Summary
Summary Chapter 17
- Course
- Law of civil procedure
- Institution
- University Of Johannesburg (UJ)
Detailed summary of chapter 17 from the fundamental principles of civil procedure textbook
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CHAPTER 17 – AMENDMENT OFPLEADINGS
Introduction
GENERAL:
In principle, parties are bound by pleadings in court
Thus it is essential to ensure that they are correct
HCR 28 and MCR 55A (rules are aligned):
Provide for specific procedures to amend defective
pleadings to ensure they reflect the correct factual
position
Primary purpose of amendment:
To allow for the proper ventilation of the dispute
between the parties
In order to determine the real issues so that justice
may be done
Parties can agree to the amendment of documents or
pleadings without requiring leave from the court:
However, if opposing party objects to amendment,
the other party must approach the court and apply
for leave to amend the defect
Must give a reasonable explanation for the proposed
amendment
So....
A party must give the opposing party a written
notice of the proposed amendment
Opposing party consents to amendment – ie: does
not object – then amendment can be given effect to
Opposing party does object to amendment – thus
must deliver a notice of objection
Party wanting the amendment can apply to the
court for leave to amend
Note:
ONLY pleadings and documents can be amended
NOT affidavits or other sworn documents
To amend affidavits and other sworn documents
Cannot be amended by interlocutory proceedings
, Must be supplements by a further supplementary
affidavit
Must state why mistake was originally included and
why party wants it to be removed
Application for Amendment
GROUNDS TO GRANT OR REFUSE AMENDMENTS:
Locus classicus on the grounds to grant or refuse an
amendment = Moolman v Estate Moolman
Court’s competency to grant material amendments
depends on whether or not:
Proposed amendment is being made bona fide or
mala fide
The amendment will cause prejudice to the opposing
party
Such prejudiced may be cured by an appropriate
costs order or postponement
PROCEDURE FOR AN APPLICATION FOR AMENDMENT:
Application to amend = an interlocutory application
Bona fides:
When bona fides is at issue, application must be
supported by a supporting affidavit setting out a
reasonable explanation for the proposed amendment
When bona fides is not an issue, application need not
be supported by a supporting affidavit
When in proceedings can a party amend documents:
Generally, a court can grant an amendment at any
time before judgment
Distinguish between 2 situations:
After issue of summons but before service of
summons
After service of summons
After issue of summons but before service of summons:
Attorney and registrar/ clerk of court must initial
amendment
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