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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case No: 2148/2024
In the matter between:
E[...] M[...] S[...] APPLICANT
ID NO: 5[...]
and
M[...] E[...] S[...] RESPONDENT
ID NO: 5[...]
Coram: Masike AJ
Date Heard: 29 May 2026
Judgment is handed down electronically by distribution to the parties’ legal
representatives by e-mail, and released to SAFLII. The date that the judgment is
deemed to be handed down is 28 AUGUST 2026 at 10h00.
Summary: Civil Procedure – application for leave to amend under rule 28(4) –
application opposed – respondent contending amendment sought not bona fide –
Court examining test for good faith in application for leave to amend – Court
finding application is made in good faith – respondent contending amendment
will cause prejudice – court finding perceived prejudice can be cured by an
appropriate cost order – respondent contending amended particulars of claim
would be excepiable – court deciding on the question – court finding the
pleading as amended would be excipiable - the application for amendment
refused – Costs trite principles followed.
JUDGMENT
MASIKE AJ
Introduction
[1] This is an application under rule 28(4) of the Uniform Rule of Court
(‘URC’). The genesis of this application stems from a divorce action instituted
by the applicant against the respondent. The applicant is the plaintiff in the main
action, and the respondent is the defendant . For the sake of brevity, I shall refer
to the parties as cited in this application. The applicant seeks leave to amend her
particulars of claim to introduce a claim of forfeiture of the joint estate against
the respondent and to propose a manner to divide the assets in the joint estate.
The respondent has opposed the application.
Factual Background
[2] The applicant, Mrs E[...] M[...] S[...], married Mr M[...] E[...] S[...] on 28
August 1983 in community of property , and the marriage still subsists. There
are no minor children born out of the marriage, and both parties are pensioners.
[3] The applicant instituted divorce proceedings against the respondent on 29
April 2024. The summons was served on the respondent, who defended the
action. A plea and counterclaim were filed. In the particulars of claim, the
applicant sought a decree of divorce and division of the joint estate. The
applicant in her particulars of claim set out how the joint estate should be
divided. The respondent, in his plea to the particulars of the claim, pleaded that
certain properties, which the applicant believed formed part of the joint estate,
did not form part of the joint estate and should be excluded from the division of
the joint estate.
[4] As a result of the plea to the particulars of claim and certain documents
which were discovered by the respondent, evincing that two of the immovable
properties do not form part of the joint estate, the applicant served a notice in
terms of rule 28(1) of the URC in which she seeks to amend her particulars of
claim and seeks an order for the respondent to forfeit 50% of his half share in
the property situated at 1[...], Unit 6 Mmabatho, 2735, North West Province
(‘the Unit 6 property’).
[5] The applicant seeks to further amend her particulars of claim to regulate
the division of the motor vehicles between the parties . The applicant seeks
further to amend the particulars of claim to deal with the various livestock
acquired during the subsistence of the marriage , which includes ten cows, sixty-
four goats and a number of chickens (‘the livestock’).
[6] The applicant further seeks an amendment to her particulars of claim to
read that the ‘Defendant to wholly forfeit his entitled half share’. The applicant
further seeks to amend the prayers in the particulars of claim to read that,
amongst others, the parties divide the livestock equally between the applicant
and the respondent, that the respondent retain the motor vehicle in his
possession and the applicant retain the motor vehicle in her possession, that the
respondent forfeit, entirely, his entitled half-share of the joint estate.
[7] The respondent filed an objection to the applicant’s notice under rule
28(1) of the URC. The notice of the respondent under rule 28(3) of the URC
reads that the intended amendment is mala fide, the intended amendment would
prejudice the respondent, the intended amendment is intended to delay
finalisation of the divorce action, and that, should the intended amendment be
granted, this would result in the pleadings being vague and embarrassing and
therefore excipiable. Following the respondent's objection to the intended
amendment, the applicant filed the present application for leave to amend.
Legal Principles
[8] Rule 28 of the URC regulates amendments to pleadings. A court hearing
an application for an amendment has discretion as to whether to grant it or not, a
discretion which must be exercised judicially.1 The primary purpose of allowing
an amendment is to provide proper ventilation of the dispute between the parties
and to determine the real issues between them, so that justice may be done.2
1 Caxton Ltd v Reeva Forman (Pty) Ltd 1990 (3) SA 547 (A) at 565G; Brocsand (Pty) Ltd v Tip Trans
Resources and Others 2021 (5) SA 457 (SCA) para 15
2 Trans-Drakensberg Bank Ltd (under Judicial Management) v Combined Engineering (Pty) Ltd 1967 (3) SA
632 (D) at 638A (Trans-Drakensberg)
[9] An amendment will not be allowed if the application to amend is made
mala fide or if the amendment will cause the other party such prejudice as
cannot be cured by an order for costs and, where appropriate, a postponement. 3
The following statement by Watermeyer J in Moolman v Estate Moolman4 has
frequently been relied upon:
‘[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.’
[10] The power of the court to allow material amendments is, accordingly,
limited only by considerations of prejudice or injustice to the opponent. 5
Prejudice ‘embraces prejudice to the rights of a party in regard to the subject
matter of the litigation, provided there is a causal connection which is not too
remote between the amendment of the pleading and the prejudice to the other
party’s rights’. 6 The onus is on the party seeking the amendment to establish
that the other party will not be prejudiced by it.7
[11] The court will allow the amendment of a prayer if the main issue between
the parties remains the same but will not readily do so if the addition of a prayer
also entails the introduction of a new cause of action.8
3 Trans-Drakensberg at 638H–639E
4 1927 CPD 27 at 29
5 Media 24 (Pty) Ltd v Nhleko & Another (Case no 109/22) [2023] ZASCA 77 (29 May 2023) (Media 24) para
16.
6 South British Insurance Co Ltd v Glisson 1963 (1) SA 289 (D) at 296A–C
7 Trans-Drakensberg Bank at 640H;
8 Tomassini v Dos Remendos 1961 (1) SA 226 (W); A.D obo O.M, L.D and C.D v Buffalo City Metropolitan
Municipality (EL 2440/2023) [2025] ZAECELLC 1 (21 January 2025) para 18.
[12] Delay in bringing forward an amendment is in itself, in the absence of
prejudice, no ground for refusing an amendment. 9 The court will not grant an
amendment if its introduction into the pleading would render it excipiable.10 In
R M van de Ghinste & Co (Pty) Ltd v Van de Ghinste11 it was held that where an
objection is raised to a proposed amendment to a pleading on the ground that
the pleading as amended would be excipiable, the court should not confine itself
to an inquiry as to whether or not the question of excipiability is arguable — the
court should decide on the question and if it finds that the pleading as amended
would be excipiable, the application for amendment should be refused.
Analysis
[13] The respondent has raised several grounds in support of his opposition to
the applicant's application for leave to amend the particulars of claim . The
grounds for opposition are: (a) the reasons for the proposed forfeiture are
unfounded and not supported by any evidence; (b) the intended amendment is
intended to delay the conclusion of the main action because the applicant is
solely benefitting from the rentals of the backroom at the house situated at unit
6; (c) the founding affidavit in support of the application for leave to amend is
not based on truthful events, the respondent denies that his conduct led to the
breakdown of the marriage; (d) the relief sought is not in line with section 9 of
the Divorce Act; (e) the applicant failed to show cause how the granting of leave
to amend would have prospects of success in the main action.
9 Trans-Drakensberg Bank at 642C-D.
10 Krischke v Road Accident Fund 2004 (4) SA 358 (W) at 363B; YB v SB 2016 (1) SA 47 (WCC) at 51E–
F;Apex Truck & Trailer v PPCF Boerdery CC (unreported, GJ case no 21/37786 dated 10 May 2024) at para 14
11 1980 (1) SA 250 (C) at 258H–259A.
[14] There is no merit in the grounds of opposition relied upon by the
respondent summarised in paragraph 13 above. In so far as it relates to the
grounds listed under (a), (c), (d) and (e), these are issues that w ould have to be
addressed before the trial court dealing with the main action, not in this Court,
this Court is tasked with the application for leave to amend, not making factual
findings on which version is to be accepted and which version is to be rejected
regarding contribution to the joint estate, and whose conduct contributed to the
breakdown of the marriage.
[15] In Media 24 at paragraph 18, the court said the following:
‘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…. As has often been stated by our courts, 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.’ (my emphasis)
[16] The applicant is not at this stage required to prove her case in the
intended amended particulars of claim or as stated in Media 24 ; describe the
evidence that she will lead at trial; what is required of the applicant is to state
the material facts on which she relies to prove her claim for forfeiture against
the respondent.
[17] As it relates to the ground listed in (b) , from the submissions made by
counsel for the respondent at the hearing of this application, this Court
understood the ground to be that the application for leave to amend is mala fide
because the applicant seeks to delay finalisation of the divorce action as the
applicant is benefiting from the rentals of the rooms at the Unit 6 property. In
the context of an amendment application , the test for ‘good faith’ is whether the
application is brought for an improper purpose unrelated to the legitimate
pursuit of the party's rights.
[18] The case of the applicant is that, because of what was disclosed in the
respondents’ plea to the particulars of claim and what was discovered during
discovery, the other two immovable properties that the applicant thought formed
part of the joint estate did not form part of the joint estate and actually belonged
to the late mother of the respondent and were bequeathed to him in his late
mothers will which specifically provided that the two immovable properties
should not form part of any marriage (future or present) or any communal
estate. The applicant decided to amend her particulars of claim to seek an order
directing that the respondent has forfeited his 50% share in the Unit 6 property.
[19] It is the view of this Court that there is no bad faith in the decision to seek
the amendment for the reasons quoted in paragraph 1 8 above. It was submitted
by counsel for the respondent that the applicant delayed in bringing the notice
of intention to amend and, as a result, the respondent is prejudiced . There is no
merit in this submission either. Delay in bringing forward an amendment is in
itself, in the absence of prejudice, no ground for refusing an amendment.
[20] The prejudice that the respondent alleges he will suffer is that the
finalisation of the divorce action will be delayed. In my view, this is prejudice
that can be cured by an appropriate cost order. There is accordingly no merit in
the submission that the respondent will suffer prejudice because there has been
a delay in bringing the amendment.
[21] The respondent in his notice in terms of rule 28(3) states that the prayers
sought to be introduced in the amended particulars of claim at 5.1 to 5.3 are
contradictory to the prayer sought in prayer 8 . It is further stated on behalf of
the respondent that this would make the pleadings vague and embarrassing and
therefore excipiable.
[22] When this application was argued before this Court, counsel for the
applicant was asked to address this Court on the contention that , if the
application for leave to amend is granted , the amended particulars of claim
would be excipiable because the prayers in the amended particulars of claim at
paragraphs 5.1 to 5.3 would be contradictory to the prayer in 8. Counsel for the
applicant insisted that the applicant should be given an opportunity to prove her
case in terms s 9 of the Divorce Act 70 of 1979.12
[23] It would be apposite to quote the relief sought in prayers 5, 5.1 to 5.3 and
prayer 8 as stated in the notice in terms of rule 28(1) of the applicant. The
prayers read as follows:
‘5. There are various livestock acquired during the subsistence of the marriage which are
as follows:
5.1 Ten (10) cows situated at 1[...] Mocoseng Village (next to Tip Top on Mocoseng
Road) to be shared equally amongst the Plaintiff abd Defendant;
5.2 Sixty -four (64) goats situated at 1[...] Mocoseng Village (next to Tip Top on
Mocoseng Road) to be shared equally amongst the Plaintiff and the Defendant; and
12 9. Forfeiture of patrimonial benefits of marriage
(1) When a decree of divorce is granted on the ground of the irretrievable break-down of a marriage,
including a Muslim Marriage, the court may make an order that the patrimonial benefits of the marriage be
forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration
of the marriage, the circumstances which gave rise to the break-down thereof and any substantial misconduct on
the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in
relation to the other be unduly benefited.
5.3 Chickens (number of chickens unknown) situated at 1[...] Mocoseng Village (next
to Tip Top on Mocoseng Road) to be shared equally amongst the Plaintiff and the
Defendant
. . .
8. The Defendant to forfeit, entirely, his entitled half share of the joint estate;’
[24] The prayers in paragraph 5, 5.1 to 5.3 are contradictory to the prayer
sought in paragraph 8. A party in legal proceedings is not allowed to approbate
and reprobate. This means that the party is not allowed to adopt two positions
inconsistent with one another or, as is commonly expressed , to blow hot and
cold.13
[25] The amendment sought, if granted, will result in the amended particulars
being excepiable; the amended particulars of claim will be vague and
embarrassing. On the one hand, the applicant, in paragraphs 5.1 to 5.3, seeks an
order for equal division of the assets forming part of the joint estate, and, on the
other hand, in paragraph 8, she seeks an order that the respondent forfeit his
entitled half share of the joint estate entirely ; the prayers are contradictory . The
authorities referred to above are clear on this issue : the court may refuse an
application for leave to amend if the amendment would render the particulars of
claim as amended excipiable. The application for leave to amend must for this
reason fail.
Costs
[26] Costs follow the cause, and this Court has not found any reason to deviate
from this principle. The matter was not complex, and this Court accepts that it is
of importance to the parties.
13 Hlatshwayo v Mare and Deas 1912 AD 242 at page 259
Order
[27] Resultantly, the following order is made:
1. The application for leave to amend the particulars of claim of the
applicant is dismissed.
2. The applicant is ordered to pay the costs of this application on a party-
and-party scale, scale ‘A’.
3. The trial of the main action serving before Masike AJ is to continue to
be heard on 30 September 2026, in open court.
__________________________________
T MASIKE
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
APPEARANCES
For the Applicant: Mr O.K.K.A Lehabe
Instructed by: Lehabe Attorneys Inc.
REF: S[...] E.M (DIV)
E-mail: info@lehabeattorneys.co.za
For the Respondent: Adv P Mokwena
Instructed by: RS Tau Attorneys
REF: MS MOKOTO DIV/16/24
E-mail: khumo@rstauattorneys.co.za