- April 24, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
Order:
- The application for an amendment to the particulars of claim is granted with costs, the costs of one instructed and one instructing counsel, capped in terms of rule 32(11).
- The defendant is to file its amended plea within fifteen (15) days from the date of this order.
- The plaintiff is to file its replication, if any, within ten (10) days of receipt of the amended plea.
- The matter is postponed to 21 June 2023 at 8h30 for a status hearing
- The parties are to file a draft case plan on or before 15 June 2023.
Reasons for order:
The applicant was before the court, at the proverbial 11th hour, for an amendment of pleadings. The plaintiff is the University of Namibia, (UNAM) an institution in terms of s 2 of the University of Namibia Act 18 of 1992. The respondent is Erwin Namwira Mpasi Katewa, who is a former employee of the plaintiff. The plaintiff gave notice of its intention to amend its particular of claim. The defendant opposed, paving the way for a formal application to amend. The founding affidavit is deposed by one Frednard Gideon who was the Acting Vice Chancellor of UNAM as from 12 January 2023 to 31 January 2023. He set out the claim and the nature of the proposed amendment and the reason why an amendment is necessary. The explanation was given that there was an omission in the drafting of the particulars of claim and that the person who drafted the pleading is no longer at the firm. It was stated that there is a need to clarify the existing claim to include that the defendant sought permission from the plaintiff to change institutions from Stellenbosch University to North-West University, which was granted by the plaintiff.
Legal Considerations
Claasen J:
[11] The locus classicus judgment of this court is I A Bell Equipment Company (Namibia) (Pty) Ltd v Roadstone Quarries CC, which provides valuable guidelines. These include the following:
a) amendments may be sought at any stage of the proceedings;
b) the court exercises a judicial discretion in allowing or disallowing amendments, and which discretion must be exercised judicially;
c) a litigant seeking an amendment craves the court’s indulgence and must therefore proffer some explanation for the amendment sought;
d) the explanation required will be determined by the nature of the amendment sought. The more substantial the amendment, the more compelling a case for an explanation;
e) if a party proffers an explanation that is not reasonably satisfactory or 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;
f) an amendment that is not opposed or one that is minor will invariably be granted;
g) the more substantial an amendment, the more compelling the case for an explanation under oath
h) a court will not 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.’
[12] Having considered the proposed amendment, I disagree with the contention by counsel for the respondent that if the amendment is permitted it will constitute a new cause of action and a new claim, which give rise to prescription. In my view, the claim will still turn on the same material facts, with the additional facts that the respondent had been studying at a different university for a part of the period and that the parties had agreed to that stipulation. The cause of action, the period of the study program, the amount claimed for the salary and benefits as well as tuition remain the same.
[13] Whilst it is not desirable that an amendment be brought this late in the proceedings, I am satisfied that it was not done with mala fides. The applicant provided an explanation, namely that the omission to have included the averment in the particulars of claim was caused by the erstwhile legal practitioner. That legal practitioner was no longer at the firm and the omission was discovered, belatedly, after the filing of witness statements.
[14] I am of the view that the amendments are in order as they seek to properly capture the complete terms and true account of the contract. Having had regard to the plea, the defendant did not dispute the contract and will certainly be afforded the opportunity to plead again to an amended particular of claim. There is no prejudice that can be said to be likely to be suffered by the applicant if the court grants the proposed amendment which cannot be cured an appropriate order as to costs.’