- July 21, 2022
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
CIVIL PROCEDURE – APPLICATION FOR LEAVE TO FILE SUPPLEMENTARY AFFIDAVIT
On 17 June 2021, the defendant (husband) brought an application for rescission/variation of orders. The application is still pending and is opposed by the plaintiff. The parties filed their respective affidavits and were ordered to file their heads of argument. The parties did not file their heads of argument because the plaintiff brought an application in terms of which she sought leave to file a supplementary opposing affidavit to the application for rescission.
Briefly, the bone of contention related to the marital regime. At the time of instituting the divorce proceedings, the plaintiff stated in her particulars of claim that the parties were married to each other in community of property. The divorce proceedings were finalized on that basis. The defendant brought the application for rescission stating that the respondent had not been honest about the parties’ marital regime. According to him, the parties were married out of community of property.
In the instant application, the plaintiff sought leave to file a supplementary opposing affidavit to the application for rescission. The primary purpose of the intended supplementary affidavit is to enable the plaintiff to adduce the signed declaration in terms of Proclamation 15 of 1928 and to place reliance thereon at the hearing in the application for rescission.
MUNSU AJ had to determine whether it is unreasonable for the plaintiff to seek to introduce evidence only at a later stage, to which he stated that:
- Three sets of affidavits are allowed in application proceedings, namely founding/supporting affidavits, answering affidavits, and replying affidavits.
- The court may allow the filling of further affidavits at its own discretion.
- An applicant must give a satisfactory explanation which negates mala fides (bad faith) as to why the information could not be placed before court at an earlier stage and that no prejudice is caused to the opposite party which cannot be remedied by an appropriate cost order.
The plaintiff explained that the evidence to be introduced was not available at the time of filing the opposing affidavit, but such evidence is relevant to the issue for determination in the pending rescission application. It is important to note that the divorce action proceeded undefended and therefore the issue of marital regime was not contested at that stage.
The In the result, court found that the reason advanced was reasonable and accordingly granted leave to file a supplementary opposing affidavit to the application for rescission.
Amakali v Amakali NAHCNLD 21 July 2022