13 January 2023
Johannesburg Labour Court Judge Portia Nkutha-Nkontwana has ordered the police to apologise to Lt Col Annemarie Oosthuizen for the indignity she suffered as a result of racial abuse. Archive photo: Ashraf Hendricks
The South African Police Service (SAPS) has been ordered to pay R300,000 in compensation to a senior police officer for failing to take action against two subordinates who “disparaged and humiliated her”, falsely accusing her of racism.
Johannesburg Labour Court Judge Portia Nkutha-Nkontwana has also ordered SAPS to apologise, in writing, to Lt Col Annemarie Oosthuizen for the indignity she suffered as a result of the racial abuse.
The judge said police management had “dismally failed” to put a stop to the “racial harassment” of her, instead doing everything to protect the perpetrators and was therefore vicariously liable.
Oosthuizen, who was represented by trade union Solidarity, had argued that the Employment Equity Act prohibited unfair discrimination in the workplace, and yet the respondents, SAPS, the Minister of Police and National Commissioner of Police, had failed to deal with her grievances.
She was the commander of human resources at Klerksdorp police station in 2017 when she took “corrective action” against warrant officers Adam Tikoe and Seiso Mphana because of their absenteeism.
Oosthuizen said they were not happy. They threatened and intimidated her and accused her of calling them the K-word.
After they lodged grievances against her, she was approached by an intern working at the station who told her that she had overheard them conspiring to falsely accuse her of being racist. The intern later gave a statement to this effect and Oosthuizen opened a criminal case against them.
She also lodged a grievance. The officer appointed to investigate this reported that the matter was “serious” – that there was a prima facie case against the two officers and that they should face disciplinary action.
But this recommendation was never actioned. The provincial commissioner and POPCRU, who represented the two warrant officers, decided instead that Oosthuizen be charged for using the K-word.
The disciplinary hearing chairperson acquitted her on all charges.
While the pair did subsequently face disciplinary action, the process was manipulated, Oosthuizen alleged. They were not charged with racial harassment and she was not called to testify.
The two warrant officers were subsequently convicted in the local regional court on charges of criminal defamation and obstructing the administration of justice by making false statements under oath.
Only then were they charged internally and dismissed from the police service.
In her ruling, Judge Nkutha-Nkontwana said it was “absolutely clear” that Oosthuizen had been racially harassed by the two warrant officers who were motivated by insubordination and animus.
“The racial harassment was not just a single incident … it was premeditated to get rid of her.”
“Oosthuizen testified that the two warrant officers organised a demonstration by their fellow union members during her disciplinary inquiry, they laid a case against her with the Equality Court and she was transferred pending her disciplinary hearing while they remained untouched,” said the judge.
The judge said that instead of owning up to its flaws, SAPS had baldly denied that she had been racially harassed and had vilified her.
She said she was satisfied that for a period of about a year Oosthuizen was disparaged and humiliated by the racial harassment “perpetrated by the two warrant officers with impunity”.
The judge said it was apparent that the bosses at SAPS were oblivious to their statutory duties in terms of the Employment Equity Act. When they should have taken all steps to eliminate the racial harassment, they had, instead, acted in a partial manner, protecting the perpetrators at the expense of the victim.
She said as an employer, SAPS was expected to “transcend superficial compliance” with the Act and deal with this toxic environment.
Oosthuizen was not only entitled to compensation for damage to her dignity but an award was also justified in the light of SAPS’s “biased approach in manipulating the warrant officers’ disciplinary hearings”.
“I also see no reason why SAPS should not own up to its mistakes and apologise to Col Oosthuizen,” Judge Nkutha-Nkontwana said.
She ordered that the respondents pay Solidarity’s costs.