Procedural Law – Amending a Particulars of Claim – M-B.F.M v H.P.N.P (5182/2022P) [2024] ZAKZPHC 8 (8 February 2024).

In a noteworthy case, PITMAN AJ presided over a case that brought to the fore a contentious issue regarding the amendment of the particulars of claim within a lawsuit. The plaintiff, seeking judicial permission, aimed to replace the original particulars of claim, as annexed to the summons, with a revised version outlined in her notice of amendment dated 16 May 2023. This request sparked significant opposition from the defendant, culminating in a judicial review to adjudicate on the proposed changes.

The case’s complexity was underscored by the voluminous submissions, encompassing 205 pages, which included a detailed account of prior attempts to amend the particulars and the ensuing notices and objections. PITMAN AJ observed that much of this historical recounting was extraneous to the core issue of the proposed amendment’s merits. However, it was noted that the inclusion of this extensive background was intended to bolster the plaintiff’s case for a punitive costs order. Despite this, the judge opined that a concise reference within the founding affidavit would have sufficed, thus critiquing the plaintiff’s approach to substantiating her claim for punitive costs.

The crux of the dispute hinged on the plaintiff’s initial particulars of claim which narrated a cohabitation arrangement akin to marriage, lasting approximately six and a half years. This arrangement was allegedly predicated on an understanding that the parties would share all assets accrued during their time together, a premise leading to the invocation of a Universal Partnership. The plaintiff argued that this partnership was dissolved on 18 November 2021, warranting judicial declarations to affirm the partnership’s existence, its subsequent dissolution, and the plaintiff’s entitlement to various financial orders reflecting her share of the accumulated assets.

However, the progression of legal pleadings was stymied from the outset, as the defendant consistently objected to the initial particulars of claim, forestalling the filing of a formal response. In a strategic legal manoeuvre, the plaintiff proposed a new set of particulars that, while maintaining the essence of a universal partnership, delineated the facts and rationale underpinning this assertion in a distinct manner and form. These revised particulars detailed the termination of the partnership and the basis for the dissolution, alongside a series of claims flowing from these foundational allegations.

The defendant’s resistance to the amendment was multifaceted, encompassing criticisms of vagueness and ambiguity, particularly regarding the identification of assets integral to the universal partnership and the practicality of appointing a receiver or liquidator without specifying these assets. Additional objections emerged, including the late allegation that the plaintiff neglected to assert the partnership’s profit motive—an essential element of a universal partnership. Furthermore, the defendant introduced the concept of non-joinder, suggesting that the failure to include various entities referred to in the particulars necessitated dismissal. These objections, alongside debates on procedural matters and the specificity required in pleadings, underscored the contentious nature of the proposed amendment and set the stage for PITMAN AJ’s deliberation and eventual ruling.

The South African courts have provided guidance on the separation of issues within divorce proceedings, establishing a framework for when such separations can be conveniently decided. This approach is encapsulated in several notable cases, offering insights into the judiciary’s rationale and application of Rule 33(4) of the Uniform Rules of Court.

Manyatshe v South African Post Office

In Manyatshe v South African Post Office 2008 JDR 0999 (T)​​, the court navigated the separation of issues within the context of a divorce proceeding, demonstrating the judiciary’s discretion in ensuring fairness and expediency in litigation. This case underscores the court’s role in assessing the convenience and appropriateness of separating specific legal questions from the broader dispute at hand.

De Klerk & Another v Du Plessis & Others

De Klerk & Another v Du Plessis & Others 1995 (2) SA 40 (T)​​ further elucidates the principles underpinning the separation of issues, where the court emphasised the necessity of a careful, considered approach to such applications. This case highlights the importance of assessing the interconnectedness of

As long ago as Moolman v Estate Moolman 1927 CPD 27 at 29, the general approach to be applied in opposed applications for amendments was that the “practical rule adopted seems to be that amendments will always be allowed unless the application to amend is mala fide or unless such amendment would cause an injustice to the other side which cannot be compensated by costs, or in other words unless the parties cannot be put back for the purposes of justice in the same position as they were when the pleading which is sought to be amend was filed”.

Regarding the non-joinder objection, a nuanced point emerged late in the proceedings. The plaintiff’s legal team contended that this objection hadn’t been initially articulated in the Notice of Objection, nor was it directly pertinent in the answering affidavit. They argued that, fundamentally, non-joinder isn’t an excipiable issue but rather should be addressed via a special plea if deemed necessary. In seeking authoritative backing for the claim that non-joinder could be invoked at the exception stage, the defendant’s counsel was unable to provide definitive guidance despite substantial argumentation to this effect in their legal submissions.

Consequently, PITMAN AJ mandated both parties to submit supplementary written arguments by 16h00 on Monday, 5 February 2024, a directive both parties adhered to. Within her supplementary submissions, the defendant’s counsel cited legal precedents affirming that the misjoinder or non-joinder could indeed be addressed at the exception stage. Nonetheless, such instances were qualified as appropriate only under specific circumstances, notably if the summons explicitly indicated the omission of a necessary party. This stipulation draws on principles outlined in Smith v Conelect 1987 (3) SA 689 (W), which emphasized that non-joinder pleas are viable through exceptions provided the plea expressly states this ground.

The plaintiff’s counsel underscored that despite the general acceptance of this principle, its application is reserved for “appropriate cases” and necessitates clear indications from the summons that a party essential to the proceedings has been omitted. In this case, the non-joinder objection wasn’t substantively raised until it surfaced during oral arguments, thereby diminishing its viability as a foundational objection.

PITMAN AJ referenced the ruling in Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA) to underscore that the necessity for joinder hinges on whether a party possesses a direct and substantial interest potentially prejudiced by the court’s judgement. This doctrine clarifies that not every interested party warrants joinder, marking a delineation that asserts the limited scope within which non-joinder objections may validly arise.

PITMAN AJ’s decision in this matter has broader implications for the conduct of litigation within the South African legal system, particularly regarding the amendment of pleadings in complex cases such as those involving claims of universal partnership in non-marital relationships. The judgment underscores the judiciary’s commitment to procedural fairness while ensuring that litigation proceeds efficiently and without unnecessary delays. By allowing the amendment, the court has affirmed the principle that the particulars of claim must sufficiently articulate the basis of the claim to enable the respondent to understand the case they are to meet and to prepare their defence accordingly.

The following orders were issued as a result of the judicial analysis and decision:

  1. Grant of Leave to Amend: The plaintiff was granted leave to amend her particulars of claim in line with the proposed amendments detailed in her notice of intention to amend dated 16 May 2023. This decision highlights the court’s discretion in allowing amendments that facilitate the fair and comprehensive adjudication of disputes.
  2. Directive for Delivery of Amended Particulars: Following the grant of leave to amend, the court directed the plaintiff to deliver the amended particulars of claim within five days of the granting of the order. This directive underscores the importance of timeliness in litigation, ensuring that the case progresses without undue delay.
  3. Costs Awarded: The defendant was directed to pay the costs of the application, save for two-thirds of the costs charged by the plaintiff’s counsel in respect of her heads of argument. This nuanced approach to the costs order reflects the court’s consideration of the conduct of the parties and their legal representatives in the course of the litigation. The disallowance of a portion of the plaintiff’s counsel’s costs serves as a caution against non-compliance with court practice directives and emphasises the necessity for legal practitioners to adhere to prescribed procedures and guidelines.

By articulating these orders, PITMAN AJ has provided a clear roadmap for the continuation of the litigation, ensuring that both parties are aware of their obligations and the next steps in the process. Moreover, the decision and the accompanying orders serve as a reminder to legal practitioners of the importance of meticulous preparation and adherence to court directives, reinforcing the standards of practice within the South African legal profession.

  1. What was the primary legal issue PITMAN AJ had to decide in this case?
    • The primary issue was whether the plaintiff should be granted leave to amend the particulars of claim by substituting them with a new set proposed in her notice of amendment.
  2. On what grounds did the defendant object to the proposed amendment of the particulars of claim?
    • The defendant objected on the grounds that the proposed particulars were vague and embarrassing, lacked specific details on assets involved in the alleged universal partnership, and failed to adequately allege a profit motive, among other issues.
  3. What is the legal criterion for allowing an amendment to the particulars of claim, as applied by PITMAN AJ?
    • Amendments will be allowed unless the application to amend is made in bad faith, or such amendment would cause injustice to the other side which cannot be compensated by costs, or unless the parties cannot be put back in the same position as when the original pleading was filed.
  4. What are the essential elements of a universal partnership that needed to be pleaded, according to PITMAN AJ?
    • The essential elements include: a) each partner contributing something to the partnership, b) the business being carried on for both parties’ joint benefit, c) the objective to make a profit, and d) the contract between the parties being a legitimate contract.
  5. How did PITMAN AJ address the defendant’s objection regarding the lack of detail on assets involved in the partnership?
    • PITMAN AJ found that the plaintiff had provided sufficient detail about the activities and assets of the alleged partnership for the defendant to frame a meaningful response, thereby dismissing the objection.
  6. What was PITMAN AJ’s stance on the late objection regarding the partnership’s profit motive?
    • PITMAN AJ considered the late objection on the profit motive to be meritless, stating that “profit” need not be purely financial and that the objective of accumulating an appreciating joint estate was alleged, which was sufficient for pleading purposes.
  7. How did PITMAN AJ rule on the issue of non-joinder raised by the defendant?
    • PITMAN AJ ruled that non-joinder was not an excipiable issue at this stage and could be raised as a special plea if necessary, finding no merit in the defendant’s objection.
  8. What implications does this judgment have for the management of litigation and adherence to court directives?
    • The judgment emphasizes the importance of complying with court practice directives and the efficient management of court processes, highlighting the court’s displeasure at unnecessary voluminous submissions and non-compliance with practice directives.
  9. What were the specific orders issued by PITMAN AJ following the decision?
    • PITMAN AJ ordered the plaintiff to be granted leave to amend the particulars of claim, directed the plaintiff to deliver the amended particulars within five days, and ordered the defendant to pay the costs of the application, with a disallowance of two-thirds of the plaintiff’s counsel’s costs for the heads of argument.
  10. How does this judgment contribute to the jurisprudence on universal partnerships in South African law?
  • The judgment contributes to the jurisprudence by clarifying the sufficiency of pleadings regarding universal partnerships, the interpretation of profit within such partnerships, and the procedural approach to amendments in pleadings, reinforcing the standards for alleging universal partnerships in litigation.

Written by Bertus Preller, a Family Law and Divorce Law attorney and FAMAC accredited Mediator at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here.