In
this application, the applicant sought to amend the name of the
plaintiff in case number HC13277/12 so as to read Margaret Chivimbiso
Mwamuka and not Arafas Mtausi Gwaradzimba N.O.
The
first respondent is opposed to the application.
The
brief background of the matter is that the applicant issued summons
in HC13277/12 in his official capacity as executor of estate of the
late Vernon Nathaniel Mwamuka. The applicant assumed this title by
virtue of a power of attorney given by Margret Mwamuka, the surviving
spouse and executor of the estate of Vernon Mwamuka. It became
apparent, on paper, the applicant is in fact not an executor. Notice
of intention to amend pleadings to reflect Margret
Mwamuka was communicated to the respondents as way back as 2013….,.
The
application was filed on 24 October 2013 and was opposed at pre-trial
conference stage hence the current opposed formal application.
The
basis of the applicant's application is to amend the plaintiff who
instituted the proceedings on the basis of a power of attorney given
by the executrix Magret Mwamuka…,. The anomaly that can be
discerned easily from the papers is that the plaintiff is referred to
as an executor when in actual fact his basis of issuing summons was
per the power of attorney and not that he is the/or executor.
The
respondent, in opposition of the application, premised its argument
along the lines that there are no valid proceeding before the court
given that the plaintiff is cited in his official capacity as
executor in an estate, a position which is not factual. The
respondent argued that the plaintiff assumed a position he did not
hold. The respondent sought to rely on the case of Stewart Scott
Kennedy v Mazongororo Syringes 1996 (2) ZLR 565, arguing that the
person who ought to issue summons did not exist thus rendering the
proceedings invalid. The crux of the respondent's argument is that
the plaintiff assumed the office of executor dative which office he
does not hold. The respondent argued that the request to amend the
summons by substituting himself with Mrs Mwamuka in the circumstances
would be akin to requesting the court to amend a nullity which is a
legal impossibility….,.
Further,
the respondent argued that the application, if granted, would
prejudice the respondent given the line of defence to the claim. The
respondent further argued that the application was fatal in that it
failed to join the substitutee, Mrs Margaret Mwamuka. The respondent
sought to rely on Coetzee v Steyn 1955 (3) SA 48.
Given
the background of the case, and the applicant and respondent's
arguments, I propose to recount, where necessary, the circumstances
of this case relating it to the law and case law alluded to by the
parties.
It
is not in dispute that without a plaintiff there can be no claim. In
other words, a claim of a non-existing person is null and void as far
as institution of the claim is concerned. The same reasoning was well
propagated in the case of Stewart Scott Kennedy v Mazongoro Syringes
(Private) Limited 1996 (2) ZLR 565.
The
plaintiff in Stewart Scott Kennedy v Mazongoro Syringes (Private)
Limited 1996 (2) ZLR 565 was non existent since the partnership had
been dissolved. This scenario meant the summons were invalid and
therefore could not be rectified by amendment. A reading of Stewart
Scott Kennedy v Mazongoro Syringes (Private) Limited 1996 (2) ZLR 565
and Old Mutual Asset Management (Private) Limited v Travel Tours and
Car Sales HH53-07 surely depicts a distinguishable scenario from
circumstances of the present case. It is crystal clear in the two
cases mentioned above that the proceedings were instituted by a
non-existent person and hence void ab intio. They were incapable of
amendment as they were a nullity in the first place.
In
this case, the plaintiff, Arafas
Mtausi Gwaradzimba,
is a person in existence, who, albeit not an executor, was referred
to in the claim as one. It is not in dispute that Mrs Margret
Mwamuka, the executor, issued a power of attorney for the applicant
to represent her but such does not qualify Arafas
Mtausi Gwaradzimba as
the executor. It is that anomaly of the applicant not being properly
cited as executor which the applicant seeks to amend by substitution
of the plaintiff in HC13277/12 with Mrs Margret Mwamuka the executor.
In the present case, the validity of the proceedings emanates from by
the fact that a real person is cited on a power of attorney, albeit,
wrongly referred to as executor. The fact that the plaintiff is
existent gives a different complexion in that the proceedings, in the
first instance, are valid.
The
case of JDM Agroconsult and Marketing v Editor, The Herald and Anor
2007 (2) ZLR 71 (H) is instructive. The substitution sought is to
facilitate the amendment.
The
other argument advanced in opposition is with regard to the fact that
Mrs Margret Mwamuka is not a party to the proceeding. It is clear
from the papers filed that in an answering affidavit Mrs Magret
Mwamuka, the executor of estate late Vernon Nathaniel Mwamuka,
confirmed having given Afaras Mtausi Gwaradzimba authority to issue
summons in case HC13277/12 under a power of attorney which she
granted, although inadvertently describing the applicant as the
executor. This is also clear from the applicant's legal
practitioner's affidavit, which affidavit is properly before the
court since a lawyer is not precluded from giving evidence of a legal
nature and of facts he has knowledge of.
The
applicant's supporting affidavit in answer also crystalizes the
circumstances under which he was authorised by Margret Mwamuka to
issue summons under case HC13277/12. The purpose of an answering
affidavit, among others, is to answer issues raised by the opposition
and such evidence cannot be disregarded. In answering affidavits, the
applicant is accorded an opportunity to answer issues raised in
opposition papers. It is clear the applicant was authorized
by Mrs Mwamuka to issue summons.
The
law on amendments is very clear. The application was made on notice.
Order 20 Rule 132 and Rule 134 are apposite on amendments of
pleadings. Rule 132 reads:
“Subject
to Rules 134 and 151 failing consent by all parties, the court or
Judge may, at any stage of the proceedings, allow either party to
alter or amend his pleadings in such a manner and/or 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.”…,.
Attention
should also be paid to Rule 226 whose import is to allow applications
for whatever purpose to be made in writing.
In
the case of ZFC Ltd v Taylor
1999
(1) ZLR…, the Honourable Judge GILLESPIE referred to written
applications for amendment in the event of parties not consenting.
The judge correctly spelt out the procedure where there is need to
amend. The application ought to be supported by an affidavit showing
good cause and must be accompanied by a draft order.
Given
the circumstances of this case, the applicant has approached the
court with a written application, on notice, to amend the summons by
substitution of the plaintiff. This is the on basis that the
plaintiff was inadvertently referred to as executor on the grounds of
a power of attorney from the official executor.
Generally,
amendments shall be made as may be necessary to determine the real
question in controversy between the parties.
In
this case, the matter is centred on the estates. There is no
prejudice which will be occasioned having the executor of the estate
appear as the plaintiff without changing the nature and subject of
the cause of action.
In
the case of Moolman v Estate Moolman and Anor 1927 CPD 27…,
WATERMEYER J captioned that amendments, in situations where the
applications are not mala fide,
ought to be granted. I subscribe to these same sentiments which have
also been echoed in our own jurisdiction. See Chakadaya v Chakadaya
2001 (1) ZLR 421.
Also,
in Commercial Union Assurance Company Limited v Waymark N.O.1995 (2)
SA 72 TK WHITE J set out general principles governing applications
for amendment of pleadings. He outlined that it would not be
appropriate to refuse an application for amendment simply to punish
the applicant for somewhat dilatory and negligent notification in
delay in bringing the application. I subscribe to the reasons in
Commercial Union Assurance Company Limited v Waymark N.O.1995 (2) SA
72, moreso given that in our jurisdiction, the amendment of pleading,
as provided by our rules, may be entertained at any stage upon
application in writing or orally.
The
court, however, has a discretion to grant or refuse the application.
The central aspect in the exercise of its discretion is what is just
and necessary for purposes of determining the real question in
controversy between the parties.
In
the circumstances of this case, it is clear that the application
brought before the court is very procedural. The issue of delay in
bringing the application cannot stand in the way given the interest
of justice on whether or not the amendment would turn out to be
prejudicial to the other party. The application to amend the summons,
by substituting the plaintiff in HC13277/12 with Mrs Margret Mwamuka,
the executor, in her late husband, Venon Mwamuka's estate, appears
to have been motivated by genuiness as opposed to malice. Mrs
Mwamuka, the executor, had given a power of attorney to Mr Arafus
Gwaradzimba to administer the estate. To have him cited as an
executor would be erroneous. It is this anomaly which the amendment
seeks to correct. I find no reason why I should read mala fides in
such a scenario. It is crystal clear Mrs Margret Mwamuka is the
executor and no injustice would be occasioned by amendment of
pleadings by substitution of the plaintiff.
The
application for amendment is genuine in that as it seeks to
facilitate proper ventilation of the disputes between the correct
and/or appropriate parties relevant to the issue.
In
my view, in deciding whether to grant or refuse the application, what
is central to this exercise of discretion is what is just and
necessary for purposes of determining the real question of
controversy. I do not perceive any prejudice which would be
occasioned by having the executor as party to the proceedings which
is not curable by remedies available readily to the respondent.
It
is accordingly ordered:
1.
That the summons current plaintiff in case 13277/2012 be and is
hereby substituted by Margaret Chivimbiso Mwamuka (in her capacity as
Executrix of the Estate of the late Vernon Nathaniel Mwamuka).
2.
That the plaintiff's declaration filed of record in case HC13277/12
be and is hereby amended by deletion wherever it appears; of the name
“AFARAS MTAUSI GWARADZIMBA and substitution thereof with the name
MARGARET CHIVIMBISO MWAMUKA.”
3.
That costs of this application be costs in the cause.
