CIVIL PROCEDURE – APPLICATION FOR LEAVE TO AMEND – REQUIREMENTS Ruling in terms of practice direction 61

CIVIL PROCEDURE – APPLICATION FOR LEAVE TO AMEND – REQUIREMENTS

Ruling in terms of practice direction 61

In this ongoing matrimonial matter, the parties were married to each other in 1977 at Windhoek. They were ad idem on their desire not to restore conjugal rights to the other, but they disputed the matrimonial consequences of their marriage, in particular, whether they are married in or out of community of property. It was not in dispute that the parties were married to each other in accordance with the Ovaherero Traditional Customs on 16 April 1976 at Farm Sukkellaar at Rietfontein, and later in Windhoek on 18 March 1977.

During the case management of the matter and after close of pleadings, but before pre-trial and the delivery of witness statements, and given the issue in dispute between the parties, the court proceeded to hear the matter on a stated case in terms of rule 63. By order dated 7 March 2022 the court ordered that the matter would proceed by way of stated case on whether or not the marriage concluded between the parties was one in or out of community of property.  Unfortunately, the parties were unable to agree on a written statement of facts in the form of a special case for adjudication as envisaged by rule 63(1). The applicant then sought to amend his plea and counterclaim, and this resulted in the application for leave to amend.

The amendment proposed the addition of a paragraph to the counterclaim to which the respondent objected. The applicant explained in his founding affidavit that the amendment was necessitated as a result of the dispute that ensued between the parties subsequent to this matter being referred for a stated case, as to what the agreed facts were, given what was initially pleaded. Thus, the amendment was sought to clarify exactly what was pleaded, but he maintained that the position that the parties were married out of community of property remains in place.

The respondent on the other hand stated that she is prejudiced by the late change in stance as to the existence of an oral agreement which was not fully particularised that took place some 45 years ago. The respondent stated further that she is was also hampered by the late stage of the amendment.

SCHIMMING-CHASE J considered the application as follows:

‘[12]       The function of pleadings is to clarify the issues between the parties so as to ensure that both parties know what the points of issue between them are, and so that each party knows what case has to be met to ensure proper preparation for trial, knowing what evidence is required to support the party’s case. Thus, the court is assisted when the parties through their pleadings, define the limits of the action.  This is why it is necessary to plead the material facts to facilitate the real disputes between the parties.

[13]         When there is a fundamental departure from the initial case pleaded and where an amendment is sought late in the proceedings, it is incumbent on the applicant for the amendment to explain the reasons for the delay under oath and to show that a triable issue is raised on the proposed amendment.

[14]        The applicable principles relating to amendments are:

(a)          amendments may be sought at any stage of the proceedings.

(b)          in granting or refusing an amendment, the court exercises a discretion, which discretion must be exercised judicially.

(c)          a litigant seeking leave to amend craves the indulgence from the court and must, therefore, proffer some explanation for the amendment sought.

(d)          the explanation proffered will be determined by the nature of the amendment sought. The more substantial the amendment, the more a compelling case for an explanation under oath.

(e)          if a party proffers an explanation that is not reasonably satisfactory of one lacking in bona fides, the court may disallow the amendment, especially where the amendment is opposed and has the potential to compromise a firm trial date: and

(f)           a court cannot compel a party to stick to a version of fact or law that it says no longer represents its stance and this is because litigants must be allowed in the adversarial system, to ventilate what they believe are the real issues between them.

[15]         I am of the view that the applicant has properly explained the delay in making the amendment. The issue did not arise before the matter was referred for a stated case, and after the parties sought to define common cause issues for purposes of the stated case. I am also satisfied that the proposed amendment is not mala fide. The applicant remains steadfast in his stance that the parties are married out of community of property. What has changed, for purposes of the amendment, are the material facts in support of that averment which must be pleaded. The applicant in any event draws the onus to prove these allegations at the trial.

[16]        In I A Bell Equipment Company (Namibia) (Pty) Ltd v Roadstone Quarries CC (I 601-2013 & I 4084-2010) [2014] NAHCMD 306 (17 October 2014), the application for leave to amend was brought on the first day of a trial that had previously been set down on the floating roll. In contrast, this application for leave to amend is brought after close of pleadings, but before the pre-trial process, and before witness statements have been filed. Therefore, the delay in this matter is not significant, and the respondent has an opportunity to plead to the amended pleadings.

[17]         I respectfully associate myself with the remarks made in Tidesley v Harper 10 Ch. D 393, where the court reasoned as follows:

‘My practice has always been to give leave to amend, unless I have been satisfied that the party was acting mala fide, or that by his blunder, he has done some injury to his opponent which cannot be compensated for in costs or otherwise.’

[19]        It is important to the court and for the finalisation of this matter, for the claims between the parties to be fully formulated and pleaded so that the court can hear the matter and make a determination on the evidence presented on facts in issue between them at the trial.’

As a result, the application to amend was granted with costs limited to the costs permitted by rule 32(11).

Kahuure v Kahuure NAHCMD 1 November 2022