg that between December 2018 and February 2019 two of her colleagues, who are named in court documents, sexually harassed her, and a senior officials demanded sexual favours for her secondment to one of the sections in the HDA. She also claims to have been gang-raped.
She accuses the two men of bringing the HDA's good name into disrepute in that at an assembly party held in September 2017 one of the two colleagues was identified as among the men, took advantage of her.
One of the alleged culprits allegedly took advantage of the woman, who was extremely intoxicated, and he was allegedly seen engaging in sexual acts with her in full view of others passing by as the doors and windows were left open and the lights were on.
She further said that she had sexual intercourse with senior executives employed by the HDA, an agency of the National Department of Human Settlements, in return for job promotions.
The woman also detailed that as a result of the conduct of the HDA and its employee she suffered emotional shock and trauma, suffered and still suffers impaired mental health, for which she requires medical treatment.
She also suffered financial loss and constitutional damage, and blames the HDA for her troubles as its employees were the sole and/or the main cause of the the consequences she suffered.
The woman wants the HDA to be held accountable for its alleged failure to act in accordance with a common law duty to maintain a safe working environment, including taking necessary steps to ensure that she is not abused or harassed emotionally or psychologically.
She also explained that the conduct caused her to suffer emotional shock, trauma and damage, and as a consequence claims general damages of R5m plus interest and costs.
In a separate claim, she demands that the HDA must pay her R2m plus interest and costs as constitutional damages she suffered.
The woman further accuses the HDA of breaching its constitutional duty to her, of not infringing upon and failing to protect her from the infringement of her constitutional rights.
She claims the conduct of the HDA violated her rights as afforded by the Constitution, including the rights to dignity, to be free from all forms of violence, and not to be treated or punished in a cruel, inhumane or degrading way under section.
Her claims for constitutional and common law damages both claims stem from the same set of facts.
However, the HDA has queried whether the woman is entitled to claim concurrently common law damages and constitutional damages.
Earlier this month, Acting Judge Krisjan Korf said he did not believe that the claim for constitutional damages should be dismissed but that the woman should be allowed to reconsider her pleadings, given his judgment and the authorities he cited.
“I appreciate that the circumstances under which constitutional damages will be awarded are limited. However, in my view, it would not serve the interest of justice at this junction to dismiss the plaintiff’s claim B (constitutional damages) without allowing it to amend its claim.
“A dismissal of claim B would finally shut the court’s doors to the plaintiff (the woman). The plaintiff’s right to access the courts warranted under section 34 of the Constitution is accordingly at stake,” the acting judge explained in his ruling.
The HDA's exception to the R5m claim for general damages was dismissed but the woman was given 20 days to amend her particulars of claim, if she wishes to do so.
Acting Judge Korf ordered the woman to pay the HDA's legal costs, excluding the ones incurred in defending the R5m general damages claim.
“It is to be noted that the exception to claim B (for constitutional damages) was caused by the plaintiff’s failure to plead her case for constitutional damages adequately. There is no reason why the public purse should pay for the defendant’s (HDA’s) costs while the defendant was successful in its exception to claim B,” reads the judgment.
The acting judge found that it should be borne in mind that the trial court will ultimately adjudicate the applicability of Compensation of Occupational Injuries and Diseases Act (Coida) based on the pleadings and the evidence before it and not on the woman’s particulars of claim.
“Consequently, it would serve no purpose to reserve the determination of the Coida exception at the end of the trial. For these reasons, the defendant’s exception to claim A cannot be upheld,” Acting Judge Korf added.
The HDA had pleaded that in terms of Coida, an employee who is covered by the act has no claim against an employer for damages suffered following an occupational injury arising out of or within the scope of the employee’s employment.
loyiso.sidimba@inl.co.za