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N.N obo N.S.L v MEC for Health, KwaZulu-Natal (3463/2017P) [2025] ZAKZPHC 50 (7 May 2025)

45 Reportability
Civil Procedure
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Brief Summary

Civil Procedure — Amendment of pleadings — Application to amend particulars of claim — Applicant sought to amend claim for medical negligence based on alleged incorrect admission date to hospital — Respondent opposed amendment, arguing it was mala fide and did not raise a triable issue — Court found that the proposed amendment contradicted previous statements made by the applicant and was based on a document not completed at the time of admission — Application for amendment dismissed as it would not affect the outcome of the case and was deemed opportunistic.

Comprehensive Summary

Case Note


Case Name: N[...] N[...] OBO N[...] S[...] L[...] v MEC for Health, KwaZulu-Natal

Citation: Case No: 3463/2017P

Date: Judgment delivered on an undisclosed date following the trial adjournment on 31 July 2023


Reportability


This case is reportable because it highlights significant issues relating to the amendment of particulars of claim in a medical negligence action. The case is important as it underscores the challenges that may arise when parties present conflicting accounts of factual events, particularly when amendments to pleadings are sought in the light of newly produced or disputed documentary evidence. The judgment also illustrates judicial discretion in managing procedural complexities and the allocation of wasted costs.


Cases Cited


The judgment does not reference any full case citations. The legal reasoning is built primarily on the interpretation and application of procedural rules.


Legislation Cited


No specific piece of legislation is directly cited within the judgment. The focus of the proceedings is on procedural rules rather than statutory interpretation.


Rules of Court Cited


The case makes reference to Uniform Rule 35(3) which governs the discovery process in legal proceedings.


HEADNOTE


Summary


This interlocutory application was brought by the applicant, who is also the plaintiff in the principal medical negligence action, to amend her particulars of claim in light of newly discovered documentary evidence. The applicant sought to adjust the timeline of her admission to hospital and to reflect this revised narrative within her claim for damages arising from alleged medical negligence. The case centers on discrepancies between the applicant’s version of events as presented in her pleadings, evidence given during trial, expert reports, and a revenue form discovered by the respondent.


The court was confronted with competing accounts regarding the applicant’s admission date to the hospital – a key point around which the credibility of her claim for damages revolved. During the trial, the applicant’s evidence was inconsistent, with significant variances between her pleadings and her in-court testimony concerning the exact times of admission and birth. The conflicts between the documentary evidence and the applicant’s repeated statements raised serious questions regarding the reliability of her claim.


Additionally, the respondent argued that the amendment was sought in bad faith, contending that the applicant’s revised claim was founded on an incorrect interpretation of a revenue form. This argument was supported by the longstanding consistent version provided by the applicant prior to the sudden amendment request, bringing into focus the issue of whether the amendment was procedurally acceptable or an attempt to manipulate the trial process.


Key Issues


The key issues in this case included the admissibility of amendments to the applicant’s particulars of claim after the commencement of proceedings. The court had to address whether the newly produced revenue form and the applicant’s inconsistencies in the admission dates could form the basis for an amendment that would materially alter the scope of the case. Furthermore, the matter raised the broader issue of balancing fairness in the conduct of litigation against the risk of abuse of the procedural amendment mechanism.


Concurrently, the court examined whether the proposed amendment would result in a more efficient resolution of the dispute or merely complicate the trial process. The respondent’s counsel contended that permitting the amendment would prejudice the opposing party and increase the likelihood of protracted litigation. The determination of these issues was central to the court’s evaluation of the applicant’s request.


The court was also required to consider the implications of potential wasted costs resulting from postponements prompted by the application. This involved a careful analysis of the procedural rules and the principles of fairness in awarding costs in a situation where a party’s actions have led to unnecessary delays.


Held


The court ultimately dismissed the applicant’s application for amendment. The judgment found that the evidence, particularly the revenue form, raised serious doubts about the applicant’s version of events and that the proposed changes were not supported by a triable issue. The applicant’s attempt to modify her particulars of claim was therefore deemed procedurally unacceptable and based on conflicting evidence. The dismissal was accompanied by a decision not to impose an order as to costs relating to this specific interlocutory application.


THE FACTS


The facts of the case revolve around a claim for damages arising from alleged medical negligence during the applicant’s admission and subsequent treatment at Benedictine Hospital. The applicant alleged that she went into labour and delivered her child under circumstances that later resulted in the child developing complications associated with cerebral palsy. The recorded details included a discrepancy between the timing of the applicant’s admission as stated in her original pleadings and the timing indicated on a revenue form later produced by the respondent.


Initially, the applicant’s particulars of claim stated that she had been admitted on 14 February 2010, a version consistently maintained in communications and expert reports until a newly introduced element suggested an earlier admission. The revenue form, produced during the course of the litigation, indicated that she was admitted on 13 February 2010 and discharged on 14 February 2010. This contradiction became a focal point in the proceedings as it exposed conflicting narratives about the events preceding the birth of the minor child.


Moreover, during the trial held on 31 July 2023, the applicant’s in-court testimony further complicated matters by again contradicting her previously documented evidence. The discrepancy between the various accounts resulted in a significant questioning of her credibility and raised doubts about the applicant’s representation of the events at the hospital. The conjunction of these inconsistencies contributed directly to the court’s decision on the amendment application.


THE ISSUES


The primary legal question before the court was whether the applicant should be permitted to amend her particulars of claim to reflect a revised timeline of her hospital admission. The court had to decide if the introduction of a later admission version, based on the production of a revenue form, could be allowed to replace the applicant’s earlier consistent version without causing undue prejudice to the respondent.


An additional issue was whether the alleged discrepancies in the applicant’s evidence amounted to a malafide attempt to alter the claim’s foundation post hoc. The respondent argued that such a change was not only unnecessary but also designed to mask the earlier misrepresentations concerning the events of 2010. This raised complex questions about the timing and nature of amendments and the limits of judicial discretion in allowing such changes.


Furthermore, the court needed to examine if the proposed amendment would raise a triable issue or if it would merely serve to complicate a claim already undermined by contradictory evidence. This analysis was crucial in determining the admissibility of the amendment and ensuring that the principles governing fair trial procedures were upheld.


ANALYSIS


In its analysis, the court considered the impact of permitting a change to the particulars of claim that would fundamentally alter the timeline of events that both parties had previously relied upon. The court scrutinized the conflicting evidence, particularly focusing on the revenue form and the applicant’s previous representations, to assess the credibility of the claim. The analysis revealed that the applicant’s revised timeline was inconsistent with her earlier statements and the documents produced on record.


The court placed considerable weight on the fact that the applicant had, for a prolonged period, consistently maintained that her admission date was 14 February 2010, a version corroborated by her experts and earlier pleadings. The later introduction of evidence suggesting a 13 February 2010 admission was found to be an attempt to retroactively amend her narrative. This inconsistency, the court held, raised significant doubts regarding the reliability of the applicant’s evidence and ultimately undermined the rationale for permitting the amendment.


Furthermore, the court was mindful of the procedural fairness owed to the respondent, who had structured its defence around the original particulars of claim. Allowing a modification at this stage not only risked prejudicing the respondent but also threatened to destabilize the trial process. For these reasons, the court’s detailed analysis led to the conclusion that the amendment would not be conducive to advancing a fair resolution of the dispute.


REMEDY


The remedy provided by the court was to dismiss the applicant’s interlocutory application for an amendment of her particulars of claim. By rejecting the request, the court effectively maintained the original pleadings as the basis for determining the merits of the case. No order as to costs was made in relation to this specific application. This decision was designed to avoid further procedural complications and to ensure that the trial could proceed on a consistent factual basis.


The dismissal reflected the court’s determination that the amendment did not raise a triable issue and was tainted by inconsistencies that could not be reconciled with the applicant’s earlier submissions. In reaching this outcome, the court reaffirmed the principle that amendments to pleadings must be made in good faith, with sufficient consistency and clarity to promote a just resolution of the case.


Ultimately, the remedy upheld the integrity of the judicial process by precluding attempts to introduce post hoc changes that might disrupt the orderly administration of justice. This decision serves as a cautionary note regarding the careful management of factual narratives in litigation.


LEGAL PRINCIPLES


The case reinforces several important legal principles. First, it underscores that amendments to pleadings must be made in a manner that is consistent with previously established evidence and representations. The court held that significant departures from an established narrative, particularly those introduced late in the litigation process, may be viewed as attempts to manipulate the proceedings.


Second, the judgment emphasizes the importance of documentary evidence in establishing the factual timeline of events. When inconsistencies arise between documents and oral evidence, the court is clearly justified in favoring the narrative that has been consistently supported. This principle serves to maintain the credibility and reliability of the judicial process.


Finally, the case illustrates the necessity of balancing the need for procedural flexibility against the risk of prejudice to the opposing party. Judicial discretion in matters of amendment is exercised with careful attention to fairness, ensuring that neither party is unduly disadvantaged by a change in the pleadings. The decision thereby reinforces a core element of litigation—the need for clarity, consistency, and the faithful adherence to procedural rules.

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION , PIETERMARITZBURG

CASE NO: 3463/2017P

In the matter between:

N[...] N[...] OBO N[...] S[...] L[...] APPLICANT

and

MEC FOR HEALTH, KWAZULU -NATAL RESPONDENT
___________________________________________________________________
ORDER
___________________________________________________________________
In the premises the following order is made:
1. The applicant’s application is dismissed .
2. No order as to costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Mathenjwa J

[1] This is an interlocutory application brought by the applicant (plaintiff in the
main action ) to amend her particulars of claim. The application is opposed by the
respondent who is the defendant in the main action.

[2] The main action is based on a claim for damages instituted by the applicant
on 24 March 2017 for medical negligence arising from the birth of the applicant's
minor child who developed complications related to cerebral palsy after birth at the
respondent's Benedict ine Hospital , Nongoma.

Factual background
[3] In her particulars of claim the applicant stated that on 14 February 2010 she
went into labour and arrived at the Benedictine Hospital at 01h30. The applicant
delivered the child through n ormal delivery at 03h50 . The male infant required “oral-
nasal suctioning ” to clear his airway. According to the neonate notes the meconium -
stained liquor aspiration was noted. The minor child was sent to the nursery for a
stomach washout where 3ml of meconium was aspirated from his stomach.
According to the paediatric doctor ’s notes made at 10 h00 on 15 February 2010 the
minor child had hypoxic ischaemic encephalopathy, neonatal con vulsions and
developed the sequel ae of cerebral palsy.

[4] Dr Koll in the joint minutes of obstetricians dated 7 June 2021 sought clarity
regarding particulars of the person who filled the admission and discharge register
form (revenue form ) and what role the form played in the admission of the applicant
to hospital . When preparing for trial which was initia lly scheduled to take place on 15
June 2021 Dr Koll advised the applicant’s attorney to ask for discovery of the
revenue form by the respondent. Thus, the applicant requested the respondent to
discover the form in terms of Uniform r ule 35 (3) which was subsequently discovered
by the respondent on 10 August 2022.

[5] When the matter came to court on 15 August 2022 the applicant produced the
revenue form which recorded that the applicant was admitted on 13 February 2010
and discharged on 14 February 2010. Due to the production of that document the
trial was further adjourned to 31 July 2023 .

[6] At the trial on 31 July 2023 the applicant gave evidence that she was admitted
to Benedictine Hospital on 13 February 2010 around 20h30 or alternatively 21h00
which was in direct contradiction to the version stated in her particulars of claim.
She was cross -examined by the respondent’s counsel about the apparent
contradictions between her version in court and her version in the pleadings. The
contradictions further appear ed from the letter of demand sent by the applicant's
attorneys to the respondent, the questionnaire filled out by the applicant and
dispatched by her attorneys to the respondent ’s Head of Department and the version
presented by her to her expert witnesses which always was that she was admitted to
hospital on 14 February 2010 at 01h30. Subsequently the applicant ’s legal
representative s indicated that they required an amendment to the applicant ’s
particulars of claim. Mngadi J who presided over the trial granted an order
postponing the trial an d ordered the applicant to bear the wasted costs occasioned
by the postponement.

The amendment sought
[7] The applicant seeks to amend her particulars of claim as follows . Paragraph
3.1 states the following :
‘3.1. All material times hereto and more particularly during the period 14 February
2010 the defendant was, by reason of:
3.1.1 Hospital ’s existence, holding out to the p ublic and particularly to the
plaintiff that it renders reasonable medical care, treatment and advice ; and /
or.
3.1. 2 The plaintiff's treatment and / or admission to the hospital and the
undertaking to render medical care and treatment to the plaintiff: ’
The applicant proposed that paragraph 3.1 be amended and replaced with the
following averments:
‘3.1 At all material times hereto and more particularly:
From around 21h30 on 13 February 2010 (when the plaintiff, while being in labour,
first presented herself to the labour ward of the hospital, during the parturition and
until the ultimate birth of minor child around 03h50 on 14 February 2010 ;
After the ultimate birth of the minor child and until the ultimate discharge of the minor
child from the hospital around 10h00 on 19 February 2010, the defendant was by
reason of ;’

[8] Paragraph 5 of the particulars of claim states that:
‘5. The hospital's medical and nursery personnel who treated and / or attended to the
plaintiff and the minor child during the period 14 February 2010:
5.1 were either permanent or temporary employees.
5.2 alternatively were duly authorised agents or representatives of the hospital acting
as such in the fulfilments of the hospital's vicarious delegations of the plaintiff to
render professional and proper medical treatment, care and assistance to the plaintiff
and the minor child ’.
The applicant proposed the following amendment:
‘5. The Hospital's medical and nursery personnel who treated and / or attended to
the plaintiff and the foetus from around 21h30 on 13 February 2010 when the
plaintiff while being in labour first presented herself to the labour ward of the
hospital, during the parturition and until the ultimate birth of the minor child around
03h50 on 14 February 2010 ; after the ultimate birth of the minor child and until the
ultimate discharge of the minor child from the hospital around 10h00 on 19 February
2010, the def endant was, by reasoning …’

[9] Paragraph s 7.3 to 7.6 of the particulars of claim provides as follows:
‘7.1 During 2010 plaintiff was 24 years old and pregnant for the second time.
7.2 Plaintiff had an uneventful antenatal course with 5 antenatal visits.
7.3 According to the labour notes:
7.3.1 Plaintiff went into labour at about midnight on 14 February 2010 and arrived at
the Benedictine Hospital at 01h30.
7.3.2 Normal delivery occurred at 03h50 and a male infant with a birth weight of
2.9kg was delivered that required “oral-nasal suctioning ” to clear the airway .
…
7.4 According to the neonate notes:
7.4.1 Apgar scores were recorded as 7 /10 at 1 minute …
7.4.3 The meconium stained liquor aspiration was noted and the minor child was
sent to the nursery for a stomach wash out. During the procedure 3ml of meconium
was aspirated from the stomach.
7.5 The Paediatric doctor ’s notes at 10h00 on 15 February 2010 states that the
minor had hypo xic ischaemic encephalopathy and neonatal convulsions ’.

[10] The applicant seeks the following amendment to paragraph 7 :
‘7.3 The Plaintiff went into labour during 13 February 2010 and subsequently
presented and was admitted to the labour ward of the Benedictine Hospital around
21h30 on 13 February 2010.
7.4 According to the labour not es:
7.4.1 Normal delivery occurred...
7.5 The neonate was born in aggressed condition, did not cry at birth, suffered fits
within hours after birth causing the neonate to be admitted to the nursery of the
hospital from 14 January 2010 to 19 January 2010, where the neonate was intubated
and treated in an incubator …’

Parties contentions
[11] The founding affidavit was deposed to by the applicant’s attorney who stated
that d uring preparation f or the initial trial which was scheduled to take place from 15
to 23 August 2022 he was advised by the Obstetrician Dr Koll to request the
respondent to discover all documents which indicate when the applicant was
admitted to hospital. The respondent subsequently discovered the revenue form
which indicate s that the applicant was admitted on 13 February 20 10 and
discharged on 14 February 20 10. It was contended on behalf of the applicant that
the proposed amendment sought to properly ventilate the issues between the
parties regarding the respondent's breach of its legal duty towards the applicant .

[12] The respondent contend ed that the applicant's application for amendment is
mala fide and based on an incorrect admission and discharge form from the
Revenue office which is a form that is filled ex post facto and not filled out on the
date of admission but filled in thereafter for purposes of statistics . The author of the
aforesaid from is now deceased. The respondent contend ed that the applicant was
not mistaken about the date of her admission , being 14 February 2010. The reason
being that all information given by the applicant to her experts and to the respondent
from 2015 until March 2023 are that the applicant was admitted to hospital on 14
February 2010 around 01h30. According to the respondent the applicant concocted
the version that she was admitted on 13 February 2010 for the first time on 24 March
2023 when she filled an expert report of Dr Kara , her new specialist Paediatrician .

[13] The respondent contend ed that the propos ed amendment does not raise a
triable issue. Firstly, the revenue form relied upon by the applicant does not form
part of the hospital maternity records but is a form that is completed after the
applicant is discharged for statistics purposes. Furthermore, the form itself does not
advance the applicant ’s case because all maternity records clearly indicate that the
applicant was admitted on 14 February 2010 . The examination on admission form
recorded that the applicant was admitted on 14 February 2010. The discharge form
recorded that the applicant was admitted on 14 February 2010 and discharged on 19
February 2010, the admission register held at the hospital reflect s that the applicant
was admitted on 14 February 2010 and a questionnaire completed by the applicant
recorded that she was admitted to hospital on 14 February 2010.

[14] The respondent contended that the applicant ’s correction of the version that
she was admitted to hospital on 13 February 2010 is a reaction to the respondent' s
defence that nothing could be done to have prevented any injury or harm to the
minor child as the applicant ’s cervix was already 10cm d ilated when she was
admitted at the hospital.

[15] The issue for determination in this application is whether the applicant has
succeeded in satisfying the court that the amendment should be granted. In reaching
a conclusion whether the applicant is entitled to the relief sought I have to determine
whether :
(a) the applica tion is mala fide;
(b) the amendment sought raises a triable issue ; and
(c) the applicant has explained the reasons for the amendment.

[16] Mr Pieterse for the applicant contended that the amendment sought is to
align the evidence of the applicant in court with her version in the pleadings. The
amendment is necessary given the fact that the outcome of the respondent’s liability
turns on the date when the applicant was admitted to hospital. It was submitted on
behalf of the applicant that the matter involves a minor child and a refusal of the
amendment would close the door on the applicant to fully ventilate the issues in
dispute. When responding to a question by the court regarding the failure of the
applicant to explain the reason for seeking an amendment in her founding affidavit,
the applicant’s counsel averred that the reasons are known to both parties because
they were raised during trial in the main action.

[17] Mr Nankin for the respondent submitted that the applicant’s application is
mala fide and grounded on incorrect information contained in the form that was filled
after the applicant was discharged. The author of the form is also deceased and thus
he is no longer available to clarify any query about the informatio n. It was further
submitted on behalf of the respondent that the amendment sought does not raise a
triable issue in that all hospital documents completed at the maternity ward show that
the applicant was admitted on 14 February 2010 , not 13 February.

Analysis of the facts and applicable legal principles
[18] It is trite that an amendment should be granted ‘unless such amendment
would cause an injustice to the other side which cannot be compensated by costs, or
in other words, 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.’1 The date on which the applicant was admitted to hospital is crucial in
determining whether the respondent could have prevented the applicant’s child from
being diagnosed with hypoxic ischaemic encephalopathy, neonatal convulsions and
develop ing the sequelae of cerebral palsy. In her particulars of claim the applicant
allege d that she arrived at the hospital on 14 February 2010 at 01h30 and delivered
the child at 03h50. In assessing the respondent’s liability, the court must consider the
respondent’s conduct within the timeframe of two hours , that is from the time when
the applicant arrived at hospital up to the time when the child was delivered. In the
proposed amendment the applicant states that she went into labour during 13
February 2010 and subsequently presented herself to and was admitted to the
labour ward in the hospital around 21h30 on 13 February 2010. In terms of the
amendment the respondent’s liability for professional negligen ce would be
determined within the period of , 12 hours, that is from the date and time when the
applicant was admi tted to hospital on 13 February 2010 at 21h30 to 14 February
2010 at 03h50 when she delivered the baby .

[19] I am mindful that a breach of the respondent’s legal duty to the applicant is
not limited to the time when she was admitted in hospital. However, the submission
by the applicant’s counsel that a determination of the respondent’s breach of its legal
duty turns on the date and time when the applicant was admitt ed to hospital
evidences that such date and t ime are intrinsically linked to the cause of action.

1 Moolman v Estate Moolman 1927 CPD 27; Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme
Corporation and Others 2020 (1) SA 327 (CC) para 89.

The respondent would be facing completely new facts which are intrinsically linked to
the c ause of action that would require it to come up with a completely new defence .
For that reason, it is clear that if the proposed amendment is granted the parties
would not be put in the same position as they were when the pleading being sought
to amend was filed.

[20] It is trite that the applicant having already made h er case in her pleading s, if
she wishes to change or add to this, must explain the reason and show prima facie
that she has something deserving of consideration, a triable issue; she cannot be
allowed to harass her opponent by an amendment which has no foundation. She
cannot place on the record an issue for which she has no supporting evidence,
where evidence is required .2 While an am endment can be made at any stage before
judgment in the proceedings, an amendment is not for taking, a party seeking the
indulgence must explain the reason for bringing the amendment and satisfy the court
that the amendment if granted will raise a triable issue.3 The applicant does not
explain how the information which she gave to the respondent and her own experts
and reflected in the pleading s that she was admitted in hospital on 1 4 February 2010
has turned out to be incorrect. She has not explained whether she was mistaken in
that regard. There is no affidavit from the applicant nor supporting affidavit from her
sister who accompanied her to hospital stating or confirming that the proposed new
date regarding her ad mission to hospital is based on their own recollection.

[21] Another anomaly in this case is the fact that the founding affidavit to the notice
of motion was deposed to by the applicant’s attorney. For that reason, the attorney
would not know what went into the applicant’s mind when she stated and held th e
version for more than five years that she was admitted to hospital on 1 4 February
2010. The attorney would not know whether the applicant was mistaken with regard
to her date and time of admission to hospital. There is no doubt that the information
contained in the revenue form that the applicant was admitted to hospital on 13
February 2010 and discharged the following day on 14 February is incorrect. The
reason being that it is common cause that the applicant was discharged from

2 Trans -Drakensberg Bank Ltd (Under Judicial Management) v Combined Engineering (Pty) Ltd and
Another 1967 (3) SA 632 (D) at 641A -B.
3 Ibid at 641A.
hospital on 19 and not 14 February 2010. Furthermore, it is not in dispute that the
revenue form is not one of the forms completed in the maternity ward, it is completed
after the patient is discharged from hospital. The information contained in this form is
in variance with the information contained in all the documents completed at the
maternity ward where the applicant was admitted an d discharged. Thus , the
proposed amendment does not raise a triable issue nor will it affect the outcome of
the case.

[22] I am mindful that this matter deals with a minor child , and in ‘all matters
concerning the care, protection and well -being of a child the standard that the child ’s
best interest is of paramount importance, must be applied ’.4 However the facts
raised in the proposed amendment will not contribute to the determination by the
court of the real issues between the parties nor will it possibly affect the outcome.
Even if the amendment was granted for the sake of the minor child that would not
affect the outcome of the case. If the amendment which the applicant proposes
would have no significance to the outcome of the case, th e applicant would suffer no
prejudice if the amendment is not allowed.5

[23] In establishing whether the applicant was mala fide in seeking the
amendment , I considered the circum stances re lating to the introduction of the
revenue form which allegedly prompted the amendment ; the date and time when
the applicant became aware of the existence of the form for the first time; date when
the application for the amendment was made and the reason prof fered for the
proposed amendment. It is not in dispute that the applicant became awa re of the
existence of the revenue form in June 2021 because in the joint experts minutes
dated 7 June 20 21 Dr Koll sought clarity about who filled the revenue form and
what role it played in the admission of the applicant to hospital. On becoming aware
of the existence of the form t he applicant did not ask the respondent to discover it in
terms of rule 35(3) , nor did she amend her particulars of claim. It was only during the
preparation for trial which was initially scheduled to take place on 15 August 2022
when the applicant ’s attorney was advised by Dr Koll to request dis covery of the
form. It is an anomaly that medical experts would advise the attorney to ask the

4 Section 9 of the Children ’s Act 38 of 2005.
5 Trope and Others v South African Reserve Bank 1993 (3) SA 264 (A).
respondent to discover the form. The legal prac titioner is an expert in law, including
rules of discovery and whether a document ought to be discovered .

[24] When the revenue form was discovered on 10 August 2022, five days before
the initial date of trial , the trial was postponed to 31 July 20 23. When the trial
commenced on 31 July 2013 the applicant had not amended her particulars of
claim. She gave her evidence in chief and only after she ha d been cross -examined
about the apparent contradictions in her evidence in court and the version in her
particulars of claim , that her legal team sought to amend the pleadings. Based on the
chronology of events leading to the prop osed amendment, I can only conclude that
the a pplication is mala fide and opportunistic. Since 2021 the applicant was aware of
the existence of the revenue form , but did not f ind it necessary to amend her
particulars of claim . If the principle that an amendment can be made at any time
prior to judgment in the proceedings were to be applied arbitrarily that would destroy
the main purpose of an amendment, which is to allow parties to ventilate issues.
An amendment should not be aimed at aligning a litigant ’s evidence in court with her
or his version in the pleadings because an amendment is not concerned with
evidence in court , it concerns the pleadings and pleadings is not evidence.

[25] For all the above reasons the applicant’s application for amendment should
be dismissed. Considering the circumstances of this case, it would not be in the
interest s of justice to burden the applicant with costs. Therefore , there will be no
order as to costs.


Order
[26 ] In the premises the following order is made:
1. The applicant’s application is dismissed .
2. No order as to costs.


Mathenjwa J


Date of hearing: 27 January 2025
Date of judgment: 07 May 2025

Appearances:
Applicant ’s counsel: J C Pieterse
Instructed by: EVN Legal Practitioners Inc.
Durban



Respondents’ counsel: S Nankin
Instructed by: State Attorney
KwaZulu - Natal




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