Chapter 17 Amendment of Pleadings PDF

Chapter 17 Amendment of Pleadings Prof R Baboolal-Frank  HCR 28 and MCR 55A provide for the identical proceedings that are applicable for an amendment to be effected. MCR 7 and section 111 of the Magistrates’ Court Act Introduction...

Chapter 17 Amendment of Pleadings Prof R Baboolal-Frank  HCR 28 and MCR 55A provide for the identical proceedings that are applicable for an amendment to be effected. MCR 7 and section 111 of the Magistrates’ Court Act Introduction provide for special amendment procedures. An amendment can be effected with the consent of the other party. If one seeks leave to amend from the court then one needs to offer a reasonable explanation for the amendment. If an opposing party objects to the amendment, then the court will either grant or refuse the amendment after hearing both parties. Case Principle regarding amendments In Moolman v Estate Moolman and Another it was held that “the practical rule adopted seems to be that amendments will always be allowed unless the application to amend is mala fide or unless such amendment would cause an injustice to the other side which cannot be compensated by costs, or in other words unless the parties cannot be put back for the purposes of justice in the same position as they were when the pleadings which it is sought to amend was filed”  The main grounds in deciding to grant or refuse an amendment is whether the proposed amendment is being made bona fide or mala fide or will cause the Principle other party such prejudice as cannot be cured by an order for costs and, where appropriate a regarding postponement. when to Therefore, the courts competence to grant a postponement is based on the following grounds: refuse or A) the proposed amendment is being made mala grant an fide or bona fide; B) the amendment will cause prejudice to the amendment opposing party; C) such prejudice may be cured by an order of costs or, where appropriate, a postponement. Specific instances when an amendment is sought A)Formal amendments-based on spelling, grammar, incorrect description of parties and clerical errors including mistakes in the calculation of delictual or contractual damages will usually be allowed. B) When the true dispute is incorrectly or ambiguously expressed-an amendment seeking to clear up the ambiguity and to set out the correct factual dispute on record will generally be allowed. C) New cause of action or new defence-new cause of action is allowed when its bona fide and setting out the true issues. New defence must be bona fide and not cause prejudice and accordingly the plea is amended.  D) Amendments which have the effect of withdrawing an admission-must be bona fide, usually not granted because of prejudice caused that cannot be cured by a costs order. Specific E) Amendment which substitute parties-must be bona fide and not cause prejudice. instances F) Amendments and prescription-court will not when an allow as a tactic to overcome prescription G) Amendments and jurisdiction-court will not allow amendment H) Amendments which are excipiable-court will not is sought allow I) Appeal-court will not allow as a general, [Continued] exceptional circumstances  Amend at any stage before judgment. Deliver a notice to amend to the opposing party. Amendment Procedure Notice states that the amendment will be carried unless there is objection to it. Objection to the Notice must be done within ten days of the notice to amend is served. The objection must be clearly stated and set out the grounds relied upon. Amendment Procedure [Continued] After the expiration of the notice, the amended Within 15 days the opposing party may amend If the objection is vexatious and frivolous costs pages are served to the opposing party that does their pleadings. may be granted against the opposing party. not object to the amendment.