Hilary Muza 
IN this week’s piece, I am expanding on the legal principles applied in the case of Mbatha v Zizhou & Ors HH 675/21. In that case, a plaintiff sought damages for physical and psychological injury caused by sexual harassment in the workplace. 
To begin with, what are damages anyway? Damages in law refer to a method of compensation for a wrongful act. Damages are calculated at the amount which should be paid to the claimant to put them in the same position that it would have been but for the wrongful act.
There are damages for pecuniary loss, which can be quantified in monetary terms.
These include hospital bills, car repair costs and so on. The damages that apply to sexual harassment cases in the workplace are called non-pecuniary damages. These damages are not economic in nature, yet still affect a person’s lifestyle and enjoyment of life. It is to this type of damages that a court will look in cases involving sexual harassment.
I will look into the principles that apply in quantifying non-pecuniary damages and how those principles can be applied by individuals in their own damages claims.
Courts in many jurisdictions have freely admitted that there is imprecision in quantifying non-pecuniary losses and that there is no quantitative and objective calculus on pain and suffering.
In stating a figure for damages therefore, one must correlate the damages sought to the nature, amount and method of pain and suffering caused by the wrongful act. In other words, the more serious the wrongful act, the more the damages. The claim in the Mbatha case was for
US$500 000, but she obtained an order for US$180 000.
Why Mbatha was not awarded US$500 000
Plaintiffs in damages claims are not precluded from claiming what they feel is an appropriate amount for damages.
One can claim whatever amount they want but it must be within reason. It must also be subjected to certain principles applied by the courts in determining damages.
The first principle is that there must be a precedent for the amount being sought. Even in crafting the claim, a lawyer must have regard to similar cases that have been argued and won by plaintiffs.
Where a trend emerges for the amounts usually granted for certain types of cases, it is safer to follow that general trend.
However, if a plaintiff takes the view that their case is especially deserving of a higher amount of damages, they are free to claim more. The principle always holds true that each case is decided on its own merits.
In the Mbatha case, the learned Mafusire J rightly pointed out that there is no precedent for damages claims for sexual harassment in the workplace. Being a novel case, it required a novel order for damages, hence the award of US$180 000.
If Mbatha had sought a lower amount for damages, the amount awarded would invariably have been lower as well. The fact remains that US$180 000 is now the bar for sexual harassment in the workplace claims. The effect of such a relatively high figure is that it encourages litigants to take their sexual harassment claims to court because there is a clear potential financial benefit.
Correspondingly, it ought to encourage employers to take sexual harassment cases more seriously. Thorough legal training is required to help employees recognise the difference between a compliment and a sexually inappropriate remark, for example. It is the employers who bear the financial and reputational risk if these issues are not addressed right away.
The principles to be applied
According to the Mbatha case, the following are the principles to be applied when assessing amount of damages in a sexual harassment in the workplace claim:
– the nature, extent, duration and seriousness or intensity of the injury to feelings;
– the subjective circumstances and the gender of the victim and of the perpetrator;
– the power dynamics or power relations and socio-economic imbalances between the victim and the perpetrator;
– the age difference between the victim and the perpetrator;
– the pattern of behaviour or conduct of the perpetrator before or after the wrongful act;
– the prevalence of such misconduct and the general conditions of employment;
– the degree of the deprivation of the amenities of life as a result of the injury suffered
While all the factors outlined are extremely important to be mindful of, I wish to draw attention to the penultimate principle, which is the prevalence of such conduct within the workplace.
This is entirely within the control of the employer in my view. It also underlines the idea that serious sexual offences do not take place in the workplace without the employer being complicit to some degree.
Either it is to protect the perpetrator or as a way of protecting a culture of toxic patronage. Either way, it is the business that will suffer if things of this nature are allowed to continue to take root.
I anticipate that there will be a gradual increase of sexual harassment cases owing to the Mbatha judgment. It is time for employers and employees alike to put their houses in order.
Muza is a duly admitted legal practitioner and litigation specialist. He writes in his personal capacity and is reachable at hilarykmuza@gmail.com.
