HIGH COURT OF SWAZILAND
INTERNATIONAL IRRIGATION PROPRIETARY LIMITED
OF SIVUKILE FARMERS ASSOCIATION
KOMATI PROJECT ENTERPRISE LIMITED
BOSUA & ASSOCIATION
Case No. 876/2003
MAPHALALA - J
the Applicant MR. T.R. MASEKO
the 1st and 2nd Respondents MR. D. MAZIBUKO
the 3rd Respondent MR. MAGAGULA
the 4th Respondent MR. T.L. DLAMINI
ON APPLICATION FOR AMENDMENT
court is an application for amendment of a notice of motion and some
portions of the founding affidavit. The application is for an order
in the following terms:
the normal requirements prescribed by the Rules of this Honourable
Court regarding time limits and forms of service and hearing this
an interim order be hereby made calling upon the Respondents jointly
and severally to show cause, if any on a date and time to be
determined by this Honourable Court why:
tender awarded to the 4th Respondents by the 1st and 2nd Respondents
by letter dated the 1st April 2003 should not be set aside and
declared null and void and of no force and effect.
the lst and 2nd Respondents be interdicted and restrained from making
any payments to the 4th Respondent pursuant to the award of the
tender pending final determination of these proceedings.
the 4th Respondent be interdicted and restrained from continuing with
the work for phase 2 on the 75 hectares of land for the installation
of a semi-permanent irrigation system pending final determination of
paragraph 2.1 to 2.3 above operate as an Interim Order to operate
with immediate effect pending the return date.
of the application in the event that it is opposed.
and/or alternative relief.
application is opposed by all the Respondents in this case. I heard
arguments for and against the granting of the application for
Maseko on behalf of the Applicant contended that an amendment is a
matter that is entirely the court's discretion. The deciding
principle is whether or not the other party will not be prejudiced by
such amendment, and that such amendments cannot be cured by an order
as to costs or postponements. To support this proposition the court's
attention was drawn to the works of Harms LTC "Civil Procedure
in the Supreme Court of South Africa" (1990) at page 293;
Herbstein et al, The Civil Practice of the Supreme Court of South
Africa (4th ED) page 521 at 522 and the case of Magalela Ngwenya vs
The Ministry of Agriculture and Cooperatives and another Civil Case
No. 279/2001 (unreported).
Maseko contended further that no prejudice will be suffered by the
Respondents should the court grant the amendment. If the court deems
it appropriate, it can award costs of the amendment to the
Respondents' opposition was spearheaded by the arguments made by Mr.
Mazibuko for the 1st and 2nd Respondents. Mr. Magagula for the 3rd
Respondent and Mr. Dlamini for the 4th Respondent aligned themselves
with the arguments advanced by Mr. Mazibuko except for accentuating
some aspects of his arguments. For purposes of this judgment I shall
reflect what Mr. Mazibuko submitted not to say that I have not
considered what the others have submitted. I have considered their
points as well.
gravamen of the Respondents' opposition is that as the Applicant
seeks to amend its founding affidavit by deleting certain allegations
therein and substituting them with the amended allegation an
affidavit being a sworn statement made under oath is incapable of
being amended. A proposed amendment renders the original affidavit
inadmissible. Mr. Mazibuko argued that the purported amendment would
offend against Rule 28 (1) of the High Court rules which provides as
any party desiring to amend any pleading or documents other than an
affidavit, filed in connection with any proceedings, may give notice
to all other parties to the proceedings of his intention so to amend
court was further directed to the work of Herbstein (supra) at page
514 where the learned authors state that under the rules it is
possible to amend a pleading or document, other than an affidavit,
without the necessity of obtaining the prior leave of the court. Mr.
Mazibuko went further to show to the court various paragraphs in the
Applicant's founding affidavit which seeks for the amendment, viz
paragraph 21 and paragraph 26.3.
have considered this matter very carefully and it would appear to me
that the Respondents' are correct in their assertion that this cannot
be done in terms of Rule 28 (1). It would also appear to me that the
case of Magalela Ngwenya (supra) is
from the case in casu as in that case the amendment of the notice of
motion was in issue not the founding affidavit as in the instant
case. In the present case clearly the Applicant seeks to amend even
the founding affidavit itself. The amendment being sought would do
violence to the Rule which expressly prohibits amendment on
would also appear to me that the most logical course open to the
Applicant in the present case is to withdraw the present application
and issue fresh papers and thereafter
matter to run its normal course.
the result, application for amendment is refused and costs to follow