The
applicant seeks an order to amend its summons, particulars of claim,
and its prayer in case B6619/07 as particularized in the Draft Order.
The
application is contested.
The
background to the matter is that on 22 November 2007 the plaintiff
issued summons out of this court. The plaintiff's claim is
reflected as follows on the face of the summons;
“(1)
Delivery of diesel and petrol fuel.
(2)
Costs of suit.”
Paragraph
3 of the particulars of claim states that the plaintiff purchased and
paid in full for 150,000 litres of petrol and 25,000 litres of
diesel. The applicant received 129,189 litres of petrol and 23,280
litres of diesel thereby leaving a balance of 20,811 litres of petrol
and 1,720 litres of diesel. In the prayer, the applicant prayed for
delivery of 129,289 litres of petrol instead of the balance of 20,811
litres.
The
respondent entered an appearance to defend and requested for further
particulars on 17 January 2008. The applicant did not provide the
particulars, and, on 18 February 2008, went on to file an application
for summary judgment.
The
respondent opposed the application on 26 February 2008 and raised,
inter alia, some concerns about the applicant's particulars as
pleaded in the summons. On 7 March 2008, the applicant filed the
requested particulars. On 13 March 2008 the applicant filed a notice
of withdrawal of the application for summary judgment.
In
paragraph 2 of the further particulars, filed on 7 March 2008, the
applicant conceded that there was an error in paragraph 5 of the
particulars of claim in that the amount of petrol claimed by the
applicant from the respondent was supposed to be 20,811 litres. The
applicant went on to state that at the pre-trial conference the
plaintiff will apply to amend paragraph 5. The applicant set out, in
paragraph 2 of the particulars, the amendment that they will seek. It
concluded the particulars by requesting the respondent to plead over
to the merits on the basis that the amendment sought will be granted.
The
parties then exchanged numerous correspondence on the issue of costs
of the application for summary judgment. The applicant, in the notice
of withdrawal of the summary judgment, did not tender costs.
On
3 July 2008, four months after being provided with the particulars,
the respondent filed an exception to the applicant's summons and
declaration. The plaintiff opposed the exception, and, at the same
time consented to the matter being set for hearing. On 18 July 2008,
the respondent applied for set down of the matter. The exception did
not proceed further and it is still outstanding. On the same date the
applicant filed the present application and served it on the
respondent.
In
its Heads of Argument, the respondent raised three points in
limine.
The
first point was that the application for summary judgment was still
pending on the basis that the applicant had not tendered costs. The
second one was that the present application was not supported by a
founding affidavit but by a supporting affidavit. The third point was
that it is not proper for the applicant to file a court application
to amend summons when an exception to the summons has been filed.
These
issues were not pursued with in argument at the hearing and I will
take it that they were abandoned, and, in my view, properly so.
Turning
to the merits, it was submitted, on behalf of the applicant, that the
applicant was entitled to amend its pleadings in order to reflect the
correct issues. The incorrect figure in respect of quantity of petrol
claimed was clear a bona fide mistake. The omission to state the
purchase price was not fatal to the pleadings. The amendment was
essentially in two respects; namely, by correcting the number of the
litres of petrol being claimed and stating the amount of the purchase
price.
It
was further submitted that the opposition to the amendment was
vexatious as no prejudice would be occasioned by the granting of the
amendment. It was further submitted that this was an appropriate case
for a special order of costs. Costs should be on the attorney-client
scale by the respondent and bonis
propris
by
its legal practitioners.
It
was submitted, on behalf of the respondent, that the application is
not bona
fide.
An exception was filed on 3 July 2008. The applicant waited until 18
July 2008 to file the present application. It did not explain the
delay in filing the application. It was further submitted that the
amendment being sought relates exactly to the issues raised in the
exception. There is therefore an attempt to “dilute” the effects
of the exception by seeking to remove the cause of complaint while
the exception is pending in court. Such an application is mala
fide.
Counsel for the respondent referred the court to the case of Michael
d Adler v John Ellio
HCH 135/88 where the application for amendment to pleadings was
dismissed on the basis that it was made in bad faith.
It
was further submitted that the respondent will suffer incurable
prejudice as an order of amendment will be tantamount to a dismissal
of the exception without a hearing.
The
position adopted by our courts, in respect of applications for
amendment in terms of order 20 Rule 132 of the High Court Rules 1971,
is that an amendment will be granted unless the application to amend
is mala fide or would cause prejudice to the other side which cannot
be compensated by a postponement or by an order for costs or both;
see
UDC
Ltd v Shamva Gora (Pvt) Ltd
2000 (2) ZLR 210H…,.; Angeline
Enterprises (Pvt) Ltd v Albco (Pvt) Ltd
1990 (1)…, ZLR 6…,; Ruesen
v Mmeyes
1957 R & N 616…,.
In
UDC
Ltd v Shamva Gora (Pvt) Ltd
2000 (2) ZLR CHINHENGO J quoted WHITE J in Commercial
Union Assurance Co Ltd v Waymark
NO1995
(2) SA 73…, where he summarized the principles to be considered in
cases dealing with amendment to pleadings. CHINHENGO J went on to
remark that these principles were derived from decided cases in South
Africa as well as in Zimbabwe.
The
intention behind Rule 132 and the simple logic why our courts adopted
the above approach was summarized in Lourenco v Raja Dry Cleaners and
Steam laundry (Pvt) Ltd 1984 (2) ZLR 15 1 (SC)…, as follows:
“The
main aim and object in allowing an amendment to pleadings is to do
justice to the parties by deciding the real issues between them…,.”
The
same point was made in UDC
Ltd v Shamva Gora (Pvt) Ltd
2000 (2) ZLR…, where CHINHENGO J remarked:
“The
approach of our courts has been to allow amendments to pleadings
quite liberally in order to avoid an exercise that may lead to a
wrong decision and also to ensure that the real issue between the
parties may be fairly tried.”
It
is a practice of our courts that an exception is dealt with as an
opposed matter. Once the matter is set down, as was the case in the
present matter, the defendant must file Heads of Argument and prepare
the record in terms of Rule 227. Thereafter, the Registrar will refer
the file to a judge for a hearing.
In
casu,
the respondent did not do so, and, as a result the exception remains
outstanding. The respondent concedes that the amendment cures the
defects complained of in the exception. In my view, the respondent
will not suffer any prejudice if the amendment is granted as it can
still set down the exception on the issue of costs.
Litigants,
and legal practitioners in particular, must bear in mind that
litigation is not a battle of wits whereby they strive to outwit each
other. They should know that the object of the litigation is to do
justice. I can do no better than to quote WESSELS J in Whittaker
v Ross & Anor
1911 TPD 1092…, as quoted in DD
Transport (Pvt) Ltd v Abbot
1988 (2) ZLR 92;
“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. It is presumed that when a defendant
pleads to a declaration he knows what he is doing, and that, when
there is a certain allegation in the declaration, he knows that he
ought to deny it, and that, if he does not do so, he is taken to
admit it. But, we all know, at the same time, that mistakes are made
in pleadings, and it would be a very grave injustice, if, for a slip
of the pen, or error of judgment, or the misreading of a paragraph in
pleading by counsel, litigants were to be mulcted in heavy costs.
That would be a gross scandal. Therefore, the Court will not look to
technicalities, but will see what the real position is between the
parties.”
Although
WESSELS J was dealing with an amendment to withdraw an admission made
in error, his remarks apply with equal force to the present matter.
The error regarding the litres of petrol was an arithmetic issue. The
omission to state the purchase price cannot be described as fatal to
the pleadings.
Both
parties prayed for costs on an attorney & client scale and de
bonis propriis.
The
applicant contends that the opposition to the above amendment was
vexations.
In
my view, this cannot be correct.
The
applicant is seeking the indulgence of the court after having filed
papers, which, upon a cursory reading, the errors would have been
detected and corrected by the draftsman. The respondent would not be
in this situation had the applicant filed the summons with paragraph
5 in the form of the amendment it now seeks. The applicant has not
therefore established a basis to be awarded a special order of costs.
I
will therefore grant the application with costs.
Accordingly,
I made the following order;
1.
The application is granted.
2.
There will be no order as to costs.
