BY Thato Maruapula AND Lulondwe Kubheka
Can a sexual harassment claim prescribe?
There is a SePedi maxim that says “Molato ga o bole’’, which is loosely translated to mean that there is no prescription for unlawful acts, regardless of the time that has passed since the unlawful act in question was committed. In LM v South African Broadcasting Corporation (SOC) Limited, the High Court had to consider whether a sexual harassment claim could prescribe in terms of the Prescription Act 1969(“Act”).
Ms LM, (the “Plaintiff”) an employee of South African Broadcasting Corporation (“SABC”), resigned in September 2007 and then referred a constructive dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (“CCMA”), alleging that she had been sexually harassed by her supervisor, Mr K. The Plaintiff’s referral to the CCMA was brought outside of the prescribed timelines, and condonation was refused, which seemingly marked the end of the matter. However, some 11 years later, in October 2018, the SABC commissioned a commission of inquiry (‘’Inquiry’’) into allegations of sexual harassment within its organisation. The Plaintiff participated in this Inquiry and gave evidence that Mr K had sexually harassed her.
Ultimately, the SABC disciplined and dismissed Mr K for sexually harassing the Plaintiff and further recommended that the Plaintiff should be compensated. However, the parties were unable to agree on an amount, and the Plaintiff then instituted proceedings for damages against the SABC in the High Court.
Proceedings in the High Court
The Plaintiff originally based her cause of action on the Employment Equity Act 1998 (‘EEA’’). However, it soon became clear that it was the Labour Court and not the High Court that had the jurisdiction to entertain a claim under the EEA. The Plaintiff then sought to amend her particulars of claim to ground the action in the SABC’s vicarious liability for the conduct of Mr K. The SABC objected to the amendment and raised a special plea that, in any event, the Plaintiff’s claim had prescribed in terms of the Act.
The SABC cited section 11(d), read with section 12(1), of the Act, which provides that an ordinary debt prescribes three years from the date it becomes due, and consequently, the SABC’s debt to the Plaintiff, if any, prescribed in October 2010. The Plaintiff instituted the claim over 10 years later on 4 October 2021. On the other hand, the Plaintiff argued that the prescription only started running in October 2018 when the Inquiry published its report and, consequently, the claim was brought in time.
The court found that the damages that the Plaintiff sought against the SABC constituted a “debt” under the Act and that such a debt prescribes three years after the date it becomes due.
The court rejected the Plaintiff’s argument that prescription only started running in October 2018 (when the Inquiry published its report) as the Plaintiff had knowledge of the facts underlying the cause of action and the identity of the debtor since 2007, when she resigned from the SABC.
Accordingly, the court found that (“other things being equal”), the debt would normally have prescribed. The Court, however, found that it was likely that Mr K did sexually harass the Plaintiff (although no evidence was led on the nature of the alleged sexual harassment) and considered section 12(4) of the Act, which provides that prescription does not run on a debt arising from the commission of “any sexual offence in terms of the common law or a statute’’ for the period during which the creditor (or victim) is unable to institute proceedings “because of his or her mental or intellectual disability, disorder or incapacity or because of any other factor that the court deems appropriate.”
The Court ultimately absolved the SABC from the instance, as opposed to dismissing the Plaintiff’s claim. The effect of this was that the Plaintiff still had an opportunity in future to lead evidence that the exceptions contained in section 12(4) of the Act are applicable to her, and consequently, the running of prescription should be suspended.
The Plaintiff’s claim against the SABC was, in effect, a delictual claim in terms of common law principles. This type of claim would normally prescribe after three years. However, if the debt is based on the commission of a “sexual offence”, a plaintiff can rely on section 12(4) of the Act to show that they were unable to institute a claim timeously on account of any of the factors listed in section 12(4) of the Act which would effectively suspend the running of prescription.
Employers are further reminded they may be held vicariously liable for the actions of their employees in terms of section 60 of the EEA. Whether the approach outlined in section 12(4) of the Act would apply to sexual harassment claims brought in terms of the EEA remains an open question.
Reviewed by Peter le Roux, an Executive Consultant in ENS’ Employment practice
Associate | Employment
Candidate Legal Practitioner | Employment