PATEL
JA:
This
is an appeal against the decision of the High Court upholding the
respondents' special plea of prescription and consequently
dismissing the appellant's claim with costs.
The
appellant has noted her appeal against the entire judgment and prays,
as per her amended prayer, that the judgment of the court a quo be
set aside and substituted with an order dismissing the special plea
with costs.
Background
This
protracted and bitterly contested matter emanates from the following
factual background:
The
appellant was employed by the second respondent, reporting to the
first respondent, who was the Chief Executive Officer of the second
respondent. On 18 June 2014, the appellant issued summons against the
respondents claiming damages for shock, pain and suffering arising
from alleged sexual harassment by the first respondent between
September 2002 and June 2003.
According
to the appellant, her resistance to the first respondent's
unsolicited and predatory advances culminated in her dismissal from
the second respondent's employment. Her dismissal was challenged
and referred to arbitration. The arbitrator found in her favour after
finding that she had been sexually harassed by the first respondent.
The
arbitrator initially ordered both respondents to jointly compensate
the appellant but, in subsequent proceedings, he referred the parties
to the High Court to adjudicate the appellant's claim for damages
for sexual harassment.
Before
the High Court, the respondents filed a special plea that the claim
had prescribed by the time that summons were issued in June 2014.
The
second respondent also excepted to the declaration on the basis that
it did not disclose a cause of action by reason of the appellant's
failure to specifically and properly allege vicarious liability on
its part in respect of the first respondent's conduct.
The
court a quo found that by the end of 2003 the appellant was aware of
every fact necessary to prove her claim for damages. However, instead
of approaching the High Court for damages, she pursued her claim
through the labour relations mechanisms of conciliation and
arbitration. The arbitrator had no jurisdiction to assess damages
arising from an unfair labour practice and therefore could not award
damages for sexual harassment. The claim for such damages was not
part of the arbitrator's terms of reference and was not properly
before the arbitrator.
In
the circumstances, the court held that the setting in of prescription
was not delayed, in terms of s17(1)(d) of the Prescription Act, by
the purported submission of the claim to the arbitrator. The claim
for damages was raised before a competent court well after it had
prescribed.
In
the event, the court upheld the respondents' special plea of
prescription and dismissed the appellant's claim with costs.
Submissions
on Appeal
The
appellant's position, as appears from her grounds of appeal and
voluminous heads of argument, is that the question of sexual
harassment was a labour matter to be first determined and disposed of
by the arbitrator before any claim for delictual damages could be
lodged at the High Court.
She
further submits that the issues of sexual harassment and vicarious
liability were part of the arbitrator's terms of reference.
Moreover,
the arbitrator's finding of sexual harassment was not appealed
against and remained unchallenged.
Thus,
she contends that the question of damages, having been properly
raised before the arbitrator, was not raised for the first time
before a competent court well after her claim had prescribed.
Ms
Mabwe, for the first respondent, submits that there is a fundamental
distinction between a claim for compensation in a labour dispute and
a claim for damages under the lex Aquilia. Therefore, since there was
a different cause of action before the arbitrator as compared with
that before the High Court, the reference to arbitration did not
operate to interrupt the running of prescription on the claim for
damages.
Mr
Mutasa, for the second respondent, echoes the same position, but from
a slightly different angle.
He
submits that the appellant's claim of sexual harassment created two
distinct rights:
(i)
One was an exclusively labour matter;
(ii)
while the other was purely for civil damages.
Consequently,
the appellant's claims before the arbitrator did not have the
effect of suspending the running of prescription as against the
appellant's claim in the High Court.
However,
he accepted that the rationale behind s17(1)(d) of the Prescription
Act was the need to avoid the multiplicity of litigation in respect
of the same cause of action.
In
casu, there are two critical factors that are not in dispute:
(i)
Firstly, one of the questions referred to the arbitrator for
determination was “whether or not sexual harassment was perpetrated
on R. M. Mbatha by F. B. Zizhou in his capacity as Confederation of
Zimbabwe Industries Chief Executive Officer”.
(ii)
Secondly, in March 2014, the arbitrator found that the appellant had
been sexually harassed and ordered the respondents to compensate her
for the damages she had suffered.
However,
as I have already indicated, the arbitrator subsequently referred the
parties to the High Court to adjudicate the appellant's claim for
damages for sexual harassment, as that was a matter that fell outside
his jurisdictional remit.
In
any event, the arbitrator's finding that the appellant had been
sexually harassed remains extant. It has not been appealed against or
otherwise challenged.
Whether
Prescription Interrupted by Arbitration Proceedings
In
light of the exchanges between the Court and the parties at the
hearing of the appeal, the principal issue for determination in casu
is the meaning to be ascribed to s17(1)(d) of the Prescription Act
[Chapter 8:11].
Section
17 enumerates the various circumstances in which the completion of
prescription is delayed. Section 17(1)(d), which is specifically
relevant in casu, provides as follows:
“(1)
If —
……..
(d)
the debt is the subject matter of a dispute submitted to arbitration,
or is the subject matter of a claim filed against the estate of a
debtor who is deceased or against the insolvent estate of a debtor or
against a company in liquidation or against an applicant under the
Agricultural Assistance Scheme set out in the Third Schedule to the
Agricultural Finance Corporation Act [Chapter 18:02]; or …….. and
the period of prescription would, but for this subsection, be
completed before or on, or within one year after, the date on which
the relevant impediment referred to in paragraph (a), (b), (c), (d)
or (e) has ceased to exist, the period of prescription shall not be
completed before the expiration of the period of one year which
follows that date.”
As
a matter of interpretive principle in the context of statutory
provisions, it is trite that the courts lean towards an
interpretation that gives full effect to the purpose for which the
provision under consideration was enacted.
In
my view, a broad and generous interpretation of s17(1)(d) would give
effect to the twofold purpose for which it was enacted:
(i)
The foremost rationale of the provision is to avoid the situation
where the same dispute is submitted for adjudication before multiple
fora.
(ii)
The second objective is to ensure that litigants whose disputes are
submitted to arbitration are not prejudiced by being precluded from
instituting proceedings before the courts, should it become necessary
to do so, in respect of the same matters.
On
this broad and purposive approach, where a matter is submitted to
arbitration, the running of prescription would be arrested
notwithstanding that a different remedy is later sought, provided
that remedy arises from the same cause of action. To hold otherwise
would, in my view, operate to erode the purpose for which s17(1)(d)
was created.
While
I accept that a cause of action is conceptually distinct from the
overlying debt that is claimed, the latter cannot exist in vacuo and
must be predicated on the underlying cause of action.
In
the instant case, the debt, being the claim for damages for sexual
harassment, cannot be severed or divorced from the cause of action,
which is the sexual harassment itself.
The
question that was submitted to the arbitrator for determination was
whether or not sexual harassment was perpetrated on the appellant.
This is the same cause of action from which the appellant's claim
for damages emanates.
On
this basis, it must be accepted that the debt claimed by the
appellant, being the damages for sexual harassment, constitutes the
subject matter of the dispute that was submitted to arbitration.
It
then follows that the running of prescription on the claim for
damages was interrupted in accordance with the provisions of
s17(1)(d).
The
same conclusion is arrived at if one has regard to the broad
definition of the term “debt” in s2 of the Prescription Act, viz:
“without
limiting the meaning of the term, [a debt] includes anything which
may be sued for or claimed by reason of an obligation arising from
statute, contract, delict or otherwise”.
The
debt sued for in the court a quo arose from the delict of sexual
harassment, which delictual matter was also competently before the
arbitrator.
The
debt in casu comprises two separate but interrelated components, to
wit, the delictual conduct perpetrated by the first respondent and
the consequent claim for damages.
The
arbitrator dealt with and determined the first component of the debt,
which consequently gave rise to the claim for damages in the court a
quo.
Thus,
inasmuch as an essential component of the debt was before the
arbitrator, the debt was the subject matter of the dispute submitted
to arbitration, thereby interrupting the running of prescription on
the claim for damages in the court a quo.
Potential
Plea of Lis Alibi Pendens
I
am fortified in the foregoing conclusion from a different practical
perspective.
The
argument that the appellant should have simultaneously or
conjunctively with the arbitration proceedings pursued a separate
suit for delictual damages in the High Court results in the untenable
scenario where the arbitrator might possibly have made findings
contradictory to those made by the High Court.
Quite
apart from this potentially anomalous scenario, the principles
governing the special plea of lis alibi pendens would have operated
to impede the successful institution of a claim for delictual
damages. This is because the claim would be premised on the same
cause of action in a dispute between the same parties already pending
before an arbitral tribunal.
The
rationale behind the special plea of lis alibi pendens is akin to
that underlying s17(1)(d) of the Prescription Act, viz. the need to
avoid potential duplication of litigation founded on the same cause
of action.
This
point was highlighted by the Appellate Division in Murray &
Roberts Construction (Cape) (Pty) Ltd v Upington Municipality 1984
(1) SA 571, at 579H-580C, in interpreting the South African
equivalent of s17(1)(d):
“The
same duality of purpose can be seen, in my view, in s13(1)(f) of the
Act which is of direct relevance to the present case. The subsection
applies 'if …. the debt is the object of a dispute subjected to
arbitration'. An arbitration agreement does not necessarily oust
the jurisdiction of the court. Despite the existence of such an
agreement, the creditor may elect to institute legal proceedings,
although he might be met by an application for stay of proceedings or
a special plea to the same effect.…. The court would in practice
normally order a stay if requested to do so.…. An arbitration
agreement is therefore in a sense an impediment to the recovery of a
debt by means of legal proceedings, but it is one because it provides
an alternative means of resolving disputes which carries the approval
of the law.
This
applies a fortiori where a dispute has actually been subjected to
arbitration.
The
creditor is protected against the running of prescription because
there exists an impediment to his approaching the ordinary courts,
and the impediment exists because he is taking appropriate
alternative steps to recover his debt. It is against this background
that s13(1)(f) of the Act should in my view be interpreted and
applied.”
In
casu, it would not have been practically possible for the appellant
to institute proceedings for delictual damages in the High Court when
another competent tribunal was already seized with an unfair labour
practice arising out of the same cause of action.
This
is so because the respondents would undoubtedly have pleaded lis
alibi pendens and succeeded in that plea, thereby preventing the
appellant from prosecuting her claim for damages.
Disposition
It
follows from all of the foregoing that the appeal must succeed on the
basis that the running of prescription against the appellant's
claim for damages was interrupted by the submission to arbitration of
her claim of sexual harassment by the respondents.
Thus,
the prescriptive period would only have expired, in terms of
s17(1)(d) of the Prescription Act, one year after the date of the
award rendered in her favour.
Consequently,
the appellant's claim for damages for sexual harassment, having
been lodged in June 2014, within three months of the award rendered
in March 2014, must be regarded as having been timeously lodged in
the High Court.
It
is accordingly ordered that:
1.
The appeal be and is hereby allowed with costs.
2.
The judgement of the court a quo be and is hereby set aside and
substituted with the following:
“(i)
The defendants' special plea of prescription is dismissed with
costs.
(ii)
The defendants shall plead to the plaintiff's claim within ten days
from the date of the judgement handed down by the Supreme Court in
Case No. SC80/18 as Judgment No. SC69/2018.”
MAKARAU
JA: I agree
HLATSHWAYO
JA: I agree
Kanokanga
& Partners, 1st respondent's legal practitioners
Gill
Godlonton & Gerrans, 2nd respondent's legal practitioners
