Opposed Application
GUVAVA J: The applicant
instituted proceedings in this court seeking an order to amend her
declaration and plea to the defendants claim in reconvention.
The brief facts which have given
rise to this matter may be summarized from the applicant's founding
affidavit as follows.
The applicant in this matter is
the plaintiff in case number HC4981/07 wherein she is seeking an
order for divorce and ancillary relief. The respondent is the
defendant in that matter.
During the course of her marriage
to the respondent they acquired various movable and immoveable
properties. She alleges that some of the property was sold by the
defendant for his exclusive benefit prior to the institution of the
divorce proceedings. Following advice, she did not include the
property which had been sold by her husband as marital assets which
should be considered when making an award at divorce in her
declaration. The applicant however still feeling aggrieved by the
matter sought to amend her pleadings at pre-trial conference stage
before MUSAKWA J.
When the respondent opposed her
notice to amend she decided to institute these proceedings.
In terms of the notice which was
filed with this court on 29 March 2010 the applicant seeks to amend
para 8 of the declaration by adding four items which include a motor
vehicle, sewing machine, building materials and sewing materials.
It also seeks to add a new paras
10 and 11 which give a monetary value on the items and seek a half
share of the value.
The notice also seeks to claim a
half share of the rent defendant charged and received for an
immoveable property which they jointly own between June 2005 and June
2009.
The notice also seeks to add the
same claim to her plea to the defendant's counter-claim.
The respondent opposed the
application and filed an opposing affidavit.
It was his argument that the
property claimed had been sold during the subsistence of the marriage
for the mutual benefit of the family. He further stated in his
affidavit that some of the property was not matrimonial property as
same was stolen during the subsistence of the marriage. He then goes
on to explain what happened to the proceeds in respect of each item
claimed by the applicant in the Notice to Amend.
In my view it is not for this
court to determine the circumstances of the sale of the property. The
sole issue before me is whether or not the applicant can amend her
pleadings.
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:
(i) The first point to be
considered is whether the plaintiff has any prospects of success on
the issue upon which the amendment is sought.
(ii) 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 Ms Woods
argument 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.
Mr Mandevere
in his submissions advanced two main arguments as why the amendment
should not be granted:
(i) 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 at p514 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.
(ii) Secondly, Mr
Mandevere stated
that there was nothing that would stop the court, in considering the
award to be made in terms of the Matrimonial Causes Act [Cap
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 Mr Mandevere
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.
The applicant has been successful
and cost would ordinarily follow the cause. However in view of the
fact that the defendant has been put to the expense of opposing the
application which could have been avoided had the applicant included
everything in her declaration I will penalize her by denying her
costs in this matter.
Accordingly I make the following
order:
1. The application be and is
hereby granted.
2. There shall be no order as to
costs.
Atherstone & Cook,
applicant's legal practitioners
Mbidzo, Muchadehama & Makoni,
respondent's legal practitioners
