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

The appellant was employed by the second respondent and reported to the first respondent, who was the Chief Executive Officer. Between September 2002 and June 2003, the first respondent allegedly sexually harassed the appellant. Her resistance to his advances resulted in her dismissal. She challenged the dismissal through arbitration. The arbitrator found in her favour in March 2014, finding that she had been sexually harassed by the first respondent, but referred the parties to the High Court to adjudicate the claim for damages for sexual harassment as this fell outside the arbitrator's jurisdiction. In June 2014, the appellant issued summons claiming damages for shock, pain and suffering arising from the sexual harassment. The respondents raised a special plea of prescription, arguing that the claim had prescribed as the harassment occurred in 2002-2003 but summons were only issued in 2014. The High Court upheld the special plea and dismissed the claim.

• Whether the running of prescription on a claim for damages for sexual harassment was interrupted by the submission of the sexual harassment dispute to arbitration
• The proper interpretation of section 17(1)(d) of the Prescription Act
• Whether a claim for delictual damages and a labour dispute arising from the same conduct constitute the same 'debt' or 'subject matter' for purposes of prescription
• Whether prescription was delayed when the arbitrator dealt with sexual harassment but the damages claim was subsequently pursued in the High Court

The appeal was allowed with costs. The High Court judgment was set aside and substituted with an order dismissing the respondents' special plea of prescription with costs, and ordering the respondents to plead to the plaintiff's claim within ten days from the date of the Supreme Court judgment.

Where a debt is the subject matter of a dispute submitted to arbitration in terms of section 17(1)(d) of the Prescription Act, the running of prescription is interrupted even where a different remedy is subsequently sought in court, provided that remedy arises from the same cause of action. The term 'debt' in the Prescription Act must be interpreted broadly and includes the underlying delictual conduct and the consequent claim for damages arising therefrom. Where an essential component of the debt (the delictual conduct of sexual harassment) was before the arbitrator, the debt was the subject matter of the dispute submitted to arbitration, thereby interrupting the running of prescription on the subsequent claim for damages in the High Court. The prescriptive period only expires one year after the date on which the arbitration impediment ceases to exist (i.e., one year after the arbitral award).

The Court observed that requiring simultaneous proceedings in arbitration and the High Court would create a potentially anomalous scenario where the arbitrator might make findings contradictory to those of the High Court. The Court also noted that had the appellant attempted to institute a claim for delictual damages while arbitration was pending, the principles of lis alibi pendens would likely have operated to impede the successful institution of such a claim, as it would be premised on the same cause of action in a dispute between the same parties already pending before the arbitral tribunal. The Court cited with approval the South African Appellate Division decision in Murray & Roberts Construction (Cape) (Pty) Ltd v Upington Municipality 1984 (1) SA 571, regarding the similar purpose behind prescription provisions relating to arbitration.

This Zimbabwean Supreme Court judgment is significant for its broad and purposive interpretation of prescription legislation, particularly section 17(1)(d) of the Prescription Act. The case establishes important principles regarding the interaction between arbitration proceedings and prescription in the context of claims arising from the same cause of action but seeking different remedies. It clarifies that where a dispute is submitted to arbitration, prescription is interrupted even where a different remedy (damages) is later sought in court, provided it arises from the same cause of action. The judgment also reinforces the policy against multiplicity of litigation and recognizes the practical difficulties that would arise if litigants were required to pursue parallel proceedings in arbitration and court simultaneously. While this is a Zimbabwean case, its reasoning on prescription and arbitration would be persuasive in South African courts given the similarity of the legislative provisions and the shared legal heritage.