The Minister of Correctional Services and a manager at a Western Cape prison were found liable for damages to a social worker who was sexually assaulted in the manager’s office, the Western Cape High Court ruled on Tuesday.

“It is declared that the first and second defendants are jointly and severally liable for such damages as the plaintiff may prove she has suffered in consequence of the sexual assault upon her on January 9, 2009, at the Dwarsrivier Correctional Centre,” ruled Judge Judith Cloete.

In a lengthy judgment, Cloete went over the voluminous submissions on the prison’s organogram, as well as the minister’s submissions that even though the assault happened at the prison during working hours, the minister could not be responsible for a sexual assault.

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However, the minister was found vicariously responsible – which means he was responsible through the actions of the staffer. The staffer was also found liable.

The case turned on the social worker, identified only by her initials, being at work at the prison on the day in question when there was a fight between inmates at the end of a corridor when she was on her way to a therapeutic session with offenders.

The fight was dealt with by prison officials and she went on with her daily tasks.

Later, she went to the manager’s office to fetch a key that he had borrowed to get into a storeroom to fetch a spare modem because he was not getting any emails.

She wanted the key because she was responsible for the inventory office. In his office, he gave it back to her, and at his request, she helped him send an email. As she was leaving he asked her to sit, and she assumed it would be to discuss the altercation in the corridor earlier. He gave her a pamphlet about a restorative justice programme, and also asked after her daughter.

As she was leaving, he suddenly told her that he was having dreams about her. He then stood between her and the door and grabbed her, pinning her arms against her body, feeling her buttocks and pushing the lower part of his body against hers.

He kissed her and tried to put his tongue in her mouth.

She was shocked and managed to break away. Another colleague saw her and told her to report it.

Internal disciplinary hearing

She said she just wanted to get out of the building and also had to catch the staff bus home with the manager who had assaulted her.

She reported it on the Monday, was subsequently booked off work for weeks, and went to hospital due to the trauma caused by the incident.

The manager was found guilty in an internal disciplinary hearing, and on April 14, 2011, was found guilty on one count of sexual assault and sentenced to a fine of R600 or 12 days’ imprisonment.

Cloete noted that he had maintained his innocence and was granted leave to appeal, but did not file it.

The manager had claimed that the victim’s accusations were not true, and that the “overwhelmed” social worker, with a heavy case load, actually spoke to him often about her personal problems.

He said he also regularly prayed for the staff.

Cloete rejected the minister’s submissions that the manager was not doing something that he had been hired to do when he assaulted her, so could not be held liable.

There was also a lengthy argument over whether they had discussed work, as she said, and whether the manager was actually entitled to discuss the restorative justice programme.

Damages to be determined

She noted that case law evolved to take into account the creation of risk by an employer as a relevant consideration in determining the required link for liability.

She said case law found that when an employer placed an employee in a special position of trust, the employer bore the responsibility of ensuring that the employee was capable of trust.

Even though the manager was not the victim’s direct supervisor, the balance of power between the manager and the plaintiff was unequal.

Given the de facto closeness of their working relationship, the plaintiff was vulnerable to the wrongful exercise by the man of his authority over her, and the department at least created the opportunity for the man to abuse that power, even though technically he was not her direct supervisor.

It was submitted that the minister did not create the risk, and that even though the manager had discussed the restorative justice booklet with her, he was not supposed to because it was not really her line of work.

The victim disputed this, saying she would have had some input in the programme, so he was discussing work with her when the assault happened.

So therefore, the relationship between the two, was created by the minister.

The second part of the woman’s legal action will be for a court to determine the amount she should receive in damages.

It is not clear yet whether the department will lodge an appeal.

(SOURCE: NEWS24)