Practice Directive 61
IN THE HIGH COURT OF NAMIBIA
KEMPINSKI NATURE ESTATE CC v SQUARE FOOT DEVELOPMENTS CC
Division of Court:
HONOURABLE LADY JUSTICE PRINSLOO, JUDGE
Date of hearing:
9 March 2021
31 March 2021
Neutral citation: Kempinski Nature Estate CC v Square Foot Developments CC (HC-MD-CIV-ACT-DEL-2019/01372)  NAHCMD 142 (31 March 2021)
Having heard Mr Zandre Duvenhage on behalf of the First and Second Applicants/Defendants also standing in for Mr Konrad Marais.
Further conduct of the matter:
Reasons for orders:
The plaintiff is the owner of property situated in the Aris Town Planning Scheme (“the Scheme”). The second defendant’s property, namely Portion 8 (a portion of Portion 4) of the Farm Aris, No 29, Windhoek (“the subject property”) also falls within the Scheme and is adjacent to the plaintiff’s property. The first defendant has undertaken development on the subject property, which development is the bone of contention between the parties.
Application for leave to amend and opposition thereto
First and second defendants’ contentions
 In their heads of argument, the defendants submit that the contemplated amendments are bona fides and that their necessity only came about upon careful analysis of all records and consultations by their new Counsel.
General principles relating to amendments
 The amendment of pleadings is regulated by rule 52 of the Rules of Court and with specific reference to rule 52(9), which provides as follows:
‘52(9): The court may during the hearing at any stage before judgment, grant leave to amend a pleading or document on such terms as to costs or otherwise as the court considers suitable or proper.’
 The principles of amendments have been considered by our courts on numerous occasions. These principles are very clear and were summarized in a Supreme Court judgment of DB Thermal (Pty) Ltd and Another v Council of the Municipality of City of Windhoek2 wherein Maritz JA, Strydom AJA and O’Regan AJA stated the following:
‘ . . . The established principle that relates to amendments of pleadings is that they should be ‘’allowed in order to obtain a proper ventilation of the dispute between the parties … so that justice may be done’’, subject of course to the principle that the opposing party should not be prejudiced by the amendment if that prejudice cannot be cured by an appropriate costs order, and where necessary, a postponement . . . .’
 In I A Bell Equipment Company (Namibia) (Pty) Ltd v Roadstone Quarries CC3 Damaseb, JP, Hoff, J and Ueitele J held that:
‘ Regardless of the stage of the proceedings where it is brought, the following general principles must guide the amendment of pleadings: Although the court has a discretion to allow or refuse an amendment, the discretion must be exercised judicially . . .The overriding consideration is that the parties, in an adversarial system of justice, decide what their case is; and that includes changing a pleading previously filed to correct what it feels is a mistake made in its pleadings . . . A litigant seeking the amendment is craving an indulgence and therefore must offer some explanation for why the amendment is sought . . . A court cannot compel a party to stick to a version either of fact or law that it says no longer represent its stance. That is so because a litigant must be allowed in our adversarial system to ventilate what they believe to be the real issue(s) between them and the other side.’4
 A reasonably satisfactory explanation for a proposed amendment is strongest when it is brought late in proceedings and/or where it involves a change of front or withdrawal of a material admission. In the latter instance, tendering wasted costs or the possibility of a postponement to cure prejudice is not enough.5
 The court also pointed out that difficulty arises if the change of front is opposed by the other side. In that situation the change of front becomes the real issue between the parties and the court stated that although the court has no power to hold a party to a version it seeks to disown, it is entitled to hold it as being an afterthought and the fact that it has withdrawn late in the day a concession consciously and deliberately made or to change a front persisted with for considerable time in the life of the case. The explanation offered for the proposed change, or lack of it, may well go to credibility and the overall probabilities of the case.6
 Amendment of pleadings in our law has always been a contested terrain. It has always been a constant strife between two competing rights of that of the applicant, where such amendment is not mala fides, and a right by the respondent, where such amendment has a potential to prejudice that party. Centre stage to this is the court’s discretion to allow or refuse the amendment which epitomises the court’s primary object of allowing amendment is “to obtain a proper ventilation of the dispute between the parties, to determine the real issues between them, so that justice may be done”7. The court has a discretion to grant or refuse the amendment which must be exercised judicially. The court is inclined to grant the amendment where it is made in good faith. For the court to exercise its discretion in favour of granting the amendment, the seeker must demonstrate a measure of good faith.
 Good faith is one of the main issues raised by the plaintiff. Mr Heathcote argued that the plaintiff’s position is that the defendants are mala fides by giving a meaning to the wording of annexure “C”, which does not exist and is patently against the actual meaning of the document. In addition thereto there is no provision for lifestyle village.
 I am however of the considered view that the matter is not quite as simple as that. Mr Heathcote impressed on the court that the issue of annexure “C” and the wording thereof is not an issue for interpretation, as on the affidavit of Mr Swartz, the town planning expert, it is a mistake made by KRC and if that is the case then the matter is one of a mistake and not an issue for interpretation. However the document which appears to be attached to annexure “C” under the heading ‘Motivation for the Development of a Life Style Village on Portion No.8 of the Farm Aris No 29’ refers to the development of a lifestyle village and not a retirement village. Should one read the documents in conjunction with each other, then questions arise as to the approval of the defendants’ application and what was approved. In addition thereto there appears to be a number of legislative instruments to be considered within which the context of annexure “C” needs to be considered and interpreted. This is an issue that can surely only be resolved during trial after having heard evidence in context and with reference to the surrounding circumstance of the granting of the approval.
 The plaintiff’s complaint in raising the issue in respect of the approval as contained in annexure “C” raises a legal argument as regards the terms of the approval by the KRC as well as the interpretation thereof. I remain of the view that the best forum to argue it is rather before the trial court itself.
 The explanation by the defendants for the proposed amendment is that its new counsel considered the advice by the Town Planner and had to bring their plea in line with the advice received. There is nothing sinister about this. It happens as a daily occurrence that parties wish to amend their pleadings as their case progresses and new information comes to light.
 Having considered the very able arguments by counsel I cannot find any mala fides on the part of the defendants in bringing the application to amend its plea nor can I find that counsel’s interpretation of annexure “C” is mala fides.
 On the issue of prejudice the plaintiff’s counsel contended that there will be obvious injustice to the plaintiff and submitted that if it had been informed by defendants that annexure “C” referred to anything else but a retirement village it would approached the matter differently and would have objected to a development other than a retirement village. However, the decision by the KRC approved the motivation of the defendants some 13 years ago with a letter referring to a retirement village. It is common cause that the KRC issued annexure “C” and it is common cause that the annexure “C” was issued following the motivation. Reference is made interchangeably to lifestyle village and retirement village in the documents attached to annexure “C” in the pleadings. I am of the considered view that even if the defendants pleaded with reference to a lifestyle village from the onset, it would not have placed the plaintiff in the position to act by noting an appeal or a review to the decision of KRC. The position of the plaintiff will remain unaffected even if the defendants are granted leave to effect the intended amendments. As a result I can find no merits in the complaint by the plaintiff that it would suffer substantial prejudice because of the intended amendment.
 I do not regard the withdrawal of the admission as an afterthought as the position of the defendants was clear from the time of the filing of the motivation for the approval sought from the KRC and this position was strengthened by the further advice obtained from the Town Planner and counsel employed. Although a considerable period of time has passed since the inception of this case, because of various factors, we are yet to reach case management conference stage in this matter and the granting of the amendment will not cause any undue delay.
 I am satisfied that a reasonable explanation was advanced for the proposed amendments and having considered the papers before me I am satisfied that there is indeed a triable issue between the parties and that the proposed amendment should be allowed.
 The remaining issue to decide on is the issue of costs. It is common cause that in terms of rule 54(8) the party giving notice of the amendment will be liable for costs unless the court decides otherwise. I am in agreement with Mr Marais that the plaintiff was entitled to raise objections and that the defendants must be liable to carry the cost up to when the application was served but then it must have become abundantly clear that there is a triable issue between the parties as discussed earlier. To then persist with the objection to the defendants’ application would be unreasonable. From that point onwards the plaintiff should be liable for costs.
 This application is interlocutory in nature and I am of the view that the costs should be limited in terms of rule 32(11).
 My order is therefor set out above.
Note to the parties:
Adv R Heathcote
On the instructions of
Engling, Stritter and Partners
Adv J Marais
On the instructions of
Fisher, Quarmby and Pfeiffer
1 ’5(5)(a)(iii) Should the Minister decide that the establishment of the proposed township is desirable and necessary, it shall refer the application to the Board and thereupon the Board shall publish, once in the Gazette and once in such newspaper or newspapers as the Board may deem fit, a notice that such an application has been received and is open for inspection at the office of the Director of Local Government and at such other places (if any) as may be stated in such notice.’
4 Supra para 55.
7 Cross v Ferreira 1950 (3) SA 443 (CPD) at 447.