Rita Marque Mbatha v Farai Bwatikona Zizhou and Confederation of Zimbabwe Industries

The plaintiff was employed by the Confederation of Zimbabwe Industries (second defendant) between September 2002 and June 2003, reporting to the first defendant who was its President and Chief Executive Officer. During her employment, she alleged she was sexually harassed by the first defendant who persistently demanded an improper relationship. Her resistance to these advances culminated in her dismissal in June 2003 for a petty offence. She challenged the dismissal through conciliation and arbitration. On 28 March 2014, an arbitrator ruled in her favor, finding sexual harassment had occurred and ordering both defendants to jointly compensate her for damages. This award was subsequently set aside by the High Court on the basis that the arbitrator lacked jurisdiction to award civil damages. On 18 June 2014, the plaintiff issued summons in the High Court claiming damages for shock, non-patrimonial damages, post-traumatic damages, pain and suffering arising from the sexual harassment.

• Whether the plaintiff's claim for damages had prescribed in terms of the Prescription Act
• Whether prescription was delayed by the submission of the dispute to arbitration in terms of section 17(1)(d) of the Prescription Act
• Whether the first defendant was barred from filing his plea/special plea in terms of Rule 80
• Whether an arbitrator dealing with unfair labour practices has jurisdiction to award civil damages for sexual harassment
• Whether the summons disclosed a cause of action against the second defendant

The defendant's special plea was upheld and the plaintiff's claim was dismissed with costs.

The binding legal principles established are: (1) Labour Courts and arbitrators dealing with unfair labour practice complaints, including sexual harassment, have jurisdiction only to make findings on whether the unfair practice occurred and to stop such practices, but lack jurisdiction to assess and award civil damages; (2) Section 17(1)(d) of the Prescription Act only delays prescription when a debt or cause of action is properly submitted to arbitration within the arbitrator's jurisdiction - where an arbitrator deals with matters outside their jurisdiction, there is no valid submission that delays prescription; (3) A cause of action for purposes of prescription arises when the plaintiff becomes aware of every fact necessary to prove the claim, not when related proceedings in other forums conclude; (4) Under Rule 80, a bar is not automatic but must be effected by the plaintiff and becomes effective at close of business on the day it is effected - if a defendant files a plea or special plea on the same day the bar is effected, the defendant is not barred.

The court made several non-binding observations: (1) The court criticized the plaintiff's conduct as "frivolous and vexatious" and an attempt to "snatch at a judgment" through technical arguments about the timing of filing the bar versus the special plea; (2) The court noted it was "not interested in technicalities regarding who filed his papers first" when both filings occurred on the same day; (3) The court observed that bringing up the bar issue again after Tsanga J had effectively dealt with it by removing the default judgment application from the roll amounted to "an abuse of process" and "having another bite at the cherry"; (4) The court stated that if the plaintiff disagreed with the earlier ruling, she ought to have appealed it; (5) The court noted that attempting to lead evidence from the bar about what time filings were made was "unacceptable"; (6) The court expressed that it would not "detain itself" over technical issues when it was clear the defendant desired to defend the matter. The court also noted that section 94 of the Labour Act dealing with prescription of labour disputes had no relevance to civil claims for damages.

This case is significant in Zimbabwean jurisprudence for clarifying several important principles: (1) the limited jurisdiction of Labour Courts and arbitrators in unfair labour practice matters - they cannot award civil damages but can only make findings and stop unfair practices; (2) the interpretation of section 17(1)(d) of the Prescription Act regarding when submission to arbitration delays prescription - it only applies when the claim is properly and validly before the arbitrator within their jurisdiction; (3) the distinction between Rule 50 and Rule 80 bars, with the latter requiring actual effecting of the bar and not being automatic; (4) that prescription begins to run when a litigant becomes aware of all facts necessary to support their claim, not when formal proceedings conclude. The case emphasizes that victims of workplace sexual harassment seeking civil damages must approach the appropriate court (High Court) within the prescription period and cannot rely on labour arbitration proceedings outside the arbitrator's jurisdiction to delay prescription.