If a man accidentally WhatsApps an explicit video to a female colleague, is he guilty of sexual harassment? According to a Times Select report, a female Prasa employee in the Eastern Cape thought so, even though the colleague apologised and said he had forwarded the video to her by mistake.

But the woman lodged a grievance, and when it was investigated and rejected she went to the CCMA.

Now the Labour Court in Port Elizabeth has confirmed that finger trouble on WhatsApp cannot be equated to sexual harassment.

Dismissing the woman’s appeal, Judge Graham Moshoana said Skhumbuzo Mbatha started sending the woman explicit videos 11 days before the one that sparked her complaint in November 2016. After realising the first ‘emanated from a colleague, she responded by exchanging pleasantries with the colleague. Clearly she was not offended by that.’

In his judgment, Moshoana said at some point it appeared the woman ‘welcomed receiving these types of videos. Not being a soothsayer, (Mbatha) could not have known that suddenly these videos were unwelcome.’

Moshoana said the woman was not the only recipient of the final video, which depicted two people having sex.

‘The fact that the video was not accompanied by any text aimed at (the woman) is most telling,’ he said.

‘The evidence revealed that one Buthelezi received the same video. To my mind, this is consistent with the practice of people sharing videos on social media,’ he said.

‘If a person receives such videos, some of which go viral, should that person be considered to have been sexually harassed? In my view not.’

Full Times Select report

V v Prasa and Others