Michael Andrew Chatikobo and Audrey Sibusisiwe Chatikobo (Nee Mangezi)

The applicant (husband) and respondent (wife) were married in terms of the Marriage Act, Chapter 5:11. The respondent instituted divorce proceedings under case number HC 8835/18. Two immovable properties were put up for distribution: Unit 2 of stand 38 Newlands Township (Windsor Avenue, Newlands, Harare) and Lot 2 of subdivision E of subdivision B of Quinnington of Borrowdale Estate. The respondent proposed that the applicant retain the Borrowdale property while she would retain the Newlands property. In his plea, the applicant stated it was just and equitable that both properties be sold and the net proceeds shared equally. After changing legal practitioners, the applicant sought to amend his plea to disclose that the Borrowdale property was inherited from his late father in 1993 (before the marriage in 1994) through deed of transfer number 7162/96. The applicant claimed he did not have sight of the original plea before filing and that his former legal practitioner made concessions without his instructions. The respondent opposed the amendment, arguing it was an attempt to withdraw an admission without reasonable explanation.

• Whether the applicant should be granted leave to amend his plea in divorce proceedings
• Whether the proposed amendment constituted a withdrawal of an admission requiring special explanation
• Whether the delay in bringing the application for amendment was adequately explained
• Whether the amendment was necessary to determine the real question in controversy between the parties
• Whether the respondent would suffer prejudice that cannot be cured by costs

1. The application is granted. 2. The applicant is given leave to amend his pleadings in matter number HC 8835/18 within 10 days of this order. 3. There shall be no order as to costs.

An application to amend pleadings may be granted at any stage before judgment where necessary to determine the real question in controversy between the parties, unless the amendment is made in bad faith or causes injustice to the other party that cannot be cured by an appropriate order for costs. While amendments involving withdrawal of admissions require fuller explanation and are treated more strictly, such amendments will still be allowed where: (1) the applicant provides a cogent and acceptable explanation for the change of position; (2) the amendment is objectively necessary to place material facts before the court; and (3) any prejudice to the respondent can be compensated by costs. Delay in bringing an amendment application, in the absence of prejudice that cannot be cured by costs, does not justify refusing the amendment where the delay is sufficiently explained.

The court quoted with approval the principle from Whittaker v Ross that "It is not a game we are playing, in which, if some mistake is made the forfeit is claimed. We are here for the purpose of seeing that we have a true account of what actually took place, and we are not going to give a decision upon what we know to be wrong facts." The court noted that the court dealing with the divorce proceedings would need to interrogate the fact that the Borrowdale property was inherited in order to properly apply section 7(3) of the Matrimonial Causes Act and determine the constitution of matrimonial assets before addressing distribution and respective contributions. The court observed that the respondent's notice of opposition did raise points of substance and could not be characterized as merely evasive denials under Rule 36(14) of the High Court Rules.

This case is significant in Zimbabwean civil procedure as it demonstrates the court's broad discretion to allow amendments to pleadings even at a late stage and even where admissions are being withdrawn. It reinforces the principle that courts should focus on determining the real controversy between parties based on true facts rather than technical procedural compliance. The case also illustrates the interaction between civil procedure rules and substantive matrimonial property law, particularly the exclusion of inherited property under section 7(3) of the Matrimonial Causes Act. It confirms that delay in seeking amendments can be condoned where adequately explained and where prejudice can be compensated by costs.