SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 15202/2020
In the matter between:
K[…] , K[… ] A[…] Applicant
(Plaintiff in the main action)
and
K[…] , N[… ] P[…] (born T[…] ) Respondent
(Defendant in the main action)
_________________________________________________________
JUDGMENT
LANGE AJ:
INTRODUCTION
[1] This is an interlocutory application in terms of Rule 28 of the Uniform Rules of
Court in which the applicant seeks leave to amend his particulars of claim in a
pending divorce action. The applicant wishes to change his pleaded case
from one seeking shared residence of the minor child to one seeking primary
residence, and in addition seeks to introduce a new paragraph 7 containing
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
__ ______ _______________
DATE SIGNATURE
2
factual allegations in support of that claim. The respondent opposes the
amendment on four grounds. Having considered the papers and the heads of
argument filed by both parties, I am satisfied that the application ought to be
granted. These are my reasons.
BACKGROUND
[2] The parties are married to each other. There is one minor child born of the
marriage, P […] , born on 13 December 2016. The parties separated in
November 2019. The respondent vacated the former matrimonial home with
the minor child on 18 March 2020 and has since resided with her parents and
brother.
[3] The applicant instituted divorce proceedings on 1 July 2020 under case
number 15202/2020. In his original particulars of claim, the applicant sought a
shared residency arrangement in respect of the minor child. The respondent
filed a plea and counterclaim in which she sought primary residence of the
minor child, with contact rights of the applicant to be determined following the
completion of a SAPS investigation into alleged sexual interference with the
minor child alleged to have occurred on 7 March 2020. The applicant filed a
plea to the counterclaim. Pleadings have accordingly closed. The proceedings
are in pre-trial phase of a litigation, but the matter is not trial ready.
[4] The litigation history between the parties has been tortured and protracted. In
July 2020, the applicant launched a Rule 43 application and an order for
supervised contact was granted by Justice Crutchfield on 10 September 2020.
[5] In July 2022, the investigating officer in the SAPS investigation informed the
applicant's attorney that the applicant was no longer a person of interest. On
3
30 May 2023, the investigating officer confirmed that the State had declined to
prosecute on the basis that there was no reasonable prospect of a successful
prosecution. The respondent was aware of this decision but failed to disclose
it.
[6] Thereafter the applicant brought an application in terms of Rule 43(6) to vary
Justice Crutchfield's order. That application was argued on 7 September 2023
before Acting Justice Bezuidenhout and judgment was uploaded on 16
January 2024. Contact provisions were implemented pursuant to that order.
An urgent application by the respondent to stay execution of Acting Justice
Bezuidenhout's order was dismissed by Acting Justice Hardy.
[7] The respondent subsequently brought an application to set aside the orders
and judgments of Acting Justices Bezuidenhout and Hardy. That application
was dismissed by Acting Justice Von Ludwig, as was a further Rule 43(6)
application by the respondent for a contribution towards costs. An application
to compel the respondent to make discovery was granted on 18 March 2025.
Leave to appeal in respect of all these applications was similarly dismissed by
Acting Justice Von Ludwig on 21 November 2025.
[8] The applicant points out that all of the orders being appealed by the
respondent are interlocutory in nature and are not definitive of proceedings
and they did not have the effect of disposing of at least a substantial portion of
the relief claimed in the pending divorce action between the parties. In other
words, the trial court is still being called upon to adjudicate the questions of
residency, contact and maintenance of the minor child.
4
[9] On 9 October 2025, the applicant delivered a Rule 28 notice to amend his
particulars of claim. On 20 October 2025, the respondent objected on four
principal grounds. The applicant then brought this application for leave to
amend.
THE PROPOSED AMENDMENT
[10] The proposed amendment relates to the question of primary residence of the
minor child and her best interests. It seeks to replace the original claim for
shared residence with a claim for primary residence, and to introduce a new
paragraph 7 setting out the factual basis for that claim. The grounds advanced
in support of primary residence include, in summary: the strong bond between
the applicant and the minor child; the respondent's alleged conduct in
frustrating contact and making unfounded allegations; t he hostile attitude of
the respondent and her parents toward the applicant; the respondent's alleged
alienating behaviour; her alleged failure to furnish the applicant with
information concerning the minor child; her alleged refusal to permit the minor
child's paternal grandparents contact; her alleged misrepresentation of
information to third parties; and her alleged obstructive, dilatory and vexatious
conduct in the litigation. The amendment also seeks to adjust related relief
including contact and maintenance provisions, with reference to an expert's
recommendations.
THE LEGAL FRAMEWORK
5
[11] The applicable legal principles governing applications for leave to amend are
well-established and uncontentious between the parties. Both rely
substantially on the same body of authority.
[12] The starting point remains Moolman v Estate Moolman1, which enunciates the
foundational principle:
a. "[T]he practical rule adopted seems to be that amendments will always be
allowed unless the application to amend is mala fide or 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."
[13] This principle was adopted and confirmed by the Constitutional Court in
Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and
Others 2 at paragraph 89, where it was held that Rule 28 is "an enabling rule"
and that amendments should generally be allowed unless there is good cause
for not allowing them.
[14] The applicant referred to the matter of Media 24 (Pty) Ltd v Nhleko and
Another3, where the SCA dealt with an appeal against the dismissal of an
application to amend a plea. The court stated the following at paragraph 16:
a. "In coming to its conclusion to refuse the application for amendment,
the high court paid scant regard to the purpose of pleadings, which is
to define the issues between the parties. Because the primary role of
pleadings is to ensure that the real dispute between litigants is
1 1927 CPD 27 at 29
2 2020 (1) SA 327 (CC)
3 (109/22) [2023] ZASCA 77 (29 May 2023)
6
adjudicated upon, courts are loathe to deny parties the right to amend
their pleadings, sometimes right up until judgment is granted. An
exception is made when the amendment is mala fides or will result in
an injustice which cannot be cured by a costs order. Thus, the power
of a court to refuse amendments is confined to considerations of
prejudice or injustice to the opponent."
[15] At paragraph 18 of Media 24, the SCA further clarified:
a. "It is not for the courts to impose their views as to the true nature of the
case. It is the pleadings, and the pleadings alone, that define and
determine the issues upon which the court will adjudicate… it is the facta
probanda that must be pleaded, not the facta probantia. A litigant is not
required to prove its case in the pleadings, nor to describe the evidence
to be led, but to state the material facts on which it relies and which it
intends to prove at the trial."
[16] The importance of allowing amendments to secure proper ventilation of
disputes was confirmed in Nedbank Limited v RVI Consulting CC and
Another
4, where the court emphasised that amendments ought to be granted
where a refusal would defeat the objective of ensuring that the real dispute
between litigants is adjudicated upon. The court in that matter, following
Randa v Radopile Projects
5and Rosenberg v Bitcom 6, confirmed that the
modern tendency of the courts lies in favour of amendment whenever such an
amendment facilitates the proper ventilation of the dispute between the
parties.
4 (2015/24887) [2020] ZAGPJHC 263
5 CC 2012 (6) SA 128 (GSJ)
6 1935 WLD 115
7
[17] A further point of importance in this matter flows from the subject matter of the
proposed amendment. The amendment concerns the primary residence of a
minor child. Section 28 of the Constitution of the Republic of South Africa,
1996 provides that a child's best interests are of paramount importance in
every matter concerning the child. Section 9 of the Children's Act 38 of 2005
gives legislative expression to the same principle. The court considering an
amendment application of this nature cannot be entirely indifferent to the fact
that the proposed amendment directly serves the purpose of placing before
the trial court a complete factual foundation upon which it can adjudicate the
child's best interests with the benefit of all relevant allegations. The
amendment application court does not, of course, adjudicate the merits of the
child's best interests ; that remains the sole province of the trial court but the
constitutional and statutory imperative that the best interests of the child must
be served in every matter concerning the child is a relevant consideration
when the court exercises its discretion.
[18] In this matter the amendment application was brought after the close of
pleadings but prior to discovery. The Constitutional C ourt in Apex Truck &
Trailer v PPCF Boerdery
7at paragraph 1 recognised that in such
circumstances the matter is far from trial -ready, which is a relevant
consideration in assessing prejudice.
[19] Against this framework, I turn to consider each of the four grounds of
objection raised by the respondent.
FIRST GROUND OF OBJECTION: PREJUDICE FLOWING FROM PENDING
APPEALS
7 CC (21/37786) [2024] ZAGPJHC 489 (10 May 2024)
8
[20] The respondent's first ground is that the proposed amendment is prejudicial
by reason of the sub judice pendency of appeals arising from the various
interlocutory applications. At the time the founding affidavit was deposed to,
there were five applications for leave to appeal pending before Acting Justice
Von Ludwig, all relating to interlocutory orders.
[21] This ground fails for several reasons:
a. First, it is necessary to understand precisely what interlocutory orders
are in issue and what the proposed amendment is about. As the
applicant correctly points out, all five pending applications for leave to
appeal concern interlocutory matters: specifically, the set -aside
application, the discovery application, and the contribution towards
costs application. None of these orders concerns the question of
primary residence of the minor child, which is the substance of the
proposed amendment. These interlocutory orders are "purely
interlocutory in nature" in the sense confirmed by the Supreme Court of
Appeal in
8at paragraph 16 — they have no final effect, are not
definitive of the proceedings, and do not dispose of at least a
substantial portion of the relief claimed in the pending divorce action.
The trial court remains fully seized with the determination of residency,
contact and maintenance of the minor child.
b. Second, the respondent's argument, as developed in her heads of
argument and in her address to this court , conflates two distinct things.
She argues that the extant interlocutory orders form part of the
"operative forensic landscape" and will "colour the trial court's
8 HJ v PJ 2024 JDR 1665 (SCA)
9
evaluation of parental fitness and the child's best interests." That may
be so, but it is a submission addressed to the trial court's conduct of
proceedings, not to whether this amendment should be permitted. An
objection to a proposed amendment on the grounds that interlocutory
orders may influence the trial court is not a proper basis for refusing an
amendment. The amendment does not seek to reopen or challenge
any of those interlocutory orders. It seeks to place before the trial court
a revised pleaded case regarding primary residence.
c. Third, the respondent's reliance on Oudekraal Estates (Pty) Ltd v City
of Cape Town 9 for the proposition that an extant court order stands
until set aside is not in dispute. But that principle does not advance the
respondent's case here. The applicant is not seeking, through this
amendment, to set aside any interlocutory order. He is merely seeking
to amend his pleadings to reflect his current case regarding primary
residence. The existence of interlocutory orders that remain extant is
simply irrelevant to whether he should be permitted to amend his
particulars of claim.
d. Fourth, the respondent submits that allowing the amendment risks
making the appellate process "partially academic" and could create
"inconsistent or unfair outcomes." This submission is too vague and
speculative to constitute a sustainable basis for refusing an
amendment. The respondent does not identify with any specificity how
the amendment would render any particular appellate process
academic or how any particular inconsistency would arise. The
9 2004 (6) SA 222 (SCA)
10
interlocutory appeals concern procedural and case- management
issues; the proposed amendment concerns substantive pleaded relief
regarding primary residence. They operate on different planes.
e. Fifth, and most fundamentally, the respondent's submission amounts to
this: the amendment should be refused because the interlocutory
procedural history is complicated and ongoing. That is not a ground
that is cognisable under the Moolman test. The test asks whether the
amendment is mala fide or whether it would cause prejudice or
injustice not compensable by costs. The pendency of interlocutory
appeals does not make the amendment mala fide, nor does it of itself
constitute the kind of incurable prejudice or injustice that would justify
refusal.
[22] This ground of objection is dismissed.
SECOND GROUND OF OBJECTION: SCANDALOUS, VEXATIOUS AND
INSUFFICIENTLY PARTICULARISED NEW MATTER
[23] The respondent's second ground is that the new allegations introduced in
proposed paragraph 7 are scandalous, vexatious, irrelevant, insufficiently
particularised, and will change the character of the trial while rendering the
particulars of claim vague and embarrassing.
[24] This ground also fails for the reasons set out hereinbelow. I will deal with each
objection individually.
[25] Scandalous and vexatious
11
a. An allegation in a pleading is scandalous or vexatious if it has no
legitimate bearing on the issue to be adjudicated and its inclusion is
calculated to prejudice or embarrass the opposing party. The proper
remedy for scandalous or vexatious matter in a pleading is an
application to strike out under Rule 23(2). The respondent has not
brought a standalone striking- out application in the required form. More
significantly, even if the court were to consider this issue in the present
context, the respondent has not demonstrated that any of the proposed
allegations are without legitimate bearing on the issues before the trial
court.
b. The trial court will be required to determine, as a matter of paramount
importance, what arrangement concerning primary residence, contact
and maintenance is in the best interests of the minor child. For that
determination, the trial court will need to consider the conduct of both
parents in relation to the minor child, the history of the parties'
interactions, the ability of each parent to foster a healthy relationship
between the child and the other parent, and all other relevant factors.
The allegations in proposed paragraph 7 — that the respondent has
frustrated contact, engaged in alienating behaviour, failed to keep the
applicant informed, and has conducted litigation in an obstructive
manner — are all squarely relevant to the primary -residence dispute and
to the best -interests enquiry. They are not scandalous in any legally
recognised sense.
c. The respondent's answering affidavit disputes these allegations
substantively. That is entirely appropriate and that dispute will be
12
resolved at trial. The fact that allegations are disputed, even vigorously
disputed, does not make them scandalous or vexatious within the
meaning of Rule 23. As the applicant correctly observes by reference to
VAATZ v Law Society of Namibia 10for a striking -out application to
succeed it is not enough that the matter be scandalous, vexatious or
irrelevant; the applicant must also demonstrate that she would be
prejudiced if the application were not granted. In the VAATZ matter it
was held that “prejudice” for this purpose “did not mean that if the
offending allegations remained that the innocent party's chances of
success would be reduced: it was substantially less than that so that if a
party was required to deal with the scandalous, vexatious or irrelevant
matter in motion proceedings the main issue could be side- tracked but if
those allegations remained unanswered the innocent party might well be
defamed, the retention of such matter would be prejudicial.”
11 No such
prejudice in the VAATZ sense has been demonstrated.
d. The respondent's own heads describe the proposed allegations as
"broad evaluative accusations, many of them conclusory, some
duplicative." That characterisation, even if accepted, does not of itself
render the proposed allegations scandalous or vexatious in a legal
sense. Parties regularly plead matters in summary form, with the detail to
be developed through discovery and evidence at trial. The
characterisation of allegations as "evaluative" or "conclusory" goes to the
form of the pleading, which is more properly addressed under the vague-
and-embarrassing analysis below.
10 1991 (3) SA 563 (NM),
11 Ibid paragraph 335F-H
13
[26] Vague and embarrassing
a. The test for whether a pleading is vague and embarrassing has been
conveniently summarised in the commentary in Erasmus, Superior Court
Practice at RS 22, 2023, D1 Rule 23- 1 to D1 Rule 23- 28 as follows: a
statement is vague if it is meaningless or capable of more than one
meaning, such that the reader cannot distil from it a clear, single meaning;
if vagueness is established, the court must assess the embarrassment
caused; the ultimate question is whether the excipient suffers prejudice;
the onus is on the excipient to demonstrate both vagueness amounting to
embarrassment and embarrassment amounting to prejudice; and the
excipient must establish embarrassment by reference to the pleadings
alone.
b. The respondent cannot, as she does in her answering affidavit, engage
with the merits of each sub- allegation and at the same time contend that
those allegations are so vague that she does not know the case she must
meet. The two positions are logically irreconcilable. A respondent who can
engage forensically and in detail with allegations plainly understands what
those allegations mean and what case she is required to meet.
c. Rule 18(4) of the Uniform Rules of Court requires that every pleading
contain a clear and concise statement of the material facts upon which the
pleader relies, with sufficient particularity to enable the opposite party to
reply thereto. As confirmed in Molusi and Others v Voges
12 at paragraph
28 and reaffirmed in MJK and Others v IIK 13, the purpose of pleadings is
12 2016 (3) SA 370 (CC)
13 2023 (2) SA 158 (SCA)
14
to define the issues for the parties and the court. A litigant is required to
plead the facta probanda, the material facts , and not the facta probantia,
the evidence. The applicant is not required to prove his case in the
pleadings or to set out the evidence he intends to lead. He is required to
state the material facts upon which he relies.
d. Examined against that standard, the proposed paragraph 7 contains
allegations that are clear and sufficiently particular. Each sub- allegation
identifies a specific type of conduct attributed to the respondent. Whether
that conduct occurred and what weight it should bear in the best -interests
analysis are questions for the trial court. The respondent may plead to
each allegation. This is exactly what pleadings are designed to do.
e. The respondent's submission that the amendment would "change the
character of the trial" is not, on its own, a valid ground for objection.
Amendments frequently change the scope and character of a trial. That is
often precisely their purpose: to ensure that the real dispute between the
parties is adjudicated. The question is not whether the amendment
changes the character of the trial but whether it does so in a manner that
causes the respondent irremediable prejudice. I deal with prejudice in the
context of the fourth ground below.
f. This second ground of objection is accordingly dismissed.
THIRD GROUND OF OBJECTION: ABSENCE OF BONA FIDE CHANGED
CIRCUMSTANCES AND ULTERIOR PURPOSE
[27] The respondent's third ground is that there has been no bona fide change in
circumstances and that the amendment is actuated by an ulterior purpose.
15
She contends that the applicant's stated reason for the amendment , that his
"views in regard to primary residence have changed ”, is not a change in
circumstances but merely a changed preference, and that the amendment is a
tactical manoeuvre rather than a genuinely motivated change of position.
[28] This ground also fails for the following reasons:
a. It is necessary first to clarify what "good faith" requires in the context of
an amendment application. The Moolman test asks whether the
application is mala fide. The question is not whether the applicant has
been presented with a single dramatic new event that could be identified
as the specific juridical trigger for the change in position. The question is
whether the application is brought in bad faith that is, for an improper
purpose unrelated to the legitimate pursuit of the party's rights.
b. The applicant's case, set out in the founding affidavit and in the
proposed amendment itself, is that since the institution of divorce
proceedings in July 2020, the conduct of the respondent and the
circumstances concerning the minor child have changed materially in a
number of respects. These include the respondent's persistent
obstruction of his contact with the minor child; the unfolding of and
subsequent decision not to prosecute in the SAPS investigation; the
respondent's multiple failed interlocutory applications; her failure and
refusal to make discovery; her failure to comply with the orders of Acting
Justice Bezuidenhout regarding the appointment of an expert; her
alleged alienating behaviour; and the passage of time during which the
factual landscape has evolved considerably. Taking all of these matters
into account, the applicant has arrived at the view , which he is entitled to
16
hold and which a court of law cannot gainsay at this stage, that primary
residence of the minor child should vest with him.
c. The respondent's submission that this amounts merely to a "changed
preference" rather than changed circumstances mischaracterises the
nature of the applicant's case. A parent who observes, over a period of
five years of contested litigation, what he genuinely regards as a
sustained pattern of conduct by the primary caregiver that is detrimental
to the minor child, who notes the failure of the police investigation, who
experiences resistance to his parental rights at every turn, and who
forms the view that primary residence should be with him, is not
articulating a mere preference. He is articulating a considered response
to a substantially changed factual landscape. Whether that assessment
is correct is a matter for the trial court.
d. It is further relevant that the applicant has specifically invoked the best
interests of the minor child as the central justification for the amendment.
That is not, as the respondent suggests, a rhetorical device designed to
evade scrutiny. It is the correct legal framework for the proposed
amendment. In all matters concerning children, the court must be
satisfied that the best interests of the child are served. An applicant who
frames a change in pleaded position by reference to what he genuinely
believes to serve the child's best interests is acting in good faith, not bad
faith, even if the respondent disputes the merits of that position.
e. The respondent also raises what she terms the "speculative expert
problem." She points to the fact that the proposed amendment includes
a reference to the "recommendations of an expert" when no such expert
17
recommendation existed at the time of the amendment. The proposed
amendment is framed prospectively; it seeks to ensure that the trial court
will have the benefit of an expert assessment when it adjudicates the
question of primary residence. The reference to expert
recommendations is anticipatory and does not render the amendment
mala fide. It is precisely because the applicant wishes to ensure that the
matter is properly ventilated before the trial court, including through
expert evidence, that the amendment is sought. The fact that the expert
process has been obstructed by the respondent, as alleged by the
applicant, and has not yet been completed, does not undermine the
good faith of the amendment.
f. The respondent's further point that the Family Advocate has already
produced a report dated 17 March 2025 and that the applicant has not
engaged with why that report does not support his primary-residence case
is a matter going to the merits of the primary -residence claim. It is not a
basis for refusing the amendment. The trial court will assess the Family
Advocate's report in the context of all the evidence. It is not for this court,
on an amendment application, to weigh the Family Advocate's report
against the applicant's proposed case and adjudicate the merits in favour
of the respondent.
g. The respondent submits that the absence of a "cleanly identifiable,
genuinely new fact" as the "juridical trigger" for the amendment is
indicative of bad faith. That submission is rejected. The Moolman test
does not require that an amendment be triggered by a single identifiable
event. An amendment may be entirely justified by the cumulative evolution
18
of circumstances over time. Where, as here, the circumstances have
evolved materially over a period of years, a party's assessment of where
the best-interests balance lies may legitimately change, and that change
may justify an amendment.
h. I find no basis for concluding that this amendment is actuated by mala
fides. On the contrary, the papers demonstrate a genuine and sustained
concern on the part of the applicant about the conduct of these
proceedings and the interests of the minor child.
[29] The third ground of objection is therefore dismissed.
FOURTH GROUND OF OBJECTION: INCURABLE PREJUDICE
[30] The respondent's fourth and most substantive ground of opposition is that the
amendment will cause her structural prejudice that cannot be cured by a costs
order. She contends that she will need to reopen and redesign trial
preparation, revisit discovery, and potentially commission fresh expert
evidence. She argues that this "structural prejudice" is qualitatively different
from ordinary inconvenience and cannot be neutralised by a costs award.
[31] I have carefully considered this submission but am unable to accept it for the
following reasons:
a. The starting point is the nature of the existing dispute. The parties have at
all times been in dispute about the residency of the minor child. The
respondent's own case has consistently sought primary residence. The
question of where the minor child should primarily reside, and all the
factual considerations that bear on that question, including the conduct of
both parents, the existing arrangements, the best -interests’ factors, and
19
the evidence of experts , has always been and will always be the central
question for the trial court. The applicant's original claim for shared
residence was itself a claim about the same subject matter, involving the
same child, the same factual matrix, and the same legal framework.
b. What the proposed amendment does, in substance, is to shift the
applicant's position from shared residence to primary residence and to
articulate the factual basis for that shift. It does not introduce a new cause
of action. It does not introduce an entirely new factual matrix. The subject
matter remains the same: the best interests of the minor child in relation to
primary residence, contact and maintenance. The respondent was already
required to prepare a case about primary residence as it is the very rel ief
she has sought in her own counterclaim.
c. In assessing prejudice, the court asks whether the parties can fairly be
restored, for the purposes of justice, to the position they were in before
the pleading now sought to be amended was filed. Given that the matter
remains at a very early stage where discovery has not even
commenced, the respondent is in a relatively favourable position to meet
the amended case. She has not yet committed to any particular
discovery strategy, has not yet commissioned or filed any expert
evidence, and has not conducted any trial preparation that would need to
be undone. As the court recognised in Apex Truck & Trailer supra, an
amendment application brought after the close of pleadings but before
discovery is far from a late amendment that disrupts an advanced trial
preparation process.
20
d. The respondent argues that the amendment broadens the pleaded case
by introducing a mass of new allegations. That is true in the sense that
additional sub- paragraphs are being introduced, but those allegations
relating to alienation, obstruction of contact, failure to share information,
hostile conduct in litigation and related matters , are directly concerned
with facts that will arise in any event in the context of the best -interests
enquiry. The respondent will have to address these matters whether or
not they are formally pleaded, because they form part of the factual
landscape concerning primary residence. Their formal introduction into
the pleadings does not create new obligations for the respondent beyond
what the nature of the trial already requires.
e. The respondent's complaint that she will need to seek or commission
expert evidence to meet the new primary -residence case is difficult to
accept in circumstances where she herself seeks primary residence and
was already a party to and aware of the process ordered by Acting
Justice Bezuidenhout regarding expert appointment. The fact that the
expert process has not been completed is not attributable to the
applicant's proposed amendment. On the respondent's own papers, it is
she who has been non- compliant wi th the orders regarding expert
appointment.
f. The respondent further argues that the amendment requires her to
"prepare a new defence architecture." That submission overstates the
position; the defence in relation to primary residence has always been in
issue. The respondent's counterclaim seeks primary residence. Her case
in support of that claim , and in opposition to the applicant's amended
21
claim for primary residence, draws on the same facts, the same events,
and the same evidence as before. The shift from opposing a shared -
residence claim to opposing a primary -residence claim does not require
the wholesale reconstruction of the respondent's case; it requires
adjustment and expansion of a case that was already being prepared.
g. The applicant further relies, correctly, on the principle confirmed in Amod
v South African Mutual Fire and General Insurance Co Ltd 14, that the fact
that an amendment may result in the respondent losing primary residence
of the minor child is not in itself the type of prejudice that should prevent
an amendment. The notion of prejudice in amendment jurisprudence does
not encompass the possibility that the opposing party may ultimately lose
on the merits of the amended case. The prejudice that can defeat an
amendment is the kind that prevents the opposing party from fairly
meeting the amended case and not the prospect of being met with a
stronger case.
h. Finally, the respondent's submission under this ground invokes the notion
of "structural prejudice" as if it constitutes an independent and elevated
category of prejudice immune from cure by costs. That submission is not
accepted. Prejudice in amendment jurisprudence is assessed on the facts
of each case. The question in each case is whether the opposing party
can be fairly placed back in the position she was in before the
amendment. On these facts, and at this stage of the proceedings, the
respondent can be so placed. Any disruption to her existing preparation,
modest as it has been in circumstances where discovery has not
14 1971 (2) SA 611 (N) at 615A
22
commenced, can be adequately compensated by an appropriate costs
order.
[32] The fourth ground of objection is accordingly dismissed.
THE "BEST INTERESTS" ARGUMENT
[33] The respondent's heads raise what she terms the "best -interests" argument;
namely, that the applicant cannot rely on section 28 of the Constitution and
the best -interests standard to cure procedural defects or to justify an
amendment that fails to meet the Moolman test. That proposition is accepted
as far as it goes. Section 28 does not suspend the requirements of procedural
fairness. It does not mean that every amendment touching on children's
matters must be granted.
[34] However, the Moolman test is satisfied in this case: the amendment is not
mala fide and the respondent has not demonstrated irremediable prejudice. In
those circumstances, the fact that the amendment is framed in terms of and
directed toward the best interests of the minor child is not an illegitimate
consideration; it is a reinforcing consideration. The constitutional imperative
that a child's best interests be served in all matters concerning the child
means that, where the court is otherwise disposed to grant an amendment,
the best-interests dimension provides an additional reason for doing so. The
trial court will determine what the best interests of the minor child require. It
cannot do so adequately if the pleadings do not properly reflect the applicant's
case in that regard.
[35] The respondent's further argument that the best -interests framework should
make the court "more, not less, careful" about permitting amendments is not
23
without merit as a general proposition. A court should indeed exercise care to
ensure that proceedings concerning children are not unnecessarily broadened
or burdened with collateral disputes. However, that consideration cuts both
ways; it also means that the court should be cautious about refusing
amendments that are necessary to ensure that the trial court has a complete
picture of the factual matrix bearing on the child's best interests. In this case,
the balance comes down firmly in favour of allowing the amendment.
COSTS
[36] The applicant seeks a costs order against the respondent for opposing the
amendment. The respondent seeks a costs order against the applicant if the
application is dismissed, or alternatively that each party should bear its own
costs if a portion of the amendment is allowed.
[37] The general rule is that costs follow the result. The respondent has opposed
this application and has raised four grounds of objection, all of which I have
found to be without merit. It is necessary to say something more about the
quality of the opposition.
[38] The respondent's heads of argument are carefully crafted and represent an
earnest attempt to engage with the legal principles. I do not doubt the
genuineness of the respondent's concerns about the amendment. However,
the four grounds advanced are in material respects misconceived. The
pendency-of-appeals ground is a misapplication of relevant principles. The
vague-and-embarrassing ground is logically inconsistent with the respondent's
own detailed engagement with the proposed allegations. The bona fides
objection is predicated on a legal premise that does not accurately reflect the
24
law, namely that a juridical trigger is required to amend pleadings . And the
prejudice submission overstates the disruption that flows from an amendment
at this early stage of proceedings.
[39] The applicant's attorneys drew the flaws in the respondent's objection to her
attention in correspondence after receipt of the notice of objection. The
respondent nonetheless persisted with the opposition. As held in Rabinowitz v
Van Graan and Others 15, a costs order may be appropriate where a party has
been warned that its opposition is misconceived and has proceeded
regardless. In Mancisco & sons CC (in liquidation) v Stone 16 at paragraph
182B, Flemming DJP reiterated the general principle that an award of costs is
principally a discretion which must be judicially exercised in the sense that it
must be guided by established and known considerations. The award of costs
rests upon the object of reimbursing a person for costs to which he was
wrongly put.
17
[40] I am satisfied that a costs order against the respondent is warranted. There is
no basis on these facts for an enhanced attorney -and-client scale ; the
respondent was entitled to oppose the application and her opposition, while
ultimately unsuccessful, was not so unreasonable as to justify a punitive costs
order. Costs will be on the party-and-party scale.
ORDER
[41] In the result, the following order is made:
15 2013 (5) SA 315 (GSJ)
16 2001 (1) SA 168 (W) at 181D
17 Texas Co (SA) Ltd v Cape Town Municipality 1926 AD 467 at 488
25
a. The application for leave to amend the applicant's particulars of claim in
accordance with the notice of intention to amend dated 9 October 2025 is
granted.
b. The respondent is directed to pay the costs of this application on the party -
and-party scale.
_________________________
R LANGE
ACTING JUDGE OF THE
HIGH COURT
Gauteng Local Division,
Johannesburg
Appearances
For the Applicant: Adv CJ Smith
cjsmith123@gmail.com
Cell: 083309 7487
Instructed by: Philippa Kruger Attorneys
philippajeanarmstrong@gmail.com
Cell: 083 267 0870
For the Respondent: IN PERSON
tnandipha@yahoo.com
Cell: 079 651 3955
Date of Hearing: 20 APRIL 2026
Date of Judgment: 29 MAY 2026