Hilary Muza 
THE recently decided case of Mbatha v Zizhou & Anor HH 675/21 is what some would refer to as a Rubicon moment. It presents a new frontier for the protection of employees’ rights within the workplace, particularly as it pertains to sexual harassment.
A common misconception is that sexual harassment has to have taken place over a long period of time for it to have any meaning or import. This is not true.
The plaintiff in the Mbatha case was employed between September 2002 and July 2003. All it takes for a sexual harassment issue to arise is a single incident. The harassment complained of was that of inappropriate touching, unwelcome offensive jokes, invitations by innuendo to an inappropriate sexual relationship, receiving offensive telephone messages, receiving pornography on the computer and an attempt to kiss by force, causing an injury on the thigh in the process of resisting.
No doubt some readers would have heard of, or know of incidences that include one or more of the above acts. The prevalence of such conduct can neither be assumed nor ignored.
Training on sexual harassment in the workplace helps, but ultimately culture change initiatives do a better job of rectifying the situation.
Sexual harassment is an actionable wrong in terms of the Labour Act
In terms of section 8(g) and (h) of the Labour Act, an employer commits a wrong if he/she, among other things, demands sexual favours as a condition of improving remuneration, or any other working condition, or engages in unwelcome sexually-determined behaviour towards any employee, whether verbal or otherwise, such as making physical contact or advances, sexually coloured remarks, or displaying pornographic materials at the workplace.
The Act identifies such conduct as an offence. However, if one seeks compensation for being subjected to sexual harassment, they so do in terms of the common law (this is the law derived from practice and from judicial precedent rather than statutes). Sexual harassment is an actionable wrong in terms of the common law
Sexual harassment is a species of non-patrimonial loss. This is loosely defined as a shrinking or reduction in one’s capacity to pursue and protect certain personal needs, which was caused by a damaging event, and which shrinking or reduction does not directly involve money.
In other words, it refers to one’s diminished capacity to enjoy certain guaranteed freedoms as a result of an event that caused physical and mental damage.
In the Mbatha case, the plaintiff suffered post-traumatic stress disorder, which manifested after the abuse. For damages to be recoverable there must be some form of loss. Such loss can be in the form of both physical and mental damage. Psychiatric injury is included under the definition of shock. Emotional shock can lead to several psychological after-effects such as insomnia, hysteria, anxiety and depression. All of these are factors which form the building blocks of a sexual harassment damages case.
Offenders and the companies they work for stand to lose financially, if it is found that employees have been sexually harassed. The court in the Mbatha case aligned itself with the sentiments of the South African Constitutional Court in McGregor v Public Health & Social Development Sectorial Bargaining Council & Ors CCT 270-20 which remarked that:
“Sexual harassment is the most heinous misconduct that plagues a workplace. Although prohibited under the labour laws of this country, it persists. Its persistence and prevalence ‘pose a barrier to the achievement of substantive equality in the workplace and is inimical to the constitutional dream of a society founded on the values of human dignity, the achievement of equality and the advancement of human rights and freedoms … and non-sexism’. Not only is it demeaning to the victim, but it undermines their dignity, integrity and self-worth, striking at the root of that person’s being.”
These sentiments echo section 51 of the Constitution of Zimbabwe, which protects the right to human dignity. The sentiments of the court are in synergy with the horizontal application of human rights, where people can seek redress for rights abuses not only against government, but against other citizens as well, including companies.
What this means for employers is that the courts have decided to take an expansive view when it comes to sexual harassment in the workplace. Where under the Labour Act only blame is apportioned to the employer, financial ramifications can be occasioned as well in terms of the common law.
What a victim must do to a claim for damages
An employee must prove that the employer/fellow employee committed a wrongful act, the victim suffered patrimonial loss, which is actual loss capable of monetary assessment, that the employer/fellow employee’s act caused the loss suffered by the victim and that the harm occasioned was not too remote from the act complained of and that the responsibility for the victim’s loss is imputable to the fault of the employer/fellow employee, either in the form of intention or negligence
The rationale for compensation
Compensation is designed to help the plaintiff overcome, as far as money can, the effects of his/her injuries. The court takes account of the general principles as well as any other relevant peculiarity of the case before it. It has a wide discretion to award what in the particular circumstances should be fair, reasonable and adequate.
General damages are not a penalty but compensation. Compensation is meant to place the victim, as much as possible, into the position they would have occupied had the offence not been committed. Since it is difficult to quantify damages, the principles to be applied in quantifying damages must be broad and general, not narrow and specific. Also, when quantifying damages, the fall in value of money should be taken into account in terms of purchasing power. I will deal with the quantification of damages and all the principles that should be applied later.
Suffice it to say that the power dynamics between the persons involved, the age difference, and the prevalence of such conduct at the workplace are some of the key factors taken into consideration when assessing damages.
The Mbatha case should a warning alarm to corporates to clean up their act with regards to work culture. There is a clear price to pay for allowing employees to sexually harass subordinates.
I want to take the time to say that though it is a seldom-spoken truth, men also face sexual harassment in the workplace but do not come forward for any number of reasons.
Be that as it may, the Mbatha case is a warning to would-be offenders and their employers that there is a hefty price to pay in terms of money and reputational damage, if the ship is not righted when it comes to sexual harassment issues in the workplace.
Muza is a duly admitted legal practitioner and litigation specialist. He writes in his personal capacity and is reachable at hilarykmuza@gmail.com and at 0719 042 628
