IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE CIV. T. No. 1053/92
In
the matter between:
AMANDLA
INVESTMENTS (PTY) LIMITED Plaintiff
and
HENRY
NHLABATSI Defendant
CORAM: A.F.M.
THWALA
FOR
PLAINTIFF: MR. DUNSEITH
FOR
DEFENDANT: MR. SHILUBANE
JUDGMENT
09/05/95
This
matter was ready for trial and pleading had been closed. The
defendant filed a notice of intetion to amend dated 9th March, 1995.
This
is an exception to the plaintiff's plea. It reads as follows:-
1.
The averments in plaintiff's particulars of claim seeks to vary a
material term of the Deed of Sale which in terms of parole evidence
rule, evidence in support thereof will not be admissible in order to
sustain the cause of action as set out in plaintiff's aforesaid
particulars of claim.
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2. The
plaintiff is not entitled to the relief sought in its amended
particulars of claim before rectifying the Deed of Sale annexed to
its particulars of claim.
3. In
terms of clause 12 of the deed of sale, oral evidence is not
admissible to alter or vary it.
The
plaintiff filed his objection to the exception which reads as
follows:
1. The
purported amendment is not an amendment of the defendant's plea at
all, but seeks to introduce a different pleading all togehter.
2. The
time for filling an exception has long expired, and the pleadings are
closed.
Counsel
arguments centred on the point whether the exception could be filed
after the close of the pleadings. Counsel
for
the defendant. contended that It could be filed while counsel for the
plaintiff argued that ii was out of time.
Rule
28 (8) states 'The court may during the hearing at any stage before
judgment grant leave to amend any pleading or document on such terms
as to costs or otherwise as it seems fit. '
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In
HAARHOFF v WAKEFIELD 1955 (2) SA 425 at page 26 it was decided that
an exception in a pleading which means it may be raised at any time
before judgment as any plea as stated in Rule 28 (8). Since there is
no notice of bar in terms of Rule 26, the parties can file their
amendments at anytime before judgment.
The
defendant has amended his plea by introducing the exception. He is
therefore allowed to amend. SEE ALSO TYULU V SOUTHERN (INSURANCE
ASSOCIATION LTD 1974 (3) SA 726)
A.F.M.
THWALA
