Oasis Construction (Pvt) Ltd and Thomas D'Acquin Mouafo v Yarnfield Enterprises (Pvt) Ltd

This was an interlocutory application arising from a main action (HC 11503/16) that was set down for trial on 31 January and 1 February 2018. A Joint Pre-Trial Conference minute had been filed and the matter was referred to trial by Hungwe J on 28 June 2017. On 23 January 2018, just six days before the trial date, the respondent (plaintiff in the main action) filed a Notice of Amendment of Summons seeking to increase the damages claim from USD 195,733.31 to USD 327,695.50, and to amend other paragraphs of the summons. This was done without the consent of the applicants (defendants in the main action) and without seeking leave of the court. On 26 January 2018, the respondent also filed an Index and bundle of documents comprising 99 pages, including without prejudice correspondence and documents not previously disclosed. The applicants sought an order expunging these irregularly filed documents from the record.

• Whether a party may unilaterally amend pleadings by filing a 'Notice of Amendment' without the consent of the other party or leave of the court
• Whether the filing of the Notice of Amendment of Summons and bundle of documents was irregular and in violation of Order 20 Rules 134-136 of the High Court Rules, 1971
• Whether documents filed in breach of procedural rules should be expunged from the court record

The court granted the interlocutory relief sought by the applicants. The Notice of Amendment of Summons filed on 23 January 2018, the Index filed on 26 January 2018, and the Plaintiff's Bundle of Documents filed on 26 January 2018 were ordered to be expunged from the record. The Registrar was ordered to remove these documents and return them to the respondent's legal practitioners, with an endorsement on the record that this had been done. Costs were awarded against the respondent.

A party seeking to amend pleadings after issue of summons must either obtain the consent of all parties or obtain leave of the court. A unilateral 'Notice of Amendment' filed without consent or court order is not provided for in the rules and constitutes an irregular proceeding that should be expunged from the record. The mere filing of a document entitled 'Notice of Amendment' does not effect a valid amendment of pleadings and is in violation of Order 20 Rules 134-136 of the High Court Rules, 1971.

The court observed that the practice of filing unilateral notices of amendment is born of indolence and ignorance of the rules. The court also noted that filing documents containing without prejudice correspondence and documents not listed in discovery schedules is highly irregular. The court commented that insisting that such an application is frivolous and vexatious or a delaying tactic was improper in the circumstances where clear procedural violations had occurred.

This case reinforces the strict application of procedural rules governing amendments to pleadings in Zimbabwe (and by extension South African law, given the similarity of court rules). It establishes that parties cannot circumvent the requirements for amendments by simply filing unilateral notices of amendment. The case emphasizes the importance of proper procedure, particularly where amendments are sought close to trial and involve substantial changes to the claim. It serves as a warning against indolent practices and underscores that there are only two legitimate methods for amending pleadings: consent or court order.