By Ronel de Wet
When a complaint of sexual harassment is received, an investigation must be lodged to determine whether or not the conduct constitutes sexual harassment. In doing so Employers, complainants and Commissioners alike had to, until 19 December 2018, apply both the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace as well as the Amended Code.
In 1998, the Minister of Labour issued a Notice in terms of Government Gazette R1367 of 17 July 1998, and amended the Code on 4 August 2005 with the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace (General Notice 1357).
Usually the Amended Code would replace the Code, but in this instance the Code was not repealed, and according to the Labour Appeal Court in Campbell Scientific Africa (Pty) Ltd v Simmers and Others (CA 14/2014)  ZALCCT 62 both Codes had to be applied in determining complaints of sexual harassment :-
“In spite of it being termed the “Amended” Code, this Code does not replace or supersede the 1998 Code, which to date has not been withdrawn. The result is that in terms of s203(3), both Codes are “relevant codes of good practice” to guide commissioners in the interpretation and application of the LRA.”
On 19 December 2018, the Minister of Labour issued Notice R1394, formally repealing and replacing the 1998 Code with the Amended Code of 2005.
The repeal is well received in that it brings clarity in terms of which Code to apply when dealing with complaints of this nature. The Amended Code provides a broader definition, and further guides as to factors to be considered when dealing with acts or complaints of sexual harassment.B