- October 10, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
The order:
- The application for an amendment to the particulars of claim is granted.
- There is no order as to costs.
- The plaintiff must file the amended particulars of claim on or before 17 October 2023.
- The defendant must, if so advised, file its consequential plea to the amended particulars of claim on or before 25 October 2023.
- The plaintiff must file her replication, if any, on or before 1 November 2023.
- The parties must file a case management conference report on or before 3 November 2023.
- The matter is postponed to 8 November 2023 at 8h30 for a case management conference hearing.
Following below are the reasons for the above order:
The plaintiff instituted an application for leave to amend her particulars of claim. The application was opposed by the defendant. The parties appear to be businesswomen in the informal sector. The plaintiff instituted an action against the defendant in which she claims cancellation of the agreement, the defendant to pay N$38 000, plus interest at the rate of 20 percent per annum, temporae morae, and costs if the matter is opposed. The particulars of claim aver that on or about April 2019, the parties entered into an oral agreement in Windhoek that they will go into retail business together; and the retail business was to be run and managed by the defendant. The particulars amplified that the plaintiff paid certain amounts to the defendant for certain purposes, namely N$15 000 to rent a space for the shop, N$10 000 for a consignment of stock at the Namibian-Zambian border, N$6 400 to buy further stock requested by the defendant and N$6 600 for the defendant to buy food and pay outstanding rent as the defendant was about to be evicted. Furthermore, the plaintiff did not fulfil her part of these obligations by failing to secure a shop to rent, failing to produce the stock that was ostensibly held up at the border, and failing to produce the further stock for which she got money from the plaintiff. Furthermore, the plaintiff signed an acknowledgment of debt on 18 October 2019 to repay N$ 38,000 to the plaintiff, which she failed to do.
The reason for the proposed amendment is given as a misunderstanding between her and her legal practitioner due to language barriers and that the correct and true facts only came about after communication with the legal practitioner’s candidate legal practitioner. Both the legal practitioner and the candidate’s legal practitioner gave confirmatory affidavits.
The law and application thereof
CLAASEN J:
[13] Rule 52 of the Rules of this Court regulates the procedure to be followed when a party seeks to amend a pleading. More specifically, rule 52(9) states the following:
‘The court may during the hearing at any stage before judgment, grant leave to amend a pleading or document on such terms as to costs or otherwise as the court considers suitable or proper.’
[14] The subrule does not impose a time limit within which an application for an amendment must be brought, but that such amendment must at least be sought before judgment. It follows that even if the defendant contends that the plaintiff brought this application at a late stage, it still does not preclude this court in an appropriate case, to grant the application for an amendment.
[15] In one of the leading cases on amendment of pleadings in our jurisdiction, DB Thermal (Pty) Ltd & Another v Council of the City of Windhoek (SA 33-2010) [2013] NASC 11 (19 August 2013)), the Supreme Court stated the following in respect of amendment of pleadings:
‘The established principle that relates to the amendment of pleadings is that they should be “allowed in order 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 a costs order, and where necessary, a postponement.’
Conclusion
[16] It is evident that amendments may be allowed at any time before judgment as long as no substantial prejudice is caused which cannot be cured by an appropriate costs order or a postponement. In order to ensure the fair adjudication of a matter, courts should endeavour to resolve the real issues in dispute between the parties and this includes the true issues raised by the parties.
[17] Having considered the proposed amendment, I am satisfied that an acceptable explanation was put before me as to why the amendment is sought at this stage of the proceedings. I disagree with the submissions by counsel for the defendant that the amendment sought amounts to a change of versions by the plaintiff or a totally new front. The defendant will be allowed to plead to the introduction of the averment that the defendant also received stock to the value of N$ 20,000. In any event, the amount of the claim remains the same amount, which is the amount in the purported acknowledgment of debt.
Costs
[18] In light of the fact that both parties are legally aided, I do not see it fit to grant costs in favour of any one of the parties.