MATHONSI J: The Applicant in this matter instituted
proceedings against the Respondent under case No. HC 2600/07 on the 8th
November 2007 seeking adultery damages of $4 billion Zimbabwe dollars alleging
that the Respondent had committed acts of adultery with his wife. On the 5th December 2007 the
Respondent entered appearance to defend that action.
On the 1st February 2008,
the Respondent filed a plea in response to the claim which plea, with respect,
does not articulate any position whatsoever as it neither denies not admits the
adultery. The closest the Respondent
comes to pleading meaningfully is in paragraph 2 of the plea. In answer to the averments in the declaration
that he used to teach with Applicant's wife at Dombodema High School in
Plumtree, was aware that Gratitude Nkosithandile Ncube was Applicant's lawfully
wedded wife and that despite such knowledge, he “instigated and commenced an
adulterous relationship with the plaintiff's wife”, the Respondent merely
says:-
“Defendant denies that he instigated
the relationship.”
This may be taken as an admission of
the adultery by implication.
Regarding the quantum of damages
claimed by the Applicant the Respondent pleaded as follows:-
“The
Defendant offers as full and final settlement the sum of $250 000 000-00
damages due to the Defendant (sic)”
The fact that the Respondent makes an
offer in respect of adultery damages due to the Applicant means that the only
issue between the parties to the extent of the claim is the quantum of adultery
damages due to the Applicant. The
Applicant did not accept the offer made and in his replication filed on 3rd
March 2008 he states categorically that the offer is inadequate.
Subsequent to the filing of the plea
and replication inflation played havoc to the Applicant's claim. This was at the time of the economic meltdown
which literally changed the value of money on a daily basis. Obviously taking advantage of that situation
and realizing that the claim of $4 billion Zimbabwe dollars filed by the
Applicant had virtually been obliterated by inflation, the Respondent filed a
consent to judgment in that sum of money “as full and final payment.”
The Respondent did not amend or
withdraw his plea filed earlier. The
Applicant did not accept the consent to judgment and by letter dated 12th
May 2008 his legal practitioners advised the Respondent's legal practitioner as
follows:-
“We
refer to your Consent to Judgment filed on 30th April 2008. Please note that the writer was on leave
during the month of April. We regret to
advise that it is our respectful opinion that the Consent to Judgment does not
comply with the Rules and is therefore invalid.
It is vague and embarrassing in that on the one hand it seems to Consent
to Judgment as claimed in Summons, yet in the same vein tenders payment of $4
billion in full and final payment, meaning that the claim for interest and
costs is not being consented to by yourselves even though contained in the
Summons. Further a tender in settlement
must comply with Rule 144 of the Rules. Yours
does not.”
The
Applicant then filed a proposed amendment to increase the claim to $500 billion
Zimbabwe dollars on the 14th May 2008. The Respondent promptly opposed the proposed
amendment by notice filed on the 15th May 2008 and it was abandoned.
In February
2009, the Zimbabwe dollar became moribund with the government introducing
multiple currencies. When that happened,
this matter was still pending and no judgment had been given either way. On the 18th September 2009, the
Applicant filed the present application seeking an order amending his claim
from a total of $4 billion Zimbabwe dollars to a total of US$40 000-00. The reason given for seeking the amendment
was that hyper inflation eroded the original claim and that the Zimbabwe dollar
was eventually abolished before the matter was finalized.
The
Respondent has again opposed the application arguing inter alia
that:-
(a) The application is uncalled for as
the issue of the amendment should be dealt with at the pretrial conference or
at the commencement of the trial;
(b) The application ignores that there is
another proposed amendment of the claim to ZW$ 500 billion which was not
finalized,
(c) A Consent to judgment in the sum of
ZW$4 billion was filed and that consent settled the matter.
Order 20 Rule 132 of the High Court
Rules provides:-
“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
amendments shall be made as may be necessary for the purpose of determining the
real question in controversy between the parties.”
The approach of the
courts to an application for an amendment which has been followed time without
number is aptly captured in a judgment of WESSELS J in Whittaker v Roos and Another 1911 TPD 1092 at 1102 -1103 which was
quoted with approval by GUBBAY CJ in DD
Transport (Pvt) Ltd v Abbot 1988(2) ZLR 92(S) 98 G-H. It reads as follows:-
“This
Court has the greatest latitude in granting amendments and it is very necessary
that it should have. The object of the
Court is to do justice between the parties.
It is not a game we are playing, in which, if some mistake is made, the
forfeit is claimed. We are here for the
purpose of seeing that we have a true account of what actually took place, and
we are not going to give a decision upon what we know to be wrong facts.”
The guiding principle in
considering an application for an amendment is always the attainment of
justice. Of course an application for an
amendment which is mala fide or will result in an injustice will
not be granted.
See C. F Hutchison and N. Atkinson NO v Logan HH 91-98 at 19 where it
is stated:-
“The
modern practice is in favour of granting applications for leave to amend
whenever the amendment facilitates the proper ventilation of the dispute
between the parties.”
It matters not that the
application for an amendment is brought before the pretrial conference or
before the commencement of trial because Rule 132 allows the court or a judge
to grant an amendment at any time during the proceedings. I do not agree with Mr Ndlovu who appeared for the Respondent that the use of the word
“proceedings” in Rule 132 limits the power to grant an amendment only to the
time after commencement of trial. Indeed
proceedings are commenced by the filing of the summons and an amendment can be
granted at any time before the conclusion of those proceedings.
See UDC Ltd v Shamva Flora (Pvt) Ltd 2000(2) ZLR 210.
The argument that the application
for an amendment should not be granted because Applicant once gave notice of an
intention to seek an amendment of the claim to ZW$500 billion cannot be taken
seriously. In the first place no
application for that amendment was made at all.
Only a notice was filed. In the
second instance, to attempt to defeat this application by reference to an
attempt to increase the Zimbabwe dollar claim long after the use of that
currency was discontinued in favour of multiple currencies, is simply
disingenuous and cannot be taken seriously at all.
It remains for me to deal
with the Respondent's consent to judgment filed on 30th April 2008. Respondent did not consent to the entire
claim of the Applicant and that consent was a conditional one in the sense that
it was in “full and final payment.” If
the Applicant had accepted it and submitted an application for judgment in
terms of Rule 55 it would have meant that he would have had to abandon the rest
of his claim relating to interest and costs of suit. I must also state that the purported consent
to judgment was not an honest one and was clearly made in order to gain an
unfair advantage over the Applicant. As
pointed out earlier, when filing his plea the Respondent had admitted liability
in the sum of ZW$250 million only which was a fraction of what Applicant claimed. When hyper inflation eroded the claim such
that even the ZW$4 billion was meaningless 3 months later, Respondent filed a
limited consent to judgment.
What he therefore sought
to do was to replace a dishonest denial of liability with an admission of
liability in an even less valuable amount which was hardly less dishonest see DD Transport (Pvt) Ltd v Abbot (supra)
at 1010 D-E.
I am satisfied that the
application for an amendment is made in good faith and it has not be shown that
the Respondent will suffer any prejudice at all as a result of the amendment
being granted. What the Respondent seems
to be saying is that he would have preferred the amendment to come at the
pretrial conference or at the commencement of the trail.
As already stated the
granting or refusal of an amendment is at the discretion of the Court and that
discretion has to be exercised judiciously.
See Copper Trading Co (Pvt) Ltd v City of Bulawayo 1997(1) ZLR 134(S)
at 143H-144B and 144G where it was stated that:-
“It
is paramount that the discretion reposed in the Court in respect of amendments
be exercised in a manner which allows the issues between the parties to be
fairly tried. The fact that the
amendment might lead to the defeat of the other party is not the kind of
prejudice which should weigh with the Court.”
In casu, it is the opposition to the amendment which is legendary by
its lack of merit raising the suspicion that it was embarked upon merely to
delay the finalization of the matter.
Accordingly, an appropriate order for costs would have to be made to
register the courts displeasure at such abuse of process.
In the result, the order
is granted in terms of the draft order attached to the application, to wit,
that:-
1. The Applicant's claim in matter No.
HC 2600/2007 be and is hereby amended by the deletion of $2 000 000 000-00 and
$4 000 000 000-00 respectively wherever they appear and substituted by the
figures of US$20 000-00 and US$40 000-00 respectively.
2. The Respondent shall bear the costs
of this application.
Mathonsi J………………………………………………………..
Calderwood, Bryce Hendrie & Partners, applicant's legal practitioners
Messrs. Mlweli Ndlovu and Associates,
respondent's legal practitioners
