DUBE
J:
The
application before me is a special plea and exception.
The
brief facts surrounding this claim are as follows:
The
plaintiff was employed by the Confederation of Zimbabwe Industries
reporting to the first defendant who was its President and Chief
Executive Officer. On 18 June 2014 the plaintiff issued summons
against the two defendants claiming damages for shock,
non-patrimonial damages, post traumatic damages and pain and
suffering.
The
plaintiff claims that during the course of her employment with the
second defendant which ran between September 2002 and June 2003, she
was sexually harassed by the first defendant who would pester her for
an improper relationship. She claims that her resistance to the
sexual advances culminated in the termination of her employment by
the first defendant for a petty offence.
She
challenged the dismissal.
The
matter ended up at arbitration. An arbitrator ruled in her favor
after having found that she had been sexually harassed by the first
defendant. The arbitrator ordered the defendants to jointly
compensate her for the damages she had suffered as a result of the
sexual harassment.
The
defendants have filed a special plea and also except to the
plaintiff's summons and declaration. They take two points:
(i)
The first point both defendants take is that the plaintiff's claim
has prescribed.
The
defendants submitted that by the time summons was issued on 18 June
2014, the plaintiff's claim had prescribed.
(ii)
The second defendant challenges the summons on the basis that it does
not disclose a cause of action against it. It avers that the second
defendant's liability can only be vicarious.
The
second defendant challenges the declaration on the basis that it does
not allege that the actions against the plaintiff were committed
“during the course and within the scope of his employment.”
The
defendants contend that the omission is fatal to the plaintiff's
claim.
At
the hearing of the application, the plaintiff raised a point in
limine with respect to the first defendant.
The
plaintiff submitted that the first defendant was barred for failure
to file his plea on time.
The
first defendant maintained that he was not barred for the reason that
the bar was effected on the same day he filed his special plea.
The
first defendant also submitted that the matter was res judicata
because the plaintiff had earlier tried to obtain default judgment
against the defendant. The attempt to obtain default judgment was
turned down on the unopposed roll by Tsanga J.
The
first defendant insisted that the court heard argument over the issue
resulting in the application being removed from the roll on the basis
that the first defendant was not barred.
There
was a heated argument between the parties over what transpired on the
unopposed roll and regarding whether the court had resolved the issue
of the bar.
After
the matter was removed from the roll, the plaintiff complained to the
authorities about the manner in which the matter had been handled.
The judge gave the following explanation:
“This
matter was removed from the roll and not referred to the opposed roll
as stated. I did not give a judgment but merely removed the matter
from the roll because the defendant filed a special plea on 29 July –
the same date as the effective date of the notice to bar. The special
plea must be heard. There are accordingly no reasons to be given.”
It
appears to me that the issue of the bar was dealt with by the court
when it dealt with the application for default judgment filed by the
plaintiff. Although no reasons were given for the removal of the
matter from the roll, what I get from the explanation given by the
judge is that she removed the matter from the roll. The reason for
this seems to be that the first defendant filed a special plea and
exception on the same date as the effective date the first defendant
was barred and therefore that the first defendant was not barred.
I
am aware that the application was not formally dismissed, however,
the effect of the ruling was to dismiss the contention that the
defendant was barred.
Once
the court removed the matter from the roll, the plaintiff was
expected to comply with that ruling.
By
bringing this issue up again, the plaintiff is having another bite at
the cherry.
This
conduct amounts to an abuse of process. If the plaintiff felt
aggrieved by the ruling she ought to have appealed it.
Even
assuming that I am wrong in my understanding that the removal of the
matter from the roll meant that the application for default judgment
had been resolved, I still view that the plaintiff's assertion that
the first defendant is barred lacks merit.
At
the risk of reviewing my sister judge's ruling, I must say that I
do not agree with the approach adopted by the plaintiff.
The
notice of intention to bar was filed in terms of r80.The bar
envisaged in terms of r80, is different from that envisaged by r50
which provides for a scenario where, if a litigant has failed to file
appearance to defend within the stipulated days, he is automatically
barred.
The
purpose of the notice to plead and intention to bar is to give the
other side 5 days within which to file their plea, failure of which
they may be barred.
Where
a notice to plead and intention to bar has been served on the other
party and the plaintiff fails to effect the bar on the expiry of 5
days, the other party is at liberty to file its plea for as long as
the bar has not been effected.
The
bar envisaged by r80 is in that sense, not an automatic bar which
takes effect automatically on the expiry of the five days. The
plaintiff is required to effect the bar by getting the notice to
plead stamped by the registrar on the return date and thereby
effecting the bar. The other side becomes barred only if he fails to
file the plea before the bar is actually effected.
Where
the bar is effected on the same date as the filing of the plea or
special plea it becomes unnecessary to determine who filed his papers
first.
Where
a party effects a bar, that bar takes effect as at the close of
business that day.
The
plaintiff filed a notice to plead and intention to bar on 21 July
2015 and served it on the first defendant the same day. On 29 July
the first defendant filed his special plea. The plaintiff effected
the bar the same date as the plaintiff.
There
are no endorsements reflecting the times when the special plea and
exception was filed as well as the time the bar was effected.
The
plaintiff sought to argue that she effected the bar around 8am in the
morning and that the defendant could only have filed his special plea
later and after her. In doing so, the plaintiff sought to lead
evidence from the bar.
That
is unacceptable.
The
bar became effective at the end of the day on the 29th.
The
plaintiff insists that the first defendant is barred. The plaintiff
is simply being frivolous and vexatious. The point is unsustainable,
groundless and without foundation. I see this as an attempt to snatch
at a judgment and that is highly unacceptable.
This
court is not interested in technicalities regarding who filed his
papers first. It is clear that the first defendant is desirous
defending this matter. The court will not detain itself over this
issue. The first defendant is not barred. The point fails.
The
court will proceed to determine the application on the merits.
The
next issue is that of prescription.
I
have chosen to deal with this point first as it is capable of
disposing of the matter without the need to delve into the second
point raised on the merits.
It
is trite that a debt or cause of action prescribes after 3 years in
terms of 15(a) of the Prescription Act, [Chapter 8:11], as read with
s2.
The
term cause of action was succinctly defined in Chiwawa v Mutzuris and
Ors HH7/09 at p5 of the judgment, where the court stated as follows;
“It
is now settled in our law, in my view, that the term refers to when
the plaintiff is aware of every fact which it would be necessary for
him or her to prove in order to support his or her prayer for
judgment. It is the entire set of facts that the plaintiff has to
allege in his or her declaration in order to disclose a cause of
action but does not include the evidence that is necessary to support
that cause of action.”
See
also Shinga v General Accident Insurance Co (Zimbabwe) Ltd 1989 (2)
268.
Prescription
begins to run when a litigant becomes aware of all the facts that she
requires to allege in her prayer for judgment.
There
are instances when the setting in of prescription is delayed. One
such instance is provided for in s17(1)(d) of the Prescription Act.
The section provides that prescription is delayed, “If the debt is
the subject matter of a dispute submitted to arbitration----”
Section
17 covers a situation where a debt or cause of action has been
submitted to arbitration. Section 17(1)(d) is applicable where the
subject matter of a dispute is submitted to arbitration.
The
rationale behind the section must have been to ensure that litigants
who pursue the arbitration route do not get barred from bringing
their claims to the formal court system should they wish to do so
that after the expiry of three years from the time the cause of
action arose. The time that litigants take when attempting to get the
dispute resolved by way arbitration is not counted for purposes of
determining if the debt or cause of action has prescribed.
Prescription
is in those circumstances is delayed until the arbitration
proceedings are either finalized or abandoned.
The
cause of action as outlined in the summons is the sexual harassment
that occurred during the time the plaintiff was employed by the
second respondent. The plaintiff was employed by the second defendant
between 2 September 2002 and 19 June 2003. The cause of action arose
during that period. Summons was only issued on 18 June 2014 some 11
years after the plaintiff had left the second defendant's
employment. The plaintiff was, by the end of June 2003, aware of
every fact which was necessary for her to prove in order to support
her claim for damages for sexual harassment.
Instead
of approaching the High Court claiming damages for sexual harassment,
she went for conciliation with a complaint of sexual harassment and
claiming that an unfair labour practice had occurred and that she had
been wrongly dismissed. The matter ended up with an arbitrator who on
28 March 2014. The terms of reference of the arbitrator did not
include determination of the question of damages for sexual
harassment. The questions referred by the conciliator were simply
whether she had been sexually harassed and the issue concerning her
dismissal. The arbitrator ruled that the plaintiff was sexually
harassed by the first defendant and both defendants were ordered to
jointly compensate the plaintiff for damages for sexual harassment.
The
jurisdiction of arbitrators when dealing with unfair labour practices
is limited to stopping the conduct complained against. The role of
the Labour Court and arbitrators when dealing with claims involving
sexual harassment is to make a finding on allegations of unfair
labour practice and only seek to stop the practice. The Labour Court
or tribunal does not have jurisdiction to assess damages arising from
a complaint of an unfair labour practice.
Similarly,
a Labour Court or tribunal faced with a complaint of sexual
harassment cannot proceed and make an award for damages arising out
of the sexual harassment.
The
claim for damages was never properly before the arbitrator.
The
arbitrator erred in dealing with the issue regarding damages suffered
as a result of the sexual harassment as damages were not part of the
arbitrator's terms of reference. His terms of reference were clear
that he was required to deal with the unfair labour practice only. He
dealt with the claim for damages out of his own initiative and
wrongly so. He went on a frolic of his own.
The
award was subsequently set aside by this court on the basis that the
arbitrator lacked jurisdiction to award civil damages.
The
claim for damages was not properly before the arbitrator. If it was
not properly so, then there was no submission and hence there is no
delay to talk about. There setting in of prescription was not delayed
by the purported submission to arbitration because the claim for
damages was improperly before the arbitrator.
Section
94 deals with prescription of labour disputes and hence has no
relevance to this claim.
The
issue of damages is being raised for the first time in a competent
court well after the claim has prescribed.
By
the time summons were issued, the claim had prescribed. In the
result, it is ordered as follows:
1.
The defendant's special plea is upheld.
2.
The plaintiff's claim is dismissed with costs.
Gill,
Godlonton & Gerrans, respondents' legal practitioners
