Introduction
Prescription refers to the time period within which legal proceedings for a debt must be instituted. However, should prescription be applied when it will have the effect of bringing about unjust results? This question was before the High Court in L.M v South African Broadcasting Corporation (SOC) Ltd,1 where the court was, pursuant to a special plea of prescription being raised, tasked with the duty of determining whether a sexual harassment claim instituted by the Plaintiff had become prescribed as contemplated in the Prescription Act.2
Facts of the Case
The Plaintiff, LM, was employed by the Defendant, SABC, for a short period of time in 2007. LM resigned on the 30th of September 2007 as she had allegedly been sexually harassed by her supervisor, K. LM instituted a constructive dismissal claim against SABC in the Commission for Conciliation, Mediation and Arbitration (CCMA), however, it was held that the claim had prescribed, and condonation was subsequently refused.
11 years later, on the 31st of October 2018, SABC instituted an inquiry into numerous sexual harassment incidents which transpired at SABC in the recent past, an exercise which LM participated. LM presented evidence that K sexually harassed her, and SABC responded by disciplining and dismissing K. SABC acknowledged that some form of reparation should be made to LM, however, no agreement in this regard, was reached. This led to LM seeking relief against SABC in the form of a civil claim for damages in the High Court.
The Issue of Prescription
The court confirmed that a claim for sexual harassment amounts to a "debt" under the Act, which then prescribes three years from the date it becomes due.3 The SABC argued that LM's claim was prescribed on the 1st of October 2010, and she instituted her claim 11 years later.
LM asserted that prescription only started running on the 31st of October 2018 as that is when SABC published the report for its inquiry into the sexual harassment incidents. However, the court did not accept this as LM was already aware of the facts underlying her cause of action and the identity of the debtor in 2007, all of which is essential for a debt to become due.4 LM further contended that the inquiry, and thereby the acknowledgement of liability on SABC's part,5 reset the running of prescription and gave her a further three years from the 31st of October in which to institute the claim.
The Court, hearing the special plea of prescription, held that all things being equal, the conclusion it would have reached would have led to a dismissal of LM's action, which would bring the case to an end. The court however, held that 'other things are not equal' as LM had made averments to the effect that she had difficulty in pursuing her claim as a result of emotional anguish, which she had suffered. Based on this, and the fact that evidence had not been led, the court was not in a position to determine whether or not the prescription period had in fact elapsed by the time that LM had instituted her action.
The Court's Finding
The court followed a purposive and equitable approach as under normal circumstances, LM's claim would ordinarily have prescribed. Section 12 (4) of the Act6 provides that prescription does not run on a debt arising from the commission of any sexual offence, in terms of the common law or statute. The reason being, sexual offences may leave the victim with a degree of mental, intellectual, and/or physical incapacity, rendering them unable to institute proceedings.
Without the Plaintiff adducing evidence to this fact, the court found it likely that K did sexually harass LM and found Section 12(4) may be applicable despite the absence of a common law or statutory offence. The court ultimately absolved SABC from the instance, as dismissing the LM's claim would, in its view, have been unjust. This now provides LM with an avenue for raising evidence to prove sexual harassment.
Sexual Harassment v Sexual Offence
The Code of Good Practice defines 'sexual harassment' as unwanted conduct of a sexual nature. Whereas the term 'sexual offence' in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, means any offence in terms of Chapter 2, 3 and 4 such as rape, compelled rape, incest, etc. The courts have left the door open on whether sexual harassment does or does not constitute a sexual offence under common law or statute and it is left up to the interpretation of the merits and circumstances of each case.
However, Courts are reluctant to draw a strict line in the sand between these two terms due to their interrelatedness and the inherent sensitivity regarding such matters. However, if a debt is based on a sexual offence, a Plaintiff can rely on Section 12(4) of the Prescription Act to show that circumstances prevented him/her from instituting a claim timeously, provided the factors listed in such a section are present, which would then interrupt the running of prescription.
An Employer's Worst Nightmare
Vicarious liability may in general terms be described as the strict liability of one person for the delict of another.7 Section 60 of the Employment Equity Act8 states that if an employer comes to the knowledge of prohibited conduct by an employee, such as sexual harassment, and fails to take necessary steps in terms of preventing, prohibiting or investigating such conduct, such employer will be deemed to have contravened such misconduct. The onus lies on the employer to prove that it took every reasonable and practical step to avoid the commission of acts of sexual harassment in the workplace. It is this principle which LM is relying on to claim damages from the SABC.
Conclusion
Due to insufficient evidence on the part of LM in her main claim, the court was unable to adopt a concrete approach to Section 12(4) of the Act and, more particularly, consider whether the provisions of such a section extend to sexual harassment. We will have to wait for a finding on the merits to learn whether sexual harassment falls within the ambit of section 12(4), thereby constituting a 'sexual offence' that is not subject to the extinguishing effect of prescription. In the event of the court answers the above question in the affirmative, then this may lead to many such cases being referred to the courts by employees/erstwhile employees who believed that their claims based on sexual harassment had been prescribed.
Footnotes
2 68 of 1969 (hereafter The Act).
3 The Prescription Act (n2) sec 11(d) and 12(1).
4 The Prescription Act (n2) sec 12(3).
5 The Prescription Act (n2) sec 14(1).
6 The Prescription Act (n2).
7 Groenewald v Irvin & Johnson Limited and Others [2017] ZAWCHC 62.
8 The Employment Equity Act 55 of 1998.
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