By Dr Fareed Moosa
A defendant may, in terms of the rules of the High and lower courts, admit a fact alleged in a combined summons or declaration. An admission may be express or, in terms of the Rules regulating the conduct of the proceedings of the magistrates’ courts of South Africa r 17(3)(a) and Uniform Rules of Court r 22(3), be deemed to be. Unless a defendant pleads otherwise, all necessary implications or inevitable consequences arising from an admitted fact are also regarded as admitted (see DE van Loggerenberg Jones & Buckle: Civil Practice of the Magistrates’ Courts in South Africa 10ed (Cape Town: Juta 2012) vol 1 at 17 – 18). In terms of s 15 of the Civil Proceedings Evidence Act 25 of 1965, a plaintiff is absolved from the onus to lead evidence to prove an admitted fact on the pleadings (see also Wild Sea Construction (Pty) Ltd v Van Vuuren 1983 (2) SA 450 (C) at 452F). A substantive application for leave to amend a plea would be necessary if a plaintiff gives notice of an intention to oppose a defendant’s intention to withdraw an admission and its concomitant implications or natural consequences. In such applications, the legal question arises as to the nature and extent of the onus resting on a defendant. This article seeks to discuss this question.
The main principles governing amendment applications are crystallised in Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) at para 9. In casu, it was held that the ‘practical rule that emerges … is that amendments will always be allowed unless the amendment is mala fide (made in bad faith) or unless the amendment will cause an injustice to the other side which cannot be cured by an appropriate order for costs, or “unless the parties cannot be put back for the purposes of justice in the same position as they were when the pleading which it is sought to amend was filed”.’ Ultimately, determining if an amendment ought to be granted is adjudicated with reference to whether, all relevant things considered and balanced to the extent necessary, the scales tilt in favour of a conclusion that the interests of justice demands the granting (or not) of a proposed amendment.
An application to withdraw an admission in a plea must be properly motivated and justified (see JR Janisch (Pty) Ltd v WM Spilhaus & Co (WP) (Pty) Ltd 1992 (1) SA 167 (C) at 170). In President-Versekeringsmaatskappy Bpk v Moodley 1964 (4) SA 109 (T) at 110H – 111A, Hiemstra J held that a withdrawal ‘requires full explanation to convince the Court of the bona fides thereof’. In Bellairs v Hodnett and Another 1978 (1) SA 1109 (A) at 1150 reference was made to a ‘satisfactory explanation’ for the intention to withdraw an admission of fact. In Amod v South African Mutual Fire and General Insurance Co Ltd 1971 (2) SA 611 (N) at 614H – 615A, Leon J held that ‘the Court must also consider the question of prejudice to the other party. If the result of allowing the admission to be withdrawn will cause prejudice or injustice to the other party to the extent that a special order as to costs will not compensate him then the application to amend will be refused. It should, however, be noted that the fact that the amendment will cause the respondent to lose his case is not of itself “prejudice” or “injustice” in the sense discussed above.’
In the light of the foregoing, a defendant must, in order for its bona fides to be properly assessed as regards seeking the amendment of its plea, explain the circumstances surrounding the making of an admission and the basis for seeking its withdrawal. Indeed, an onus rests on a defendant to prove its bona fides as regards withdrawal of an admission (see Trans-Drakensburg Bank Ltd (Under Judicial Management) v Combined Engineering (Pty) Ltd and Another 1967 (3) SA 632 (D) at 640 – 641 and Brandon v Minister of Law and Order and Another 1997 (3) SA 68 (C) at 75B). It is a trite principle that an applicant must, in application proceedings, stand or fall by its founding papers. An applicant cannot make out a case in reply (see Strauss v Strauss [1998] 4 All SA 137 (C) and Bapedi Marota Mamone v Commission of Traditional Leadership Disputes and Claims and Others [2014] 3 All SA 1 (SCA) at para 16). Thus, a founding affidavit ought to contain an explanation for the making of an admission and the grounds for seeking its withdrawal.
This raises the issue whether failure to plead a reasonable or satisfactory explanation for making an admission and seeking its withdrawal is fatal to an application for leave to withdraw same. I submit that the answer is ‘no’. Whether an amendment ought to be granted is a matter in the discretion of a judicial officer, whose discretion must be exercised judiciously after giving due consideration to all relevant legal and factual considerations (see Commercial Union Assurance Co Ltd v Waymark NO 1995 (2) SA 73 (Tk) at 77). An explanation for making an admission and seeking its withdrawal, or the lack of any such explanation, is but one such factor. It would be an injudicious exercise of discretion if an amendment application were to be dismissed purely on the basis that a defendant failed to provide an explanation, or a satisfactory one, for the making and/or withdrawal of an admission appearing on a pleading. This view aligns with the principle that amendment applications involve less formalism and rigidity, and that emphasis is placed on achieving a result that would ensure a proper ventilation of the real issues between the litigants. Such a result would satisfy the interests of justice. I submit further that in a modern, democratic system of justice like that applied in South Africa, a strict, overly formalistic approach ought to be avoided in the adjudication of amendment applications in which a litigant seeks to withdraw an admission.
Dr Fareed Moosa BProc LLB (UWC) LLM (UCT) LLD (UWC) is a lecturer at the University of the Western Cape in Cape Town.
This article was first published in De Rebus in 2017 (July) DR 24.
