Sibongile Ndlovu v Guardforce Investments (Private) Limited and Registrar of Deeds N.O

### Preamble
1
HB 87.20
HC 1124/17
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SIBONGILE NDLOVU

Versus

GUARDFORCE INVESTMENTS (PRIVATE) LIMITED

And

REGISTRAR OF DEEDS N.O

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 23 SEPTEMBER 2019 AND 4 JUNE 2020

Opposed Application

N Mazibuko, for the applicant

Advocate P Dube, for the 1st respondent

MABHIKWA J:		This is an application for Amendment of Pleadings and for an order of Interdict.

The brief history of this matter is that pursuant to an agreement of sale, certain piece of land known as Subdivision B of Lot B Upper Rangemore, Bulawayo was transferred into the name of the 1st respondent.  The now applicant issued summons against the 1st and 2nd respondents in case No. HC 411/2013.  She subsequently obtained judgement in her favour.  The 1st respondent sought rescission of the said judgement.  The judgement was ultimately set aside by the Supreme Court.  The property registration was transferred back to the 1st respondent after it had reverted to applicant following the said judgement subsequently set aside by the Supreme Court.  1st respondent filed its plea in case No. HC 411/13.  The applicant also filed his replication through the same erstwhile legal practitioners, Messrs Dube-Tachiona and Tsvangirai Legal Practitioners.

Applicant has engaged her current legal practitioners who have advised that a notice of amendment filed by her erstwhile legal practitioners was improperly made and was not in terms of the rules as it was neither by consent nor court application.  The amendments sought are quite extensive though the applicant submitted and argued that they are not prejudicial to the respondents as they simply re-state the plaintiff’s claims whilst clarifying and providing more detail for procedural purposes.

Applicant’s current legal practitioners therefore, Messrs Calderwood, Bryce and Hendrie legal practitioners filed the current application for Amendment of the Pleadings.

In response, 1st respondent consented to all but one amendment request.  1st respondent opposed the issue of the alternative prayer, that is to say, the return and registration of 8 000 square metres (including the homestead) to the applicant’s name.

The Law

The procedure is that like all applications, applications for amendment are made in terms of Order 32 Rule 226 of the High Court Rules 197.  An amendment made other than by a written application in terms of the rules is irregular, though in appropriate circumstances, the irregularity may be condoned under Rule 4C of the Court Rules.  In casu, the application has been properly made in terms of the rules.

In Agricultural Bank of Zimbabwe Ltd v Nickstate Investments (Pvt) Ltd and Others – 2010 (1) ZLR 419 (HH 231/10) it was held per GOWORA J (as she then was), that “pleadings can be amended at anytime before judgement is issued.  The courts will grant an amendment to pleadings unless the application to amend is shown to be mala-fides, and provided the amendment should not be seen to cause prejudice to the other litigants which cannot be cured by an order of costs necessitated by the need to further postpone the matter.  The overriding consideration is that the parties should, as far as is possible, be able to place all the issues in contention between them, before the court and enable the court to ventilate all aspects of the dispute.  It should be noted also, that the procedure is specifically laid down in the rules but the practice has to be made to the court before the amendment is granted.

As already stated above, 1st respondent ultimate consents to all but one amendment.  Even on the only issue where 1st respondent opposed the amendment, it was still honest enough to concede that indeed it had been part of the agreement of sale (Annexture “A”) that plaintiff retains 8 000 m2 including the homestead, but only on condition that a Subdivision Certificate is obtained obviously and legally by the applicant.  Applicant was the seller in the agreement of sale.  It should be noted also that the amendment now sought, has the effect of altering that part of the agreement which is being contested, well after the 1st respondent has filed its plea, and after rescission of judgement.  Applicant in her summons and declaration in case No. 411/13 claims that to the extent that the property in dispute was sold and transferred in the absence of a Subdivision Certificate, then the sale transaction and subsequent transfer to 1st respondent’s name should be declared unlawful, null and void.  For that reason, 1st respondent argues, and correctly so in my view, that the applicant wants to “have her cake and eat it at the same time.”  Her prayer in the alternative amounts to a claim for specific performance.  She cannot be allowed to “approbate and reprobate.” She cannot say the sale and transfer is unlawful, null and void on the one hand, and yet on the other hand seek specific performance of the same.

I may add that the doctrine of “clean hands” would “trip” the applicant on that claim.  She had, as the seller, the legal obligation to obtain a Subdivision Certificate before sale and transfer to 1st respondent’s name.  She did not.  She does not claim that the property was sold and transferred fraudulently.  In fact, it is the 1st respondent’s averment in affidavit deposed to by Mr Sheunesu Chando, that the transfer was done by applicant’s own Attorneys and in accordance with paragraph 3 of the rescission of judgement granted by consent of the parties on 19 July 2016.

The courts would generally, and as a rule not allow a party to rely on its own wrong, to then seek to declare the sale and transfer unlawful, null and void.

In UDC v Shamva Flora (Pvt) Ltd 2000 (2) ZLR 210 (H), CHINENGO J (as he then was) set out the guiding principles as follows;

“1. 	The court has a discretion whether to grant or refuse an amendment.

2.	An amendment cannot be granted for the mere asking; some explanation must be offered therefore,

3.	The applicant must show that prima facie the amendment ‘has something deserving of consideration, a triable issue’.

4.	The modern tendency lies in favour of an amendment if such ‘facilitates the proper ventilation of the dispute between the parties’.

5.	The amendment sought must not be mala fide.

6.	It must not ‘cause an injustice to the other side which cannot be compensated by costs’.

7.	The amendment should not be refused simply to punish the applicant for neglect.

8.	A mere loss of time is no reason, in itself, to refuse the application.

9.	If the amendment is not sought timeously, some reason must be given.”

The learned Judge went on to comment that the Superior Courts both here and in South Africa, have taken a liberal approach, wherein an amendment to pleadings will be allowed where it will not cause prejudice which cannot be cured with an award for costs or unless satisfied that the application is not mala fides.

It is clear therefore from decided authorities that pleadings, can be amended at any time before judgement is pronounced, and the courts will generally lean in favor of granting an amendment to pleadings.

Clearly, the courts have very wide discretionary powers that they exercise in considering whether to grant or not to grant an amendment.  Further, I subscribe to the view that an amendment should not be denied simply to punish the applicant for neglect or laxity in drafting her claim.  Be that as it may, parties, particularly legal practitioners, should not be encouraged in effect, to first study the other party’s pleadings, and then seek amendments in a bid to then counter the other party’s strong points and bolster their own case, neither should a defendant be allowed to do the same in reverse.  Doing so becomes prejudicial to the other party and certainly gives an unfair advantage to the party seeking an amendment.   After all, an amendment cannot be had for the mere asking.

For the foregoing reasons, I will grant the amendment by and large.  However, I am not persuaded to exercise my discretion in favour of paragraph 9(v) of the applicant’s founding affidavit and consequently clause 1(v) of her draft order, which in any event has been expressed in a clumsy and confusing manner.

For the avoidance of doubt, it is ordered that;

1.	The application be and is hereby granted on all the proposed amendments as consented to by the 1st respondent.

2.	The application to amend be and is hereby denied on the alternative claim and prayer to compel the 1st defendant to transfer to plaintiff 8 000 square metres of a portion of Subdivision B of Lot B of Upper Rangemore, situate in the district of Bulawayo, including the homestead, presently occupied by the plaintiff, within fourteen (14) days of the order being granted.

3.	There be no order as to costs.

Calderwood, Bryce Hendrie & Partners, applicant’s legal practitioners

Messrs Webb, Low & Barry (Incorporating Ben Baron & Partners), 1st respondent’s

legal practitioners