Sibongile Ndlovu v (1) Guardforce Investments (Private) Limited (2) The Registrar of Deeds N.O

### Preamble
Judgement No. SC 31/21
1
Civil Appeal No. SC B 48/20
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DISTRIBUTABLE    (29)

SIBONGILE     NDLOVU

v

(1)     GUARDFORCE     INVESTMENTS     (PRIVATE)     LIMITED

(2)     THE     REGISTRAR     OF     DEEDS     N.O

THE SUPREME COURT OF ZIMBABWE

GUVAVA JA, UCHENA JA AND CHITAKUNYE AJA

BULAWAYO: MARCH 22 AND MARCH 25, 2021

N. Mazibuko, for appellant

P. Dube, for first respondent

No appearance for second respondent

CHITAKUNYE AJA. This is an appeal against part of the judgment of the High Court sitting at Bulawayo handed down on 4 June 2020 as HB 87/20, under HC 1124/17. The part appealed against is the order by the court a quo dismissing the application for amendment in respect of an alternative claim and prayer seeking to compel the respondents to transfer 8000 square metres of land to the appellant.

FACTUAL BACKGROUND

On 1 November 2006 the appellant and the first respondent entered into an agreement of sale of a property described as subdivision B of Lot B Upper Rangemore, Bulawayo. The appellant was the seller and the first respondent was the purchaser. In pursuant of that agreement the property was subsequently transferred into the first respondent’s name. On 13 February 2013 the appellant issued summons in HC 411/13 for a declaratur that the agreement of sale between the parties was null and void and a reversal of the transfer into her name. The appellant obtained a default judgment leading to the property being transferred into her name. The first respondent was not amused and unsuccessfully applied for the rescission of the default judgment. The judgment was ultimately set aside by the Supreme Court in SC 24/16. As a consequence, the property was transferred back into first respondent’s name and parties were to proceed with the matter as contested. The first respondent duly filed its plea and the applicant filed her replication.

Upon engaging different legal practitioners, the applicant made an application in the court a quo for an amendment of her summons, declaration and replication. The amendments sought were extensive including a description of the property in issue on the face of the summons, an order compelling the first respondent to effect transfer of the property back to the appellant, a prayer for the cancellation of the agreement of sale between the parties and an alternative claim for an order compelling the first respondent to transfer 8000 square metres of the property in question to the appellant.

The first respondent consented to all the amendments except for the alternative prayer pertaining to the transfer of 8000 square metres (including the homestead) into the appellant’s name.  The first respondent contended that this alternative prayer was incompatible with the appellant’s allegations that the agreement of sale was illegal and void. It contended that the appellant cannot ask for specific performance of a contract she has set out to prove was illegal.

After hearing arguments, mostly on the contested proposed amendment, the court a quo granted the uncontested amendments but dismissed the contested amendment on the alternative claim.

Aggrieved by the decision of the court a quo, the appellant noted this appeal. The appellant raised four grounds of appeal. The grounds were not elegantly drafted and were repetitive.

On the date of hearing of the appeal Mr Mazibuko for the appellant conceded on the repetitive nature of the grounds and abandoned grounds 3 and 4. He thus motivated the appeal on grounds 1 and 2 as he believed these covered the issues in the abandoned grounds. The grounds that remained for consideration were couched as follows:

The court a quo erred at law by dismissing the application for an amendment on the basis that the proposed amendment was contradictory to appellant’s main claim, disregarding the law that pleadings which negate one another are permissible as long as the negating or contradictory pleading is couched as an alternative.

The court a quo misdirected itself at law in approaching and determining the application for amendment as if it was a trial court determining the merits of the issue of the proposed amendment at trial, when it simply ought to have considered whether 1st respondent would suffer any prejudice if the amendment was granted.

The relief sought before this Court was as follows:

That the appeal be and is hereby granted with costs.

That paragraph 2 of the order of the court a quo denying the application for an amendment be and is hereby set aside and is substituted by the following:

“The application to amend Plaintiff’s Claim by inserting an alternative prayer compelling 1st defendant to transfer to plaintiff 8000 square metres of a portion of subdivision B of Lot B of Upper Rangemore be and is hereby granted.”

THE LAW

It is trite that amendments to pleadings can be granted at any time before judgement. Whether to grant an amendment or not is within the court’s discretion. In Agricultural Bank of Zimbabwe Ltd v Nickstate Investments(Pvt) Ltd and others HH 231/10 at p2 GOWORA J (as she then was) aptly stated that:

“The law is abundantly clear on the question of amendments to pleadings, and the court has a very wide discretion not only in regard to the scope of the amendment but also with regard to the time when an amendment can be applied for. In the exercise of its discretion the court will generally be guided by the principle that such amendment should not be seen to cause prejudice to the other litigant which cannot be cured by an order of costs necessitated by the need to further postpone the matter. Invariably, therefore courts have been liberal in allowing amendment of pleadings, and it is trite that pleadings can be amended at any time before judgment is issued. It is also a general rule that the courts will grant an amendment to pleadings unless the application to amend is mala fide.”

Counsel for both parties acknowledged and were ad idem on the fact that the court a quo properly espoused the law on this issue. The disagreement was whether the court     a quo properly applied the espoused law to the facts of this case.

THE ISSUE FOR DETERMINATION

Whether or not the court a quo erred and misdirected itself in the exercise of its discretion by dismissing the appellant’s application for amendment regarding the alternative claim.

It is trite that for an appellate court to interfere with an exercise of discretion it must appear that some error occurred in the exercise of that discretion. If the court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration. See Barros & another v Chimponda 1999(1) ZLR 58(S)

In casu, the appellant’s grievance did not allude to the above. The grounds of appeal did not relate to failure to properly exercise the wide discretion reposed in the court a quo. Instead ground 1 relates to alleged dismissal of the application on the basis that the proposed amendment was contradictory to the appellant’s main claim. But the appellant conceded as much in that ground that the alternative claim is contradictory to the main claim. The finding by the court a quo in this regard cannot be faulted. What appellant disagrees with is the effect of such contradiction or negation. The appellant‘s argument was that such contradiction was not prejudicial to the respondents. The court on the other hand found that such was prejudicial.

On the second ground the appellant attacked the court a quo for what he termed treating the application for amendment as if it was a trial court determining the merits of the issue of the proposed amendment when it ought simply to have considered whether first respondent would suffer any prejudice if the amendment was granted.

This argument seemed oblivious of the finding by the court a quo at p3 of the judgment that: -

“It should be noted also that the amendment now sought, has the effect of altering that part of the agreement which is being contested well after the 1st respondent has filed its plea, and after rescission of judgment. Applicant in her summons and declaration in case No. 411/13 claims that to the extent that the property in dispute was sold and transferred in the absence of a subdivision Certificate, then the sale transaction and subsequent transfer to 1st respondent’s name should be declared unlawful, null and void. For that reason, 1st respondent argues, and correctly in my view, that the applicant wants to ‘have her cake and eat it at the same time.’ Her prayer in the alternative amounts to a claim for specific performance. She cannot be allowed to ‘approbate and reprobate’. She cannot say the sale and transfer is unlawful, null and void on the one hand and yet on the other hand seeks specific performance of the same.”

Later at p4 the court continued on its findings in these words:

“Clearly, the courts have very wide discretionary powers that they exercise in considering whether or to grant or not to grant an amendment. Further, I subscribe to the view that an amendment should not be denied simply to punish the applicant for neglect or laxity in drafting her claim. Be that as it may, parties, particularly legal practitioners should not be encouraged in effect, to first study the other party’s pleadings, and then seek amendments in a bid to then counter the other party’s strong points and bolster their own case neither should a defendant be allowed to do the same in reverse. Doing so becomes prejudicial to the other party and certainly gives an unfair advantage to the party seeking an amendment,”

What is apparent from the above is that the court a quo was alive to the discretion to be exercised and the fact that the issue of prejudice to the other party must not be overlooked. The court was also alive to the fact that the proposed amendment was after this Court’s decision in SC 24/16 wherein this Court, in determining a point in limine, made adverse findings on the appellant’s understanding of the clauses of the agreement of sale.

In this regard it is my view that the court a quo cannot be faulted for concluding that the amendment will be prejudicial to first respondent and would not, in any case, sit well with appellant’s pleadings already filed even as amended. It was not disputed that in the summons and declaration the facts constituting the appellant’s cause of action pertained to the nullity of the agreement of sale. The amendment sought would, in the circumstances, not be supported by those averments in the declaration.  Inevitably the declaration would be excepiable. Generally, it is not desirable to allow amendments that would render the pleadings excepiable.

Besides being excepiable the proposed amendment is also incompetent as it seeks to transfer ‘8000 square metres of a portion’ of subdivision B when there is no averment that such portion has been subdivided and can be lawfully transferred. This would clearly be contrary to s 39 of the Regional, Town and Country Planning Act, [Chapter 29:12], which prohibits subdivision of property without a permit. An order in the manner proposed would be tantamount to granting a subdivision without a permit.

COSTS

The first respondent asked for costs on the attorney -client scale contending that on the basis of this Court’s findings in SC 24/16 to the effect that there was no merit in appellant’s assertion that the agreement of sale did not fall foul of the Regional, Town and Country Planning Act, the appellant moved the amendment as a last ditch effort to revive a dead case. The first respondent contended that this is an abuse of court process and so the appellant must be punished with an order for costs on the higher scale. The net effect of this Court’s order in SC 24/16 was to set aside the default judgment and allow the first respondent to defend the action on the merits. It will only be after a full contest that a final and definitive determination will be made on the status of the agreement of sale. In that regard I am not inclined to order punitive costs when the matter is still alive.

DISPOSITION

Upon a consideration of the matter as a whole I find that it has not been established that the court a quo erred in the exercise of its discretion when it dismissed the appellant’s application to amend its prayer to include an alternative prayer to compel the transfer of 8000 square metres of a portion of Subdivision B of Lot B Upper Rangemore, Bulawayo. The appeal has no merit.  Costs shall follow the cause on the ordinary scale.

Accordingly, the appeal is hereby dismissed with costs

GUVAVA JA   				 I agree

UCHENA JA   				 I agree

Calderwood, Bryce Hendrie and Partners, appellant’s legal practitioners

Webb, Low and Barry, first respondent’s legal practitioners