The parties are husband and wife embroiled in divorce proceedings under case HC 12315/16, where the respondent is the plaintiff and the applicant is the defendant. The respondent filed summons for divorce on 5 December 2016, identifying matrimonial property and proposing distribution. The applicant, initially represented by Atherstone & Cook, filed an appearance to defend and plea through her legal practitioner Mr Bull. However, the professional relationship between the applicant and her erstwhile legal practitioner broke down. On 14 February 2018, the applicant informed the Registrar she was engaging new lawyers, and on 26 February 2018, Messrs Mtetwa & Nyambirai assumed agency. On 27 February 2018, the applicant filed an intended amended plea and counterclaim. At the pre-trial conference on 28 February 2018, the matter was removed from the roll to allow the applicant to bring this application seeking leave to amend her plea and file a counterclaim, which the applicant described as necessary because the original plea filed by her erstwhile lawyer was "woeful" and did not adequately identify the parties' properties or address fair distribution of matrimonial assets.
1. The applicant's plea in case HC 12315/16 was amended by substituting it with the amended plea filed on 27 February 2018. 2. The applicant was granted leave to file her claim in reconvention in case HC 12315/16. 3. The respondent was granted leave to file any necessary amendments in his pleadings necessitated by the amendment to the applicant's pleadings. 4. The applicant was ordered to pay respondent's costs on an attorney/client scale incurred between the date of filing the plea to the date when this application was filed. 5. Costs of this application were made costs in the cause.
Rule 132 allows amendments at any stage of proceedings to determine the real question in controversy between parties. Courts apply a liberal approach to amendments, guided by principles including: (1) amendments require some explanation, not mere asking; (2) the applicant must show the amendment has a triable issue deserving consideration; (3) amendments that facilitate proper ventilation of disputes should be favored; (4) amendments should not be refused simply to punish neglect; (5) mere loss of time is no reason to refuse; (6) amendments will not be granted if they cause injustice that cannot be compensated by costs. There is no general prohibition on amendments introducing a new cause of action that arose before summons were issued. Amendments withdrawing admissions require reasonable explanation of circumstances leading to the admission and reasons for resiling from it, and will be refused if they cause prejudice or injustice that cannot be compensated by a special costs order. In matrimonial cases, the court's object is to do justice between parties without heavy reliance on technicalities.
The court made several observations not strictly necessary to the decision: (1) It noted there was a "deep seated matrimonial conflict" between the parties who "trade on a war of words" and have become "regular customers of the courts"; (2) The court declined to apportion blame between the applicant and her erstwhile legal practitioner regarding their breakdown in professional relationship, noting "that is not the issue before this court"; (3) The court observed that both parties were "equally guilty of throwing missiles at each other"; (4) The court advised that "Legal practitioners are advised to keep their clients within the limits of relevance, to be short and precise where it is achievable and vocabularily keep themselves within the decency of the language"; (5) The court noted "verbosity is common to the pleadings by both parties"; (6) The court apologized for "inordinate delay" in delivering judgment, explaining it was due to heavy workload compounded by duty judge responsibilities during vacation.
This case is significant in Zimbabwean civil procedure as it reaffirms the liberal approach courts take to amendments of pleadings, particularly in matrimonial matters. It demonstrates that courts will exercise their discretion in favor of amendments that facilitate proper ventilation of disputes and determination of the real issues in controversy, even where such amendments may rescind earlier admissions, provided there is reasonable explanation and no prejudice that cannot be compensated by costs. The case emphasizes that in matrimonrial disputes, courts prioritize doing justice between parties over strict adherence to procedural technicalities. It also provides guidance on the distinction between mala fide amendments (based on mere change of mind) and bona fide amendments necessitated by breakdown in the professional relationship with legal practitioners. The judgment reinforces that delay occasioned by amendment is not a basis to refuse an otherwise meritorious application.