• Wrong document? Swap it for free
  • Written by students who passed
  • Immediately available after payment
  • Read online or as PDF
Sell
Where do you study
Your language
Document preview thumbnail
Preview 2 out of 7 pages
Summary

Summary Chapter 17

Document preview thumbnail
Preview 2 out of 7 pages

Detailed summary of chapter 17 from the fundamental principles of civil procedure textbook

Content preview

CHAPTER 17 – AMENDMENT OF
PLEADINGS
Introduction
GENERAL:

In principle, parties are bound by pleadings in court
 Thus it is essential to ensure that they are correct

HCR 28 and MCR 55A (rules are aligned):
 Provide for specific procedures to amend defective
pleadings to ensure they reflect the correct factual
position

Primary purpose of amendment:
 To allow for the proper ventilation of the dispute
between the parties
 In order to determine the real issues so that justice
may be done

Parties can agree to the amendment of documents or
pleadings without requiring leave from the court:
 However, if opposing party objects to amendment,
the other party must approach the court and apply
for leave to amend the defect
 Must give a reasonable explanation for the proposed
amendment
 So....
 A party must give the opposing party a written
notice of the proposed amendment
 Opposing party consents to amendment – ie: does
not object – then amendment can be given effect to
 Opposing party does object to amendment – thus
must deliver a notice of objection
 Party wanting the amendment can apply to the
court for leave to amend

Note:
 ONLY pleadings and documents can be amended
 NOT affidavits or other sworn documents
 To amend affidavits and other sworn documents
 Cannot be amended by interlocutory proceedings

,  Must be supplements by a further supplementary
affidavit
 Must state why mistake was originally included and
why party wants it to be removed
Application for Amendment
GROUNDS TO GRANT OR REFUSE AMENDMENTS:

Locus classicus on the grounds to grant or refuse an
amendment = Moolman v Estate Moolman

Court’s competency to grant material amendments
depends on whether or not:
 Proposed amendment is being made bona fide or
mala fide
 The amendment will cause prejudice to the opposing
party
 Such prejudiced may be cured by an appropriate
costs order or postponement

PROCEDURE FOR AN APPLICATION FOR AMENDMENT:

Application to amend = an interlocutory application

Bona fides:
 When bona fides is at issue, application must be
supported by a supporting affidavit setting out a
reasonable explanation for the proposed amendment
 When bona fides is not an issue, application need not
be supported by a supporting affidavit

When in proceedings can a party amend documents:
 Generally, a court can grant an amendment at any
time before judgment
 Distinguish between 2 situations:
 After issue of summons but before service of
summons
 After service of summons

After issue of summons but before service of summons:
 Attorney and registrar/ clerk of court must initial
amendment

Document information

Uploaded on
November 5, 2019
Number of pages
7
Written in
2018/2019
Type
Summary
R60,00

Wrong document? Swap it for free Within 14 days of purchase and before downloading, you can choose a different document. You can simply spend the amount again.
Written by students who passed
Immediately available after payment
Read online or as PDF

Seller avatar
shaly
2,4
(8)
Sold
2
Followers
2
Items
26
Last sold
5 year ago




Why students choose Stuvia

Created by fellow students, verified by reviews

Quality you can trust: written by students who passed their exams and reviewed by others who've used these notes.

Didn't get what you expected? Choose another document

No worries! You can immediately select a different document that better matches what you need.

Pay how you prefer, start learning right away

No subscription, no commitments. Pay the way you're used to via credit card or EFT and download your PDF document instantly.

Student with book image

“Bought, downloaded, and aced it. It really can be that simple.”

Alisha Student

Working on your references?

Create accurate citations in APA, MLA and Harvard with our free citation generator.

Working on your references?

Frequently asked questions