Dr Tapiwa Mudyahoto has a premafacie case against his former student. However, the substantial amount which he wants as compensation, might not be afforded by his former student. Again, the court may deem it too much for that former student (unless if that student is a millionaire).
So, the court might use its discretion to come up with a fair and reasonable amount which that former student can afford to pay. Moreso, the court will demand a breakdown of that substantial amount being claimed by Dr M. That is, he has to breakdown the amount in question and state in each issue what that amount is for. For example, 200 000 dollars for loss of earnings. For example, one million dollars for defamation = libel /slander. For example, 200 000 for mental anguish or distress or legal costs (etc as exemplified). The total breakdown must be equivalent to the total money suing for. More importantly, it must be proportionate with the defamation suffered. So, if the court finds in Dr M’s favour, if the former student is in a good financial position to pay the amount requested, then the court will grant that request. However, that is not automatic, the former student might challenge the case against them.
Let me just take you through the steps of initiating or commercing a civil litigation case. In step one, the courts encourages what is called ‘Dispute Resolution’. That means that the party who intends to pursue civil legal proceedings against the person that wronged them,can negotiate with that defendant (former student/person). If that fails or they fail to agree on the matter, then the case can be remitted to a civil court for civil litigation.
Litigation is that process of suing another. It must be noted that, that DR cannot just begin without first presenting your case to the defendant (in this case former student). Let us assume that Dr M wishes to engage in DR-Dispute Resolution (that is negotiation to settle the matter out of court), then he can write an initial letter, stating his case to his former student and explaining his intention to sue in the civil court, should the former student not agree to pay compensation in question ,upon engaging in DR. If the defendant fails to agree or ignores that initial letter for DR. ,then the complainant or plaintiff can pursue their case in court.
There is an advantage in using out of court settlement or DR ,because it saves time and money. Some cases can take a long time to be heard. While others can be fast tracked (all depends with the court). If as mentioned above, the case is not settled out of court, there is still a second chance for the defendant to ask the plaintiff to withdraw that case in court and they settle it out of court.
The second stage ,can be in a situation whereby the plaintiff does not want to settle the case out of court (does not want to use the DR method), so they can file their complaint /case in a competent civil court. The court will then charge a fee for filing that case. The court will then serve the defendant with the papers or case of the plaintiff/complainant.
In the papers served, the defendant is given an opportunity to respond within a given period prescribed by law .The defendant can respond by asking the court to strike out the case, if they have a good defence for that. For example, the defendant may argue that the case has no merit or it is vexatious (no sufficient grounds for that case/complaint). The defendant may accept the claim as a whole or may accept it, but refute some of the claims /allegations in the claim form/case or may acknowledge receiving the papers and may then go to attend the hearing of the case.
If a defendant fails to file any papers with regard to that case and the given time to respond has lapsed, then the plaintiff/complainant may now apply for leave to court to file a ‘Default of Judgement’.
That is asking the court to pass a judgement of ask the defendant to pay the sum of compensation demanded by the plaintiff /complainant. If the court accept that, then the court may go ahead and issue that.
The court may pass its own judgement as to how much the defendant is to pay the plaintiff/complainant. That also is determined by the form which one opts to use.The other form for ‘Default of Judgement, requires specified amount claimed to be paid as a whole. While in a case whereby the amount is not specified, the court is tasked to come up with the amount to be paid by the defendant, as it deems it proportionate with the case. Please note that, it is up to a competent court court of law to use its discretion on the case.
On the other hand, assuming the defendant filed papers asking the court to strike out that case, the plaintiff/complainant, is then requested, by a competent court, to challenge that within a stipulated period. That is, the plaintiff/complainant, has to complete a relevant form, that is file their case stating why their case must not me struck out.
The plaintiff /complainant has to illustrate or demonstrate in their case, the reasons why their case must not be struck out. Upon that, then a competent court, will use its discretion to adjudicate on the matter or make a decision, that it deems to be reasonable and fair.
Assuming the competent court accept the grounds of the plaintiff/complainant, then the competent court might give a hearing date of the caee. The plaintiff/complainant may state that they wish the case to be done without a hearing or they may opt for a full hearing. So, depending on that the competent court will follow what the plaintiff/complainant opted for.
Please not that there are different forms in each stage that are completed. That is why it is important to seek legal advise before engaging in instigating civil legal proceedings in court, lest you submit the wrong forms. One also needs to clearly state their cause of suing. That is, stating clearly what has prompted them to file that case. For example, one can sue for negligence by an organisation, institution company or legal person, (public or private ). Please note that one must always state the reasons or grounds that prompted then to file their complaint or case. For example, it can be defamation ,as in the case of Dr M v his student.
Note that defamation is in two folds:slender and libel. So, when the case goes to a hearing ,one has to state how they were defamed .One has to demonstrate or explain how they were defamed. If it is a case of ‘Negligence ‘, one has to explain what was omitted to be done by that person or organisation or institution, that owed them a duty of care. One has to identify that duty of care which was breached. One has to state the issue of proximity, foreseeability and reasonableness. And also explain or show the resulting harm. One has to show the loss suffered or incurred as a result of that breach of duty of care.
Having mentioned the defamation issues above, one must know that there are many defences which one can use to defend themselves in cases of defamation. But, if for example, you broadcast malicious information about someone and then insult them, you cannot use a defence of fair comment or of freedom of expression or speech or information.
One must know that Freedom of expression or speech is circumscribed or delimited by law. This is done to prevent harming others.Some people think that freedom of expression is a privilege that is absolute.Thus not the case.Such people again complain of abuse or violation of human rights, yet in discharging their duties they also harm others, which in turn amounts to the trampling of the human rights of the other. Thus because no one must be harmed by your freedom of speech. So, when you defame another with reckless in your statements and that amounts to defamation of another, you must take the responsibility gracefully. Thus because, you clearly debased another or besmirched them in order to get the public to listen to your stupid ideas. Please note that I am not against any freedom of speech or expression. But, due care has to be exercised all the time when one is executing their duties or saying something.
The defamation can be levelled against a company, institution or organisation and / or government.If it is a company or institution or organisation, the term ‘malicious falsehood ‘, is used instead of just the word ‘malicious’, as in the case when an individual is besmirched or have their character tarnished or disparaged or false information is published or broadcast about them.
So, anyone can instigate legal proceedings against anyone or institution or organisation or company. The law allows that. But note that, there is what we called in law , ‘Prescriptive period or limitation period or statute of limitation’. This means that, if you have been defamed, you must take legal action within the period prescribed by law. For example, in other jurisdictions, the limitation period or prescriptive period for a defamation case is three years or more or less than those years (depends on jurisdiction laws that govern defamation law).
The public must know that no one is above the law or no company /legal person or institution or organisation is above the law. There is absolutely no immunity for anyone in the eyes of the law. So, if you willfully insult another or defame them and then you think you will use a defence that it was broadcast or published that you must defame someone or an organisation or institution or company, then you have got another thing coming. You can be sued for your stupidity. There is no excuse for not knowing the law when you break it or defame another (ignoratia juris non excusat). For example, when a criminal who purport to be doing good work under the guise of, ‘freedom or expression or speech ‘, mislead the public that they can punish anyone or take the law into their own hands, you might be unfortunate and face both criminal and civil litigation.
No one reserves the right to punish anyone ,except the courts. The law is non-disriminatory, so it does not matter who you are. So, do not mislead others to break the laws of our country. Everyone is obligated to uphold the laws of all states. Thus why I am bring this awareness to our people,so that those who are not aware of that, that have always been victims, can seek legal recourse without fear. The reason for instigating legal proceedings, is to restore your dignity to what it used to be or your position or state, before you were defamed. In civil litigation, we call that ‘EGG SHELL SKULL’.
So, going back to the case of Dr M, what he seeks is the ‘EGG SHELL SKULL’. That is, he wants to be restored to what he used to be ,before being defamed by her former student.
On the one hand, the student’s own story, in this case, might be true. So, it will be the lecturers word against hers. It does not mean that the claim by the former student is completely false. The issue of failing her, because of refusing to submit to his sexual demands, might be true even though remarking was done and the external markers concurred with that lecturer.
The allegations of sexual harassment, might be true, even though the issue of failing her, to hit back at her for not allowing her to have sex with him, is not true. The lecturer might have marked her papers without any bias.
The lecturer might have marked her papers with bias. So, it is all up to them to prove their cases beyond any probability (as opposed to beyond any reasonable doubt, in cases of criminal litigation).
So, no one can just conclude that the lecturer is right and the former student is on the wrong side.
In my conclusion on this analysis, I would like people to know that ,the law states it that, ‘You must always take reasonable care not to harm your neighbour or others’.
This ‘Neighbourhood Principle’, was coined by a certain jurist .Your neighbour here is any person that you may hurt intentionally or unintentionally. That you may hurt knowing or unknowingly. However, the law has no excuse for harming others. ‘Harm’, here means physically or emotional harm. Harm, here also refers to financial harm. So, be careful of what you say or do to others, lest you are found wanting by the law.
This is my own analysis of Dr M’s case, of Great Zimbabwe University, in Masvingo versus his former student who was undertaking a Bachelor of Education degree course. I have taken this opportunity to bring the law to our people. This may go a long way and help those who are not aware of civil litigation laws. (Bringing the law to our people (Pro-Bono).
My comment is without prejudice, favour or bias.Comment by Njabulo. liberty at liberty at gmail dot com.
Dip Education,Bachelor of Arts degree(BA),Bachelor of Laws Hons degree (LLB Hons),LPC (Legal Practice Course),Master of Laws (Legal Practice)(LLM Legal Practice).
Source – Njabulo