[Special Plea HH 263-16]

March 15 and May 4, 2016


Prescription  –  Interruption of  –  Whether arbitration proceedings are a judicial process as contemplated by the Prescription Act [Chapter 8:11]  – Effect of arbitration proceedings invalidly brought on the running of prescription.

Arbitration  –  Process by which labour arbitration claim is brought  –  Effect of failure to follow the process.

Plaintiffs had employed defendant up until 2011 when he resigned. Arising out of the termination of his employment, defendant had brought labour proceedings against plaintiffs claiming his terminal benefits. In response to his claim for a termination package, plaintiffs had counter-claimed before the arbitrator making certain claims which were both in contract and in delict. In 2015, plaintiffs instituted court proceedings against defendant making some of the claims that they had raised before the arbitrator. Defendant argued that the remedy which they sought to enforce had been extinguished by extinctive prescription and that at any rate, most of the claims were lis pendens.

In response to the special plea of prescription plaintiff argued that the institution of a claim in reconvention before the arbitrator had interrupted the running of prescription. In response, defendant argued firstly that arbitration process is not judicial process for purposes of judicial interruption of prescription as envisaged by s 19 of the Prescription Act [Chapter 8:11], as it is an alternative dispute resolution mechanism meant to avoid judicial processes. Secondly, the defendant argued that the plaintiffs counter-claim, being for contractual and or delictual damages or unjust enrichment, was a nullity as same was not cognizable before a labour arbitrator, and could not therefore support an argument for interruption of prescription. It was also argued that some of the claims now being made had not been brought before the arbitrator.

Held, that s 19 does not speak of arbitral processes at all. Arbitration processes are provided for in s 17 of the Prescription Act. If the legislature intended arbitration processes to have the same effect and status as judicial processes, then the separation between s 17 and s 19 ought to have been dispensed with. Further, the definition of “court” in the Interpretation Act [Chapter 1:01] does not include arbitration tribunals.

Held, further, that it is clear that s 17 of the Prescription Act has the effect of delaying the running of prescription where a dispute is submitted to arbitration. However, the procedure for submission to arbitration is set out in the Labour Act [Chapter 28:01]. The arbitrator, is confined to the agreed terms of reference during the arbitral process. The counter-claim brought by the plaintiffs was not brought in terms of the elaborate procedures set out under the Labour Act and as a result had not been referred to arbitration. Not having been properly brought, the claims could not lead to interruption under s 17.

Held, further, that as regards the plea of lis alibi pendens, the court cannot exercise its discretion in favour of a litigant who has chosen the wrong procedure otherwise the litigant would be allowed to benefit from their own mistake.

Cases cited:

Baldwin v Baldwin 1967 RLR 289 (G), not followed

Chiwawa v Mutzuris 2009 (1) ZLR 72 (H), referred to

Chizura v Chiweshe 2003 (2) ZLR 64 (H), referred to

Dube v Maphepha Syndicate & Ors 2009 (1) ZLR 29 (H), referred to

DW Hattingh & Sons (Pvt) Ltd v Cole NO 1991 (2) ZLR 176 (S), referred to

HMBMP Properties (Pty) Ltd v King 1981 (1) SA 906 (N), referred to

Hogson v Granger & Anor 1991 (2) ZLR 10 (H), referred to

Leketi v Tladi NO and Others [2010] ZASCA 38; [2010] 3 All SA 519 (SCA), referred to

Manning v Manning 1986 (2) ZLR 1 (S), referred to

Mhungu v Mtindi 1986 (2) ZLR 171 (S), referred to

National Railways of Zimbabwe v Zimbabwe Railway Artisans' Union & Ors 2005 (1) ZLR 341 (S), referred to

Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 (H), referred to

Posts & Telecommunications Corporation v Zvenyika SC 108-04 (unreported), referred to

Zimbabwe Banking Corporation & Anor v Efficient Security (Pvt) Ltd & Anor 2001 (2) ZLR 55 (H), not followed

Legislation considered:

Arbitration Act [Chapter 7:15], First Schedule Art 36 (1)(a)(iii)

Constitution of Zimbabwe Amendment (No 20) Act, 2013, s 162

Interpretation Act [Chapter 1:01]

Labour Act [Chapter 28:01], ss 89, 93, 98

Prescription Act [Chapter 8:11], ss 15 (d), 16 (3), 17, 18, 19

Book cited:

Cilliers AC, Loots C and Nel HC Herbstein and Van Winsen, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (4th edn, Juta & Co Ltd, Cape Town, 1997)

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