Nathan Mvere v Rockdrill Trading (Private) Limited

On 26 March 2022, the Plaintiff's vehicle (Nissan Sunny registration ADN8638) was allegedly hit by a Powerstar haulage truck (registration AFJ2204) driven by Wellington Chihwa, the Defendant's driver, along Machek Virginia Road. The Plaintiff alleged the driver veered off the road and hit the Plaintiff's vehicle which was parked on the left side of the road. The Plaintiff claimed his vehicle was damaged beyond repair, he lost US$6,500 which was in the vehicle, and he suffered permanent injuries and disability rendering him incapable of working. The Plaintiff sued for US$83,500 in accident damages. The Defendant filed exceptions to the summons and declaration on grounds that: (1) the Plaintiff failed to plead both "course and scope" of employment (only pleading "scope"); (2) the driver was not joined to the proceedings; (3) there was no causal link pleaded between the accident and the loss of money; and (4) there would be novus actus interveniens (this fourth exception was abandoned). The Plaintiff filed a late replication which required condonation, granted on 30 July 2025.

• Whether the Defendant complied with Rule 42(9) by setting down the exception within the prescribed timeframe
• Whether failure to plead both 'course and scope' of employment (as opposed to only 'scope') renders a claim for vicarious liability defective
• Whether non-joinder of the employee (driver) makes the claim fatally defective
• Whether the Plaintiff adequately pleaded the causal link between the accident and the loss of money
• Whether the defects in pleadings warrant dismissal or merely striking off the roll with leave to amend

A. The Plaintiff's point in limine regarding the Defendant's failure to set down the exception within prescribed timelines was dismissed. B. The first, second and third exceptions were upheld. C. The Plaintiff was ordered to bear costs of suit on an ordinary scale.

1. The words "course" and "scope" of employment have distinct legal meanings and are not synonymous - "course" refers to whether the employee was under the employer's direction (not on a frolic of his own), while "scope" refers to whether the employee operated within defined job parameters. Both must be pleaded for vicarious liability claims. 2. Where a replication to an exception is filed late and requires condonation, the matter is not properly opposed until the condonation order is granted and filed, and Rule 42(9) timeframes for setting down only begin running from that point. 3. Defects in pleadings that do not go to the root of the cause of action are remediable and warrant upholding the exception with opportunity to amend, rather than dismissal which would put the plaintiff out of court permanently. 4. The precise circumstances establishing causal link between a delict and damages constitute material facts that must be pleaded in summons and declaration, not merely evidence to be reserved for trial or later pleadings. Simply alleging causation without particulars is insufficient and embarrassing to the opponent. 5. Non-joinder of a party, while not making a cause fatally defective under Rule 32(11), can render a claim incomplete where the absent party is essential to the cause of action (such as the employee in a vicarious liability claim).

The court observed that heads of argument cannot serve as a substitute for a replication in pleadings. The court also noted that it would be a futile exercise to set down a matter on the opposed roll when the matter is actually unopposed due to absence of valid replication on the record. The court commented that dismissal of a claim is only appropriate after examination of the merits, and where a court finds it lacks jurisdiction or that pleadings are fundamentally defective, the proper course is to strike the matter from the roll rather than dismiss it, to avoid depriving parties of their right to have matters properly ventilated. The court expressed the view that costs on an ordinary scale were reasonably sufficient where a plaintiff ignored advance warnings about defects in pleadings and failed to take remedial steps.

This case provides important guidance on pleading requirements in Zimbabwean civil procedure, particularly in claims based on vicarious liability. It clarifies that: (1) both "course" and "scope" of employment must be pleaded separately as they have distinct legal meanings; (2) the distinction between pleading material facts versus evidence, emphasizing that circumstances establishing causation are facts that must be pleaded, not reserved as evidence; (3) the proper remedy for defective pleadings that are remediable is to uphold the exception and allow amendment, rather than dismissal which would put the plaintiff out of court; (4) the operation of Rule 42(9) regarding timing for setting down exceptions when replication is filed late and requires condonation. The judgment reinforces the importance of precision in pleadings to ensure the opposite party is not forced to "plead in the dark" while balancing this against avoiding technical dismissals where defects can be cured.