ABSA Bank Ltd v Maxwell Howard Malihambe Cengimbo

ABSA Bank instituted action against the defendant for payment of R214,374.09 allegedly owed under a mortgage loan agreement and sought an order declaring property (ERF 8067 Umtata Township Extension 29) specially executable under Uniform Rule 46A. The defendant had been placed under debt review and a debt restructuring order was made by the Gqeberha Magistrates' Court on 10 June 2015 requiring monthly payments of R1,543.38 with 6% interest per annum. The defendant filed a plea on 10 December 2020 raising four special pleas: non-joinder of his spouse (co-owner of property); non-joinder of payment distribution agent; invalidity of mortgage agreement for lack of spousal consent; and premature institution of action as he remained under debt review. The defendant denied indebtedness and alleged the plaintiff charged incorrect interest in contravention of the debt restructuring order. On 8 November 2022, the plaintiff delivered notice of intention to amend its particulars of claim. The defendant objected on 21 November 2022, leading to this application for leave to amend filed on 15 December 2022 (nine days late).

• Whether condonation should be granted for the nine-day delay in bringing the amendment application
• Whether leave to amend should be granted to delete the Uniform Rule 46A prayer for declaring the property specially executable
• Whether the proposed amendments are mala fide or prejudicial to the defendant
• Whether the amendments would render the particulars of claim excipiable for lack of jurisdiction
• Whether loss of a defence constitutes valid grounds for refusing an amendment
• Whether the amendments introduce a new cause of action
• The principles governing amendments to pleadings under Uniform Rule 28

1. The plaintiff is granted leave to amend its particulars of claim by deleting the prayer in terms of Uniform Rule 46A for an order declaring the property specially executable and by adding paragraphs 5.3.7 and 6, as set out in its notice to amend dated 8 November 2022. 2. The plaintiff shall deliver its amended particulars of claim within 10 days of this order. 3. The plaintiff shall pay the costs occasioned by the aforesaid amendment. 4. The defendant shall pay the costs of this application.

An amendment to pleadings should be allowed unless the application is mala fide or causes injustice to the other party that cannot be compensated by costs. The primary object of allowing amendments is to obtain proper ventilation of disputes and determine the real issues between parties so that justice may be done. Loss of a defence is not of itself 'prejudice' that will dissuade the court from granting an amendment. The High Court has mandatory jurisdiction over all matters within its jurisdiction and cannot decline to hear matters that also fall within the Magistrate's Court jurisdiction merely because they could be heard in a lower court. An amendment that augments or clarifies a cause of action does not constitute the introduction of a new cause of action. Delay in bringing an amendment application, even substantial delay, will not result in refusal if no real prejudice is shown and the matter has not yet proceeded to trial.

The Court observed that technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and inexpensive decision of cases on their real merits (citing Schreiner JA in Trans-African Insurance Co Ltd v Maluleka). The Court noted that it is not a game being played where if some mistake is made, the forfeit is claimed (citing Wessels J in Whittaker v Roos). The Court commented that while costs occasioned by amendments are typically awarded on a party-and-party scale, the court has jurisdiction and discretion to award costs on an attorney-and-own-client scale where there are grounds for such an order. The Court observed that while courts encourage Rule 46A applications to be instituted together with applications for money judgment, the defendant would retain the right to seek an adverse cost order when the plaintiff separately launches the Rule 46A application.

This case provides important guidance on the liberal approach South African courts take toward amendments to pleadings, emphasizing that the primary objective is to facilitate proper ventilation of disputes and determination of real issues between parties. It confirms that loss of a defence is not a valid ground for refusing an amendment. The judgment also clarifies that the High Court cannot decline jurisdiction over matters properly brought before it, even if they also fall within the Magistrate's Court jurisdiction, applying the mandatory jurisdiction principle from South African Human Rights Commission v Standard Bank. The case demonstrates the court's willingness to allow substantial amendments, even late in proceedings, where prejudice can be remedied by costs and the amendment serves the interests of justice.