CHAPTER 17 – AMENDMENT OF
PLEADINGS
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
No formal application of amendment is needed cause
it has not been served
After service of summons:
Need the consent of the other party to amend (3
stages) OR
Formal application to the grant to grant leave to
amend
When do documents or pleadings need to be amended?
When there are mistakes in drafting – noticed only
after service
Additions – ie: plaintiff wishes to add a further COA
or defendant wishes to add a further defence
Defective pleadings
STAGES TO THE AMENDMENT PROCESS:
3 Stages to the amendment process:
Deliver a notice of the proposed amendment to the
opposing party
Objection VS no objection
Give effect to amendment VS apply to court for leave
to amend
give effect to
no objection
Notice of amendment
intention to
amend objection apply to court
+ notice of for leave to
objection amend
STAGE 1 – NOTICE OF INTENTION TO AMEND:
HCR 28 and MCR 55A:
Party wishing to amend document/ pleading must
deliver a notice of intention to amend to the
opposing party
This = a formal written notice and must be served on
opposing party
Content of the notice:
Must inform opposing party of intention to amend
Must contain details/particulars of the proposed
amendment
Must state that the amendment will be carried out
unless a written objection to opposed amendment is
lodged
Must state that this written objection must be lodged
within 10 court days after delivery of notice
Must state that the written objection must set out
clearly and concisely the grounds of the objection
STAGE 2 – OBJECTION VS NO OBJECTION:
No objection:
If no written objection is delivered – opposing party
will have been deemed to consent to amendment
Amendment may then be given effect to (stage 3)
Written notice of objection:
Opponent delivers a ‘notice of objection’ within the
prescribed 10 court days
Must clearly and concisely contain grounds of
objection (eg: prejudice)
Can apply to court for leave to amend (stage 3)
STAGE 3 – GIVE EFFECT TO AMENDMENT vs APPLY TO COURT
FOR LEAVE TO AMEND:
Give effect to:
Party wanting the amendment must carry out the
amendment within 10 court days after the expiry of
the term for objection
Must deliver a filing sheet plus each of the amended
pages to the opposing party
Opposing party then has 15 court days after
amendment has been effected to make any
consequential changes or implement an interim
procedure
Apply to court for leave to amend:
The party seeking the amendment can apply to the
court for leave to amend on at least 10 days notice
to the opposing party
= An interlocutory application
If application is granted – amendment must be given
effect to within 10 court days after order is granted
(then follow the give effect to procedure)
Normally consists only of a notice of motion, but
may, in exceptional circumstances be accompanied
by a supporting affidavit
Exceptional circumstances = when there are material
amendments, ie: withdrawing and admission, setting
out a new COA or defence, substitution of parties etc
Supporting affidavit must then contain a full
explanation of party’s bona fides
COSTS:
Party wanting the amendment usually bears costs of
such an application
Unless court orders otherwise
Eg: opposing party did not have reasonable grounds
to oppose amendment or only opposed amendment
to inconvenience amending party
Specific Instances where
Amendment is Sought
SPECIFIC INSTANCES THAT MAY ALLOW FOR AMENDMENT:
The following specific instances may allow for
amendment:
Formal amendments
When the true dispute is incorrectly or ambiguously
expressed
New cause of action or a new defence
Amendments which have the effect of withdrawing
an admission
Substitution of parties
Prescription
Jurisdiction
Amendments which are excipiable
Appeal
FORMAL AMENDMENTS:
These amendments are not based on the substance of
the matter
It includes amendments to:
Grammar
Spelling
Incorrect description of parties
Other clerical errors (eg: mistake in the calculation
of a delictual claim)
No supporting affidavit needed
WHEN THE TRUE DISPUTE IS INCORRECTLY OR
AMBIGUOUSLY EXPRESSED:
Does not affect substance
Amendment just clears ambiguity and vagueness
Attempts to clear up and place the correct factual
dispute on record
NEW CAUSE OF ACTION OR A NEW DEFENCE:
Creating of a new COA or defence by an amendment =
usually allowed
2 Requirements before court will grant leave to amend:
It must be made bona fide and
Without any prejudice being caused to opposing
party
AMENDMENTS WHICH HAVE THE EFFECT OF WITHDRAWING
AN ADMISSION:
= More difficult to obtain because these amendments
have the effect of changing the nature of the pleading
2 Requirements before court will leave to amend:
A full and satisfactory bona fide explanation of the
circumstances in which the admission was made and
reasons for withdrawal
Any prejudice caused to opposing party can be
remedied by an appropriate costs order
SUBSTITUTION OF PARTIES:
Will only be allowed if the following requirements are
complied with:
It is bona fide
No prejudice will be caused to the opposing party
PRESCRIPTION:
Court will not allow an amendment where:
It has the effect of introducing a new cause of action
which has already prescribed
It attempts to revive a prescribed claim
It would defeat a statutory limitation as to time
Note:
When a plaintiff amend a particulars of claim by
introducing a new COA
The mere fact that the summons was issued and
served at an earlier stage
Does not interrupt prescription of the new COA
JURISDICTION:
Court will not grant an amendment if it seeks to
introduce a new COA over which the court has no
jurisdiction
AMENDMENTS WHICH ARE EXCIPIABLE:
Court will not allow amendment if it will render
proceedings excipiable
Unless in exceptional circumstances where a balance
of convenience renders it necessary
APPEAL:
Court will not allow an amendment where:
An appeal is pending AND
The result of the appeal will render the amendment
unnecessary OR
The amendment is likely to introduce a new fact to
the case
