IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

In the matter between:

And
THE MUNICIPAL MANAGER

JUDGMENT

KLOPPER,AJ

The Applicant, in essence, seeks an amendment of the pleadings in its present form to read as follows, 'that an interim interdict be granted pending the amplification of the relief sought in the review under case number 2493 and final determination of the review application before this Honourable Court under case 2493/10 enrolled for hearing on 31 August 2010 in the following terms', and then of course the normal terms as indicated in the pleadings apply. So the amendment that is sought is that the interim interdict be granted and that the following words be inserted ' pending the amplification of the relief sought in review under case number 2493'.

Strangely enough there are other documents which deal with amendments in the papers, which are dealt with in a more formal manner, but be that as it may, objections were raised, objections as to the manner in which the application was made and in particular objections concerning the vagueness of the insertion of these words and the particular amendment, and the reasons behind it. I must add that I still have difficulty in understanding the real relevance of the request for this amendment. I did canvass this issue during the argument and attempted to obtain clarity. There were various suggestions put forward by counsel for the Respondents as to why this amendment is being sought

There has been frequent mention throughout the papers of the impending amplification of the application due to the circumstances and this continues right through from the founding affidavit to the replying affidavit and it even is still an uncertain event, and has not been established with any real amount of clarity in a subsequent affidavit made by the Applicant. So the main objection in the arguments of counsel for the Respondents is that it is uncertain, it is vague and in particular the Third Respondent is not in a position, in the light of these circumstances, to answer to anything that may arise from that particular set of circumstances.

"The general rule is that an amendment of a notice of motion, as in the case of a summons or pleading in an action, will always be allowed unless the application to amend is mala fide, or unless the amendment could cause an injustice or prejudice to the other side, which cannot be compensated by an order for 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 notice of motion, which it sought to amend, was filed-"

"The principles enunciated in the reported cases governing applications for the amendment of pleadings are as follows:
1. The court has a discretion whether to grant or refuse an amendment.

3. The applicant must show that prima facie the amendment has something deserving of consideration, a triable issue.
4. The modern tendency lies in favour of amendment if such facilitates the proper ventilation of the dispute between the parties.
5. The parties seeking the amendment must not be mala fide.
6. The amendment must not cause an injustice to the other side which cannot be compensated by costs
7. The amendment should not be refused simply to punish the applicant for neglect.
8. A mere loss of (the opportunity of gaining), time is no reason in itself for refusing the application.
9. If the amendment is not sought timeously. some reason must be given for the delay."

Those are the basic principles governing an application for an amendment.
I have indicated that I still have some difficulty in understanding why the interim interdict, (which clearly is an interdict which is requested, pending the final determination of the review application, which is already pending before this Court), should now be based on the fact that the relief at some or other stage and in some or other form, is to be amplified I am not going, at this stage, to indicate all the aspects mentioned in argument by counsel as to why the Applicant deems it necessary to request this amendment, which includes the fact that:
	It wishes to avoid the application for striking out,
	It wishes to avoid the application for not joining the Third Respondent, and,
	It wishes to incorporate in some or other form a sanction for a document for which there is an application to strike out and which otherwise would not be included for consideration, because of the application for striking out.
	A lot of these reasons were given by counsel.

Bearing all these circumstances in mind, I am of the view that the amendment sought is. in the first instance, not an essential one It does not, in my view, create a situation where issues are further ventilated in any way. The dispute between the parties being whether an interim interdict should be granted, pending the outcome of a review application. I do believe that in its present form (and with the uncertainties around what the amplification in fact entails, the fact that there is constant referral to further amplification, and amplification of even the draft proposals or the proposed amendments.) that it does, because of its vagueness and uncertainty, create a situation which does prejudice, in particular the Third Respondent, and in these circumstances this cannot be remedied by an order for costs and can also not be remedied by the postponement of the matter to allow counsel for the Respondents to consider their situation and perhaps to amend their papers, because the uncertainty still reigns. It has not been changed in any way up to this stage and any prejudice cannot be remedied in this manner

I am, therefore, of the view that the application for the amendment of pleadings as requested should be refused and that in the circumstances the Applicant should pay the costs of the application, including in the circumstances the cost of two counsel in respect of the First and Second Respondents.