CIVIL PROCEDURE
CHAPTER 17
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HCR 28
AMENDMENT OF
MCR 55A
PLEADINGS
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DEFINITION/NATURE
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 Procedure used to correct or amend a pleading after it has properly been delivered
 In certain circumstances, to insert an averment that was previously not disclosed
 Can be utilized when the court upholds an exception and orders an amendment of the
pleading
 NB: amendment procedure is only applicable to pleadings. Affidavits must be
amended by filing of supplementary affidavits.
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PURPOSE
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
To allow for the proper ventilation of the issues between the parties
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GENERAL
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
An amendment can be effected in one of the following ways:
1. By agreement between the parties
2. By the filing of a notice of intention to amend which is not met by an objection by
the opposing party whereafter the amendment is effected by the filing of amended
pages.
3. If an objection to the proposed amendment is raised, by making application to the
court for leave to amend.
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DEFININTION
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 Claim against the plaintiff within your plea
 Can be based on any cause of action (does not need to be linked to the claim of the
plaintiff) but in the MC must be within the court’s jurisdiction
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REQUIREMENTS: LEAVE TO AMEND
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 Party wishing to obtain leave to amend must give a REASONABLE
EXPLANATION FOR THE PROPOSED AMENDMENT
 i.e. amendment must be of sufficient importance to justify a postponement and
mistake must be bona fide [Krogman v Van Reenen]

Court’s discretion to grant leave to amend dependant on:
1. Whether proposed amendment is bona fide
[amendments that remove ambiguity, correct grammar or spelling, or purport to
fix vague and embarrassing pleadings do not bring about questions of bona fides]
Examples of amendments that raise an issue as to bona fides:
a. Seeking to withdraw an admission
b. Substituting one party for another
c. Including a new cause of action or defence
2. Whether the amendment will cause prejudice to the other party
Examples of prejudice:
a. great inconvenience
b. exceptionally long delay in bringing case to finality
c. where there is no prospect of success even with the amendment
3. If prejudice is caused – whether it can be cured by an order as to costs or a
postponement
 Application need not contain a supporting affidavit if bona fides are not in dispute.
 Affidavit should contain:
1.
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SPECIAL INSTANCES WHEN AN AMENDMENT IS SOUGHT
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1. FORMAL AMENDMENTS
 Based on spelling, grammar, incorrect citation of parties, mistakes in
calculation of damages
2. WHEN THE TRUE DISPUTE IS INCORRECTLY EXPRESSED
 Amendment seeking to clear up ambiguity or to set out the correct factual
dispute is allowed
3. NEW CAUSE OF ACTION/NEW DEFENCE
 Distinguish: amendment which seeks to clarify, perfect or refresh an existing
cause of action and which introduces a new cause of action
 Crts will however allow the latter when it has the effect of setting out the
true dispute between the parties.
 Def may only become aware of an avail defence after having filed plea.
4. EFFECT OF WITHDRAWING ADMISSION
 Most likely to prejudice the other side bec they may have been led to believe that
they needn’t prove a certain fact and thus have not gathered the requisite evidence
 Onus on amending party to disclose why he made the admission erroneously in
the first place
Examples of reasons for erroneous admission:
1. Based on mistake of law or fact
2. Clear error
3. Misunderstanding between attorney and client
 Prejudice and NB consideration
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5. AMENDMENTS WHICH SUBSTITUTE PARTIES
 Only when bona fide and when no prejudice
6. PRESCRIPTION
 Amendment to introduce a cause of action that has prescribed will not be allowed
 Fact that summons was served before the time will not interrupt prescription
7. JURISDICTION
 Amendment to introduce a new claim over which the court will not have
jurisdiction will not be allowed
8. EXCIPIABLE AMENDMENTS
 An amendment which will render the pleading excipiable will not be allowed
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GROUNDS FOR OBJECTION TO AN AMENDMENT
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1. Prejudice
2. Unreasonable delay
3. Prescription if new claim raised
4. Jurisdiction if new claim raised
5. Amendment is excipiable (vague and embarrassing/discloses no cause of action)
6. No prospect of success in main claim
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PROCEDURE
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1. Delivery of notice informing other party that you intend to amend the pleading
TAKE NOTICE THAT the plaintiff intends to amend his particulars of claim as follows;
2. The notice must furnish the particulars of the proposed amendment
By the insertion of paragraph 5 to read as follows:
Or
By the substitution in paragraph 3 of the words “First Rand Bank Limited” with the words
“Absa Bank”
Or
By the deletion of prayer 3 of the plaintiff’s particulars of claim and the renumbering of
prayer 4 to prayer 3 and prayer 5 to prayer 4
3. The notice must state that the amendment will be carried out if no objection is
lodges thereto within 10 days of the delivery of the notice.
TAKE NOTICE FURTHER THAT unless written objection to the proposed amendment is
delivered within 10 (ten) days of the delivery of this notice, setting out the grounds upon
which the objection is founded, the amendment will be effected
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4. The notice must state that any objection to the amendment must clearly and
concisely set out the grounds upon which it is founded.
5. If no objection is raised within 10 days?
`Opposing party deemed to have consented
`In order to effect amendment, plaintiff has 10 further days within which to file his
AMENDED PAGES
`Opposing party then has 15 days within which to plead to the amendment, except, or attempt
to have amendment set aside
6. If an objection is raised:
`Party proposing amendment may make an application to court requesting leave to amend
`Application must provide opposing side with at least 10 day’s notice of hearing date
`If amendment allowed, must be effected within 10 days of order
`Same as above applies
`If amendment granted before or during trial – opposing party may postpone to reconsider his
position – usually at the cost of the amending party
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OTHER AMENDMENTS
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Section 111 of Magistrate’s Court Act:
Amendments allowed during the proceedings as
long as before the granting of judgment.
Prejudice is paramount consideration
MCR 19(11)
Allows for viva voce or oral amendment to plea
by defendant during trial when it appears prima
facie that a defence based on some other ground
exists.
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