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It has been well-established that admissions of allegations made in pleadings and at a pre-trial conference can only be withdrawn by the party who made such an admission if it obtains the leave of the court to do so. Such an application to withdraw the admission must be properly motivated and justified and it requires a full explanation by the defendant to be made to the court of the bona fides thereof. Thus, such party must bring a substantive application to court seeking leave to withdraw it and must provide a full explanation for its wish to withdraw the admission and must show complete bona fides in the application. The authority for this proposition can be found in the judgments of JR Janisch (Pty) Ltd v WM Spilhaus & Co (WP) (Pty) Ltd 1992 (1) SA 167 (C) at 170 and President-Versekeringsmaatskappy Bpk v Moodley 1964 (4) SA 109 (T) at 110H – 111A.

In Aguma v South African Broadcasting Corporation SOC Limited and Another In re: South African Broadcasting Corporation SOC Limited and Another v Lornavision (Pty) Ltd and Another (GJ) (unreported case no 17/49514, 4-2-2022) (Modiba J), Modiba J reiterated that the principles governing the withdrawal of admissions are trite. It is not completely impermissible to withdraw admissions, such permission must not be granted lightly given that an admission is an unequivocal agreement by one party with a statement of fact made by another party making it unnecessary for such other party to prove the factual statement. It is almost always prejudicial to the other party who would now become saddled with having to prove the averment it no longer has to prove by virtue of the admission.

For this very reason the applicant seeking to withdraw the admission must submit a full explanation as to the reason for having made the admission in the first place and what now necessitates its withdrawal. The application for the withdrawal of an admission must be made in good faith, which must be evident from the contents of the application to enable the court to exercise its discretion appropriately.

In Aguma, the court found that the application seeking the withdrawal of the admission did not meet these requirements with the result that the application was refused.

This issue was again the subject of discussion in the recent decision of Daniso J in Nkoane v Minister of Police (FB) (unreported case no 3920/2020, 30-1-2023) (Daniso J).

In this matter, the plaintiff claimed damages from the defendant resulting out of injuries she sustained in an incident in which she was shot in her left eye with a rubber bullet on 15 August 2019. By agreement the issues of merits and quantum were separated, and it was common cause that immediately prior to the shooting, a violent protest had erupted in the vicinity of the plaintiff’s residence and in order to disperse the riotous crowd, the police who were deployed to the area discharged stun grenades and rubber bullets at the crowd. The plaintiff who was wearing school uniform on the day in question and while walking in the street after she had left home to buy bread at the tuckshop situated in the same street as her home, saw a group of community members running towards her when she heard the sound of a gunshot and she fell down. Her eyes burned and blood was streaming down her face when it occurred to her that she had been shot.

Police officers in uniform came and stood next to her for about ten minutes and she cried and asked for help, but they simply ignored her, walked away, got into a police vehicle and drove away. She was taken to the hospital after some civilians came to her assistance and took her home. Her left eye was removed at the hospital.

The trial in this action on the issue of merits proceeded and endured for three days with several police officers giving evidence on behalf of the defendant. Evidence was presented to the court in support of the plea to the effect that the wounds inflicted by the plaintiff were not caused by the firing of the bullets by the police.

It appears that on the second day of the trial the judge enquired of the defendant’s counsel whether the defendant was denying that the rubber bullet, which struck the plaintiff was fired by the police. Counsel informed the judge that the defendant was denying that its officers fired the shot and that if it was found that the shot did strike the plaintiff, the defendant could not be held liable as the rubber bullets were fired to disperse the disorderly crowd.

What is worthy of comment, aside from the impropriety of the argument of the defendant’s counsel, is, that this matter proceeded for three days with cross-examination of the plaintiff on the basis that it was not the police who fired the shots.

The judge, in her judgment took issue with the fact that the defendant’s counsel who at the trial and during cross-examination of the plaintiff, reintroduced the defence that the defendant denied that the police were responsible for the shooting when at the pre-trial conference it was recorded that the police conceded that the plaintiff was shot by the police. It was argued on behalf of the defendant that it was entitled to have the matter decided on the pleadings. This, despite the concession made at the pre-trial conference. The judge held that a deviation from what was recorded in the pre-trial minutes would defeat the whole purpose of the provisions of r 37 of the Uniform Rules of Court, which are included therein to facilitate and expedite the conduct of the trial and eliminate issues, which may delay the trial. Moreover, the judge found that the cross-examination of the plaintiff to the effect that it was not the police who shot the plaintiff was contrary to the concession recorded in the pre-trial minutes and such cross-examination ought to have been confined to correlate with what was recorded in the pre-trial minutes.

The pre-trial minutes specifically recorded that the issues to be determined by the court on trial were, whether the defendant’s actions were lawful, whether the defendant was liable for payment of damages, and whether the plaintiff suffered damages and if so, the nature and extent thereof.

It follows that judgment was granted in favour of the plaintiff on the issue of merits with costs.

I venture the notion that had there been objection to the leading of this evidence by the plaintiff’s counsel, the judge would have upheld the objection and curtailed the seeming spending of unnecessary time traversing all this evidence.

I wish to conclude by observing the vital importance of accurate pleading and recording of what transpires at a pre-trial conference as withdrawal of admissions made in pleadings and at pre-trial conferences cannot be unilaterally withdrawn. Of equal importance is the notion that an admission recorded in the minutes of a pre-trial conference cannot be withdrawn without the leave of the court applying the same principles as set out above.

In the instance, when the party seeks to withdraw admissions in pleadings, he will almost invariably seek to do so, by bringing an application to amend the pleading. It has been held in many instances that provided the element of prejudice to the other party is overcome, (which should not be overlooked) the amendment is likely to be granted. Thus, the main issue for the court to decide in the application to amend by withdrawing the admission, is whether the applicant is acting bona fide and his explanation is thus crucially important for the court to determine the issue of bona fides.

Leslie Kobrin Dip Jur (Wits) Dip Bus Man (Damelin) is a consultant legal practitioner at Bove Attorneys Inc in Johannesburg.

This article was first published in De Rebus in 2023 (Aug) DR 17.