The applicant brought an application to amend its pleadings after pleadings had been closed and the matter had already gone past a pre-trial conference. The applicant filed a notice of intention to amend 8 months after filing its plea and counter claim. The founding affidavit simply referred to the notice of intention to amend and stated that the court has wide discretion to grant amendments where not made in mala fides and where there would be no incurable prejudice. The applicant attributed the delay to confidential consultations with its legal team, which now included instructed counsel who were not present previously. Both the first and second respondents opposed the application, arguing that no proper explanation was given for the delay, that the proposed amendments (including an alternative claim and an exception after pleading) were not properly motivated, and that the application was brought in bad faith.
The application was dismissed with costs.
An application to amend pleadings must be properly motivated in the founding affidavit. A litigant seeking to amend must: (1) make a sound case with strong motivation for the amendment; (2) provide sufficient detail as to the nature, extent and necessity of the amendments sought; (3) give reasonable explanation for any delay in seeking the amendment; and (4) demonstrate why the court should exercise its discretion in favour of granting the amendment. The founding affidavit must contain the substance of the case for amendment - an application stands or falls on its founding affidavit. Merely asserting that the court has discretion to grant amendments and that there will be no prejudice is insufficient. Amendments are not available for the mere asking and failure to properly plead a case for amendment will result in dismissal of the application.
The court observed that the applicant's approach suggested it believed it was entitled to amend and was instructing the court rather than making a proper application. The court noted that the applicant seemed to paint a picture that amendments will be granted at any time at the convenience of the litigant seeking to amend, which is clearly not the position of the law. The court also commented that the applicant did not seem to care about the delay and did not find it necessary to explain itself to the court, as evidenced by paragraph 13 of the founding affidavit.
This case reinforces important principles regarding applications to amend pleadings in Zimbabwean civil procedure. It emphasizes that amendments are not granted as a matter of right or for the mere asking, but require proper motivation and explanation. The case illustrates the importance of laying a proper foundation in the founding affidavit, providing detailed reasons for the amendment, and giving reasonable explanations for any delay. It serves as a warning to litigants that courts will not exercise discretion in favour of applicants who fail to make a proper case and who appear to approach the court with a sense of entitlement rather than proper pleading.