Unopposed
application
MAFUSIRE
J:
[a] Introduction
[1] The
plaintiff claims a default judgment for sexual harassment. She is
unrepresented. The matter appeared on the unopposed motion roll on 20
October 2021. It was one of several such appearances. In the past
the matter would be removed from the roll for one reason or other.
The matter has had a long and turbulent history. The plaintiff says
the wheels of justice have turned ever so slowly for her. There can
be no denying that. She has been to this court. She has been to
arbitration. She has been to the Supreme Court. She is back in this
court. She strives for closure. Any lesser mortal would probably have
given up. Plainly, the plaintiff is no lesser mortal. Her tenacity
and fighting spirit have moved mountains. She is still fighting. This
judgment only settles half the case. The other half still continues.
I shall explain.
[b] Nature
of claim
[2] The
plaintiff has pleaded sexual harassment at the work place in 2002 to
2003. Then she was employed by the second defendant. She alleges that
sexual harassment of female employees at the second defendant's
work place was rampant. She says as against herself, the first
defendant was the sole culprit. He was the Chief Executive Officer.
She was his personal assistant. She says despite reporting him, the
second defendant, through its President, was flippant, if not
contemptuous.
[3] Her
claim is for USD500,000 [five hundred thousand United States
dollars]. It is against both defendants. Initially they both defended
vigorously. But by and by she barred the first defendant in default
of a plea. That did not just happen. It was after sweat and blood.
The details emerge later. But having barred the first defendant she
now seeks a default judgment as against him only. As against the
second defendant the case continues. At the time of this judgment, it
was poised for a pre-trial conference.
[c] Details
of the claim
[4] The
sexual harassment was over some nine months. It started when she was
still on probation. She got employed by the second defendant in
September 2002. She got fired in July 2003. It was an unfair
dismissal. The first defendant engineered it all. He schemed it. She
had reported him for the sexual harassment. He took revenge. The
charges were trumped up.
[5] The
sexual harassment took the following forms:
[5.1] inappropriate
touching;
[5.2] unwelcome
offensive jokes;
[5.3] invitation
by innuendo to an inappropriate sexual relationship;
[5.4] receiving
offensive telephone messages;
[5.5] receiving
pornography on the computer;
[5.6] an
attempt to kiss by force, causing an injury on the thigh in the
process of resisting.
[6] On
record, there are several electronic messages from the first
defendant to her. One e-mail, in January 2003, at 12:16 hours, is
worth reproducing. On it a deliberately misleading subject caption
was used, “Call
from Mr Miller (Superior Holdings)”.
The e-mail goes:
“Rita,
I
have used the above caption just in case. Please delete completely
immediately after reading. Look at the time I am sending this note –
just to show you I could not sleep before writing this note to you.
Rita
I love you very much and wish you could be mine.
When
I am taking a bath with Clara I always pretend it's you the torture
is unbearable. It hurts me that when I touch your lovely hand you
cringe and ask me to stop. Do I repulse you? I desperately need to
kiss you.
Shamwari
if I do get dismissed, it will be because I would like to do whatever
I can for the person I care for most, you. Right now I am under
pressure to balance the budget of CZI. You have just completed your
probation and according to CZI rules, you are not eligible for the
general increase for permanent staff, but the small adjustment that
is in your appointment letter. I am bending the rule – for you,
please hold on tight to me – if we crash, we crash together. I am
awarding you the same percentage increase as everybody else. I am
defending it against the treasurer this morning. Doing so will cost
CZI an extra $3 million in employment and other costs for the three
people involved. The others are lucky to be associated with you. This
will wipe out the surplus we were going to make after selling the
Land Rover. The treasurer had made his recommendations following the
rule and I have asked Venek! ai to make the change before he comes
for the final meeting this morning.
I
feel guilty as it is no right to expropriate you from your husband
but unfortunately … Please God help me on this one as it has been
giving me sleepless nights.
You
are the love of my love. I will do anything
for you.”
[7] The
plaintiff says when she reported the sexual harassment to the then
President of the second respondent, the response was ambivalent. When
she tried to follow up she was told off. The President is said to
have retorted that as a married woman, she should be ashamed to say
that she had been sexually harassed. That hurt, she says.
[d] Litigation
[8] Having
faced a brick wall, the plaintiff turned to the law. She brought the
matter on arbitration. The arbitration went on for years. There were
several sittings. She says the defendants were employing delaying
tactics. They would seek postponements. They would offer to talk an
out of court settlement but would renege. They would miss some
sittings. They would not file documents timeously, or at all. But she
persisted. Eventually she got an award. Among other things, the
arbitral tribunal found that she had been unfairly dismissed. It also
found that she had been sexually harassed. That was in March 2014.
[9] In
June 2014 she instituted the present proceedings. The defendants were
barred for late noting of an appearance to defend. They applied for
condonation. When granted, they took a special plea in bar. They
alleged the plaintiff's claim had become prescribed. They
calculated the period of prescription from 2002 when the sexual
harassment occurred. As a result they came up with eleven years.
Prescription for an ordinary debt is three years. This court agreed
with the defendants. Under judgment No HH93-16 it dismissed the
plaintiff's claim. It said the cause of action had arisen in 2002
to 2003 when the sexual harassment had occurred. It upheld the
special plea of prescription.
[10] The
plaintiff appealed. Under Judgment No. SC69-18 the Supreme Court
disagreed with the defendants. It premised its judgment on s17 of the
Prescription Act, [Chapter
8:11].
In terms of this provision, and in paraphrase, the period of
prescription in respect of, among other things, a debt which is the
subject matter of proceedings on arbitration, is extended for one
year from the end of those proceedings. The Supreme Court allowed the
plaintiff's appeal on the basis that her claim in this court had
been instituted barely three months after the end of the arbitration,
i.e. well before prescription had run the full course.
[11] After
allowing the appeal, the Supreme Court gave the defendants ten days
to plead over to the merits of the plaintiff's claim. The first
defendant missed the deadline. He applied for condonation a record
four times: two in this court and the other two in the Supreme Court.
He completely botched it. Eventually condonation was firmly and
finally refused by this court under Judgment No. HH592-20. The first
defendant was permanently barred.
[12] The
first defendant having been barred in default of a plea, the
plaintiff made attempts to set the matter down for a default judgment
against him. Early attempts were unsuccessful for one reason or
other. One of them, as depicted by a judgment of this court under
HH392-21, was that her causa
for seeking a default judgment had been incorrect. She had sought a
default judgment on the basis of a failure to file an appearance to
defend timeously. Yet the correct causa
had been the failure to file a plea within the ten days prescribed by
the Supreme Court. Eventually the plaintiff succeeded in setting the
matter down on the unopposed motion roll. In the company of the newly
appointed judges NDLOVU J, DEME J and KATIYO J who were on induction,
I granted the relief sought but reserved judgment on quantum. Here
now is the judgment on quantum.
[e] Sexual
harassment as an actionable wrong
[13] The
Labour Act [Chapter
28:01]
provides for sexual harassment as an unfair labour practice by an
employer or any other person. In terms of s8(g) and (h) an employer
commits an unfair labour practice if he, among other things:
[13.1] demands
from an employee sexual favours as a condition of improving the
remuneration or other conditions of employment of the employee;
[13.2] 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.
[14] This
judgment is not concerned with whether or not an unfair labour
practice was committed against the plaintiff. That enquiry was
settled by the arbitration. It was confirmed by the Supreme Court. At
any rate, in the absence of a plea, that enquiry is not before the
court. The reference in this judgment to s8 of the Labour Act is,
inter
alia,
for the purposes of showing that sexual harassment is an actionable
wrong in terms of our labour laws. So the one question is, if it is
an actionable wrong under the labour laws, is it also an actionable
wrong in delict? Is sexual harassment covered under the lex
Aquila,
that old Roman law that provided for compensation for injury caused
by someone's fault? The other question is, if sexual harassment is
covered under the lex
Aquila,
what would be the quantum of the damages? How are they assessed?
[f] Sexual
harassment as a species of non-patrimonial loss
[15] Sexual
harassment is an actionable wrong under the lex
Aquila.
For damages to be recoverable the plaintiff must have suffered some
recognisable injury. Such injury is not confined to physical damage.
Mental damage is also included. Under an ordinary delictual wrong
causing bodily injury there is already recognisable a claim for pain,
shock, suffering and loss of the amenities of life. Sexual harassment
causes pain. It results in shock. It is a kind of injury to the
victim's person. That injury can lead to loss. Such loss is
non-patrimonial. 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.”
VISSER
& POTGIETER: Law
of Damages,
3rd
ed., Juta, p103, para 5.1.
[16] The
above authors classify emotional shock as psychiatric injury, p110.
Pain and suffering is part of the emotional shock. But emotional
shock can also lead to further recognisable psychiatric conditions
such as insomnia, anxiety, neuroses, hysteria, depression, and the
like. Emotional shock of short duration is disregarded if it does not
have any real impact on the health of the plaintiff. The loss of the
amenities of life is also part of the non-pecuniary damage. Loss of
amenities refers to the loss of the ability or will to participate in
the general or specific activities of life and to enjoy life as one
did previously, p510. Included in this kind of loss are adversities
like sexual impotence, loss of marriage opportunities, loss of
general health, change of personality, loss of intellectual function,
the difficulty experienced in the exercise of one's profession, and
so on.
[17] The
English case of White
v Chief Constable of South Yorkshire
1999 (2) AC 455 recognised the right to claim damages for psychiatric
injury but of course, within certain limits. In the judgment by LORD
STEYN is the following statement:
“Courts
of law must act on the best medical insight of the day. Nowadays
courts accept that there is no rigid distinction between the body and
mind. Courts accept that a recognizable psychiatric illness results
from an impact on the central nervous system. In this sense therefore
there is no qualitative difference between physical harm and
psychiatric harm. Any psychiatric harm may be far debilitating than
physical harm.”
[18] I
agree with those observations. In South Africa, KHAMPEPE J, writing
the unanimous decision of the Constitutional Court in McGregor
v Public Health & Social Development Sectorial Bargaining Council
& Ors
CCT270-20 introduced the judgment as follows:
“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.”
[19] I
also agree. 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 her.
It turns her into an object of sexual gratification. It strips her of
her right to personal security as contemplated by s52 and s53 of the
Constitution. Section 52 says every person has the right to bodily
and psychological integrity, which includes, among others, the right
to freedom from all forms of violence from public or private sources.
Section 53 guarantees the freedom from, among other things, inhuman
or degrading treatment. Therefore, a claim for damages for sexual
harassment is an attempt to vindicate such of the constitutional and
other rights as will have been frittered away by the defendant.
[g] Assessment
of damages for sexual harassment
[20] To
succeed in a claim for damages under the lex
Aquila
in general, the plaintiff must establish the following factors:
[20.1] that
the defendant committed a wrongful act;
[20.2] that
the plaintiff suffered patrimonial loss, which is actual loss capable
of pecuniary assessment;
[20.3] that
the defendant's act caused the loss suffered by the plaintiff and
that the harm occasioned was not too remote from the act complained
of;
[20.4] that
the responsibility for the plaintiff's loss is imputable to the
fault of the defendant, either in the form of dolus
(intention) or culpa
(negligence):
see
Nyaguse
v Skinners Auto Body Specialists & Anor
2007 (1) ZLR 296 (H), 298E-G
[21] The
lex
Aquila
is extended to cover non-patrimonial loss. Compensation is designed
to help the plaintiff overcome, as far as money can, the effects of
his or 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. In White's
case above, LORD STEYN said:
“In
an ideal world all those who have suffered as a result of the
negligence ought to be compensated. But we do not live in Utopia: we
live in a practical world where the tort system imposes limits to the
classes of claims that rank for consideration as well as to the heads
of recoverable damages. This results, of course, in imperfect justice
but it is by and large the best that the common law can do. The
application of the requirement of reasonable foreseeability was
sufficient for the disposal of the resulting claims for death and
physical injury. But the common law regards reasonable foreseeability
as an inadequate tool for the disposal of claims in respect of
emotional injury.”
[22] In
our jurisdiction, the general principles laid out in Minister
of Defence & Anor v Jackson
1990 (2) ZLR 1 (SC) in respect of pain and suffering, loss of
amenities and disfigurement should also apply to the assessment of
damages for sexual harassment. Our Supreme Court said translating
personal injuries into money is equating the incommensurable. The
assessment of damages is one of the most perplexing task a court has
to discharge. The broad principles that have been sampled from the
several authorities here and abroad are:
[22.1] General
damages are not a penalty but compensation. The award is designed to
compensate the victim and not to punish the wrongdoer.
[22.2] Compensation
must be so assessed as to place the injured party, as far as
possible, in the position he would have occupied if the wrongful act
causing him the injury had not been committed.
[22.3] Since
no scales exist by which pain and suffering can be measured, the
quantum of compensation to be awarded can only be determined by the
broadest general considerations.
[22.4] The
court is entitled, and it has the duty, to heed the effect its
decisions may have upon the course of awards in the future.
[22.5] The
fall in the value of money is a factor which should be taken into
account in terms of the purchasing power, but not with such adherence
to mathematics as may lead to an unreasonable result.
[22.6] No
regard is to be had to the subjective value of money to the injured
person, for the award of damages for pain and suffering cannot depend
upon, or vary, according to whether he be a millionaire or a pauper.
[22.7] Awards
must reflect the state of economic development and current economic
conditions of the country. They should tend towards conservatism lest
some injustice be done to the defendant.
[22.8] For
that reason, reference to awards made by the English and South
African Courts may be an inappropriate guide, since conditions in
those jurisdictions, both political and economic, are so different.
[23] For
sexual harassment in particular, I consider that some of the broad
principles to be taken into account in the assessment of compensation
should include:
[23.1] the
nature, extent, duration and seriousness or intensity of the injury
to feelings;
[23.2] the
subjective circumstances and the gender of the victim and of the
perpetrator;
[23.3] the
power dynamics or power relations and socio-economic imbalances
between the victim and the perpetrator;
[23.4] the
age difference between the victim and the perpetrator;
[23.5] the
pattern of behaviour or conduct of the perpetrator before or after
the wrongful act;
[23.6] the
prevalence of such misconduct and the general conditions of
employment;
[23.7] the
degree of the deprivation of the amenities of life as a result of the
injury suffered.
[h] The
plaintiff's case
[24] It
being a claim for damages, the plaintiff has filed an affidavit of
evidence in terms of r60 of the old rules of this court, now r25(1)
of the new High Court Rules, 2021. She 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.
[25] 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.
[26] 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.
[i] The
Quantum
[27] 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 the Jackson's
case
above, 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.
[28] 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.
[29] 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.
[30] 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 $60,000-00 after tax, $100,000-00 for
sexual harassment and $8,500-00 for legal fees.
[31] 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
USD180,000-00 [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 USD180,000-00 [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.
1.
Page
2–3 of the cyclostyled judgment
2.
Most victims are female
3.
See
generally VISSER & POTGIETER, Law
of Damages,
3rd
ed., Juta, p497: See also McGregor
v Public Health and Social Development Sectorial Bargaining Council &
Ors
CCT 270-20
