Ryan Anthony Cheney v Katie Pearce Cheney (nee Turner)

The applicant and respondent were married on 1 May 2010 and had two minor children. During the marriage, the parties acquired movable properties. On 6 October 2015, the respondent sued the applicant for divorce, custody of the minor children, and distribution of assets. The applicant filed his plea on 15 January 2016, in which he admitted that the respondent could be awarded all the movable property listed in Annexure 'A' to her declaration, except for a Mercedes Benz motor vehicle which he claimed belonged to a company. Correspondence between the parties' legal practitioners before and after the plea confirmed that the only issues in dispute were custody, access, and maintenance. The applicant then arranged for some of the movable property to be stored in a warehouse for the respondent's collection, and some items were delivered to her. On 13 September 2016, the applicant filed a notice to amend his plea, seeking to claim approximately 52 items of movable property he had previously admitted belonged to the respondent. On 24 November 2016, the applicant brought this application to amend his plea, claiming there had been 'unforeseen, regrettable and unintentional miscommunication' between himself and his legal practitioner.

• Whether the applicant should be granted leave to amend his plea to withdraw admissions made regarding the distribution of movable property
• Whether the applicant provided a reasonable explanation for the circumstances under which the admissions were made and why he sought to resile from them
• Whether the proposed amendment would cause prejudice to the respondent that could not be compensated by costs
• Whether the application to amend was made bona fide or was intended to harass the respondent

The application to amend the plea was dismissed with costs.

An application to amend pleadings to withdraw an admission will not be granted where: (1) the applicant fails to provide a reasonable and detailed explanation of both the circumstances under which the admission was made and the reasons for seeking to withdraw it; (2) the admission was not an isolated occurrence but was consistently maintained in correspondence and conduct over a period of time; (3) the other party would suffer prejudice that cannot be compensated by costs, including where property has already been delivered in reliance on the admission and where additional evidence and trial time would significantly increase costs beyond the financial means of the other party; and (4) the application appears to be made mala fide to harass or delay rather than to determine the real issues in controversy between the parties. While courts adopt a liberal approach to amendments of pleadings, withdrawal of an admission is an indulgence that requires substantial justification, and vague claims of 'miscommunication' without supporting detail are insufficient.

The court noted that regarding the proposed amendment on guardianship, the applicant was already the guardian of the children by virtue of being their biological father, so the proposed amendment in this regard would be of no consequence. The real issue between the parties on the children was custody, which had already been pleaded. The court also observed that the delay occasioned by the application had the effect of delaying finality to litigation on matters the applicant had admitted to, and that the application appeared to be intended to harass and torment or traumatize the respondent.

This case reinforces important principles in Zimbabwean civil procedure regarding the withdrawal of admissions made in pleadings. It demonstrates that while courts take a liberal approach to amendments of pleadings, this liberality does not extend to allowing parties to withdraw admissions without proper explanation. The case emphasizes that: (1) withdrawal of an admission is an indulgence, not a right; (2) a party seeking to withdraw an admission must provide a reasonable and detailed explanation of both how the admission came to be made and why it should be withdrawn; (3) vague or unsubstantiated claims of 'miscommunication' are insufficient; (4) the court will consider the conduct of the parties and correspondence between them to assess the bona fides of the application; (5) prejudice to the other party, particularly where it cannot be compensated by costs, is a paramount consideration; and (6) applications to amend that appear to be made in bad faith to harass or delay will be rejected. The case serves as a warning that parties cannot casually resile from admissions made in pleadings, particularly where those admissions have been consistently maintained over a period of time and the other party has acted in reliance on them.