Judgment No. SC 24/18
Civil Appeal No. SC 455/16
are themselves. It is not part of the duty or function of the court to enter upon
any enquiry into the case before it other than to adjudicate upon the specific
matters in dispute which the parties themselves have raised by their pleadings.
Indeed, the court would be acting contrary to its own character and nature if it
were to pronounce upon any claim or defence not made by the parties. To do
so would be to enter the realm of speculation. … Moreover, in such event, the
parties themselves, or at any rate one of them, might well feel aggrieved; for a
decision given on a claim or defence not made, or raised by or against a party is
equivalent to not hearing him at all and may thus be a denial of justice. The
court does not provide its own terms of reference or conduct its own inquiry
into the merits of the case but accepts and acts upon the terms of reference which
the parties have chosen and specified in their pleadings. In the adversary system
of litigation, therefore, it is the parties themselves who set the agenda for the
trial by their pleadings and neither party can complain if the agenda is strictly
adhered to.” (my emphasis)
25.7
The authors Cilliers AC, Loots C and Nel HC in their text Herbstein and Van
Winsen, The Civil Practice of the High Courts of South Africa (5th edn, Juta and
Co. Ltd, Cape Town 2009) quote the following passage from Halsbury’s Laws
of England, 4th edn (Reissue), Vol 36 para 1 in which the function of pleadings
is said to be,
“… to give a fair notice of the case which has to be met and to define the issues
on which the court will have to adjudicate in order to determine the matters in
dispute between the parties. It follows that the pleadings enable the parties to
decide in advance of the trial what evidence will be needed. From the pleadings
the appropriate method of trial can be determined. They also form a record
which will be available if issues are sought to be litigated again. The matters in
issue are determined by the state of pleadings at the close if they are not
subsequently amended.” (at page 558)
25.8
In Farrell v Secretary of State for Defence (1980) 1 All ER 166 at page 173,
Lord Edmund-Davies stated as follows,
“It has become fashionable these days to attach decreasing importance to
pleadings, and it is beyond doubt that there have been times when an insistence
on complete compliance with their technicalities put justice at risk, and indeed,
may on occasion have led to its being defeated. But pleadings continue to play
an essential part in civil actions, and although there has been … a wide power
to permit amendments, circumstances may arise when the grant of permission
would work injustice or, at least, necessitate an adjournment which may prove
particularly unfortunate in trial with a jury. To shrug off criticism as ‘a mere
pleading point’ is therefore bad law and bad practice. For the primary purpose
of pleadings remains, and it can still prove of vital importance. That purpose is
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