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Appendix A
Skeletal Advice on Evidence for the Plaintiff

Advice on evidence for the plaintiff

1. Introduction
Every story has to start somewhere: a brief outline of how the case came about, and when it is on the roll. For example, in
a collision matter, you might say that two vehicles collided with one another within the intersection of whatever streets on
whatever day, that arising out of this A sued B for the damage to his vehicle, B in due course counter-claimed for his own
damage and the matter is enrolled for trial on whatever day and, finally, that you have been asked to furnish A with an
Advice on Evidence.

2. Analysis of the pleadings

2.1 Common cause issues
List them, point for point.
2.2 Disputed issues
List them also, point for point. Some of them might be quite immaterial and if so, you can say so. Some of them will
be easily established in the evidence of the plaintiff, and you can say so here and not deal with them again. But the
usefulness of this part of the Advice is that you force yourself to establish precisely what issues are in dispute, and
which are material.
You might already at this stage, when dealing with disputed issues, have made notes for yourself further on under
following sub-headings. For example, in a collision case where locus standi is in dispute, you might now already have
made a note under 5.1 to obtain and discover the documentation relating to the credit purchase of the vehicle and
under 6 to give rule 35(9) notice thereof.

3. Discussion of the issues, and of the burden of proof

A logical point-by-point discussion of the material issues:
Firstly, discuss who bears the burden of proof? (In some cases that is so obvious it really seems foolish even to mention
it, but in other cases not).
Secondly, how do you propose going about proving those issues on which you bear the burden of proof?
Thirdly, discuss what tactics the defendant’s will probably adopt? (In some instances it is pointless or simply too
speculative to deal with this, but in other cases it is imperative to bear in mind that there are witnesses C, D and E who the
defendant probably will want to call. What will they likely say? How will you counter what they say? How credible are they
likely to be).
Fourthly, discuss not only the issues and their likely outcome, but also steps that need to be taken in order to investigate
those issues and prepare thereon which will not necessarily be dealt with under the other sub-headings or which in any
event are best logically also discussed here. In a collision case, it is usually best to visit the scene and consult there with
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witnesses. If so, say so, say more or less when you think the inspection should be arranged for, and who should be
present. If experts are necessary, describe which experts, and make recommendations. If a range of people have to be
consulted with, identify who needs to be consulted with, whether they should be best consulted with alone or together with
other witnesses, and make recommendations in this regard.
The aim is that when your attorney — and if he so decides, the client — has finished reading your discussion in paragraph
3, he will have a good idea how the matter looks, and how it is likely to pan out. You might for example find yourself here
ending with the conclusion that the case is bad and should be settled at best. If that is the way it is, the sooner your
attorney — and the client —knows, the better. If you are acting for the defendant this may be the appropriate stage to
discuss the possibility of making a tender.

4. Separation of issues in terms of rule 33(4)

Your discussions at 2.2 and 3 will lead you to the conclusion here. Should issues be separated or not? If so, what issues? If
you don’t want to separate but the other side do and launch an application, how likely are you to defeat that application? All
of this needs to be considered here.
See in this regard the question of duration as discussed in paragraph 8 below.

5. Discovery
5.1 Discovery by the plaintiff
Your discussion at 2.2 and 3 above will have led you, while dealing with that, to making points of specific documents
that need to be discovered. You will list them here.
Remember, discovery is generally the key to postponement. You want to impress on your attorney the importance
of timeous and comprehensive discovery.
 It might be that your attorney has already made discovery. If so, study the discovery, compare it with your notes
as to what needs to be discovered and advise him (invariably) as to what needs to be supplementarily discovered.
While making a note of the items that need to be discovered, it will also be a good idea that under 6 below you are
also making a note of those items of which rule 35(9) notice should be given.
5.2 Discovery by the defendant
This is not a matter of doing the defendant’s work. There might be documents that you would want to inspect that will
be in the possession of the defendant. Here you list only those documents that are important to your client. If the
defendant has already made discovery but has not included them or all of them, then:
• to the extent that they are discovered, request your attorney to ask for copies from the other side or the right
of inspection;
• to the extent that they are not discovered, point out that they should have been and refer to 6 below where you
will list a rule 35(3) notice. Point out that it must be insisted that the answer to the rule 35(3) notice must be on
oath. Cases have been lost through ill-considered rule 35(3) answers under oath, bearing in mind that it is
generally the litigant who will have to depose.
If the defendant has not yet made discovery, a rule 35(3) notice is not appropriate. Request your attorney to address
a letter to the other side calling upon them to make discovery and to include the documents in question therein, and
tell your attorney that should they then make discovery and not include all of those documents, those
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that they do discover must be inspected/copied, and those that they don’t must be dealt with by way of rule 35(3).

6. Notices
6.1 Rule 36(10). See the discussion of this rule in chapter 6 above. Consider whether a rule 36(10) notice is required, and
if so, of what documents. List them. It is no guide for you to simply suggest that the attorney should give rule 36(10)
notice. You must tell him what he must give rule 36(10) notice of.
6.2 Rule 35(9). The same comments apply. Do not simply suggest that rule 35(9) notice be given. Stipulate of what
documents it must be given.
6.3 Section 22 of the Civil Proceedings Evidence Act 25 of 1965. Again, be specific.
6.4 Section 30 of the Civil Proceedings Evidence Act 25 of 1965. Be specific.
6.5 Rule 35(3). Be specific.
6.6 Rule 36(9). Be specific.
6.7 There might be other rules to which you would want to refer. Whether that is so or not ought generally to arise out of
your discussion of the issues in paragraph 3.

7. Witnesses
Deal with the witnesses you propose calling. Some you will say ought to be reserved and might or might not be called
depending on how others do. Deal with the order of witnesses so that your attorney can arrange things with them. Deal
with which witnesses need to be subpoenaed, and which need merely to be reserved. Deal with subpoenae duces tecum in
terms of rule 38(1). Go so far as to suggest which subpoenae need to be accompanied by a nice letter explaining the need
for the evidence, apologising for the inconvenience and perhaps offering to accept copies of the documents rather than
forcing the recipient to deliver them to the registrar etc., and which do not. Ultimately, the aim is to win, and recalcitrant and
angry witnesses generally don’t help you win.

8. Estimated duration of the hearing

Your discussion in paragraphs 3 and 7 above will have given you some idea of how long the trial is likely to take. Now you
can say how long the trial is likely to last.
In some Divisions (such as for example Pretoria and Johannesburg), early and advance notice must be given to the DJP if
a trial is likely to last longer than a certain number of days, and a judge might well not be allocated if that notice is not
given. In yet other Divisions, matters are set down for a specific number of days — which, if you represent the defendant
and if the plaintiff will have to begin, might be advantageous in that you will have forced the plaintiff to lay his cards on the
table before the matter runs out of time and has to be postponed. But part-heard matters are expensive and inconvenient,
and if it is clear that the matter will definitely run for longer than the allocated number of days, the sooner this is known and
dealt with, the better.

9. Pre-trial conference
Do you want an early pre-trial conference, or one closer to the date? I am perhaps nothing more than a creature of habit,
but my experience has been that early pre-trial conferences usually achieve nothing because neither party has all the chess
pieces on the board yet.
In each instance, the particular practice of the particular Division has to be borne in mind.

10. Recommended steps

Attorneys are generally as busy as counsel, even more so. Your attorney should carefully study your advice, but he might
not. Apportioning blame afterwards doesn’t help. It’s
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useful to have a final paragraph like this where you list the steps that need to be taken in the order they need to be taken.
In 2.2, for example, you might have said that you have drafted (and enclose) a rule 21(2) request for further particulars
aimed at forcing the defendant out of cover on a number of issues. Then that will be repeated here (‘The enclosed rule
21(2) request for further particulars for purposes of trial must be served and filed as soon as possible and a timeous and
proper answer thereto enforced. A copy of the answer must please be furnished to me as soon as same is received by my
instructing attorney’). In 3 you will have listed steps that need to be taken in preparation for trial (consult with this person
and that person, go to the scene with this and that person, take photographs, draw up a sketch plan, bring in this-and-this
expert, etc.). While you were doing that, list those points here so that there is a point-by-point outline of precisely what
must be done, more or less in the chronological order in which it must be done. In 4 you might have suggested that your
instructing attorney address a letter to the other side insisting upon a separation and notifying the other side that if they
don’t agree within a specified time, a substantive application will be brought. Then list it here. And so on.
You might find it more useful, rather than listing the steps in a paragraph, to have a separate annexure listing in point
form what is required of the attorney. Whatever route you take, it should be the one that you believe is most suited to the
aim of the advice, which is to timeously and practically advise your instructing attorney as to what needs to be done in order
to prepare properly for trial in the matter.
DATED at JOHANNESBURG on this the 15th day of DECEMBER 2009.