Application
for Amendment of Plea
CHIKOWERO
J:
After
hearing argument by counsel, I granted an order in terms of the draft
order attached to the application.
These
are my reasons. I undertook to furnish them.
This
is an application for amendment of the plea filed in the main matter,
HC6655/15. That matter had actually been enrolled on the continuous
roll for trial.
On
24 January 2018 my sister DUBE
J granted
an order removing the main matter from the roll. Paragraph 2 of her
order went further to provide that the applicant was to make an
application to withdraw admissions and then to enroll the matter.
Applicant was also ordered to pay the wasted costs.
The
applicant was the defendant in the main matter. It had pleaded that
the respondent (plaintiff in the main matter) had performed all its
obligations in terms of the four contracts entered into between the
parties at the time the applicant wrote to the respondent. In that
letter applicant instructed the respondent to stop any further
contractual work.
The
plea was therefore an admission.
The
admission was repeated subsequent thereto including in the Joint
Pre-Trial Conference Minute. The pre-trial conference was presided
over by a judge of this court. So the admission was repeated before
that judge.
Applicant's
plea was actually that the amounts claimed were no longer recoverable
by dint of the prescription of the cause of action.
That
special plea was withdrawn on the same date that the applicant
indicated that the admissions were made in error and applicant wanted
to amend its plea.
The
amendment sought was simply that respondent had not yet completed
carrying out the work that had been agreed to in terms of the
contract when applicant wrote to it to stop any further work.
Consequently, so the applicant wants to aver, respondent is not
entitled to any further payment beyond the amounts already paid.
As
preliminary point one, respondent says this application should have
been brought as a court application and not a chamber application.
There
is sufficient evidence in the rules, statutes and decided cases that
it is competent to institute a chamber application for amendment of
pleadings.
The
application can also be made as a court application and, in my view,
viva
voce
in court without being predicated on any written application.
Firstly,
Order 20 of the High Court Rules, 1971 deals with amendment of
pleadings and matters arising pending action. It is so headed.
Rule
132 reads:
“132.
Court may allow amendment of pleading
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 pleading, 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”
(Underlined for emphasis)
Secondly,
Rule 189 of the High Court Rules, 1971 reads:
“189
Withdrawal
of admission
The
court
may
at any time allow any party to amend or withdraw any admission so
made on such terms as may be just.” (Underlining mine)
Thirdly,
the proviso
to section 36 of the Civil Evidence Act [Chapter
8:01]
is relevant. I will set out section 36(1), (3) and that proviso.
They provide as follows:
“An
admission as to any fact in issue in civil proceedings made by or on
behalf of a party to the proceedings shall be admissible as proof of
that fact, whether the admission was made orally or in writing or
otherwise.
(2)…
(3)
It shall not be necessary for any party to civil proceedings to
disprove any fact admitted on the record of proceedings:
Provided
that this subsection shall not prevent any such admission being
withdrawn with leave of the court…”
(Underlined for emphasis)
Further,
Order 1 of the High Court Rules, 1971 deals with application of the
rules and interpretation of some of the terms used therein. In the
definition section, the following is found;
“3.
Definitions
In
these rules – 'Judge' means a judge of the court, sitting
otherwise that in open court.”
When
one reads this definition of a judge in tandem with Order 20 Rule 132
it is clear that there is nothing unprocedural in seeking amendment
of pleadings through a chamber application.
It
is unnecessary that l go on to quote Rule 226(2)(c) of the rules.
It
is sufficient that l record that l agree with Mr D.C
Kufaruwenga
for the applicant that an application for leave to amend pleadings
seeks procedural relief. It is precisely the remedy which should be
sought through a chamber application as provided for in Rule
226(2)(c).
There
is nothing substantive in an order allowing or dismissing an
application for amendment of a pleading. Needless to say, the
determination which is substantive is that which ensues at the trial.
That relates to the main matter.
I
do not think that legal practitioners should raise, let alone argue,
a procedural issue such as this. It is evidently without merit. It
simply contributes to clogging up the High Court roll.
Indeed,
even if it were incorrect for applicant to have filed a chamber
application instead of a court application I was still not going to
dismiss the application on that basis in light of the provisions of
Rule 229C of the rules of this court.
Dealing
with the proper procedure of amending pleadings after issue of
summons, GILLESPIE J stated in ZFC
v Taylor
1999
(1) ZLR 308 (H) at 310G to 309H:
“Failing
consent then it is necessary to make application for amendment,
either to court or a judge in chambers, depending upon the criteria
set out in r 226. The application must be served upon the opposing
party; be supported by affidavit showing good cause; and must be
accompanied by a draft order….”
I
do not wish to unduly lengthen this judgment by embarking upon an
analysis of all the provisions of the rules that l have quoted,
section 36 of the Civil Evidence Act [Chapter
8:01]
and the ZFC
v Taylor (supra)
judgment.
It
is clear that amendments to pleadings, in the absence of consent, can
be sought via a chamber or court application. It can also be sought,
through the mouth of the legal practitioner, in the absence of any
written application, depending on the magnitude of the amendment
sought.
I
thus dismissed the first preliminary point.
Preliminary
point two also found no favour with me.
The
incorrect form was used. Form 29B was used. Form 29, with
modifications, ought to have been used. Therefore, the application
should be struck off the roll for want of compliance with Rule 241(1)
of the High Court Rules, 1971.
This
was the point in
limine.
This
chamber application set out the grounds on which the order sought was
predicated. In prefacing the grounds the following was stated:
“Take
notice that application is hereby made for an order in terms of the
draft order annexed on the grounds that;”
After
listing the grounds the following statement appears as paragraph 3 of
the Notice of the application:
“3.
The accompanying affidavit and documents will be used in support of
the application.”
To
this extent, form 29B was used. But that is not the end of the
matter.
Paragraph
3 quoted above is also contained in form 29. So too is the notice and
reference to the draft order but without the grounds of the
application being enumerated in the notice itself.
The
form used in this matter contained paragraph 4. It read:
“If
you intend to oppose this application you will have to file a notice
of opposition in form 29A, together with one or more opposing
affidavits, with the Registrar of the High Court at Harare within ten
days (sic) on which this notice has served on you. You will also have
to serve a copy of the Notice of opposition and affidavits on the
applicants at the address for service specified below. Your
affidavits may have annexed to them documents verifying the facts set
out in the affidavits.
If
you do not file an opposing affidavit within the period specified
above, this application will be set down for hearing in the High
Court at Harare without further notice to you and will be dealt with
as an unopposed application.”
Clearly
therefore respondent's procedural rights to oppose the application,
the time frame within which to do so as well as being alerted to the
fact that in the absence of opposition the application would be set
down as unopposed, without the notice of set down on the unopposed
roll being served on him, were explained to respondent.
All
this is Form 29 language.
The
chamber application was served on respondent. Paragraph 4 of the
notice was in recognition of the fact that this is a chamber
application which had to be served on an interested party, the
respondent herein.
The
only blemish in paragraph 4 was that it made reference to the chamber
application, if unopposed, being set down and heard by the High Court
on the unopposed roll of court applications, it being a chamber
application.
The
proper wording would have been to omit any reference to setting down
the chamber application for hearing if no opposing papers were filed
within the time frame indicated in the notice. Instead, the
appropriate modification would have been to state in the notice that
if no opposing papers were filed within the dies
induciae
the application would be heard by a judge in chambers as an unopposed
application without further notice to the respondent.
All
told, the form was a hybrid of Form 29 and Form 29B.
I
have read the judgment of my brother MAFUSIRE J in Marick
Trading (Private) Limited v Old Mutual Life Assurance Company of
Zimbabwe (Private) Limited and The Sheriff of Zimbabwe
HH667/15. Copy thereof was handed up to me by the applicant's
counsel during argument.
I
have also read the judgment of my brother MATHONSI J in Telecel
Zimbabwe (Pvt) Ltd v Postal and Telecommunications Regulatory
Authority of Zimbabwe and Ors 2015
(1) ZLR 651 (H).
I
appreciate that these two judgments dealt with urgent chamber
applications rather than non-urgent chamber applications.
But
Order 32 sD of the High Court Rules, 1971, in particular Rule 241(1)
is dealing with the form of chamber applications generally.
One
then has resort to either Form 29 with appropriate modifications or
Form 29B depending on whether the chamber application is to be served
on an interested party or not.
In
the circumstances of this particular matter, I found that there was
substantial compliance with Rule 241(1).
The
respondent was left in no doubt at all on its procedural rights. That
is what the appropriate modifications envisaged in the proviso to the
rule are meant to cover.
Service
of the written application was effected on the respondent. It opposed
the matter right up to the stage of oral argument. There was no
prejudice to it. There was no need, in my view, for the applicant to
seek condonation. Neither was it necessary that Rule 4C be invoked.
There
also was nothing irregular in applicant filing an answering affidavit
once the chamber application became opposed. The procedure followed
in these circumstances is the same as in opposed court applications.
The
replying affidavit was a further affidavit. Although it was filed
together with, in the sense of being attached to the answering
affidavit, it still remains a further affidavit. It was filed without
leave of the court or a judge.
It
was therefore irregular. I disregarded it in determining the matter.
Otherwise,
I dismissed the point in
limine
that the answering affidavit was an irregular pleading.
The
last point in
limine
was that the applicant led evidence through Heads of Argument.
No
evidence was led in the applicant's heads of argument. All that the
applicant did, to fortify its argument, was to reproduce, verbatim,
the contents of the letters already attached to the founding
affidavit as annexures “A” and “B”. Those annexures were not
attached to the heads of argument. No averments of facts, which would
have been evidence, were introduced through the heads of argument.
This
preliminary point, too, lacked merit. I dismissed it.
I
now understand why it is completely undesirable for parties to raise
preliminary points as a matter of fashion. Such points should only be
raised where they are merited and are as could truly dispose of the
whole matter without resort being had to the merits.
I
have spent a lot of time and energy writing reasons for dismissing
points in
limine
which clearly ought not to have been raised in the first place. I
shall, in future, seriously consider visiting litigants who are
similarly disposed with an appropriate order of costs.
I
now turn to the merits.
The
legal principles applicable in determining an application for
amendment of pleadings are settled. They are set out and analysed in
Herbstein and van Winsen in the Civil
Practice of the High Courts of South Africa
5ed
vol. 1 from pp678-685. It is therein acknowledged that there is a
somewhat different approach where the amendment sought amounts to
withdrawal of an admission.
Such
an amendment is more difficult to achieve because it involves a
change of front by the party seeking the amendment.
A
full explanation has to be given to convince the court of the
circumstances that led the party to make the admission sought to be
withdrawn and substituted with a different position, and why the
application for amendment is being made at the stage it is being made
and not earlier.
In
other words, the court or judge must be satisfied that what is before
it or him is a bona
fide
application for amendment.
The
court also considers whether the other party is likely to be
prejudiced were the amendment applied for granted.
If
there is likely to be such prejudice, the court considers whether it
is such as cannot be cured by an appropriate order of costs, or
postponement.
The
court has the widest possible discretion in dealing with applications
for amendment. This is so because the underlying purpose of pleadings
is to place before a court such pleadings as will facilitate
determination of the real question in controversy between the
parties.
These
principles represent the legal position in our jurisdiction.
I
refer in this regard to the following matters, namely, DD
Transport (Pvt) Ltd v Abbot
1988 (2) ZLR 92 (SC);
Jayesh
Shah v Kingdom Merchant Bank Limited
SC4/17; Chimutanda
Motor Spares (Pvt) Ltd v Musare and Anor
1994
(1) ZLR 310 (H); and Wayne
Parham and Credfin (Private) Limited v Jan Fredrick Kotze
HH312/18.
In
the present matter, the explanation tendered for having made the
admission already referred to was this:
The
applicant did not have sufficient documents relating to work carried
out in terms of the four contracts at the time that instructions were
given to its legal practitioners to draw up the plea and subsequent
court process in the main matter.
This
was occasioned by the fact that summons was issued twelve years after
the contracts were entered into.
Employees
with knowledge of the facts of the matter had left the employ of the
applicant at the time that litigation commenced.
These
included the applicant's key witness, Engineer Innocent
Masunungure. He had relocated to South Africa.
Annexures
'A' and 'B' to the founding affidavit are letters written by
the applicant's legal practitioners to the applicants.
They
reveal that indeed the applicant was battling to furnish its legal
practitioners with full instructions.
The
result was that incorrect instructions were given to the applicant's
legal practitioners. On the basis of those incorrect instructions the
plea was drafted and filed. It contained the erroneous admission that
the respondent had completed carrying out its obligations in terms of
the four contracts at the time that the applicant wrote to it
instructing that the respondent stops further work.
This
error was discovered after the Pre-trial Conference was held hence
the application for amendment being made at the trial stage.
I
was satisfied with that explanation.
I
was satisfied with the bona
fides
of the application for amendment.
I
was satisfied that no injustice or prejudice would be visited upon
the respondent by my granting of the application.
This
was so because my reading of the opposing papers clearly shows that
the respondent had all the evidence it believed would refute the
applicant's position in the event that the application for
amendment were granted.
The
opposing papers clearly replicated, in anticipation, to the
applicant's draft amended plea. That draft was attached to the
draft order.
The
opposing papers did not end there.
An
interpretation was attached to correspondence entered into between
the parties. The letters were attached to the founding affidavit.
I
was asked to find that the correspondence meant that the respondent
had finished carrying out the work in terms of the four contracts by
the time that the letter to stop further work was written to the
respondent.
Further
documents were attached to the opposing affidavits.
On
the basis of all the documents I was invited to find as a fact that
the respondent had indeed finished carrying out all the work in terms
of the four contracts at the time the letter to stop further work was
written.
In
the answering affidavit the applicant contended that the documents
confirmed the applicant's position that the work had not been
completed when the written instruction was given to stop further
work.
The
work in question is technical.
Because
I was not presiding over the main matter, it was unjust for me to
find, without the benefit of a trial, that the defendant's
admission was the truth and that the draft amended plea contained
falsehoods.
I
did not consider it correct that I should decide this application on
the basis of credibility. Put differently, I did not consider it
correct that I should conduct a “trial on affidavits”. The merits
of the main matter were debated in the affidavits. I declined the
invitation to, in effect, usurp the functions of the trial court.
I
was satisfied that the amendment sought raised a triable issue. It
sought to place, before the trial court, the real question in
controversy between the parties.
These
are the reasons why at the end of the hearing, I ordered that:
1.
Leave be and is hereby granted to allow the applicant to withdraw the
admissions made by the applicant in paragraphs 14, 17, 19 and 20 of
the defendant's plea which was filed by the applicant in case
number HC6655/15 on 10 September 2015.
2.
Leave be and is hereby granted allowing the applicant to withdraw the
admission contained in the first paragraph of clause 8.3 of the
“Joint Pre Trial Conference Minute” signed by the parties on 29
September 2016 and filed at Court in case No. HC6655/15 on 28 October
2016.
3.
Leave be and is hereby granted allowing the applicant to amend the
defendant's plea filed of record on 10 September 2015 in case
number HC6655/15 and the defendant's Notice of Amendment filed of
record in case number 6655/15 on 21 January 2016 in the following
respects;
(a)
By expunging, deleting and removing from the record, the defendant's
plea filed of record in case number HC6655/15 on 10 September 2015.
(b)
By expunging, deleting and removing from the record, the defendant's
Notice of Amendment filed of record in case number HC6655/15 on 21
January 2016.
(c)
By substituting and replacing the pleadings referred to in clause
3(a) and 3(b) of this order with annexure “K” attached to the
application.
4.
Leave be and is hereby granted allowing applicant to file in case
number HC6655/15 an Amended Defendant's Plea in the form of
Annexure “K” attached to the application within 7 days from the
granting of this order, and upon such filing, the amended plea in the
form of Annexure “K” shall for all intents and purposes, be
deemed to be the defendant's plea for case number HC6655/15.
5.
There be no order as to costs.
Dzimba
Jaravaza and Associates,
applicant's legal practitioners
Gill,
Godloton and Gerrans,
respondent's legal practitioners
