Africa-Press – Zimbabwe. KWEKWE, May 12 (NewsDay Live) – A Kwekwe woman has lost US$50 000 civil damages suit against Electrosales Hardware after alleging that its male employee had made sexual advances to her while she was in the company of her husband.
Angela Nyathi, who is also the leader of Vendors4ED Kwekwe, cited Electrosales Hardware and Herbert Sithole, who was the till operator, as the first and second respondents.
Nyathi had claimed US$45 000 as general damages for sexual harassment, US$4 000 as damages for defamation character, US$500 as aggravating factors and US$165 as medical expenses incurred as a result of the harassment.
The court heard that Sithole was employed as a till operator at one of Electrosales Hardware branches in Kwekwe on June 5 last year, when Nyathi and her husband, Jabulani Msipa, came in to buy some items.
When they approached the till, which was manned by Sithole, Nyathi picked up a water bottle and asked him the price.
Sithoe allegedly responded: “Why are you buying a hot water bottle, yet I am available for you? I can make you hot and remove all the cold in your body. I am available to undress you and make you very hot until you reach orgasm and climax.
“I desire you on a weekend at your place or mine. You will cook for me. I will arouse you and work on you until you reach orgasm. I will remove all your clothes, and you will remain naked.
“I will suck all the cold air in your body and make you hot. I will make sure you reach orgasm, and you will scream for more, leaving you sexually satisfied.
“You won’t need to see a hot water bottle again, and you will want some more sexual pleasure from me.”
This prompted Nyathi to sue Electrosales Hardware for vicarious liability.
However, Electrosales Hardware, represented by prominent lawyer Patrick Nyeperayi, defended the suit, saying it is not vicariously liable for the words uttered by Sithole, saying he did not utter those words in the course of his duties and terms of contract of employment, adding that Sithole went on a frolic of his own.
Nyeperayi further submitted that to prove Electrosales Hardware did not associate with or approve of Sithole’s utterances, it immediately suspended him from work and launched an investigation.
The lawyer submitted that the investigation culminated in a disciplinary hearing and ultimately Sithole’s dismissal.
Sithole, however, in disciplinary proceedings that were submitted in court, had denied sexual harassment, saying he made the comments innocently as he regarded the plaintiff as a “close acquaintance”.
He explained that he had known Nyathi for over 10 years and regarded her as a friend, adding that he said he used to buy lunch from Nyathi’s canteen.
Sithole said he believed her allegations were unfounded and motivated by a desire for financial gain, rather than any genuine grievance.
The record of proceedings also showed that Sithole was arrested over the incident, charged with disorderly conduct in a public place, and made to pay an admission of guilty fine.
Nyathi told the court that she suffers from hypertension and that the incident affected her to the extent that she failed to control her bowel on their way home.
She also submitted that her husband lost his temper and assaulted her over the incident.
She said she ended up seeking medical attention to control her blood pressure.
Nyathi submitted that she is a prominent figure in Kwekwe and she was a church member and leads an organisation known as Vendors4ED, which recruits members predominantly from the vendor community and campaigns for President Emmerson Mnangagwa.
She said her reputation was badly tarnished and her marriage was on tenterhooks as her husband does not trust her any more, and he has accused her of infidelity
Msipa also told the court that after the incident, he would send his wife nasty messages over the phone whenever he thought of the incident.
He told the court that his wife was heartbroken.
But Nyeperayi, the lawyer for Electrosales Hardware, submitted that Nyathi had waited for more than four days to seek medical attention, and argued that this clearly showed that the purported cause of the rise in her blood pressure and sugar level was caused by other reasons than the alleged incident.
“It most unlikely that such an utterance would have been made to a stranger or to a known person where the relationship between them would not permit such an utterance. It was an issue between the two that was unfortunately made in the presence of the other party’s spouse,” Nyeperayi submitted in defence of the hardware shop.
“That may be the only inference that may be made in this matter. Such an inference had nothing to do with Electrosales Hardware.”
In delivering the ruling, Kwekwe magistrate Itayi Kagwere dismissed the claim saying the till operator’s utterances had nothing to do with the business of Electrosales Hardware.
“By no stretch of imagination can it be said that discouraging customer from purchasing Electrosales Hardware’s products can be promoting the business of Electrosales Hardware. In fact, Sithole sabotaged Electrosales Hardware’s business,” the magistrate said.
“What he said was calculated at advancing his sexual fantasies with the plaintiff. He invited her to his place. Alternatively, he suggested going to the plaintiff’s place to warm her up and satisfy her sexually. Surely there is no nexus with Electrosales’ business.”
The magistrate further ruled that Sithole went further to propose a weekend for the rendezvous.
The magistrate said the inference the court could draw was that he would be off duty and having all the time he needed with plaintiff.
The magistrate then dismissed the claim saying Electrosales Hardware dismissed Sithole from work because he was now advancing his interests rather than those of his employer.
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