INDUSTRY PENSION FUND v UNITED REFINERIES LTD & ANOR 2012 (2) ZLR 98 (H)

Flynote

Practice and procedure — admission — withdrawal of — when permissible — what must be shown by party seeking to withdraw admission

Practice and procedure — affidavit — further affidavit — party seeking to file further affidavit, having already filed answering affidavit — what party seeking to file such affidavit must show

Headnote

The ordinary rule with regard to affidavits is that three sets of affidavits areallowed in pleadings, namely, supporting affidavits, answering affidavits and replying affidavits. The court may in its discretion permit the filing of further affidavits in terms of r 235 of the High Court Rules 1971. It is only in exceptional circumstances or if the court considers such a course advisable that a fourth set of affidavits may be received. The purpose of allowing a further or supplementary affidavit is to enable a litigant to file additional information that he becomes aware of after the filing of the three affidavits as required in terms of the Rules. There must be an application for leave to file such affidavit. The party applying for the leave must provide a satisfactory explanation for the failure to put theinformation or facts before the court at an earlier stage and for the late filing of the affidavit. The explanation must be one that negatives bad faith or culpable failure to act timeously. The court must also be satisfied that no prejudice will be caused to the opposing party which cannot be remedied by an appropriate order as to costs. If there is an explanation which negatives mala fides or culpable remissness as the cause of the facts or information not being put before the court at an earlier stage, the court should incline towards allowing the affidavits to be filed.

Where a party makes an admission in its pleadings, the admission is binding and it is unnecessary for the other party to prove such admission. A party wishing to resile from such an admission may amend or withdraw such pleadings in terms of r 189, which permits a withdrawal of an admission. Where a party seeks to withdraw an admission he is required to apply to the court for such a withdrawal. He must give a reasonable explanation of the circumstances under which the admissions were made and the reasons for the withdrawal. The court in its discretion may allow such amendment or withdrawal on such terms as it deems fit. If the court is of the view that to allow the admission to be withdrawn will cause prejudice or injustice to the other party to the extent that a special order for costs will not compensate him, it will refuse the application. The court will have to be satisfied that the amendment sought is a bona fide one. The question must always be posed: "Is the applicant acting malafide in seeking to withdraw his admission?"