Nontokozo Tachiona v Brighton Ndebele and Zimbabwe Union Conference of the Seventh Day Adventist Church and South Zimbabwe Conference of the Seventh Day Adventist Church and Bulawayo Seventh Day Adventist City Centre Church

In April 2016, the plaintiff alleged that the first defendant, a Minister of Gospel employed by the second to fourth defendants (various Seventh Day Adventist Church entities), sexually assaulted her through unwanted sexual advances, hugging and caressing. The plaintiff claimed she suffered psychological stress, trauma, mental anguish and injury to her dignity. She further alleged that the second to fourth defendants failed to investigate her report and failed to provide emotional and spiritual assistance. The plaintiff issued summons claiming delictual damages. The second to fourth defendants responded with an exception, application to strike out portions of the declaration, and a special plea challenging the legal personality of the fourth defendant. The defendants also filed an application for condonation for late filing of heads of argument. The matter involved consolidated proceedings (HC 997/17 and HC 554/18) and was the third judgment of the court related to this dispute.

• Whether condonation should be granted for late filing of heads of argument
• Whether the application to strike out complied with the High Court Rules and whether certain paragraphs of the declaration should be struck out
• Whether the declaration properly pleaded material facts as required by Rule 99(c) of the High Court Rules
• Whether the fourth defendant had legal personality to be sued
• Whether the conduct of the first defendant (sexual assault) constituted a discharge of functions of a Minister of Gospel for purposes of vicarious liability
• Whether the exception raised issues suitable for determination without evidence
• Whether the special plea should be determined before trial

1. The application for condonation in respect of late filing of plaintiff's heads of argument is allowed. 2. The application to strike out is granted. 3. The plaintiff is granted leave to amend the summons and declaration in terms of the rules. 4. The special plea and exception are dismissed. 5. The defendants are ordered to plead over the merits in terms of the rules. 6. Costs in the cause.

1. Condonation applications must be determined judicially considering all factors including degree of non-compliance, explanation, prospects of success, prejudice, and interests of justice - the court has discretion to grant condonation where these factors favor it and no prejudice results. 2. Pleadings must comply with Rule 99(c) and contain only material facts in summary form, not narrative evidence - paragraphs that tell a story rather than plead facts are liable to be struck out. 3. Amendments to pleadings after issue of summons can only be made by consent of parties or by court order - unilateral 'notices of amendment' are unprocedural and invalid. 4. Exceptions can only address inherent defects apparent on the face of pleadings and cannot be used where determination requires evidence or resolution of factual disputes. 5. Issues of vicarious liability for employee sexual misconduct, including whether such conduct was sufficiently connected to employment duties, require evidence and cannot be determined by way of exception or special plea before trial.

The court made several non-binding observations: (1) It noted that rules of court are not an end in themselves to be slavishly adhered to at the expense of resolving real issues, citing Profert Zimbabwe (Pvt) Ltd v Macdom Investments (Pvt) Ltd HB 83/16; (2) The court observed that in sexual abuse cases, courts may establish vicarious liability where acts, though not constituting a mode of carrying out employee duties, may be sufficiently connected to the discharge of employment duties - this suggests a potentially broader approach to vicarious liability in such cases than traditional tests; (3) The court commented that there is a practice 'born of indolence and ignorance of the rules' whereby parties attempt to amend by unilateral notice, which is entirely unprocedural; (4) The court noted the matter had generated immense media attention and had been subject to multiple court proceedings, and stated it would restrict itself to the issues before it. These observations provide guidance on procedural compliance and suggest developing jurisprudence on vicarious liability in sexual abuse contexts.

This case is significant in Zimbabwean civil procedure for several reasons: (1) It clarifies the proper approach to condonation applications, emphasizing that rules of court should serve justice rather than be employed disruptively; (2) It reinforces the requirements of Rule 99(c) that pleadings must contain material facts in summary form, not narrative evidence; (3) It confirms that amendments to pleadings require either consent or court order, and unilateral 'notices of amendment' are unprocedural (citing ZFC Ltd v Taylor 1999 (1) ZLR 308 (H)); (4) It addresses the scope of vicarious liability in sexual abuse cases, suggesting courts may establish liability where abuse is sufficiently connected to employment duties, though this requires evidence; (5) It demonstrates the proper use of exceptions - they must address inherent defects in pleadings and cannot be used where factual disputes or evidence are required. The case also illustrates judicial discretion in managing complex procedural matters to achieve substantive justice.