The applicant instituted proceedings in this court
seeking an order to amend her declaration and plea to the defendants claim in
reconvention….,.
The High Court Rules 1972, as amended, set out in what
circumstances pleadings may be amended. Order 20 Rule 132 provides as follows:
"Subject to rules 134 and 151, failing consent by
all parties, the court or a judge may, at any stage of the proceedings, allow
either party to alter or amend his pleadings in such manner and on such terms
as may be just and all such amendment shall be made as may be necessary for the
purpose of determining the real question in controversy between the parties.”
The leading case on this issue is the case of Horne v
Hine 1947 (4) SA 757 (SR) which sets out
what should be taken into account by a court or judge in determining whether or
not to grant the amendment to pleadings in terms of the above Rule. It seems to
me that the court is enjoined to consider two points. The first point to be
considered is whether the plaintiff has any prospects of success on the issue
upon which the amendment is sought. The second issue is whether or not an
injustice would be occasioned to the defendant which cannot be remedied by an
appropriate order of costs.
I will deal with the two points raised.
It was the argument by counsel for the applicant that the
sole purpose of seeking the amendment was to show that the applicant should be
entitled to a larger share of the existing matrimonial estate when it is
distributed as the respondent had already benefited when he sold the other
property which they owned. Indeed, it was conceded by the respondent, both in
his opposing affidavit and in the heads of argument, that these were issues which
would have to be dealt with in evidence.
Counsel for the respondent, in his submissions, advanced
two main arguments as why the amendment should not be granted. Firstly, he
argued that the applicant knew of this property prior to the issuance of summons
and that she could not seek to include the property at this stage of the
proceedings.
It is clear from a reading of the above-cited Rule that
pleadings may be amended at any stage of the proceedings. The authors HERBSTEIN
and VAN WINSEN in "The Civil Practice of the Supreme Court of South
Africa" 4th edition…, state the court has a discretion to allow
a party to amend his pleadings, or, in the case of an application, to file
further affidavits, at any time prior to judgment. Thus, the grant or refusal of
an application for an amendment to pleadings is a matter of discretion of the
court which is to be exercised judiciously taking into account all the
circumstances before it.
The applicant explained, in her founding affidavit, the
reason why she omitted the property in question from her declaration. The
explanation offered is satisfactory and I have found no reason to disbelieve
her on that point. In the case of Macduff & Co (in liquidation) v
Johannesburg Consolidated Investment Co Ltd 1923 TPD 309 the court stated as follows:
"However negligent or careless may have been the
first omission and however late the proposed amendment, the amendment should be
allowed if it can be made without injustice to the other side. There is no
injustice if the other side can be compensated by costs."
It therefore seems to me that the fact that the applicant
was aware of the property prior to issuing of summons should not be a bar to
her application for an amendment unless it can be shown that there would be
prejudice to the respondent.
Secondly, counsel for the respondent stated that there
was nothing that would stop the court, in considering the award to be made in
terms of the Matrimonial Causes Act [Chapter 5:11], to take into account the
property which the applicant seeks to be included in her amendment. He
submitted that all that the applicant would need to do is to lead evidence
during the trial with regard to the property in question. In his opinion it was
not necessary to seek an amendment to the pleadings to enable the applicant to
lead such evidence.
It seems to me that there is no dispute as between the
parties that evidence in relation to the property which the applicant seeks to
include in the amendment is relevant to the court when it makes a determination
on their proprietary rights. Whilst it is quite clear that the court, in
determining the matter, cannot distribute the property as it was sold, it has a
wide discretion in making an award which would ensure that there is an
equitable distribution between the parties. The object of pleadings is to
define issues. In my view, it would be difficult for the applicant to lead
evidence on this property if it was not part of her pleadings and this would
obviously prevent full inquiry into the dispute.
The applicant submitted that there would be no prejudice
to the defendant if the application was granted. Indeed, counsel for the
respondent did not seek to argue that the respondent would be prejudiced in the
event that the application was allowed.
I can find no prejudice which would be occasioned to the
defendant. In fact, the amendment will allow a full ventilation of all the
issues which are between the parties….,. Accordingly, I make the following
order:
1. The application be and is hereby granted.
