Summary
In her capacity as a personal assistant, Rita Marque Mbatha faced repeated sexual harassment by the Chief Executive Officer of CZI. Despite reporting the harassment to the company, harassment against female employees continued to occur in the workplace. Sexual harassment against the plaintiff occurred over a period of nine months, from late 2002 to 2003, after which she received a wrongful dismissal from the company. The evidence against the first defendant, CEO and perpetrator of the harassment, was substantial. The second defendant, the President of CZI, actively dissuaded the plaintiff from reporting the harassment and treated the claims factiously. The plaintiff took her case to the courts, where she continued to face systemic barriers to justice.
The matter first stalled in arbitration, after defendants continuously employed tactics to delay a resolution. Despite delays, in March of 2014 the arbitral tribunal found that Rita Mbatha had been sexually harassed and unfairly dismissed. The plaintiff then used this finding to initiate a lawsuit against the two defendants, seeking damages for the harassment she faced. Repeatedly, the plaintiff faced procedural barriers to her claims but eventually persisted in filing for a default judgment against the CEO on an unopposed motion roll. In considering her claim, the High Court determined that sexual harassment is an actionable wrong under the lex Aquila.[1] In order to quantify damages owed, the court classified sexual harassment as a non-patrimonial loss.[2] The court recognized that both physical and psychiatric harm are cognizable injuries, and further that psychiatric harm could have even more damaging effects to a person’s being.
Emphasizing the importance of the right to human dignity (Section 51) and personal security (Sections 52 and 53) guaranteed in the Zimbabwe constitution, the court recognized that a claim for damages for sexual harassment is an attempt to vindicate constitutional rights which have been violated. To succeed, the plaintiff must show that the defendant’s act was wrongful and caused the loss suffered by the plaintiff. The harm cannot be too remote from the act, and the responsibility for the plaintiff’s loss must be the fault of the defendant or a result of their negligence. The Court considered, among other factors, power dynamics, socio-economic imbalances, age differences, and prevalence of misconduct between the perpetrator and the victim, in assessing damages owed to the plaintiff. Ultimately Rita Marque Mbatha prevailed, winning a total of roughly 220,000 USD against the first defendant, who shared joint and several liability with any other party found liable to the plaintiff.
[1] The lex Aquila is old Roman law that provided for compensation for injury caused by another’s fault.
[2] A non-patrimonial loss is “the diminution, as the result of a damage-causing event, in the quality of the highly personal (or personality) interests of an individual in satisfying his or her legally recognized needs, but which does not affect his or her patrimony.”
