Few interlocutory judgments manage to say something useful about both civil procedure and substantive family law in the same breath. The recent decision of Greig AJ in the Western Cape Division does exactly that. On its face, it is an opposed application for leave to amend under Uniform Rule 28. Beneath the surface, it is a careful meditation on a question that vexes every matrimonial practitioner: how much of a spouse’s alleged misconduct — including allegations about sexual orientation and sexual conduct during the marriage — may legitimately be pleaded in a divorce action under our ostensibly no-fault regime? The answer, it turns out, is “some, but nowhere near fifty paragraphs’ worth”.
The Facts: A Change of Front Four Years into the Litigation
The parties were married on 15 January 1993, out of community of property subject to the accrual system, and two children were born of the marriage. In August 2021 — some twenty-eight years later — the husband (the plaintiff and respondent in the amendment application) issued summons for divorce, pleading conventionally that the marriage had broken down irretrievably because the parties had gradually grown apart.
The wife’s plea and counterclaim, delivered in February 2022, admitted the irretrievable breakdown but denied the gradual estrangement. Her version was that the respondent had, “out of the blue”, announced that he no longer wished to be married and was departing on a year-long “sabbatical”. Her counterclaim pleaded the breakdown in similarly conventional terms — loss of love and affection, absence of meaningful communication, the respondent’s departure from the matrimonial home.
Then came the change of front. Having changed attorneys twice, the applicant delivered a Rule 28(1) notice on 19 August 2025 seeking to substitute her plea and counterclaim entirely. The proposed pleadings abandoned the “sudden breakdown” version and alleged instead that there had never been a normal marital relationship, principally because the respondent’s sexual preference was for men. The proposed counterclaim set out fifty separate sub-paragraphs of alleged conduct stretching back to 2005 — including allegations that the respondent had demanded a “threesome” with another man, had holidayed with various men, had retained a room at a country club for suspected liaisons, and had frequented a “boys club” in London — together with fourteen further averments concerning the applicant’s own contributions to the marriage, said to bear on her maintenance claims. The relief sought in the counterclaim included a decree of divorce, an accrual claim and maintenance.
The respondent objected on eight grounds, the principal complaints being the impermissible withdrawal of an admission, that the allegations were scandalous and vexatious, that they were irrelevant under our no-fault dispensation, that evidence rather than material facts had been pleaded, and that privileged settlement negotiations had been disclosed. The application for leave to amend under Rule 28(4) was argued on 30 July 2026.
Withdrawal of an Admission and the Adequacy of the Explanation
The first ground of objection engaged the well-established principles governing amendments. Greig AJ restated the trite position: an amendment will always be allowed unless it is mala fide or would cause an injustice not curable by a costs order (Moolman v Estate Moolman 1927 CPD 27 at 29), the object being the proper ventilation of the real dispute between the parties (Trans-Drakensberg Bank Ltd v Combined Engineering (Pty) Ltd 1967 (3) SA 632 (D) at 638A). The withdrawal of an admission stands on no different footing in principle, but is harder to achieve in practice: it involves a change of front requiring a full and satisfactory explanation to establish bona fides, and it is more likely to prejudice an opponent who was led to believe evidence on the issue would be unnecessary (President-Versekeringsmaatskappy Bpk v Moodley 1964 (4) SA 109 (T) at 110H).
Interestingly, the court confessed that it was “not entirely clear” precisely what admission was being withdrawn — the applicant contended she was withdrawing a denial, not an admission. But Greig AJ accepted that, in broad terms, the respondent now faced a materially different case: previously a sudden, late-stage revelation; now a gradual deterioration traceable to 2005. That change required a satisfactory explanation under the court’s general Rule 28 discretion.
The explanation given was that the applicant’s previous attorneys had pleaded the “standard four” reasons for breakdown, and that it was only on consulting her present attorneys — who advised her that conduct relevant to the breakdown bore on maintenance and costs — that the “proverbial floodgates opened”. She described herself as a conservative and religious person who, out of shame and a desire to protect her children, had been reluctant to confront the “torment” she says she endured. The court found little reason to disbelieve this account. The respondent’s counter — that conduct pre-dating 2017 could not have caused the breakdown because the applicant remained in the marriage — was given short shrift: “Many people stay in unhappy marriages for years and even decades” (para [37]). The first ground of objection failed. The practical lesson for practitioners: a late change of front is survivable, but only where the founding affidavit carries a candid, human and plausible explanation for it.
Section 7(2) of the Divorce Act: Fault Is Not Dead Yet
The respondent’s irrelevance objection put squarely in issue the tension at the heart of modern South African divorce law. The Divorce Act 70 of 1979 introduced a no-fault system of divorce; how then can fifty paragraphs of conduct allegations be relevant? The answer lies in section 7(2), which expressly includes, among the factors the court may weigh in a maintenance enquiry, the parties’ “conduct in so far as it may be relevant to the break-down of the marriage”, as well as “any other factor” which in the court’s opinion should be taken into account.
Counsel for the respondent invoked the judicial disquiet expressed in S.T.H v A.T.H [2024] ZAGPPHC 1237, where Moshoane J remarked that post-divorce spousal maintenance “should and can no longer be considered a form of penalty for misconduct” and commended the Canadian approach (referencing Moge v Moge [1992] 3 RCS 813) of seeking an equitable sharing of the economic consequences of the breakdown, an enquiry in which conduct provides no assistance.
Greig AJ acknowledged the force of these observations “as a matter of policy or law reform”, but held that they could not carry the day at pleadings stage: the fault-based factors remain on the statute book, unaltered by the Legislature for over forty years, and no constitutional challenge to section 7(2) had been raised (para [51]). Whatever weight the trial court may ultimately give such allegations — and the court noted the conservative approach in Beaumont v Beaumont 1987 (1) SA 967 (A) and Kritzinger v Kritzinger 1989 (1) SA 67 (A) — a litigant is entitled to plead them. The irrelevance grounds accordingly failed, save for one paragraph referencing a “lesser sum” offered in settlement discussions, which was excised because the conduct there alleged necessarily post-dated the breakdown and could not be relevant under section 7(2). For those of us who have watched the S.T.H debate develop, the judgment is a reminder that until the Legislature or the Constitutional Court intervenes, section 7(2) conduct remains pleadable — and practitioners who ignore it do so at their client’s peril.
Scandalous, Vexatious and Repetitious: Where the Court Drew the Line
Where the respondent did succeed was on the overall character of the pleading. Applying the classic definitions in Vaatz v Law Society of Namibia 1991 (3) SA 563 (Nm) — scandalous matter being allegations worded so as to be abusive or defamatory, vexatious matter conveying an intention to harass or annoy — the court found the cumulative effect of the fifty sub-paragraphs “unmistakable” (para [62]). Degrading charges, though not irrelevant in themselves, acquired a scandalous character “by their repetition, and by the addition of detail not appropriate in a pleading” (para [63]). Greig AJ invoked the memorable description of a pleading in Jowell v Bramwell-Jones 1998 (1) SA 836 (W) at 901C as “a rather laconic document, somewhat reserved and uncommunicative, setting forth merely the bare outline of the case, which is left to be developed in full flood at the trial”.
The court then undertook a meticulous paragraph-by-paragraph triage, the governing test being whether an averment pleads a material fact going to the breakdown or a section 7(2) factor, as opposed to a bare epithet, unduly inflammatory matter, or repetition (para [66]). So, for example: the allegation that the respondent’s sexual preference was for men, pleaded once, stayed; the fourfold repetition of the “threesome” demands went; the “marriage as a cover” imputation of motive, pleaded three times, went; insinuations that alleged nothing — the manner of dress, the “welcome back” braai, the country club room inviting an inference the pleading itself declined to draw — all went; allegations of the applicant’s own state of mind and paragraphs pleading facta probantia rather than facta probanda (the Rule 18(4) point) were likewise excised. The fifty paragraphs were roughly halved.
The costs order completes the picture. Although the applicant obtained leave to amend, she was ordered to pay the respondent’s costs of opposing, on the ordinary Rule 28(9) principle (Stuttaford & Co Ltd v Scher 1931 CPD 341), the court adding that an amendment sought four years into the action, delaying its resolution yet further, was “regrettable” — and that this interlocutory skirmish warranted one counsel only, on scale B, notwithstanding that both parties briefed two.
Questions and Answers
What is the general test for whether a court will grant leave to amend a pleading under Uniform Rule 28?
An amendment will always be allowed unless it is mala fide or it will cause an injustice to the other party which cannot be cured by an appropriate order as to costs. This is the long-standing principle in Moolman v Estate Moolman 1927 CPD 27 at 29, which Greig AJ reaffirmed. The primary object of allowing an amendment is to obtain a proper ventilation of the dispute so that the real issues between the parties can be determined, as held in Trans-Drakensberg Bank Ltd (Under Judicial Management) v Combined Engineering (Pty) Ltd and Another 1967 (3) SA 632 (D) at 638A. A court has the greatest latitude in granting amendments, because litigation is not a game in which a forfeit is claimed for every mistake.
Does the withdrawal of an admission stand on a different footing from an ordinary amendment?
Not in principle, but it is more difficult to achieve in practice. Following President-Versekeringsmaatskappy Bpk v Moodley 1964 (4) SA 109 (T) at 110H, the court held that a withdrawal of an admission involves a change of front which requires a full explanation to convince the court of its bona fides, and it is more likely to prejudice the other party, who may have been led to believe that evidence would not be necessary on the issue. The applicant must therefore explain the circumstances in which the admission was made and the reasons why it is sought to be withdrawn.
What explanation for a change of front will satisfy a court, and what satisfied the court here?
The explanation must be candid and plausible enough to establish bona fides. The applicant explained that her earlier attorneys had pleaded the conventional reasons for the breakdown, and that it was only when her present attorneys advised her that conduct relevant to the breakdown bore upon maintenance and costs that the proverbial floodgates opened. She said that shame, her conservative and religious convictions, and a desire to protect her children had made her reluctant to confront the alleged conduct. The court found little reason to disbelieve this account, holding that her embarrassment went some way to explaining why the material had not been pleaded earlier.
Is it an answer to a proposed amendment that the alleged misconduct is old, and that the party remained in the marriage despite it?
No. The respondent submitted that conduct pre-dating 2017 could not be a reason for the breakdown because the applicant remained married notwithstanding her knowledge of it. Greig AJ dismissed this submission as by no means compelling, remarking that many people stay in unhappy marriages for years and even decades. Delay in leaving a marriage does not, at pleadings stage, sever the causal link between alleged conduct and the eventual breakdown.
Can a party plead a spouse’s conduct in a divorce action given that South Africa has a no-fault divorce system?
Yes. Although the Divorce Act 70 of 1979 introduced a no-fault system, section 7(2) expressly includes among the factors relevant to a maintenance award the parties’ conduct in so far as it may be relevant to the break-down of the marriage, as well as any other factor which in the opinion of the court should be taken into account. The court held that a litigant is accordingly entitled to plead facts relating to such conduct, and the objection that fault-based allegations are irrelevant in a no-fault regime failed.
What is the significance of the judicial criticism of section 7(2) in S.T.H v A.T.H?
In S.T.H v A.T.H [2024] ZAGPPHC 1237 Moshoane J expressed the view that, divorce no longer being based on matrimonial fault, post-divorce spousal maintenance should no longer be treated as a penalty for misconduct, and commended the Canadian approach in Moge v Moge [1992] 3 RCS 813 of seeking an equitable sharing of the economic consequences of the breakdown, an enquiry in which conduct provides no assistance. Greig AJ acknowledged the force of these observations as a matter of policy or law reform, but held that the fault-based factors remain in section 7(2), which the Legislature has not altered for over forty years, and no challenge to the validity of the provision had been raised. Until it is amended or struck down, conduct remains pleadable.
What weight will conduct allegations ultimately carry at trial?
That is a matter for the trial court, not for the court hearing the amendment application. Relevance is a threshold for admissibility, not a measure of weight. The court noted that authorities such as Beaumont v Beaumont 1987 (1) SA 967 (A) and Kritzinger v Kritzinger 1989 (1) SA 67 (A) show that courts adopt a conservative approach to a party’s misconduct, will not embark on an apportionment of fault where there is no conspicuous disparity between the conduct of the parties, and declined in Kritzinger to treat even admitted adultery as decisive. The amendment court could not pre-empt the trial court by discounting the potential weight of section 7(2) factors at pleadings stage.
When is matter in a pleading scandalous, vexatious or irrelevant?
The court applied the definitions in Vaatz v Law Society of Namibia 1991 (3) SA 563 (Nm) at 566. Scandalous matter comprises allegations which may or may not be relevant but which are so worded as to be abusive or defamatory. Vexatious matter comprises allegations which may or may not be relevant but are so worded as to convey an intention to harass or annoy. Irrelevant matter comprises allegations which do not apply to the matter in hand and do not contribute one way or the other to a decision of it. Allegations are also scandalous if degrading charges are made which are irrelevant or if, though the charge is relevant, unnecessary details are given.
Is a court obliged to strike out matter which is scandalous, vexatious or irrelevant?
No. The rules give the court a discretion and do not make striking out obligatory, as held in Titty’s Bar & Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd 1974 (4) SA 362 (T) at 368F–H. Moreover, Uniform Rule 23(2)(b) requires the party seeking the striking out to satisfy the court that it will be prejudiced in the conduct of its claim or defence if the application is refused, following Vaatz v Law Society of Namibia. Even where a court declines to strike out matter because there is no prejudice, it may nonetheless grant an appropriate costs order against the party who included the objectionable matter.
Can relevant allegations become scandalous through repetition and excessive detail?
Yes, and this is the heart of the judgment. Degrading charges which are not irrelevant in themselves may gain a scandalous character by their repetition and by the addition of detail not appropriate in a pleading. The court invoked the description in Jowell v Bramwell-Jones and Others 1998 (1) SA 836 (W) at 901C of a pleading as a rather laconic document, somewhat reserved and uncommunicative, setting forth merely the bare outline of the case, which is left to be developed in full flood at the trial. The general approach adopted was that an averment stays if it pleads a material fact going to the breakdown of the marriage or to a section 7(2) factor, but is dispensed with if it is a bare epithet, unduly inflammatory, or largely repeats what is pleaded elsewhere.
May an objection to an amendment be founded on the grounds that the amended pleading would itself be strikeable or excipiable?
Yes. The applicant accepted, by analogy with the principle that a valid objection may be raised to an amendment which would render a pleading excipiable, that one can validly object to an amendment on the basis that the pleading sought to be introduced would be liable to be struck out because it would introduce matter which is irrelevant, vexatious or scandalous. An objecting party is, however, confined to the grounds set out in its notice of objection and may not raise new grounds at the hearing, following Squid Packers (Pty) Ltd v Robberg Trawlers (Pty) Ltd 1999 (1) SA 1153 (SE) at 1158A–C.
What is the objection to pleading evidence rather than material facts?
Uniform Rule 18(4) requires a pleading to contain a clear and concise statement of the material facts on which the pleader relies, and not the evidence by which those facts will be proved. The court held that certain paragraphs of the proposed counterclaim descended into pleading evidence, or facta probantia, notwithstanding that the underlying facts might be relevant to section 7(2) factors. It would be prejudicial to expect the respondent to plead to the minutiae of each alleged past interaction when the overarching allegations had already been made elsewhere in the pleading, and those paragraphs were accordingly excised.
Why was the paragraph referring to settlement discussions removed?
The paragraph in question was not removed for breaching the rule that without prejudice negotiations may not be disclosed in pleadings, because no content was given to the discussions beyond a reference to an unspecified lesser sum. It was removed because the conduct alleged must have post-dated the break-down of the marriage and therefore could not constitute conduct relevant to the break-down for the purposes of section 7(2), and no other basis of relevance to the maintenance enquiry had been identified. The eighth ground of objection, founded on privilege, accordingly failed, but nothing turned on that because the paragraph was excised in any event.
Who bears the costs of an opposed application for leave to amend?
Unless the court orders otherwise, a party giving notice of amendment is liable for the costs occasioned by the amendment in terms of Uniform Rule 28(9). Where the opposing party does not consent and has good grounds for opposing, the applicant for the amendment will generally be ordered to pay the opponent’s costs, following Stuttaford & Co Ltd v Scher 1931 CPD 341, though each case depends on its own facts and the court’s discretion, as in Gcanga v AA Mutual Insurance Association Ltd 1979 (3) SA 320 (E) at 329A. Here, although leave to amend was granted, the applicant was ordered to pay the respondent’s costs because the opposition was reasonable given the repetitious and unnecessarily detailed allegations, and because the amendment, sought some four years after the institution of the action, had served to delay its resolution yet further.
What are the key practical lessons for drafting a plea and counterclaim in a divorce action?
Plead conduct relevant to the break-down of the marriage once, plainly and without editorialising. Sufficient particularity to inform the opponent of the case to be met is legitimate, and the court acknowledged that an entirely unadorned allegation of conduct would itself attract complaint. But bare epithets, imputations of motive, allegations of the pleader’s own state of mind, suspicion and belief dressed up as averment, insinuations which allege nothing, repetition and salacious detail all fall on the wrong side of the line and invite excision and an adverse costs order. A pleading should retain the essentials of the case without obliging the other party either to answer, or to leave unanswered, a great deal of degrading detail. And extract the client’s full instructions at the outset, because a change of front years into the litigation, even where bona fide, comes at a price in costs and delay.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of iDivorce and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculator, Courtdaycalculator and Accrual Calculator.
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