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Sexual harassment case: Mbatha vs Zizhou — The plaintiff’s case



IT being a claim for damages, the plaintiff (Rita Marque Liunga-Mbatha) has filed an affidavit of evidence in terms of Rule 60 of the old rules of this court, now Rule 25(1) of the new High Court Rules, 2021.

She (pictured) has suffered psychological damage.

Amongst her pile of papers is a brief medical report from a general practitioner. There is also a more detailed one from a psychiatrist.

The sum total of these reports is that, as a result of the sexual harassment, the plaintiff suffered severe post-traumatic stress disorder.

This condition manifested almost immediately after the abuse. She experienced recurrent involuntary and intrusive memories of the traumatic event. Her pain was acute, with chances of recovery rated as being very poor. Treatment would be extensive and indefinite.

During treatment, which included counselling, the plaintiff would often meander and get distracted. She suffered physical and emotional pain, with scarcely suppressed anger. During the counselling sessions, she would lose track of her answers midway through and would ask that questions be repeated.

The psychiatric report notes that the psychological damage is widespread.

Her personality has changed significantly. Before the incident, she was engaging, outgoing, and loved reading. She had a good sense of humour. 

All that is gone.

She experiences recurrent nightmares. Her sleep is broken most nights. That leaves her drained physically and mentally. She was pursuing a law degree. She has had to drop. She has lost all confidence in herself.

There was another kind of collateral damage.

She says her marriage broke up; largely because of the change in her personality. Furthermore, being out of employment, and, therefore, without a steady income, she had to sell her immovable property to finance medical bills, legal costs, and the general upkeep of her family.

All this was in the psychiatric report.

She says she lost another immovable property that she had been buying. She says the situation was further compounded by the defendants’ conduct after her unfair dismissal. She could not secure alternative employment thanks to the defendants’ negative testimonials to her potential prospective employers.

The plaintiff’s case seems such a textbook case. Manifestly, no amount of money seems adequate enough to compensate her loss.

The quantum

Principles are easy to set out. They are not so easy to apply to the nuts and bolts of any given case. 

Considering all that the plaintiff has gone through: what is the level of damages that is fair, adequate, proper, and reasonable?

At the end of it all, it boils down to the exercise of a value judgment by the court. It is a matter of discretion. A fair balance between the principles on the assessment of damages and the peculiar circumstances of the case should ensure that the exercise of that discretion is judicious, not capricious or whimsical.

As said by the court, in Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (SC), the court must take heed of the effect of its decision upon future awards. But, at the same time, the court must not be seen to be paying lip service to values espoused in the Constitution on human dignity and integrity. 

Compensation must be tangible.

In this case, that the sexual harassment happened and must be compensated for the harm it has caused is the one aspect. But, there are some other aspects of the case that have to be taken into account in arriving at the quantum:

The sexual harassment was persistent. There has never been an apology.

One thinks it would have been quite salutary and a measure of atonement for the injured brain. At the arbitration, the first defendant sought to dismiss his reprehensible conduct as mere jokes. He was callous. He engineered the plaintiff’s dismissal from employment. After the incident, and the dismissal, she was not treated with sensitivity.

Even discounting what the second defendant’s President is alleged to have said to her [because that aspect is still to be decided], the person to negotiate an out of court settlement with the plaintiff, was none other than the first defendant himself. 

He was non-committal. Inevitably, an out of court settlement was still born.

The power balance and socio-economic dynamics between the plaintiff and the first defendant were skewed. 

He was the Chief Executive Officer.

She was his personal assistant. He had immense power over her. 

When litigation commenced, it was intentionally stalled. It is now almost two decades since the incident happened. It is only thanks to her tenacity that the case has remained alive in the legal system.

Undoubtedly, a measure of punitive damages is warranted. But, unfortunately, none of all this tells the court how much to award.

The plaintiff wants a globular USD500,000. This level of quantum has no precedence. But, again, damages for sexual harassment have no precedence at all in this jurisdiction – at least to one’s knowledge.

However, there is a salient detail that has contributed to the decision on quantum.

In 2010, during without prejudice negotiations for an out of court settlement, when she was still legally represented, the plaintiff’s monetary proposals for mutual termination of employment were $60,000 after tax, $100,000 for sexual harassment and $8,500 for legal fees.

Taking all factors into account, it is considered that the proper level of damages for the sexual harassment perpetrated by the first defendant upon the plaintiff, during the period of the plaintiff’s employment with the second defendant, from September 2002 to June 2003, is USD180,000 [one hundred and eighty thousand United States dollars]. 

Therefore, the following order is hereby made:

(i) The first defendant shall pay the plaintiff the sum of USD180,000 [one hundred and eighty thousand United States dollars], or the equivalent thereof in local currency, convertible at the inter-market bank rate at the time of payment.

(ii) The first defendant shall pay the plaintiff the amount aforesaid together with interest at the prescribed rate from the date of this judgment to the date of payment.

(iii) The first defendant shall pay the plaintiff’s costs of suit.

(iv) The first defendant’s liability in terms hereof is joint and several with the liability of any other person as may be found liable to the plaintiff in respect of the sexual harassment which is the subject of this judgment.

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