DD TRANSPORT (PVT) LTD v ABBOT 1988 (2) ZLR 92 (SC)

Flynote

Practice and procedure - pleadings - admissions made in pleading - withdrawal of admissions - when permissible - "non-admission" - when may be employed.

Headnote

The effect of making a formal admission in pleadings is that the opposing party need not adduce evidence to prove the admitted fact, while it is incompetent for the party making the admission to adduce evidence to contradict it. Where an admission has been made in error, the court has a very wide discretion to relieve the party concerned from the consequences of that error by granting an amendment of the pleading.

Such an amendment will not be granted simply for the asking, for it is an indulgence and not a right. The court will require a reasonable explanation of both the circumstances in which the admission was made and the reasons why the party seeks to resile from it. If withdrawal of the admission will cause prejudice or injustice to the other party to the extent that a special order for costs will not compensate him, the court will refuse the application. In this regard, the test to be applied is whether the other party would be placed in a worse position by the amendment being granted than he would have been had the pleading, in its amended form, been filed in the first instance. This might occur, for instance, if the only person who can give evidence about the facts that were erroneously admitted had since died or had left the country and his whereabouts were unknown. The court must also be satisfied that the amendment sought is bona fide.

A party pleading to a declaration or a claim in reconvention must deal with every allegation made, by admitting or denying it, by stating that he has no knowledge concerning it, or by confessing and avoiding it. * non-admission (where the pleader avers that he has no knowledge of the facts alleged, does not admit them and puts the other party to the proof of them) made where it is obvious that where the pleader does have knowledge of the facts is untruthful pleading. non-admission may only be employed if the pleader has a good reason for doing so.