Rita M Mbatha v Farai B Zizhou & Another HH 675 – 21.
Sexual harassment in the workplace has no place in any modern-day society. There is continuous recognition in our jurisdiction that this barbaric disease has to be nipped from the bud. As we write this article, we know that the legislature is contemplating amending the Labour Act so as to ensure that anyone who perpetrates sexual harassment in the workplace may be imprisoned for 10 years. The relevant provisions robustly articulate:
“Any person who contravenes subsection (3) shall be guilty of an offence and liable to a fine not exceeding level twelve or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment”.
In this discussion, we look at the matter between Rita M Mbatha and Farai B Zizhou & Another. We assess the summary facts that led to this dispute as well as the authorities cited by the High Court in determining the case. It should be noted from the start of this discussion that, the process of seeking damages for sexual harassment falls within the field of civil law and not labour law. Anyone contemplating suing for such damages should at least approach a Civil Court within their area of jurisdiction.
We shall not dwell much on the detail as it regards the legal journey that the applicant in this case followed. The major facts that led to the dispute between the parties are as follows:
- The plaintiff, in this case, was employed by the second respondent from 2002 – 2003. The employment lasted 9 months.
- She was unfairly dismissed and according to the Court, the first defendant facilitated her dismissal after the plaintiff accused him of sexual harassment.
- The sexual harassment took various forms and again, according to the court records the second defendant had sent emails to the plaintiff expressing his affectionate feelings towards the plaintiff.
- Reports of sexual harassment reached the president of the second respondent, but nothing was done, and she then resorted to the law.
- The proceedings that led to the judgement under discussion were instituted in June 2014.
- In this application, the plaintiff outlined the damage that she suffered as a result of this sexual harassment. In this respect she said that she suffered psychological trauma, she dropped out of law school, lost her immovable property and marriage.
We have already mentioned that the process of recovering damages for sexual harassment falls within the field of civil law. These principles are discussed here.
First, the court noted that sexual harassment is prohibited in terms of the labour laws of Zimbabwe. It looked at sections 8 (g) and (h) and concluded that sexual harassment is “an actionable wrong in terms of our labour laws”.
The court recognised that sexual harassment is actionable under the Lex Aquilla. The Lex Aquilla, in modest terms, constitutes a set of rules that were passed during Roman times which rules protected persons against injury caused by others. It is an old set of rules that have survived to this day. The High Court in this case took note of the fact that sexual harassment causes non-patrimonial loss which results in the need to compensate the victim.
It also took into consideration the rights guaranteed in terms of the constitution in particular the need to respect an individual’s dignity. In this respect the court remarked:
“Section 51 of our Constitution guarantees the right to human dignity. It says every person has inherent dignity in their private and public life, and the right to have that dignity respected. It is axiomatic that sexual harassment, especially at the workplace, strips the victim of his or her dignity. It degrades her2. It turns her into an object of sexual gratification. It strips her of her right to personal security as contemplated by s 52 and s 53 of the Constitution”.
Calculating the damages
The court accepted that calculating damages of this sort is not an easy job. It recognised that coming up with the damages is a matter of the court exercising its discretion. It suggested that the compensation should show that no lip service is paid to such issues and that it be tangible.
It was accepted that damages for sexual harassment have no precedence in this jurisdiction. This case was therefore amongst the first cases to deal with this subject. The court took into consideration an out of court settlement that had taken place in 2010 and concluded that the damages payable to the plaintiff, after considering all the facts, is USD 180 000.
The High Court has set the tone for future assessment of these damages. The fact that sexual harassment attacks the fundamental rights enshrined in the constitution will always be taken into consideration when dealing with matters such as the one before the court.
 Proposed Section 6(3)(4) of the Labour Act.
 Rita M Mbatha v Farai B Zizhou & Another HH 675 – 21.