The
applicant and the respondent are married. Their marriage was blessed
with four children of which three are now adults and one is still a
minor. The parties had been living in the United Kingdom (UK) for
some time and are now back in Zimbabwe. In February 2013, the
applicant, through his then legal practitioners, Scanlem &
Holderness, issued summons and declaration seeking a decree of
divorce and ancillary relief in case no. HC11401/13. In the summons
and declaration, the applicant pleaded, inter alia, that -
1.
It was in the interest of his minor children to remain in the custody
of Mrs Bowers;
2.
That Mrs Bowers ought to keep ownership of 189 Patrick Close; and
3.
That it was fair and equitable that Mrs Bowers should receive
maintenance of USD$2,000= per month.
On
1 August 2013, Mr Bowers filed a Notice of Intention to Amend. No
application to amend was however made at court until 10 December
2014. In the meantime, Mrs Bowers sought further particulars and
filed her plea and counter claim. Mr Bowers requested further
particulars to Mrs Bowers' plea of which Mrs Bowers complied with.
Mr Bowers filed his replication to Mrs Bower's plea in June 2014
after which discovery was effected.
It
is in the context of the above that on 10 December 2014 the applicant
filed the application to amend his declaration.
In
his application, the applicant seeks to amend his declaration to now
state that:-
1.
That it is in the interest of both of his minor children that custody
be awarded to him;
2.
That Mrs Bowers could occupy 189 Patrick Close for another 2 years
and thereafter receive one half of the net sale proceeds; and
3.
That Mrs Bowers receive no maintenance.
The
applicant argued that the amendments were necessary for a number of
reasons. These included the change of circumstances. For instance,
when he initially issued summons, two of the children were minors but
one has now attained majority status and so the issue of maintenance
will be affected. Also, his income has gone down. Having been out of
the country for a long time he had not appreciated the economic
situation such that he thought that his medical practice would bring
in more income than is the current situation. The current situation
is such that he cannot afford the offer of maintenance he had made to
Mrs Bowers. On the issue of custody, the applicant's position
seemed to be that he has been denied access to the level they had
agreed and he has realised that the children's best interests will
be better served if he is granted custody. He also alluded to the
fact that the youngest child has in fact expressed a wish to stay
with him.
The
respondent opposed the application.
She
contended that the applicant had made admissions which he cannot just
withdraw. He has to meet a higher onus for the amendment to be
granted.
Rule
132 of the High Court Rules, 1971, as amended, provides that:
“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.”
This
Rule clearly gives a party the leeway to amend the pleadings at any
stage. This leeway is, however, subject to certain conditions.
In
J D M Agro-consult & Marketing (Pvt) Ltd v Editor, The Herald &
Another 2007 (2) ZLR 71…, GOWORA J…, had this to say about such a
right to amend pleadings;
“A
party can, in this court, amend its pleadings at any time, provided
there is no prejudice to the other party, which prejudice is not
capable of being cured by an award of costs. As much as I have
searched, I have not come across any authority that says that such an
application cannot be made even after pleadings have closed….,.”
A
key element is that of prejudice and whether such prejudice cannot be
cured by an award of costs.
The
court is also enjoined to ascertain whether such amendment is
necessary for the purpose of resolving the real issues between the
parties as that is the hallmark of justice.
Rule
189, which deals with the withdrawal of admissions, and provides
that:-
“The
court may, at any time, allow any party to amend or withdraw any
admissions so made on such terms as may be just.”
The
issue should thus be on the circumstances the court may grant or
refuse to grant such an application. Is it granted at the mere asking
or not?
In
D D Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (S)…, GUBBAY JA…,
had this to say on the test to be applied in an amendment that has
the effect of withdrawing an admission:
“An
amendment which involves the withdrawal of an admission will not be
granted by the court simply for the asking; for it is an indulgence
and not a right…,. Before the court will exercise its discretion in
favour of the desired amendment it will require a reasonable
explanation, of both the circumstances under which the pleader came
to make the admission and the reason why it is sought to resile from
it. If persuaded that to allow the admission to be withdrawn will
cause prejudice or injustice to the other party to the extent that a
special order for costs will not compensate him, it will refuse the
application.”
See
also Lamb v Beasley NO 1988 (1) ZLR 77.
The
court basically requires a reasonable explanation for the proposed
amendment or withdrawal of the admissions.
In
casu, on the question of custody, the applicant's explanation was
to the effect that the admission was made on the understanding that
he would have reasonable access to the children as the parties had
agreed, but, alas, this has not been so. He has now realized the
respondent is not acting in the best interest of the children in this
regard. Also, the one minor child remaining has unequivocally
expressed his wish to stay with the applicant. It would thus not be
proper to deny the child its wish.
The
respondent conceded that that child has indeed expressed such wish.
She sought to downplay that by saying that it is because the
applicant is not strict with the child. The child would thus want to
go to a parent who is not strict.
Whatever
the reason, the point is, the child's wish must be considered.
Whether it will be granted or not is not for now.
Article
4(2) of the African Charter on the Rights and Welfare of the Child,
which Zimbabwe ratified and is an active participant in the
enforcement of its principles, states that:-
“In
all judicial or administrative proceedings affecting a child who is
capable of communicating his/her own views, an opportunity shall be
provided for the views of the child to be heard either directly or
through an impartial representative as a party to the proceedings,
and those views shall be taken into consideration by the relevant
authority in accordance with the provisions of appropriate law.”
It
is only proper, therefore, that the issue of custody be decided by a
trial court that will determine what would be in the best interests
of the child after hearing evidence.
On
the issue of maintenance, the applicant explained the scenario in
which he had made the offer and the fact that the reality on the
ground is such that his expectations of earning a lot of income from
his practice cannot be realised. He had just come from the
United Kingdom with high hopes of earning substantial income but that
has not been so. Equally, one of the children is now a major and so
the portion for that child will have to fall off.
As
for maintenance for the wife, the circumstances are such that his
income is not high enough for him to afford it as he had anticipated
when he made the offer. On the immovable property, it is common cause
that his offer had not been accepted and so whichever way one looks
at it, it was still subject to determination by the court.
Upon
considering the explanation by the applicant, I was of the view that
the explanation was reasonable in the circumstances and in respect of
all the amendments sought. On the aspect of prejudice, I did not hear
counsel to seriously argue that the respondent will suffer much
prejudice and that any prejudice suffered cannot be compensated by an
award of costs should she be able to establish such. The respondent's
contention was mainly that as a result of the applicant's
admissions the respondent has not been collecting evidence over the
past two (2) years as she would have done had she known that the
applicant was going to re-open issues that had already been agreed. I
am of the view that the respondent can still gather adequate evidence
on the issues of custody and maintenance. These aspects pertain to
day to day occurrences and are not dependent on archived evidence.
Costs
The
applicant asked for the respondent to pay costs for this application.
The respondent, on the other hand, contended that the applicant
should bear the costs of this application whether the application is
granted or not.
Upon
consideration of the submissions, I am of the view that the
circumstances of the case seem to show that the respondent, as wife
to the applicant, has been dependent on maintenance payments from the
applicant. The opposition itself was not out of malice but genuine
concerns. In the circumstances, each party will bear their own costs
of this application.
Accordingly,
leave is hereby granted to the applicant to amend the plaintiff's
declaration in accordance with the plaintiff's Notice of Intention
to Amend the plaintiff's declaration filed of record on 1 August
2013.
Each
party to bear their own costs of this application.
