Exploring the Possibilities of Advancing Justice in South Africa for Sexually Violated Visually Impaired Employees through Allowing Testimony Based on Identity Through Smell in Disciplinary Cases

Sexual harassment in the workplace can have a significant impact on employees who are visually impaired. Legal shortcomings regarding the identification of perpetrators hinder survivors' willingness and ability to report such incidents. Many are discouraged from coming forward because they are questioned about whether they visually recognise the offender. These challenges, rooted in the South African Criminal Procedure Act 51 of 1977 (the CPA) and reinforced through judicial interpretation, often prevent cases involving visually impaired individuals from being heard. This paper, through desktop research, explores how justice for visually impaired employees who have experienced sexual harassment might be promoted by recognising identification through human smell as valid testimony in disciplinary proceedings. It uses examples from labour law cases to highlight that disciplinary hearings differ from criminal trials in their standard of proof. It shows that the disciplinary hearing process relies on the balance of probabilities rather than proof beyond a reasonable doubt. The article argues that this lower threshold reduces the likelihood of harsh and often invasive cross-examination of victims. The paper argues further that the use of the standard on a balance of probabilities benefits visually impaired individuals by allowing them to take a stand and testify without undue prejudice. The in-person testimony of the visually impaired employees also strengthens the credibility of human-based smell identification, countering common criticisms associated with scent evidence from sniffer dogs. As a result, olfactory identification by visually impaired employees could help deliver justice in cases involving familiar workplace perpetrators of sexual harassment.