ABSA Bank Ltd v Maxwell Howard Malihambe Cengimbo

ABSA Bank Ltd instituted action against Maxwell Howard Malihambe Cengimbo for payment of an alleged mortgage loan debt of R214 374.09 and sought an order declaring the mortgaged immovable property specially executable under Uniform Rule 46A. The defendant pleaded and raised several special pleas, including non-joinder of his spouse and the payment distribution agent, invalidity of the mortgage for lack of spousal consent, prematurity due to debt review, and incorrect interest charged contrary to a debt restructuring order. After the plea, ABSA delivered a notice of intention to amend its particulars of claim, proposing inter alia to delete the Rule 46A prayer and to reformulate allegations relating to spousal consent, customary marriage property consequences, interest charged, breach of the debt restructuring order, and the amount claimed. The defendant objected to the amendment, contending it was prejudicial, mala fide, excipiable, jurisdictionally defective, and introduced a new case. ABSA then applied for condonation for the late filing of its amendment application and for leave to amend.

Condonation for the late filing of the amendment application was granted. Leave to amend the particulars of claim was granted, including deletion of the Uniform Rule 46A prayer and insertion of additional allegations as proposed. The plaintiff was ordered to deliver amended particulars of claim within 10 days. The plaintiff was ordered to pay the costs occasioned by the amendment, and the defendant was ordered to pay the costs of the amendment application.

The judgment reaffirms core principles governing amendments under Uniform Rule 28, particularly that loss of a defence or procedural advantage does not constitute prejudice justifying refusal of an amendment. It also clarifies that deletion of a Rule 46A prayer does not amount to withdrawal of an action and that the High Court retains jurisdiction over money claims even where the Magistrates’ Court has concurrent jurisdiction. The case underscores the courts’ preference for deciding disputes on their real merits rather than on technical or procedural objections.