CIVIL PRACTICE – AMENDMENT OF PARTICULARS OF CLAIM DUE TO ERRORS BY ERSTWHILE LEGAL PRACTITIONER

CIVIL PRACTICE – AMENDMENT OF PARTICULARS OF CLAIM DUE TO ERRORS BY ERSTWHILE LEGAL PRACTITIONER

The plaintiff sought to make three amendments to the particulars of claim, which the defendant opposed. At hearing of the application, the plaintiff argued that the erstwhile legal practitioner erred when he drafted the particulars of claim as he authored the wrong description of events relating to the accident. The third amendment related to the calculation of the amount for damages which was an arithmetical error that had to be rectified. It was clearly a mistake as the amount for damages was doubled in the initial claim and should therefore be corrected to reflect the amount as calculated by the actuary.

In relation to the first and third amendment The defendant argued that the erstwhile legal practitioner should have deposed to an affidavit explaining the mistakes he is accused of making. The plaintiff simply does not have personal knowledge of the relevant facts.

RAKOW J considered Rule 52 of the High Court Rules which deals with amendment of pleadings; the principles regulating the granting of a proposed amendment of a pleading as summarized in the Supreme Court judgment of DB Thermal (Pty) Ltd and Another v Council of the Municipality of City of Windhoek(SA 33-2010) [2013] NASC 11 (19 August 2013) as follows:

‘[38]. . . The established principle that relates to amendments of pleadings is that they should be ”allowed to obtain a proper ventilation of the dispute between the parties … so that justice may be done”, subject of course to the principle that the opposing party should not be prejudiced by the amendment if that prejudice cannot be cured by an appropriate costs order, and where necessary, a postponement.’

When deciding whether or not to grant an amendment application, it is of utmost importance for the court to decide on the question of prejudice and to what degree the responding party might be prejudiced by the granting of an amendment to pleadings. ‘It will normally not be granted if there will be prejudice to the other party which cannot be cured by an order for costs or a postponement..’

The learned Judge concluded that there was a reasonable and satisfactory explanation for proposed amendment and that the prejudice to the other party can be cured by a suitable court order and in the result, granted the application to amend as prayed for.

Smith v Engelbrecht NAHCMD 18 July 2022