Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Preface

Preface

The purpose of this book is to inspire confidence in legal practitioners who want to develop their drafting skills to
the point where they are no longer tied to precedents or tempted to outsource the drafting of documents.

This is an instruction manual; it tells you what to do and how to do it. I have therefore written it in an informal and
easy­to­read style and focused on practicality. There is a logical sequence to all the explanations made, the point
being to emphasise that writing is about thinking: lawyers do not put pen to paper without thinking. While this
book is certainly about writing, it never loses sight of the fact that there is a process of thinking that precedes
writing.

This book is also meant to encourage you to write. This is a skill you must master before you can call yourself a
competent practitioner. I set out to encourage you to develop this skill. Writing need not be a terrifying prospect ,
and you will actually enjoy writing on your own. You have the potential to become a great writer. Do not waste it!

Over the past twenty­five years, I have been teaching practitioners to write. Each time I present a course, I learn
something new. For me, teaching is as much about learning as it is about skills transfer. As the years have gone by,
I have continued to learn and to improve my teaching methods. This book is a product of twenty­five years of
teaching. I am grateful to all those practitioners who attended my courses; without them this book would not have
been possible.

The book is designed to provide incremental learning from one paragraph to the next. So, to make the most of it,
start with the first chapter and then move on to the next. It is equally important for you to attempt each case study.
The best advice I can give you is to have a go! As is the case with all acquired skills, you just get better with
practice. It is also more fun.

Can you start writing on your own? Yes, you can!

Ismail Hussain SC
October 2019

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Dedication

Dedication

To my precious family

Fazila, Fehmidah, Ebrahim, Yusuf, Noah and Aidan

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Acknowledgements

Acknowledgements

This book was made possible by the assistance and encouragement of a number of friends and colleagues. For
many years I presented writing courses for LEAD, which enabled me to travel around the country, meeting and
interacting with practitioners. I must therefore acknowledge the role LEAD played in the production of this book. It
is with a sense of sadness and loss that I remember my friend and colleague Hendrik Jacobus Nicolaas Swart
(known to his friends as Nic), who encouraged me to start teaching and made sure that I was kept busy teaching
practitioners. He was also behind the publication of my first book. Nic was dedicated to the profession and
committed to providing better legal services to the public.

Margaret Scroope wrote the introductory chapter, on plain English. She is an inspiration to many young practitioners
who attend her courses and her approach to teaching is refreshing and relevant. These qualities come out in her
writing. Her chapter is an appropriate start to the book. I appreciate her assistance.

A number of people have sacrificed their time to assist me. Kagiso Mokoduo, director of MED Attorneys, helped me
with the medical negligence claims. Advocate Nic Tee of the Johannesburg Society of Advocates read and edited the
chapter on drafting particulars of claims. I am grateful to both of them for their kind assistance.

Sumantha Reddy of LexisNexis was involved in every step of the publication of this book. She is calm, efficient and
knows how to use quiet persuasion. But for her I would probably still be debating and planning the book in my
mind. Thank you for taking this book from a mere idea to published reality.

Finally, I must thank my editor, Marj Guy, and the other highly professional people at LexisNexis , who took my rough
writing and patiently turned it into material worthy of publication.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ List of case studies

List of case studies

Particulars of claim

Case Study One Contract and delict

Case Study Two Contractual dispute including a claim in delict
Case Study Three Personal injury claim ­ medical negligence
Case Study Four Medical negligence
Case Study Five Contract and delict
Case Study Six Contract ­ formation of contract

The plea

Case Study Seven Plea and plea over, pleading duress and prescription
Case Study Eight Plea to a contractual and delictual claim

Particulars of claim

Case Study Nine Two­part notice of motion

Case Study Ten Urgent interdict
Case Study Eleven Anton Piller ­ search and seizure
Case Study Twelve Review application

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Introduction

Introduction

by Margaret Scroope

Oh my
You have such big words
Oh my
You have such long sentences
Oh my
I don't understand this
Oh my
You charged me for this.

[Page 1]

Being able to write a legal document is an essential skill. One cannot be effective as a lawyer when you lack writing
skills. An effective lawyer is one who communicates in a manner that is persuasive. This includes writing in a manner
that is persuasive. Do not think that you can start practising, armed with an LLB and a set of precedents. Our courts
discourage the use of precedents and expect practitioners to plead the peculiar facts of their client's case. Case­
managing judges will insist on being able to see, from a reading of your papers, exactly what the nature of the case
is and what the triable issues between the parties are. The judge needs to know what happened according to your
client's version of the facts. Now you know why precedents do not assist you to draft persuasive pleadings.

What is the problem?

Why the reluctance to draft on your own?

The problem stems from

? habitual reliance on precedents

? poor literacy skills

? lack of confidence and

? lack of method.

In this book we intend to provide you with the skills you need to start drafting without the use of precedents. The
object is to make you confident enough to write on your own. Your skills and confidence will improve the more you
write. Here we not only tell you how to write but also what to write. The instruction is practical and easy to follow.
Each skill set has a check list to assist you when you draft on your own. You also have access to an electronic
platform which can be used as a guide.

Once you perfect the art of drafting for litigation or dispute resolution, you may consider yourself competent to write
any document. It is a transferable skill.

The challenge is to get you started. We intend to show you how. Remember that your writing will be intended for a
judicial officer and the onus is therefore on you to produce work of a high professional standard. That is why we
give you many examples [Page 2] and detailed explanations in this book. In order to benefit and learn the basic
skills, you are expected to work through the drafting exercises at the end of each chapter.

Just remember that even the most skilled drafters rarely, if ever, get it right the first time. You will begin with an
outline that will lead you to your first draft. Thereafter a process of careful refining takes place, draft after draft, until
the final product emerges. This requires hard work and enthusiastic application. In this book we show you how to
achieve this.

It is worth pointing out that every time you outsource the work, you lose up to two thirds of the fee. This is not
sustainable in the long run.

How to use this book

This book is intended to provide incremental learning. Start with the first chapter and work your way forward. The
object is to understand the basic concepts first before moving on to the actual drafting skills. You will benefit by
completing the case studies at the end of each chapter before moving on to the next one. Take your time and apply
the techniques recommended in this book and you will be able to draft without habitually looking for a precedent.
You learn by understanding and doing. The object is to understand the methods explained in each chapter before
moving on to the next.

To this end we did not write this book in an academic style. There are few references to case law and other
authorities and the tone is informal; much like the manner in which I present my drafting seminars and workshops.

You will thus find that some concepts are repeated in various chapters. This is a training manual and you should
expect some repetition. The idea is to make the instruction user­friendly without having to repeatedly cross­
reference you to previous paragraphs.

Yes, you can!!!

You can do this. I often come across practitioners who convince themselves they cannot do this. Yes, you can!!! Just
apply the basic techniques and have a go yourself. The more you write the better you become and the more
enjoyable the task becomes.

Some basic techniques

The answer is in the facts.

Before you put pen to paper, there are certain basic steps to be taken, without which you will not draft well.

At university we were taught law. Various branches of the law were presented and we learned general principles
and where to find the law. This is an essential skill. However, in practice, it is not the law that is most important but
the facts.

We begin by showing you how to gather and analyse facts before you begin to draft. The first chapter of this book
is dedicated to the techniques that enable you to have a thorough understanding of all the available facts before
you draft. Under the new case­management regime introduced in our courts, you are expected to be familiar with all
the available facts at an early stage. Your knowledge of the facts will come under scrutiny at an early stage when
you attend the first case conference with a judge.

Having gathered and analysed all the facts, we show you how to present them in a manner that is persuasive. That
presentation is what this book is about: drafting pleadings, affidavits, heads of argument and opinions.
[Page 3]

The particulars of claim come from a precedent.

The plea is a bare denial.

You are of no assistance to the judge.

The trial date arrives.

What to do? What to do?

Postpone.

Naturally.

Why does this sound so familiar??

It is well worth considering that, contrary to what you may have heard, judges are people and most of them really
want to assist the litigants in their courts. They want to know what happened and how the dispute arose. It is your
object to present the judge with a compelling story ­ your client's story. Do not underestimate the benefit of being
able to tell a story. Tell the story in your drafting. Pleadings, affidavits and heads of argument do not have to be dry
precedent­based documents guaranteed to put off even the most enthusiastic of judicial officers. Your job is to
make the story interesting and persuasive. We show you how to achieve this.

Does writing documents scare you?

If the answer is yes, then you are probably going about the task in the wrong way. Being able to write well is a
discipline that requires you to work within a specified framework. It is a little like cooking and following a recipe. For
short documents such as a one­paragraph email it is possible to wing it, as if you were making a sandwich; but as
soon as you have a more complicated document you have to follow a process. In the same way, you can't hope to
create a complicated dish if you don't have a recipe and the right ingredients.

The recipe for good writing requires you to break the task into three distinct categories and then to deal with each
separately. The categories required are planning, writing and editing.

Planning removes the anxiety from the writing task

Never think that you do not have time to plan. Planning is the most critical step. The more time you spend on
planning, the less time you will need to spend on editing. 'More haste, less speed' is very apt here, as unplanned
documents very seldom attain their objective. Furthermore, once you have finished the planning session, you feel
empowered because you have a very clear idea of what needs to be said and done.

Good writing depends on good thinking

Before writing anything, it is extremely important that you truly understand what the objective of the document is.
This is your guiding beacon and needs to be referred to constantly when selecting your information. Very often
documents fail because the writer did not have a clear idea of what the document had to achieve. If you are
unsure, ask! Never undertake a writing task until the idea is crystal clear in your mind.

A good way to clarify your objective is by asking the question 'why?' For example, if you have a bad experience at a
hotel resort you paid in advance to stay at, you would probably write a letter to complain. Your objective would
clearly be to complain. However, if you think about it, why do you want to complain? Do you want an apology, or do
you just want to make the establishment aware so that they can improve their services, or do you want to get a
refund? In most cases, you want a refund. This will shape how you select your information, and you will need to be
much more specific about your complaints and the cost attached to them.

[Page 4]

Always consider your reader

A mistake that many writers make is that they write for themselves. They understand what happened and what
their issues are and often do not articulate them clearly to the reader. They make assume that the reader will know
what they mean or will understand the consequences of certain actions. If you have not written it down clearly and
explained your point of view, the reader will have no idea what you are complaining about.

Think about what the reader would need to get from a document so that they can understand it and take the
appropriate action. Have you been specific? For example, the resort manager would need to know the dates of your
stay and specific information about the people you dealt with etc. Anticipate what questions the reader would ask.
Ask yourself, 'If I were that person, what would I ask and what would I need to know?'

Be careful not to write 'in conclusion' and hope that the reader will know what you mean. For example, it is not very
helpful to make statements like 'The food was disgusting'. You are assuming the reader will know what makes
something disgusting for you. You need to state what your specific problem was: that is to say, there was no
variety on the menu, or the food was always overcooked and over­salted and generally served cold.

Be sure always to answer the question, 'So what?' Another general error is that we assume the reader will come to
the conclusion we have reached. If, for example, you complained that you had booked three rooms but only two
were available to you, don't expect the reader to know what the consequence of that was. Explain that you had to
book at another hotel that was 25 km away. Answer the 'so what?' Say that moving to that other hotel not only
cost you extra money for the room but also cost you in both time and petrol. It would be reasonable to want to be
refunded for that additional expenditure. Do not assume that the reader would have thought about all those issues
on his or her own.

Always ask yourself how familiar the reader would be with your subject matter. Consider how much you would need
to explain about your topic. Would it be appropriate to use your industry jargon, or would you need to make an
effort to simplify the jargon and general vocabulary?

Brain storm your ideas: We do not think in chronological order

Never get trapped into thinking you have writer's block if you don't know how to start your document ­ that will
come. Rather, on a piece of paper, brainstorm all your ideas that are relevant to your objective. In this case, list all
the issues you have to complain about. One idea triggers another, so put all your thoughts down, uninterrupted. If
nothing comes to mind, then perhaps you shouldn't be writing the document!

Let us go back to the cooking analogy: If you want to cook chicken à la king for supper, surely the first thing you will
do is consult the recipe for what ingredients are needed. You will then search your fridge and cupboards to see
whether you have the appropriate ingredients. We all understand that even if you are a chef of note, you will be
unable to produce chicken à la king if you have only a piece of beef and a few carrots in your pantry. Having the
correct and appropriate ingredients is vital to the success of the dish. In the same way, having the appropriate
facts and ideas are crucial to achieving your objective in your case. It is astonishing how many people feel that they
can leave out this step but would not do so when preparing a food dish.

A good document is always well structured and logical

Logic and structure do not happen by accident. Only once you have all your ideas in front of you, is it possible to
see shape and establish the most effective way to [Page 5] present your ideas. People tend to read less these
days, so we also need to ensure that we make our most important points while we have their attention. We need
to bear in mind that, in writing, we are not present when the communication is read, so we must ensure that we
walk the reader through a logical process so that they are with us every step of the way. This is a theme that
extends throughout this book.

Think of past, present, future

For many documents, if you think of your structure in terms of past, present and future, it will supply a basic
structure that is easy to modify, depending on the type of document you are writing.

All documents need an introduction. Very often you will make some reference to the past as this creates a context
for the document and orientates the reader. It could only be one line referring to their correspondence or a phone
call, or it might be a longer paragraph. It is then very important that the writer state or imply his or her objective.
There are no surprises in business writing and, as a result of the introduction, the reader should be able to
anticipate what to expect in the body of the document.

The present is the main body of the document. It is here that the writer ensures that he or she achieves his or her
objective, by getting into the specific facts of the matter. Put each point in its own paragraph and be specific and
clear at all times.

All documents need a conclusion. Here, in the future stage, you, the writer, need to think about what you would like
the reader to do as a result of having read the document. You also need to consider whether it is appropriate to
include time frames if you have a specific request.

A document can be made or broken by your choice of closing statement. Very often we rely on clichés at this point,
but it is very important to consider the tone of the cliché. It is confusing, and sometimes amusing, when letters of
demand end with 'We trust that you find the above in order' or 'Your kind cooperation will be greatly appreciated'.

Create the recipe

With the above structure in mind, go back to your brainstorming piece of paper and see what information goes
where. Decide the order of your points and where they best fit. After your introduction, it is often a good idea to
start with your strongest point because readers can have a short attention span.

If ideas are not brainstormed first, people often just write in the order in which the ideas came to mind. Very
seldom, if ever, is this the most effective way. When we follow a cooking recipe, we know that we cannot just put
all the ingredients in a pot together and boil vigorously. We understand that we need to introduce different
ingredients and flavours at different times, and these are not random times as and when we find the ingredients.
The same is true of writing: you need to plan when to introduce your points.

Your plan will empower you

Even if English is not your first language, you will have empowered yourself to write as you now know where you
are going. By ensuring that all your points are relevant to your objective and that you have made a strong and
powerful argument you will feel ready to start writing. Because you have done all the thinking required, you can
now focus on your writing and create good and correct sentences. Amazingly the right words will come to you easily
as you now have an overview of the situation and are not writing your paragraphs in isolation.

[Page 6]
Often a lengthy document requires a great deal of uninterrupted time. This is a very rare luxury as we are
constantly interrupted throughout the day. If you have a plan, interruptions do not matter as much, since you don't
have to try pick up your train of thought again ­ you know where you left off.

Another significant advantage of having a plan is that you can time manage very lengthy documents and write them
over a series of days, rather than trying to do them in one sitting.

Planning is the key to good writing. Having a well­planned document is 90% of the way to having a well­written
document.

What constitutes good writing?

There are many misguided ideas and myths as to what creates a well­written document. Some people think that in
order to be professional they need to use very big words and disguise simple statements into elaborate sentences.
Many people are hesitant to write 'We received your letter', preferring 'We hereby acknowledge receipt of your
correspondence dated the 12th instant and have taken cognisance thereof'.

Good writing is measured by how easy it is for the reader to read the document and immediately understand its
message. In other words, you created a positive unloading rate. If the reader has to reread the document or is
distracted by mistakes, your document has a negative unloading rate and needs to be rewritten. There are
numerous factors that influence the unloading rate and these need to be kept in mind when writing. The key factors
are the subject matter in relation to the reader, use of correct vocabulary, writing in the active voice, correct
grammar and verb tense, the length of sentences, punctuation, and layout.

Let us have a look at these factors.

Subject matter in relation to the reader

Again, always write for your reader and not for yourself. Take the reader's needs into consideration and ask
yourself how familiar the reader is likely to be with the subject matter. This will influence the amount of jargon used
and whether you have to give more or less of an explanation.

Sometimes writers use acronyms and just assume the reader will understand them. It is always useful to write out
what the acronym stands for the first time you use it.

Often writers become lazy or write in a hurry and use random acronyms or abbreviations like 'wrt' instead of 'with
regard to' in their sentences, leaving the reader with the task of working out what is being said. This sends out the
message that the writer is just too busy to write things out, but assumes that the reader has the time to fill in the
words for them.

Similarly, if you are answering a business email on your cell phone, it is unacceptable to use 'sms speak'. 'C u
shortly' or 'gr8' is very unprofessional. Not using capital 'i' for 'I' and other similar shortcuts simply makes you come
across as ignorant and sloppy. The reader does not care what device you used to create your message; he or she
expects a clear and well­written message.

Use of correct vocabulary

We need to use vocabulary and language as a tool to communicate; not as a weapon to exclude people. Often
people hide behind vocabulary and use excessively big words to disguise the fact that they don't want to answer a
question clearly or don't actually understand the issue at hand.

[Page 7]

Rule number one is to use only words that you know and understand. Many people copy words that they have seen
in other people's writing without looking up the meaning of such words. They simply assume the reader knows
what the meaning is. As a result, I have seen, for example, the phrase 'in lieu of' in some very strange places. It is
obvious that the writer thought it meant 'in light of' or 'with reference to' rather than the correct meaning of 'in
place of' or 'instead of'. Keep your writing sincere and honest.

Do not believe that longer words are always better than shorter ones. Never use the thesaurus in an attempt to
find a longer word than the one you had in mind. The thesaurus does not explain the different emotions or shades
of meaning associated with the different word options. I was astonished when someone thanked me for my
'contemplativeness'. It took me quite a while to realise that 'thoughtfulness' was intended.

Often the shorter word has more impact. For example, when a warning of the dangers of smoking first appeared on
cigarette packs it read, 'WARNING: Smoking is detrimental to your health'. It soon became obvious that this message
had little or no impact. So, the warning was changed to, 'WARNING: Smoking can kill you' or 'Smoking can cause
cancer'. The simplified warning leaves one in no doubt about the dangers of smoking.

People also have a tendency to use too many words, unaware of the fact that they are repeating themselves.
Some common examples are
? please respond back
? we will revert back
? it was 6am in the morning
? while reversing backwards
? the table was oval in shape.

Sometimes people just use too many words out of habit. How many times have you seen
? please find attached herewith the documentation as requested
? kindly please be good enough to advise me
? at this moment in time
? I humbly request that your good self?

It would be a lot clearer and more direct if we simply stated

? please respond
? please advise me
? now
? please will you.

Spelling does count

Spelling can be the bane of people's lives. It is very distracting and off­putting to read a document that is riddled
with spelling mistakes. We are very fortunate to have the computer that often corrects spelling for us, but don't
relax and allow the computer to do all your editing for you. We know how embarrassing it is when we have used
the wrong spelling of a word in a sentence but because that wrong word exists the computer does not identify it as
a spelling mistake. There are many examples of this. The key is to entertain yourself and make up fun stories to
help you remember the correct spelling of a word for a specific sentence.

? When to spell a word with a 'c' and when to use an 's', for example, advice or advise, practice or practise,
licence or license and device or devise: as a sports­loving nation, many of us spend our weekends watching
sport. A common jingle [Page 8] on one of the sports channels is 'Super sport action'. So it is easy to
remember the 's' in super sport stands for action. An action in a sentence is a verb, so if the word is spelt with
an 's' it is the verb in the sentence.

? When to spell a word with a 'v' and when to use an 'f', for example prove or proof, and live or life: remember
'v' for verb, so the words with the 'v' are the verbs.

? When to use words like there or their and where or were: there and where are associated with places so
they have 'here' in them.

Making up associations like these makes it much easier to remember the difference and to check your spelling when
editing.

It is also important to learn to spell words that you use frequently in your area of expertise. It is very distracting
when you are writing to see words underlined in red. Frequently, we stop and correct these and this disrupts our
train of thought. It is therefore advisable that we learn how to spell the words that we use daily. A suggestion is to
look at the corrected word, see where you went wrong with the spelling and then to make up a story to help you
remember the correct spelling. This is more useful than trying to learn off by heart spelling rules in English as there
are so many exceptions that this just becomes confusing. Some examples of stories I made up to help me
remember the correct spelling are

? necessary: it is necessary to have one coat but two shoes; an easy way to remember that the word has one
'c' but two 's's

? accommodation: most people take a partner when going away, needing accommodation; therefore two 'c's
and two 'm's

? committee: committees like to duplicate everything! So two 'm's and two 't's

? successful: you are allowed two cups of wine (cc) and two snacks (ss) when you have done well. (This works
for me as I'm always on diet!)

Being able to identify the subject and verb in a sentence will also help with deciding on how to spell a word, for
example, many people are unsure of whether to use practise or practice in the following sentence:

Rugby pract____ is at 3 pm.

Often people opt to spell it practise as they think it is the verb in the sentence. You can check this by asking if
practise is the verb, what would the subject be? The only answer you could come up with is 'rugby practice' where
'rugby' qualifies the 'practice'. Therefore you know that 'practice' is the noun as it is the subject of the verb 'is'.

Active voice versus passive voice

There are instances when you deliberately need to use the passive voice when writing. Some examples are when
you are writing an investigative report or some other document where you need to create a very impartial and
neutral tone. However, for the most part, most of your documents need to be written in the active voice. Writing
and speaking are coming closer together, and when we speak, we automatically use the active voice. It would
sound rather odd if people said, 'you are loved by me' or 'weekends are enjoyed by me'. Writing and speaking in
the active voice makes the message more immediate as it is easy to understand who did what. In addition, if you
write in the active voice it is very easy to spot grammatical mistakes.
The active voice involves looking at your word formula when constructing your sentence. Your sentence construction
looks like this:

SUBJECT VERB OBJECT.

[Page 9]

Every sentence must contain a finite verb. If there is no verb, you have written an incomplete sentence. As you
know, the verb is the doing word or action in the sentence. In an active sentence, your subject will always come in
front of the verb. The subject is the 'doer' of the action, so will therefore always be a noun. Be aware though that
sometimes a whole phrase or clause could be the subject. Please note that not all sentences have an object, but I
define the object as the 'victim' because it is the noun to which the action was done ­ that is to say, the receiver of
the action.

Many grammar rules can be worked out if you are able to find your verb and then find your subject.

HINT: Your subject is in front of the verb. So when you are uncertain of a grammar rule, always find your verb by
asking: what is the 'doing word' in the sentence? (Keep in mind that 'is' is the verb 'to be' and 'has' is the verb 'to
have'.) Then ask 'who or what [verb]?' The answer is the [subject]. Then ask '[subject] [verb] what?' And that gives
you the object.

For example, 'The boy kicks the ball'.

Question Answer =

What is the doing word? kicks [verb]

Who or what [verb]? (in this case, 'kicks') The boy [subject]

[Subject] [verb] what? (in this case, 'The boy kicks') the ball [object]

Once you are in the habit of finding your subject and verb, many errors can be easily corrected.

Rule of concord

Many second­language speakers make mistakes with this grammatical rule. Concord is just a fancy word for
agreement. The rule states that the subject of your sentence must agree in number with the verb. In English, our
verbs can be singular or plural depending on the subject of the sentence:

Singular Plural

is are
was were
has have
works work.

As a generalisation, singular verbs end in 's' so try remember 's' for singular when dealing with the rule of concord.
We therefore say:

? The girl was sick.

? The girls were sick.

? The dog has been fed.

? The dogs have been fed.

There are a few tricky areas to look out for:

? 'I' always takes the plural form when you write in the present tense ­ for example, 'I have a wonderful family'
­ or use the verb 'am' ­ for example, 'I am happy today'. When writing in the past tense, the normal rule
applies as you would say, 'I was at the party yesterday'.

[Page 10]

? 'You' is another exception in that it always takes the plural form of the verb regardless of whether you are
talking about a single individual or a group of people. Thus, both these sentences are correct:

'You are a nice person.'

'You are a wonderful group of students.'

? The word 'none' has the effect of isolating a subject into its singular entity as 'none' means 'not one'.
Therefore it would be correct to say, 'None of these customers is prepared to pay the higher price'.

? Companies always take the singular form, even though they might sound like a plural. For example, 'Elliotts is
amazing', not are amazing. The same is true for collective nouns. One would say, 'a pride of lions is crossing
 the road'.

? The words 'neither' and 'nor' also keep your subjects separate, so you say 'neither John nor Mary is coming to
my party'. If the subject closest to the verb is plural then you use the plural form of the verb: 'Neither Mary nor
her children are coming to my party'.

? The same rule applies to 'either . . . or'.

Borrow versus lend

Many people get these two words confused, but the difference between them is really easy to remember. Loosely ,
they are merely verbs meaning:

? borrow ­ to receive;

? lend ­ to give away.

People get confused because they don't take note of the subject of these verbs and what action the subject is
doing. Therefore you would say 'May I borrow R50' as you would like to receive the money, or you could say 'Will you
lend me R50?' as you are asking the other person to give away R50.

Remember that borrow and me never go together, since it is questionable whether you want to go around saying
'Receive me'.

Pronouns

Finding your subject and verb once again will really help with your pronoun usage. It is useful to remember the
following:

Subject Object

I me
he him
she her
they them
you you
it it.

If the pronoun comes before the verb, you therefore pick the appropriate form under the subject column. Generally,
if the pronoun comes after the verb, it is likely to be the object so you would find the pronoun in the object column.
Often people get confused when there are other people in their sentence and tend to say things like, 'My brother
and me went out last night.' It should of course be 'My brother and I went out.' Regardless of whether or not your
brother was with you, you are the subject of the verb went and the subject would therefore be 'I'.

There are a few tricky instances where a pronoun looks as though it could be the object but is actually still a subject
of a verb that hasn't been written in the sentence. [Page 11] Correct English would look like this: 'She is more
attractive than I (am)'. So, if you are unsure, always check whether it would make sense to insert a verb after the
pronoun that comes at the end of a sentence. Also remember that you will always say, 'Between you and me'.

The reflexive pronoun

Reflexive pronouns are pronouns that end in ­self or ­selves. Often people are unaware of the rule, and as a result
this pronoun is very commonly misused. The rule states that a reflexive pronoun can only be used if it is the same
as the subject of the sentence. Therefore it is correct to say:

I love myself
She baked the cake herself although she is only four years old.

People often use 'myself' instead of 'I' or 'me' simply, I suspect, because it is a longer word. So, it is common to see
sentences like this, 'Please contact Joan or myself on 011 637 8181'.

Once again, finding the subject and verb make it easy to correct this sentence. The verb is contact. Initially many
people struggle to find the subject because it is not actually written in that sentence; it is an implied subject. The
subject is the reader. (Remember that when you write an email or letter you are addressing your correspondence
to the relevant person. There's no need to keep repeating the reader's name: he or she already knows you are
addressing him or her.) Therefore you would replace myself with m e because it would be the object in that
sentence.

Verb tenses

It is very important that you keep your verb tense consistent in the body of your writing. If you do not, it becomes
very confusing for the reader. I think some people find this difficult because they are only using the three simple
tenses when in fact there are twelve tenses available to us. It is actually much easier to use these tenses than we
think if we start from what we know and move from there. Most of us understand our simple tenses:
 Often a past tense verb ends in ­ed or 't'.
Past tense
was, were, had Spend and spent or send and sent are confusing. The
words that end in 't' are in the past tense.

Present tense
is, are, has, have Send and spend are your present tense verbs.

Future tense T o c r e a t e t h e f u t u r e t e n s e y o u p u t s h a l l o r will

will send, will laugh together with a present tense verb.

The conditional tense can often be used interchangeably with the future tense. The verbs could and would are part of
the conditional tense. There are three main areas where we would choose to use the conditional tense:

? When you are dreaming or projecting into the future something that is not definitely going to happen, or when
you are giving advice to someone. For example, in reply to 'What would you do if you won 10 million rand in
the Lotto draw?' you would say that perhaps you would resign from your job or that you would take an
extended holiday. You would almost certainly be wrong to use will because unfortunately it is highly unlikely
that you are going to win 10 million rand. When giving advice you might say, 'If I were you, I would tell him to
leave'. As you are not the other person, you would use the conditional tense.

[Page 12]

? When trying to create a softer tone, we automatically choose would or could as it sounds a lot softer than will
o r can. It sounds softer to say, 'Could you please give me a lift.' As opposed to, 'Can you give me a lift,
please.'

? When your work is written in the past tense and you need to make reference to the future tense you would
write in the conditional tense. This would be the case with formal minutes, for example. Minutes should
always be written in the past tense because they are a record of what was discussed or decided. Therefore, if
at a meeting I say 'I will organise the next training session', the minutes should state that 'Mags said that she
would organise the next training session'.

In order to create our next set of tenses we are just going to add a past tense verb (or participle) to our three
simple tenses. This is known as creating the perfect tenses.

When in a sentence you have two events that

Past perfect tense happened in the past, the one that happened first
had worked gets the past perfect tense. In other words it allows
had had you to understand the sequence of events.
had left
Tim had left by the time Bob arrived.

It is almost impossible to write correct English without

using this tense: it allows the reader to see that the
situation is still current although it started sometime
Present perfect tense in the past.
has worked
have driven I have had the same car for ten years now.
I have worked at the same school for a decade
already.

We use this tense to predict what we will have

achieved at a certain time in the future.
Future perfect tense By the time I leave America, I will have seen the
will have visited Grand Canyon and will have gambled in Las Vegas.
will have completed
By this time next year you will have completed your
degree.

To create the next three tenses which are known as the continuous tenses, all we will do is add a present participle
(words that end in ­ing) to our simple tenses.

Normally we use this tense when some event in the

past was interrupted.
Past continuous tense
was singing He was singing when the building exploded.
was walking
He was changing a light bulb when he fell off the
ladder.

This tense indicates that this is what the person is

Present continuous currently doing and it is on­going.
tense
is singing She is working at the Law Society.
is working
She is singing and I wish she would now stop.
 This indicates what a person will be doing in the
Future continuous future.
tense
will be singing She will be singing at the concert tomorrow night.
will be working
As from next month, she will be working at the firm.

We then can add the continuous tense not only to our simple tenses but also to the perfect tenses. So we will just
be adding an '­ing word' to our perfect tenses to create the perfect continuous tenses.

[Page 13]

Past perfect
continuous tense He had been talking about leaving the company but
had been reading, we never actually thought that he would.
had been talking

Present perfect
continuous tense
has been talking, She has been working at the firm for 20 years already.
has been working

Future perfect
continuous tense She will have been working for 20 years this
will have been working, December.
will have been singing

Knowing and understanding these verb tenses will assist you in keeping your original verb tense throughout your
paragraph.

Tom is a writer. He writes mystery novels and poetry. He has been writing since he was 16. Altogether he has
written five novels and three poetry anthologies. By using these different forms of the present tense, I am able to
keep the entire paragraph in the present.

Length of sentence

One of the biggest factors that inhibit readability is the length of the sentences. As a rule of thumb a sentence
should not really exceed 25 words. No one has time to count the number of words that they use per sentence, but
it is easy to see at a glance when your entire paragraph is one sentence. If you are battling to read your entire
sentence with one breath, then your sentence is probably too long. There are a number of factors that cause a
sentence to become too lengthy.

? Sometimes we just use too many words that actually are not adding any value, for example, 'Attached
herewith please find the document as aforementioned and please pay close attention to the second
paragraph therein.'

? Often people feel that they write long sentences because they are dealing with one idea and therefore don't
feel they can break their sentence. However, remember that is why we have paragraphs. Paragraphs are
about one idea or one aspect of an idea. They are made up of sentences that support one another. By
starting sentences with words like 'however' or 'in addition' it is easy to show the connection between the
sentences. A good tip is to look at a long sentence and see where a complete thought has been created and
put in a full stop. The connecting words will actually come to you naturally.

? The most common cause of lengthy sentences is the comma splice. In other words people put in a comma
where there should actually be a full stop. A comma cannot ever replace a full stop. Once you have created a
complete thought and it makes sense, put in a full stop. For example, 'I got up late this morning, I did not
have time for breakfast'. This is incorrect. Rather say 'I got up late this morning. I did not have time for
breakfast'. There are other options: you could have used a semi­colon or a conjunction such as 'so'.

Punctuation

Having a good knowledge of punctuation is not an optional extra, it is vital to the readability of a document.
Punctuation marks are a bit like traffic signals as they show the reader when to slow down, take a detour, or stop.

[Page 14]

Full stop (.)

A full stop is used to signal the end of a sentence.

Colon (:)

If you have two clauses that need linking, use a colon. Whatever comes after a colon explicitly unpacks or develops
what comes before it. For example, 'I only had one reason to stay sitting: I was shackled to the chair'.
Colons also introduce lists.

Question mark (?)

The one important rule concerning the correct use of question marks is that they be used for direct questions only.
A common mistake people make in their emails is 'I hope you are well?', which is not a direct question. The writer
has simply made a statement about his or her hope and has not asked about the reader's health.

Hyphen (­)

The use of the hyphen has changed a lot. Where words were once hyphenated, we often do not bother any more.
This is especially the case with prefixes. We commonly write 'redo' rather than 're­do'.

The main function of a hyphen is to join two separate words and thus create a new compound word. This is
especially true if your compound word looks odd because it doubles up a vowel or a consonant ­ for example, 'anti­
intellectual' rather than 'antiintellectual'.

A hyphen can also remove ambiguities ­ for example, 'a man­eating fish' as quite different from 'a man eating fish'.

Brackets (( )) and square brackets ([ ])

Round brackets mark out parentheses. They isolate matter from the rest of the text, usually adding information that
is incidental to the main meaning of the sentence.

Square brackets are normally used for editorial reasons. They indicate where a piece of quoted text has been
amended or removed.

Quotation marks (' ' and " ")

Quotation marks (also called inverted commas) indicate direct speech or quoted material from a written text.
Whether you use single or double quotation marks is a matter of personal preference.

Apostrophe (')

The apostrophe is one of the easiest punctuation marks yet the most often misused. People tend to get over
excited when they see an 's' and just put in apostrophes where clearly they are not wanted. Some examples I have
seen are in words such as pizza's and pasta's. It is very off­putting.

There are two key rules governing the apostrophe:

? Contraction The apostrophe is used to show that you have shortened a word by leaving letters out ­ for
example, 'don't' is short for 'do not' and 'I'll' stands for 'I will' or 'I shall'.

? Show possession The apostrophe shows that something belongs to a particular person or thing. Note the
three sub­rules:

[Page 15]

­ If the word is singular and you need to show possession, you will add an apostrophe and an 's'. For
example, 'The girl's toys'. It is now clear that the toys belong to the girl.

­ If the word is plural and ends in 's' already (as most plurals do) and you need to show possession, you
just add an apostrophe after the 's'. For example, 'The girls' toys'. It is now clear that the toys belong to
many girls and no longer just to one girl.

­ If the word is plural but doesn't end in 's', and you need to show possession, then you once again add
an apostrophe as well as an 's'. For example, 'The children's toys'.

When dealing with people's names that end in 's', add an apostrophe 's' if you can say that extra 's' comfortably. For
example, 'Mr Jones's car'. If you cannot say it comfortably, just add an apostrophe as in 'Moses' rod' or 'Jacques'
book'.

? Alphabet letters Generally one would use an apostrophe after a single capitalised letter ­ for example, 'I
made straight A's'. This is also true for lower­case letters in a sentence like this, 'My a's look like u's'. Without
the apostrophes, the reader would see those words as 'as' or 'us'. However, when you have groups of two or
more letters (especially capital letters) apostrophes are not necessary. For example, 'There are five ATMs in
this mall'.

Note: Do not use apostrophes to indicate the plural form of a noun: 'CEOs', not 'CEO's' (the latter is the
possessive singular noun form of CEO).

? Time or money Amounts of time or money are sometimes used as possessive adjectives and require
apostrophes. It is easy to hear the apostrophe in the example 'in one week's time', but many people forget it
in the phrase 'three days' leave'. You would also use the apostrophe in the phrase 'my two cents' worth'.

? Be aware of the its/it's trap Use an apostrophe with the word 'it' only when you want to indicate a
contraction for 'it is' or 'it has'. It is a pronoun, and pronouns have their own possessive form that does not
use an apostrophe. For example, 'That noise? It's just the dog eating its bone.' This may seem confusing, but
it follows the same pattern as other possessive pronouns: his, hers, its, yours, ours, theirs.
Dos and don'ts of commas (,)

? Always check that after a complete thought you have used a full stop rather than a comma (refer to comma
splicing).

? Never put a comma between your subject and verb. It makes no sense to pause between the doer and the
action.

? In the same way, do not put a comma between your verb and the object in the sentence.

? Use commas to separate single items in a list.

? Use a comma after an introductory phrase or clause before you make your main clause or point. For example,
'After much debate, we decided to resign from the job'.

? Use double commas when introducing extra information into your sentence. Without the information that is
between commas your sentence will still make perfect sense. A useful tip revolves around the words, 'which'
and 'that'. 'Which' normally introduces extra information into your sentence, so you normally would use a
comma before 'which'. For example, 'The village, which is near the station, is 100 years old'. 'That', on the
other hand, introduces a defining clause so it never gets a comma in front of it. For example, 'The village that
is near the station is 100 years old'. In the latter sentence the writer has defined the particular village in
question.

[Page 16]

? Many of you will be familiar with the Oxford comma. This comma comes before the 'and' between the last two
items in a list in order to clarify that they are separate thoughts. For example: Punctuation marks are like
traffic signals. They show the reader when to take a detour, slow down, and stop. The use of the Oxford
comma clarifies for the reader that three separate movements have been described. Without the comma,
some readers may have thought slow down and stop is one idea as most of us slow down before we stop.

? When two complete sentences are joined by a conjunction such as 'and' or 'but' there is normally a comma
before the conjunction. Correct: He walked all the way home, and he took the stairs rather than the lift.
Incorrect: He walked all the way home and took the stairs instead of the lift.

? Use commas to set off expressions that interrupt the sentence flow (nevertheless, after all, by the way, on
the other hand etc.)

? Use commas to introduce or interrupt direct quotations. He said, 'I don't care'. 'Why,' I asked, 'don't you care?'

? Use commas to separate a statement from a question: for example, 'I can go, can't I?'

The semi colon made simple (;)

If you just remember two simple rules, your semi colon usage will be accurate.

? If you have two very closely connected sentences you might want to use the semi colon. E.g. Call me
tomorrow; we can discuss your answer then.

? Semi colons are used to separate phrases or clauses in a list especially when those phrases or clauses
already contain commas. E.g. My sister went to the shop and bought organic, free­range lamb; home grown,
pesticide­free spinach etc.

Exclamation mark (!)

Avoid using the exclamation mark in formal writing. They are unnecessary and make you appear over excited.

Do remember that punctuation is there to assist the reader in making sense of what you are writing. Therefore
make sure you understand which punctuation mark to use and keep it simple.

The ten commandments for effective legal writing

The rest of the book will re­enforce all the ideas already given above and give practical examples of how to draft
legal documents. In addition, please also bear the following ten commandments in mind at all times:

? consider your reader and write with that reader's point of view in mind

? write short sentences

? say what you have to say, and no more

? use the active voice

? use simple, 'everyday' words

? use words consistently

? avoid strings of synonyms

? avoid unnecessary formality

? organise your text in a logical sequence, with informative headings, and with a table of contents for long
documents

? make the document attractive and designed for easy reading.

[Page 17]

Where to from here?

Unfortunately, you cannot just apply the above principles and hope to be a master of your craft. To truly be
comfortable and proficient in English, you have to read! Reading work papers or the odd newspaper article does not
count. You need to immerse yourself in the joy of reading books. As Dr Seuss wrote, 'The more that you read, the
more things you will know. The more that you learn, the more places you will go.'

Most people normally respond by saying that they do not have time, but this is not actually true. We have become
lazy and 'unfit' when it comes to reading. We have so many distractions with social media and other instant forms of
gratification that we do not make the time.

Just as you have to train when wanting to run a marathon, so you have to train to become reading 'fit'. Reading
needs to become a habit, something you incorporate into your daily routine. First, pick a book that really interests
you. It is not necessary to labour through literary classics; one does not have to be a reading snob. Just read what
you find enjoyable and interesting. Often a good thriller is a good place to start.

Start by reading a page or two before you go to sleep every night. This soon will become a habit and you will find
that effortlessly you will start reading whole chapters before turning the lights out. Initially it takes a little discipline,
but like brushing your teeth every night, it soon becomes your norm. If you find a good book to read, the discipline
becomes being able to put it down to go to sleep!

If you have not yet tapped into the joy of reading, a whole new adventure awaits. You can travel the world, laugh
out loud, cry, and learn so much, all from the comfort of your own bed. A good book will suck you out of your reality
and transport you to so many different worlds. People may argue that it is easier to watch television or a movie, but
a movie can never be as exciting as a book because you are a co­creator with the author. You imagine the people
and places the words describe to you, and you see the images uniquely in your head.

I venture to say that all great leaders and people at the top of their game are avid readers. They are interesting
people with a broad knowledge of all sorts of issues because they are widely read. Warren Buffet has said that he
spends 80% of his time reading because this enables him to make informed decisions. Bill Gates revealed that he
reads around 50 books a year. Oprah Winfrey stated that she reads a book a month. If they can find the time,
maybe you could too.

Benefits of reading

Mental stimulation

The brain needs to be exercised. Reading is one of the best ways of delaying the onset of dementia and Alzheimer's
disease.

Stress reduction

The stress of your day simply slips away when you immerse yourself in a good book. Reading will also help you to
sleep better because you are not rehashing the details of your day or worrying about the day to come.

Knowledge

In life, almost everything can be lost, but knowledge can never be taken from you.

[Page 18]

Vocabulary expansion

Being articulate and well­spoken is always an enormous boost to your career, no matter what your profession.
People who are well­read, well­spoken, and knowledgeable on a variety of topics tend to get ahead more quickly.
Reading is also a vital tool when you are learning a language that is not your mother tongue: it exposes you to
words used in context and thus helps your understanding of words.

Memory improvement

When reading, you have to remember an assortment of characters, their backgrounds, ambitions, history, and
nuances, as well as the various subplots that weave their way through every story. We are able to do this with
ease when we are enjoying a book.

Stronger analytical thinking skills

Reading makes you evaluate different perspectives and ideas. Books are interpreted in different ways and can
make for interesting discussions. Reading also improves our emotional intelligence in that we learn to empathise
with many of the characters as we share their emotional experiences and perceptions.
Improved focus and concentration

Our attention is drawn in a million different directions as we multi­task our way through our day. Reading forces you
to focus on one task only, and the more you read the more focused you become in the work place.

Better writing skills

Improved writing skills go hand­in­hand with vocabulary expansion. We are influenced by reading well­written
books and articles, which this helps us write better.

Tranquillity

There is no greater peace than relaxing with a good book. Being outside, surrounded by nature, adds to the
tranquillity of taking time to recharge your soul.

Free entertainment

Make use of public libraries: they are free. Borrow books from friends and family and pass the joy on.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 1 The facts of your
case

1
The facts of your case

TABLE OF CONTENTS
1.1 Working with facts
1.2 Obtaining and analysing the facts
1.3 The case concept
1.4 It is about persuasion
1.5 Understanding facts and disputes
1.6 The Plascon test
1.7 Fact analysis
1.8 Think and act sequentially
1.9 Chronology documents
Chronology Document based on Case Study Two
Chronology Document based on Case Study Three

[Page 19]

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 1 The facts of your
case/ 1.1 Working with facts

1.1 Working with facts

We all know that every case begins with the practitioner 'taking instructions'. The very heart of this process involves
the client telling you the facts: what happened and what were the consequences for the client. You cannot proceed
with any form of dispute resolution if you do not know what happened according to your client's version of the facts.

There is no point in drafting any document until you are familiar with all the known facts of your client's problem.

Master the facts of your case, even before you send off the letter of
® demand.

Good fact management will assist you as you

? will understand what gave rise to your client's problem

? will be able to work out what area of the law applies to the case

? will be able to work out the material facts or the main incidents in your client's version

? will be able to work out your client's cause of action

? will know what to write without having to reach for a precedent and engage in wasteful copying and pasting.

We accordingly spend much time telling you how to manage the facts of your case before you put pen to paper. This
is a theme that persists throughout this book.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 1 The facts of your
case/ 1.2 Obtaining and analysing the facts

1.2 Obtaining and analysing the facts

Case concept
Let me hear from you.
Tell me.
What happened??
Now listen.

Before we deal with writing techniques, you must have an understanding of how to work with the facts of each
matter. There is no point in looking at the rules and techniques that tell you how to present the facts if you have no
understanding of the facts themselves. Note that, under case management, you are expected to know all the
available facts before you start litigation. You can no longer start litigation with only a rudimentary knowledge of the
facts. If you do, you will be embarrassed at your first case conference with the case manager (a judge or
magistrate).

Just try saying to the judge, 'I will take instructions and revert . . .'

This means you must consult fully with client and witnesses.

[Page 20]

Obtain signed statements from all of them. (The statement does not
® have to be under oath.) It is also important to obtain all the relevant
documents.

Do not wait until you are called on to discover before calling for documents. Documents are crucial to your case, and
you must review them all at an early stage. They will assist you in finding out what happened and how to present
proof of the facts in court.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 1 The facts of your
case/ 1.3 The case concept

1.3 The case concept

It is at this early stage that you begin to develop your case concept or theory of the case. What is expected of you is
to obtain all the available facts and work out what happened according to your client's version of the disputed facts.
You must be able to explain how the events of the case are likely to have happened. It is important for you to be
familiar with the facts giving rise to the dispute or issue.

Thomas Mauet defines 'theory of the case' as follows:

'Theory of the case is a logical, persuasive story of "what really happened". It is your position and approach to all
the undisputed and disputed evidence that you anticipate will be presented at trial. Developing a theory of the case
is the process of integrating the undisputed facts with your version of the disputed facts to create a cohesive,
logical position which illuminates the evidence in the most favourable light to your client.

This position must remain consistent through each phase of the trial. When, at the end of the trial, the trier of fact
is faced with the question, "what really happened?" your position must constitute the most plausible explanation.'

This is a useful definition, please read it over and over again and never forget it. Yes, read it again! You will be
reminded of this later.

You are guaranteed to make serious mistakes if you dare start writing without knowing what happened according
to your client's version.

How about a precedent then?

A precedent of your client's version?
Where do you find it?
There is no precedent?
How about asking your client?
Genius . . .
When you begin by obtaining all the available factual information and supporting evidence, it will be easier for you
to develop your theory of the case. If you encounter poor factual resources, where further instructions are not
helpful, or you have a rudimentary knowledge of what happened, you will not draft effectively.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 1 The facts of your
case/ 1.4 It is about persuasion

1.4 It is about persuasion

Think like a lawyer.

Ask not, what is true.
Ask not, what is possible.
Ask what is plausible.
Ask what is likely.
Ask what is probable.
More probable.
More persuasive.

[Page 21]

Your case concept is a persuasive and logical account of why and how the events of the case are likely to have
happened. Remember, to succeed you have to persuade the judge that your client's version is the likeliest account
of what happened.

It all begins with good drafting. The persuasion starts with a well­drafted set of particulars of claim or founding
affidavit. A well­drafted plea or answering affidavit is equally persuasive in telling the judge that your client's version
amounts to an effective defence to the plaintiff's claim.

You develop the case concept from the facts and the supporting evidence you gathered. From this you have to
formulate a cohesive and persuasive story to convince the judge that this is a true version of the events.

When working on what happened according to the client's version, you have to maintain some objectivity as a
lawyer. Where you do not find your client's version to be plausible or likely to have happened, put on the brakes.
Your client is going to lose. If you find the version improbable, you will not persuade a judge that it is.

Never develop your theory on a version of facts you find to be

® improbable. Never develop your theory on a version that is implausible
or palpably false.

Nonsense?
Yes, nonsense.
It will remain nonsense.
No matter how elegantly you draft it.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 1 The facts of your
case/ 1.5 Understanding facts and disputes

1.5 Understanding facts and disputes

Each party will have its own version of the disputed facts and usually this will form the basis of the issues between
the parties. The types of facts you will encounter are facts that are admitted or agreed, facts that are common
cause, facts that are disputed and facts that are undisputed.

Let us examine each type.

1.5.1 Facts that are admitted

Admitted facts are facts which a party does not dispute but agrees may be introduced as proof of a material fact.
This category includes facts conceded by your opponent which are therefore not issues in the case. At a case
conference it is usual for the parties to request 'admissions' by delivering lists of requested admissions in advance.
Our judges will not tolerate a party refusing to make an admission where there is no basis in fact for the refusal. If
you do refuse to make an admission, be prepared to explain why. If you have no understanding of your case
concept, you will not know what admissions to make and what must be refused as being an issue of fact.

Once you have obtained all the facts, write a list of the undisputed facts
and facts you agree with. This must also contain a list of those facts
that are material to your opponent and which you do not dispute. You
® will have to do this after pleadings close anyway; there is no harm in
 getting an early start. This list will also assist you in narrowing the
issues.

[Page 22]

1.5.2 Facts that are common cause

Facts that are common cause are facts the truthfulness of which is accepted by all the parties concerned. Such facts
will not require any proof. They are usually dealt with alongside the admitted and agreed facts.

1.5.3 Facts that are disputed

Disputed facts are facts which a party does not accept as true and will require proof. These facts represent a
version of facts which one of the parties relies on but which the other party does not accept as true. These facts will
require proof. Note that a denial of a fact must have a basis in fact for that denial. If such basis is absent, you will
have a 'bare denial' which is unhelpful and will not be tolerated. A party denying a material fact must be able to say
why the fact is denied.

A judge will not allow a defendant or respondent to raise 'fictitious' disputes of fact to delay the hearing of the
matter or deny the plaintiff or applicant its order. There has to be 'a bona fide dispute of fact on a material matter'.
This means that an uncreditworthy denial, or a palpably implausible version, may be rejected out of hand, without
recourse to oral evidence.

Again, write down a list of the material facts of your case which are in
dispute. This will assist you in drafting pleadings and affidavits. More
® importantly, this list will be consulted when you carry out a proof
analysis where you take each material fact and ask: 'How am I going to
present proof of the facts in a trial?'

Before we move on, you must not confuse 'disputed facts' and 'facts in issue'.

In all the cases you encounter there will be numerous disputes of fact. Some of these disputed facts will be crucial
to your case and will have to be proved to sustain your cause of action. These facts that your opponent will dispute
must be proved in law, become the facts in issue.

Consider a dispute over a contract. That the parties entered into a contract and agreed on the terms will not be
disputed, but the defendant will dispute that there was a breach of the contract. Defendant's breach will become
the fact in issue. The parties may also dispute the time when the contract was entered into. The plaintiff alleges it
was at 14h00 while the defendant avers that it was at 16h00. This dispute of fact is not material to the issue of
breach and is treated as a disputed fact, but it is not a fact in issue.

1.5.4 Facts that are undisputed

Undisputed facts are the agreed and admitted facts and also include facts which may appear, prima facie, to be
disputed but for the denial of which there is no factual basis or regarding which the denial is uncreditworthy. Such
facts will then be treated as undisputed facts. The undisputed facts, together with the admitted and agreed facts,
are crucial to a successful outcome. It is only natural for you to be concerned with the disputed facts, but the
undisputed facts are equally important to you and to the judge.

Note that the admitted and undisputed facts are absolutely vital to a
® lawyer (including judicial officers) as they assist in resolving disputes of
fact.

Judges consider the undisputed facts to work out which version of the disputed facts is more likely to have
happened, bearing in mind the surrounding facts of the case.

[Page 23]

Judges take the disputed version and test it within a framework of the undisputed facts by asking: Is this probable
or likely to have happened?

A further test is to ask if the undisputed facts support your client's

® version of what happened. If they do not, there is a problem.

Not probable.
No proof.
On a balance
Of probabilities,
You lose.

The undisputed facts are vital for your preparation to draft and to present evidence. This applies to both actions
and applications.

Make a particular note of all the undisputed facts because the undisputed facts
? are equally important in obtaining a successful outcome

? assist you in determining the probabilities

? are essential in developing your theory of case

? assist in establishing the actual issues or disputes

? are essential in resolving disputes

? help to determine which party's version is probable and therefore more persuasive

? assist you to draft persuasive pleadings and affidavits. Where your version is supported by the undisputed
facts, this is most persuasive1

? are essential to know for purposes of leading a witness in chief and for cross­examination.

Footnotes
1 We deal with how to draft this below.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 1 The facts of your
case/ 1.6 The Plascon test

1.6 The Plascon test

In Plascon­Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 2 the following rule was set out. In motion proceedings
where a dispute of fact arises on the affidavits, a final order can be granted only if the facts averred in the
applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the
respondent, justify an order.

See also National Director of Public Prosecutions v Zuma,3 where it was stated that it 'may be different if the
respondent's version consists of bald or uncreditworthy denials'.

This test relies on an analysis and application of the undisputed facts. The test also uses the technique of
considering if the version relied on by the parties is plausible or likely to have happened.

Consider the following authorities on disputes of fact:

? Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 4

? Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd.5

[Page 24]

Footnotes
2 1984 (3) SA 623 (A).
3 2009 (1) SACR 361; 2009 (4) BCLR 393; [2008] 1 All SA 197; 2009 (2) SA 277 (SCA) at 290F.
4 1982 (1) SA 398 (A).
5 1957 (4) SA 234 (C).

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 1 The facts of your
case/ 1.7 Fact analysis

1.7 Fact analysis

So far, we have emphasised that you must gather all the known facts of your case. So, what do you do with all this
factual information?

Before you litigate you need an understanding of the three most important basic concepts. I call them the three
pillars of litigation.

1.7.1 The three pillars of litigation

The first pillar

All disputes that go to court have two components:

? the facts

? the law.

All litigation is governed by two sets of rules:

? the rules of evidence

? the rules of procedure.

The first step in litigation or any other method of dispute resolution is:
® Get all the facts first. Look to the facts for an answer.

The answer, my friend,

Is blowing in the wind.
The answer is blowing in the wind.
The answer, my learned friend,
Is in the facts.
Forget it
And your case will be
Blowing in the wind.
With costs.

The second pillar

Basically, our courts use the adversarial system of dispute resolution. In the adversarial system note the following:

? litigation is adversarial

? there is an opponent

? there is an opposite view

? there is a dispute of fact and law

? there is a judicial official to persuade

? you win because you persuaded the judicial officer

? you persuaded the judicial officer to accept your version of the disputed facts.

Note that although adversarial litigation is avoided in, for example, labour disputes and family matters, sometimes it
is unavoidable. Also bear in mind the limited scope for judges to become involved in the matter.

Further, you should accept that our courts are moving away from excessive adversarialism, and case managers will
remind you of this.

Having a thorough knowledge of your client's facts will assist you in

® dealing with an aggressive opponent and is equally essential in
negotiating settlement.

[Page 25]

The third pillar

The third pillar is applicable when you are presenting the evidence, that is to say, when you are presenting proof of
your material facts.

All evidence must be

? relevant to the issues between the parties

? admissible in its form

? probable in relation to the facts.

® Do not present any facts that do not pass this test.

If you present the judge with a version of the facts that is improbable or implausible, your client will be disbelieved,
and your client will lose the case.

The facts that you present to the judge must be relevant, admissible and probable. Deviate from this and the judge
will not be persuaded, and your client will lose the case. Therefore it follows that when you set about drafting your
client's pleadings or affidavits the same rule applies.

Only draft a set of facts that is relevant to the dispute, admissible in its
® form and probable in relation to the facts of the dispute.

1.7.2 Why the facts?

Let us consider why the facts are so important.

Consider the following with regard to the facts:

? You will need the facts to establish a cause of action.

? 'Cause of action' can be defined as the facts the law recognises as giving you a claim.6

? You will need the facts to establish each element of the cause of action.

? You need the facts to identify the dispute.

? The facts will assist you to place the matter in legal context. Is it contract or delict or unjust enrichment?

? You will have to investigate all possible sources of fact.

? You will often be faced with a lack of factual resource. This will require further investigation from different
sources. Do not underestimate the value of good investigation.

? You will have to consider the admissibility and reliability of the source of facts.

? Do not accept everything that your witnesses tell you. Test the reliability and the probabilities of their
respective versions in relation to the dispute.

? At this stage do not make assumptions; do not assume something to be a fact. Nor are you to assume that
your opponent will make an admission. Make sure you have proof of all your material facts.

Get this wrong and you WILL be embarrassed.

[Page 26]

Consider the following when gathering the facts:

Be alive to inherent contradictions of fact in your own case, be prepared

to explain this. You must be able to present a coherent set of facts.

Take statements from witnesses as soon as possible and take steps to

ensure that you can secure their presence in court when the time
comes. Get signed statements as soon as possible.
®
Gather and preserve all relevant documentation.

Where appropriate, visit scenes and take photographs, videos and

measurements and prepare sketch plans as soon as possible. Visual
evidence is persuasive.

Collect and preserve visual evidence such as exhibits that you will need
to prove your facts.

Footnotes
6 We deal with this in more detail below.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 1 The facts of your
case/ 1.8 Think and act sequentially

1.8 Think and act sequentially

Chronological sequencing?
Back to the future?
Step into the past?
Nonsense
Each event
From start to finish
Step by step
Plausible
Probable
Persuasive.

When you obtain instructions (gather facts) arrange the facts and all the documents in a chronological sequence. As
a lawyer, you must make it a habit of thinking and working sequentially, because it

? assists you in identifying your cause of action

? helps you to manage your witnesses

? helps the witness to tell his version (Always take down statements in a sequence.)
? provides order, logic, completeness and accuracy

? or how evidence is managed in court ­ from beginning to end

? helps you to focus on important facts and events

? helps you to focus on facts in relation to the main issues

? helps you to weigh the probabilities (If the sequencing does not make sense, the version is invariably
improbable.)

? keeps you organised

? keeps you relevant

? helps you to avoid misdirection.

[Page 27]

Never consider financial transactions before you place the facts in a

chronological sequence. This applies to all contractual and commercial
cases.

Never review documents until you arrange them in a chronological

® sequence.

Gather and preserve all relevant documentation.

After a site visit or search and seizure, arrange all the information in a
chronological sequence.

The Labour Court rules and High Court (Supreme Court of Appeal (SCA) and Constitutional Court (CC) and some
provincial divisions such as Gauteng) directives require you to observe chronological sequencing of the material
facts and require parties to prepare chronology documents.

A good lawyer will habitually arrange the facts in a chronological sequence, so

? when conducting an interview, arrange the facts you get in a chronological order

? when taking statements, keep the facts in a chronological order

? after receiving documents, first arrange them in chronological sequence before considering them

? keep a running chronological record of the facts as you obtain them

? before you conduct a review of the information you have gathered, make certain that the information is in a
chronological sequence

? in all the documents you draft and file, present the facts in a chronological sequence.

This is how you are expected to present the evidence in court. This is a requirement in the High Court. Chronology
documents are expected to be filed with your heads of argument or written argument in the High Court (Gauteng
Local Division and Labour Court), SCA, Labour Appeal Court, Competition Appeal Court and CC.7

Note that as a litigating lawyer or one who is involved in dispute

resolution, it is important to get into the habit of thinking and gathering
® facts in a chronological sequence.

Learn to think sequentially.

Footnotes
7 We deal with chronology documents below.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 1 The facts of your
case/ 1.9 Chronology documents

1.9 Chronology documents

You will have to get into the habit of preparing chronology documents for most cases; in trials, motion proceedings
and appeals. We now have court directives that require the parties to present chronology documents with their
heads of argument (see directives in SCA, CC, Gauteng and Labour Court). A chronology document is required to
set out the material facts of your version in a chronological sequence; this includes the discovered documents you
intend to use. The chronology documents you should prepare are:

? The client's version of the facts in a sequence, all the relevant documents arranged in sequence after
 consulting with the client.

? A document for trial that sets out the material facts of the case, including each party's version of the facts, in a
chronological sequence. This document is presented to the judge in opening statement or can even be filed.

[Page 28]

? A document for each witness to present each witness's version in a sequence; keep this in your file and use it
to lead your witness in chief.

? A document for opposed applications; here prepare a sequence of the material facts, taking into consideration
both applicant's and respondent's version of the facts. This must be presented with heads of argument.
Ideally you and your opponent should prepare this jointly. Where there is a dispute over the sequence of
events, then submit separate chronology documents.

? A document with heads of argument and written argument. Both the SCA and CC require the parties to file
such a document. Where there is a dispute over the chronology, the parties may file separate documents.
This is in the directives.

Take note that you are expected to present your facts in court in a chronological sequence. In motion proceedings,
you must present your version of the supporting facts in a chronological sequence.

For each witness

Take down the statement in a chronological sequence.

Prepare a chronology document of the witness's material facts.

Prepare the witness for trial and lead in chief using the chronology
® document.

Check that there are no conflicts of chronology between your own

witnesses.

Take note that our courts are moving towards the presentation of
witness statements before the matter goes to trial.

For the trial

Prepare your bundle of discovered documents in a strictly chronological

sequence.

See to it that the documents in the trial bundle are in a sequence.

® Prepare a chronology document for the trial in which the material facts
of each party's version and case is set out.

It is useful to give the judge a copy of all the chronology documents you
have prepared.

Lead evidence in a chronological sequence.

You will succeed only if you present your facts in a manner that is persuasive.

Remember that as a practising lawyer, the facts come first; not the law.

[Page 29]

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 1 The facts of your
case/ Chronology Document based on Case Study Two

Chronology Document based on Case Study Two

Here enter the usual case heading

Number Description Chronology

1. Business established 1999

2. Moved to Selby warehouse 2001

3. Met CEO of Togo Hotels 15 February 2018

 4. Met defendant's representatives 15 February 2018

5. Confirmed with Togo to do the work 28 February 2018

6. Contract with defendant signed 9 March 2018

7. Contract with Togo signed 16 March 2018

8. Printer installed 23 April 2018

9. Commencement date for Togo contract 2 May 2018

10. Commenced using printer 2 May 2018

11. Defendant's technician called 3 May 2018

Defendant's engineers work on electricity supply to

12. 5 May 2018
printer

13. Printer caught fire (midnight) 5 May 2018

14. Cancelled contract with defendant 6 May 2018

15. Togo cancelled the contract 6 May 2018

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 1 The facts of your
case/ Chronology Document based on Case Study Three

Chronology Document based on Case Study Three

Here add the court heading

Number Description Chronology

1. Became pregnant Late February 2013

2. Clinic check­up commenced at three months

3. Ultra­sound showed baby normal at six months

4. Commenced maternity leave October 2013

5. Admitted to hospital 2 November 2013

6. Admission time 14h00

7. Went into labour 14h00

8. Water broke 18h00

9. Doctor arrived 19h00

10. Requested an immediate caesarean operation 19h00

11. Taken to theatre 3 November 2013

12. Child born 11h00

13. Informed that the child has cerebral palsy 4 November 2013

14. Discharged 6 November 2013

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 2 Logical thinking

2
Logical thinking

You are a lawyer

Think like a lawyer
Apply logic
Apply cognitive skills
 Writing is thinking

TABLE OF CONTENTS
2.1 Introduction
2.2 So, how does this work?
2.3 Critical thinking
2.4 Think it through
2.5 The qualities

[Page 31]

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 2 Logical thinking/
2.1 Introduction

2.1 Introduction

'No matter how complex a problem, you can bet there will be a simple solution.'

In chapter 1 we emphasise that writing is about thinking. It is one of the central themes of this book that drafting
involves logical thinking and problem solving. You are reminded of this in the paragraphs below. An object of this
book is to show you how to draft. But that in itself is of no particular use to a practitioner. What you need to know,
in addition to how to draft, is what to draft. This is where your analytical skills as a lawyer become crucial. You will
be faced with a set of facts giving rise to a problem. Your job is to assist your client to resolve this problem. How do
you think it through? Every step, as we explain in every chapter below, requires you to apply your mind.

Here we discuss how a lawyer goes about analysing the problem, applying logic and coming up with a solution. This
is very much a part of drafting skills. If you are not thinking you are not drafting. You know this from your
experiences in copying and pasting from a precedent. You are not applying your mind. Here we introduce you to the
concept of thinking like a lawyer.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 2 Logical thinking/
2.2 So, how does this work?

2.2 So, how does this work?

Keep it clear
Keep it rational
Keep it logical
Keep it concise

How does a lawyer approach a legal problem?

There is a basic logic that applies and it looks like this:

? Step one: Obtain and absorb all the relevant facts.

? Step two: Work out what the issue or question is that arises from the facts. A legal issue only arises from
some event or transaction in which your client was involved.

? Step three: Contextualise the problem in relation to the law. What area of the law is applicable? The issue is
governed by a rule of law.

? Step four: Find the applicable law while being focussed on the peculiar facts of your case;

? Step five: Apply the law to the facts of your case. Do the facts satisfy the requirements of the rule?

[Page 32]

? Step six: Look for an answer to the problem. You will have to reach a conclusion from a complex set of facts
and the law.

This six­step approach is just one model of legal reasoning. It provides a structured method of legal reasoning. With
experience you will discover and apply other models. You may even develop your own method of solving factual and
legal problems.

You will notice there is a logical sequence to these six steps. You have to start with step one and you cannot skip
any of the steps. For example, if you start with step four, as some people are tempted to do, you will be
misdirected.
Let us look at each of these steps and detail the thinking that applies:

? Step one: Facts

Something happened that caused your client some problem. Before you begin to analyse the problem, first find out
what happened. You have to obtain all the available facts, including documents.

Before you analyse the facts, do the following:

? Only retain relevant facts. Facts that will assist you to resolve the problem;

? Test the facts. Are these facts capable of being proved in court? Is there credible evidence?

? Test your client's version. Is this version probable or likely to have happened? Logic tells you that, if your
client's version is implausible, a judge will certainly reject it in the face of a more probable version from your
opponent.

You also do the following analysis:

? Write down all the material facts of your client's version;

? Arrange the material facts in a chronological sequence. Logic dictates that, if your client's version does not
make sense sequentially, there is something wrong;

? Make a note of your client's version of the disputed facts, test that as well;

? Make a note of the undisputed facts between the parties;

? Then ask if your client's version is supported by the undisputed facts; if it is not supported, once again there
is something wrong.

You are now thinking like a lawyer. You are not to proceed with the matter merely by accepting a narrative from the
client. Critically analyse the facts first. Where there are gaps, call for further instructions.

We deal with fact analysis in more detail below.

? Step two: Issue or question

Having obtained all the facts, now ask what are the issues or disputes that arise from these facts. What is the legal
issue? There may be more than one legal issue. Each issue must be identified logically and rationally, and you must
deal with each issue separately. When more than one issue emerges, rank them in order of importance and deal
with the most important one first. The key to this is to understand exactly how each issue arose from the facts you
have gathered.

Test the issues: Ask whether this is how the client understands the issues as well. There should never be different
interpretations between your analysis and what the client regards as a problem.

® You will be guilty of misdirection if you get the issues wrong.

[Page 33]

? Step three: The law

By now you know the facts and have worked out the legal issue(s). Now find the law. Begin by establishing the
area of law applicable. Contextualise the issue. The facts and the issues will tell you what area of law to consider.
Your job is to identify and understand the law correctly. Then you must explain the law before you can apply it to
the facts of your case. (We deal with legal research in more detail in the chapter on Opinion Writing.)

? Step four: The law weighed against the facts of the case

You have to understand the applicable legislation and the leading cases pertaining to the legal problem or issue.
What is required is that for every instance of legal reasoning that you engage in, you must be able to cross
reference the law or legal authority.

A useful method is to write a short chapter summarising the rule; do this in your own words. DO NOT copy and
paste from a law report. In this way you will be more focused on the law and you will test your understanding of
the rule.

? Step five: Application of the law

In practice, this is probably the most difficult step; applying the law to your facts. You have to weave together the
law and the facts to come to a conclusion. You learned at university that legal rules, or the law, can be broken down
into their components; what we called 'the elements' of the rule. Legal rules have distinct elements which must be
proved for the rule to be applicable to the facts of your case. You must first state the rule in general terms before
going on to the specific elements.

The strength of your case will depend on how well you can make out each element of the rule based on the facts of
your case. In plain language, take each element of the rule and see if you can satisfy each element based on the
material facts of your case.
 Just a reminder; you cannot identify the appropriate legal rule if you do not
® have a thorough knowledge of the facts of your case.

This process is at the very heart of legal reasoning. (We deal with this in more detail in the chapter on Particulars of
Claim.)

? Step six: Find a solution

You must come to a conclusion; your conclusion must be supported by the facts of your case; and by a legal rule.
The best place to find support for a legal rule is in the most recent decision of the highest court (actually, you do not
need more than this).

The IRAC Triad

Another more basic model, well established amongst lawyers, is the IRAC triad. It is a three­step approach to
dealing with a legal problem. It is an analysis using Facts, Issue and Rule as building blocks. The Analysis is the end
product. This method emphasises the importance of the facts. The thinking is in three steps as follows:

Step 1: The facts of the case suggest an Issue. The legal issue would not exist unless some event occurred.
Remember the question: What happened?

Step 2: The issue is governed by a Rule of law. The issue determines what rule is applicable. The issue will help you
to contextualise the matter in terms of the applicable law.

Step 3: Compare the facts to the rule to form the Analysis. Do the facts of my client's version satisfy the
requirements of the rule?

[Page 34]

By using this method, the facts can be pigeonholed into a Conclusion.

We will return to this analysis when we deal with opinion writing, below.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 2 Logical thinking/
2.3 Critical thinking

2.3 Critical thinking

We have just spoken about analytical thinking. Now we need to look at critical thinking. Thinking like a lawyer is
more than just reading text dispassionately and receiving instructions with neutrality. You have to analyse the facts
and the law using critical thinking.

Critical thinking is an essential tool of inquiry. Thus, when your client tells you a version of what happened, you are
not to accept this as your instructions. You have to apply your mind to the facts:

? How did this happen?

? What caused the trouble?

? What facts suggest an issue?

? What are the undisputed facts?

? Do the undisputed facts support the client's version?

? What inferences can be drawn from these facts?

? Are there any adverse inferences to be drawn?

? As a dispassionate observer, do I find the client's version to be plausible?

There is nothing wrong with being curious or inquisitive about your client's version.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 2 Logical thinking/
2.4 Think it through

2.4 Think it through

A lawyer never accepts anything at face value. This includes client instructions and one's own thoughts and
decisions. When faced with a problem carry out a logical analysis and ask: Where is this going; to what point? How
is this going to benefit my client?
Never be in a hurry to offer an answer to a problem. Think about it and apply your cognitive skills. Remember this:

? Thinking is more exhausting than sensing. The easy answer is not always the best or right answer.

? Rational consideration requires more will power than simply giving in to intuition.

? Intuitive people tend to scrutinise less.

? Not everything that seems plausible is true. Reject the easy answers that intuitively pop into your head.

(Daniel Kahneman Thinking, Fast and Slow (Penguin Books).)

As a lawyer you will be constantly called upon to make decisions. What is my client's cause of action? Do I
make this admission of fact? How much of my client's version has to be disclosed? Which documents are
relevant to the dispute? Can I recommend the offer? Should I make an offer? Must I call this witness? Can I
close my case? Do not make snap decisions, always think it through. For example, your mind must be
engaged as follows:

­ Can I rely on this judgment? Can it be distinguished on the facts?

­ If I plead this fact, will I be able to present proof of the fact in court?

­ If I present this document, what will the judge make of it?

­ If I present these facts, what other inferences can a judge draw?

­ How will our opponents respond to this?

[Page 35]

­ Will the judge be willing to make such an order?

You have to apply your mind to every decision you make. This is thinking it through. This is thinking like a lawyer.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 2 Logical thinking/
2.5 The qualities

2.5 The qualities

To assist you to understand what critical thinking is about; the list of qualities of critical thinking is that the critical
thinker is, among other things,

? Habitually inquisitive

? Well informed

? Trustful of reason (must make sense)

? Open minded

? Flexible

? Fair­minded in evaluation

? Honest in facing personal biases

? Prudent in making judgments

? Willing to reconsider

? Clear about issues

? Orderly in complex matters

? Diligent in seeking relevant information

? Focused in inquiry

? Persistent in seeking results which are as precise as the subject and the circumstances of the inquiry permit.

You can see from this that critical thinking is a positive analytical process.

When you engage in critical thinking, conclusions, solutions and standards are subject to:

? Questioning

? Assessing

? Consideration
? Interpretation

? Testing.

Someone with critical thinking skills is also able to:

? Understand the logical connection between ideas

? Identify, construct and evaluate arguments

? Detect inconsistencies and common mistakes in reasoning

? Solve problems systematically and

? Identify the relevance and importance of ideas.

(See Rachel Field, James Duffy and Anna Huggins Lawyering and Positive Professional Identities (LexisNexis) chapters
7.53, 7.56 and 7.57.)

Having introduced you to the concept of thinking like a lawyer, this book presents an excellent opportunity for you
to start applying your mind. Observe the methods we explain and think each one through. Look at the case studies
and see if you can analyse the facts and connect the law. Remember this is a training manual; so be enthusiastic
and have some fun as well. There are no cost orders if you get it wrong!

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 3 Writing letters

3
Writing letters

Evidence­in­chief, my Lord.
Cross­examination
Did you tell your attorney?
Oops!

TABLE OF CONTENTS
3.1 Introduction
3.2 Did you tell your attorney?

[Page 37]

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 3 Writing letters/ 3.1
Introduction

3.1 Introduction

While engaged in litigation, or other forms of dispute resolution, you will find yourself having to write letters to the
other side.

For purposes of this book we only deal with letter writing within the context of dispute resolution and litigation.

Attorneys have a tendency to write copious amounts of letters. Just go and look at a typical discovery affidavit; it is
mostly filled with correspondence. Now apply a simple test and ask: How many of these letters actually assisted the
parties in resolving the dispute, or even, how many were actually relevant to the dispute? I can assure you: Very
few, if any.

However, while not assisting in resolving any issues, there is a grave danger in writing too many letters.

They can potentially contradict your client's version, or worse, your client
or his witness will contradict it in court. This provides effective cross­
® examination for your opponent. You must have encountered this
question coming up in cross­examination.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 3 Writing letters/ 3.2
Did you tell your attorney?
3.2 Did you tell your attorney?

The cross­examiner will, invariably, be reading from a letter you wrote. Your witness will not be able to answer this
question and credibility will be damaged.

3.2.1 So, what is the problem?

Letters often contain a version of certain facts. Very often these facts did not come from your client or from his or
her witnesses; the attorney made an assumption of fact and presented it in a letter, only to be contradicted in the
trial. This is not good.

In the course of dispute resolution, you will write letters that fall into one of two broad categories:

? Letters pertaining to process and procedure

These letters deal with interlocutory matters.

[Page 38]

? Letters that make reference to the substance of the dispute

A reference to the merits of the matter.

The golden rule entails that:

? Writing letters of the first type will not likely cause any harm. Here you write to your opponent requesting a
pre­trial conference, or a discovered document, or a reminder that their plea is overdue etc.

? Writing letters that pertain to some aspect of the merits or substance of the dispute is likely to cause harm.

SO:

?
® You may write letters of the first category.

? DO NOT write letters of the second type.

? If you must write about the merits, please make certain that those are indeed your instructions. Check with the
client and minimise the risk of later contradiction. But it is always better not to write.

? The biggest culprit is the first letter, the letter of demand. This is when you are most vulnerable to making a
mistake of fact. Practitioners tend to be in a hurry to get this letter out; after all it is what the client desires.
This letter must contain some reference to your client's cause of action. If you only have a rudimentary
knowledge of your client's facts, you will inadvertently create a mine­field for yourself and your client.

3.2.2 How do you remedy this?

Here are some suggestions. First work out if it is strictly necessary to write such a letter. It may be better for you to
obtain all the available facts and write your particulars of claim (this is dealt with comprehensively below in the
chapter on Particulars of Claim).

If you must write this letter, for instance your client wants to sue an organ of state, then do the following:

? Before you write, first obtain all the available facts and documentation.

? Then work out your client's cause of action.

? Then work out your case concept.

? Then write the letter. In the letter you are to state only the material facts of your cause of action; and NO
MORE (if you are writing to an organ of state, please comply with the Institution of Legal Proceedings Against
Certain Organs of State Act 40 of 2002).

? Do not write about or mention the evidence you have available against the other side; do not be tempted.

It is recommended that you should not write any letter if you still do not
® know or have not absorbed all the available facts of your client's case.

3.2.3 Some practical guidelines

? Who is the reader?

When you write any letter, consider who the intended reader is. Attorneys tend to use legalese which can
confuse people and make them anxious. Write in plain language the reader can understand easily. You do not
have to sound like a lawyer. [See chapter 1.]

[Page 39]
? Be professional

Keep your personal feelings out of this. Avoid emotive language. Do not be abusive in any way and never
come across as angry. Being clear, direct and professional will assist your case. Be respectful and polite.
Remember that your aim is to resolve the dispute without having to go to court. But most of all, you have to
be accurate and truthful.

? Be reasonable

When stating your demands, be as reasonable as you can. As a rule, only claim that which you know you can
obtain from a judge. Nor is there any point in making demands you know the recipient will find impossible to
fulfil.

When claiming an amount of money: If the claim is based in contract, claim only the amount you are entitled to
in terms of the contract. If it is a claim in delict, the amount claimed must be reasonable and capable of being
proved in court. DO NOT inflate the quantum; the reader and his or her attorney will not take you seriously.

? Avoid unnecessary adversarialism

Do not adopt an adversarial approach, unless the other side provokes such an approach. Deal with the
matter at hand sensibly avoiding unnecessary threats. DO NOT write like this:

­ We will obtain a punitive cost order against you.

­ We will deal with this at the appropriate forum.

­ Our client's rights are reserved . . . in toto.

­ This is entirely without prejudice.

­ Without derogating from the generality of the foregoing . . .

­ Any action will be vigorously opposed.

­ You will be ipso facto barred.

­ This is an abuse of the processes of the court.

­ We trust the above is in order.

Stop it!!!

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 4 Drafting skills

4
Drafting skills

TABLE OF CONTENTS
4.1 Drafting particulars of claim
4.2 Cause of action
4.3 Precedents revisited
4.4 The particulars of plaintiff's claim
Case Study One
Case Study Two
Case Study Three
Case Study Four
Case Study Five
Case Study Six

[Page 41]

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 4 Drafting skills/ 4.1
Drafting particulars of claim
4.1 Drafting particulars of claim

Drafting particulars of claim is considered to be a complex and technical exercise reserved for persons who are
extremely experienced or very talented. This, of course, is not true. You can easily learn how to draft them.
Preparing particulars in the usual contractual and delictual disputes that come to your office can be easily dealt with
by you. The answer is for you to have a go at writing yourself. The more you draft, the better you become, and
soon you will have mastered this very essential skill. Here we show you the techniques to use and how to draft
effectively without the aid of precedents and without the need to outsource the work.

It is worth reminding you that drafting particulars of claim is a transferable skill. Get this right and you will have no
difficulty drafting any document in your office.

However, we remind you that this is a skill you will only learn from actually doing it. When you draft on your own,
you learn.

Before we go any further, make sure that you understand the method explained in chapter 2. If you do not, go back
and revise it. You must know how to manage fact before you can begin to draft particulars of claim. If you have
managed the facts correctly, you will know what to write.

There is no point in telling you how to write if you do not know what to write!

4.1.1 Good drafting

Remember that good drafting involves:

? Obtaining full instructions (what happened?)

? Thorough planning (what area of the law, what cause of action)

? Applying the principles of plain language in drafting (do not sound like a lawyer)

? Carefully reviewing the draft.

Your client comes to you for the purpose of resolving a dispute in which he or she became involved. Your job as a
legal practitioner is to resolve the dispute quickly and at a reasonable cost to your client. This means that you
should first try to settle the matter before you issue summons. Failing settlement, you will have to draft particulars
of claim or a statement of claim, or a notice of motion and founding affidavit.

You are expected to draft on the basis that, at an early stage, you will appear before a case manager (judge or
magistrate), and your drafting will come under scrutiny. Bad drafting will cause early embarrassment and possibly
the incurring of wasted costs.

Judge: What happened?

Lawyer: He failed to keep a proper look out, my Lord.

Judge: You did not answer my question.

Lawyer: He failed to apply his brakes timeously or at all.

[Page 42]

Judge: I still do not know what happened.

Lawyer: He failed to avoid the collision when he could and should have done so.

Judge: I give up! I will have to ask the first witness.

Lawyer: As the court pleases.

Sounds like every motor vehicle accident case.

Not persuasive.
You lost the judge.
You lost the case.

4.1.2 No precedents

Unlike commercial contracts, it is not recommended that you use precedents when drafting for litigation. Here are
the reasons:

? When you use a precedent, you are not drafting anything; you are merely copying and pasting someone
else's work.

? You will not develop the necessary skills you need, and you will remain a mediocre lawyer and a slave to
precedents.

? When you copy from a precedent, you do not apply your mind as a lawyer. Your mind is not actively working
on the cause of action or defence, you are using no discernible cognitive skills; the result is that you will get
 the cause of action or defence wrong.

? When you do not use a precedent, your mind is forced to focus on the dispute, and you are likely to produce a
successful outcome. Use a precedent and you might even plead the wrong cause of action or defence.

Remember, preparation for good writing is thinking; not finding a

® precedent.

We deal with precedents in more detail below.

4.1.3 Before you start

For purposes of drafting you must be familiar with the following:

? Rule 17 and, in particular, rule 18 of the Uniform Rules

? Rule 22

? Rule 6

? The practice directives of the High Court where you intend to issue proceedings

? The Labour Court Rules

? The practice manual of the Labour Court

? The practice manual for the Gauteng High Court (this manual is particularly helpful for purposes of drafting and
you should have a copy available, no matter where you practice).

We do not intend to take you through the rules and directives; we expect you to read and understand them. We
will show you how to apply the rules when you draft pleadings, and affidavits in motion proceedings.

[Page 43]

4.1.4 Basic technique

Before we get to draft the pleadings, particulars/statement of claim, plea and applications, we want you to
understand the basic technique and approach. You must have heard that old cliché: 'Do the basics right first!' This is
true for drafting technique.

The first step is to consult with your client. Lawyers have a habit of referring to this as 'taking instructions'. What
you are actually doing is getting the facts of the dispute. As the most basic technique, it is important that you get
the facts first. Never start litigation with a rudimentary knowledge of the material facts. As a competent lawyer, you
must first obtain all the available facts relevant to the dispute. Do not even write a letter of demand without first
obtaining all the available facts. This is the first step in getting to understand the dispute.

Once you have all the facts, now inquire about the following:

? What is the dispute between your client and the other side?

? Why is there a dispute; what keeps them apart?

? What happened according to your client's version of the disputed facts?

? What does the client want?

Once you answer these questions, you are ready to move to the next step.

® Note: Always look to the facts for an answer.

It is essential to know all the facts as this will assist you to formulate your cause of action or defence to plaintiff's
claim. Most importantly, the facts will assist you to formulate your case concept (or theory of your case). In plain
language, this means that you must know, before you put pen to paper, what happened according to your client's
version of the facts.

With case management, you are expected to plead the peculiar facts of
your case. You are not to reach for a precedent. The case manager, at
® an early stage, will want to know what happened according to your
client's version of the facts.

What happened?
What does your client say?
I'll take instructions
And revert.
It may be too late.
4.1.5 The purpose

It pays to consider what the purpose of your drafting entails. You draft so that the judge must be persuaded to
accept your version of the disputed facts. Remember a judge will read the pleadings before stepping into court.
Your case might be referred to a case manager who will also study the pleadings. If your particulars of claim are not
clear in that the judge cannot work out what your version is and how it supports a cause of action in law, you will
find yourself at a disadvantage before any evidence is presented.

Please remember that judges can (and often do) come to a prima facie view after reading the papers. If you draft
poorly, that view may be against your case and you will have a battle on your hands to persuade the judge.
Further, your adversary or opponent will take full advantage of the judge's prima facie view:
'Your lordship is absolutely correct in your assessment of the issues and I will strongly demonstrate this in my
presentation of the evidence.'

[Page 44]

Persuade

Your job is to persuade.

Your particulars will be persuasive if:

? In the first place your version is understood and accepted as probable (the judge must find your version to be
'believable'). The judge must easily understand your version of the dispute.

? Secondly, your particulars show that your version is capable of sustaining a cause of action in law. Your
particulars must be easy to comprehend and complete.

? Thirdly there is compliance with the rules of procedure and, where applicable, the practice directives.

? Fourthly, all of this is set out in a logical structure easily followed by the judge.

In the paragraphs that follow we show you how to achieve the purpose of your particulars.

It is not recommended that you merely draft particulars to start the action with the intention to amend as one goes
along. That is a poor strategy and must be avoided. Try to get it right the first time. You owe it to your client to do
so. You are a professional and you will have to justify your fees.

Witness: After I received the parts I found that they were the wrong ones; not what I ordered.

Lawyer: You are certain they were the incorrect ones and there was nothing else wrong with them?

Witness: Yes, that is so.

Lawyer: Did you tell your lawyer that the parts were defective?

Witness: You must ask my lawyer.

The witness's lawyer hastens out of court to take an urgent telephone call. Never to be seen until at least well after
lunch.

Mastering the facts before you write will avoid this most embarrassing of questions: 'Did you tell your attorney?'

Obtaining the facts

Obtain the facts from your client in consultation. Be prepared to listen to your client. Let your client tell you what
happened; do not interrupt. Ask questions to clear certain facts only after your client is finished. Do not ask leading
questions. Already make a list of all possible witnesses; arrange to consult with them and obtain a written
statement.

Documents play a crucial role in a trial because they assist the court in providing proof of the facts. Ask the client to
bring all the available documents, including electronic documents.

In appropriate cases, it is recommended that you carry out an in loco inspection as soon as possible. Be prepared to
take photographs and draw maps and diagrams.

When you go about gathering the facts, make certain that you obtain facts that are relevant to the dispute. Do not
cast the net and end up with files of facts not necessary to prove your case.

After obtaining the available facts, you must be certain of what happened according to your client's version of the
disputed facts (your case concept).

[Page 45]

Some practical advice

At an early stage, before you draft, carry out a proof analysis. Take each fact and work out how you will provide
proof in a trial. Who will be the witness; what documents will you need? Note that if you are unable to prove a
material fact or set of facts, there is no point in going to trial; you are merely setting your client up for failure.
A good technique entails taking your client through each of the material facts and then working out what evidence
you will need to provide proof of those facts. Your client might even decide to rely on a different set of facts, in
which event go through the process of proof analysis again.

This will assist you and your client to work out the strengths and weaknesses in your client's version of the
disputed facts.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 4 Drafting skills/ 4.2
Cause of action

4.2 Cause of action

4.2.1 Formulating and drafting

We know that for your particulars of claim to be valid in law you must set out a cause of action. Many practitioners
struggle with this and invariably end up using a precedent. This is a skill you have to master; it goes to the very
heart of your case and you cannot risk getting this wrong.

As a certain politician once said, getting it wrong 'will result in consequences too ghastly to contemplate'.

Before you begin, do you know what happened according to your client's version of the facts? Did you obtain and
analyse all the available facts? If not, do not even start.

4.2.2 Definition

What is the cause of action?

? It is a set of facts giving rise to a claim recognised by law.

? The facts that the law recognises as giving you a claim.

® Note: It is about the facts.

Cause of action is not some legal technical requirement understood by few and being capable of being drafted by
fewer still. It is quite simply about the material facts of your case.

4.2.3 How do you plead?

How do you work out what cause of action to plead?

Here we give you a step by step explanation:

? By now you should have all the available facts.

? Begin by writing down, using numbered paragraphs, the material facts of your case. Extract all the main facts
that represent what happened according to your client's version. Also record, using numbered paragraphs,
exactly what were the consequences for your client. Itemise the loss or damage suffered by your client.

? At the end of this exercise you will understand the context of the matter. You will know what happened and
which area of the law is involved. If your knowledge of the facts is good you should have no difficulty in
identifying the appropriate area of law. Usually, in your practise, you will find that the case belongs in contract
or delict or both (the most commonly encountered cases).

[Page 46]

? Remember, you will be expected to convey to the defendant:

­ What is being demanded of him or her; and

­ What the reason for the demand is.

? The next step is to research the law. Find out what the law says is the remedy, if there is a remedy. You
should be able to prove the material facts of your case.

? Find out what the essential elements or ingredients for the proposed or chosen cause of action are. Write this
down; each element in a different numbered paragraph.

? At this point you have written down two very important lists:

­ A list of all your client's material facts (including events); and

­ A list of the essential elements in law of the cause of action.

? You now have the legal framework for your cause of action.

? Now read through what you have written, and ask these questions:
 ­ Can my client's facts be sufficient to satisfy the essential elements of the cause of action (the material
averments)? If not, then there are gaps in the version, and you have to take further instructions.

­ If you can prove your facts in court, what does the law say is the remedy you are entitled to claim?

­ Can you provide proof of the facts in the event that the defendant disputes them? Who will be the
witnesses and are they available? What do the documents tell you? Do they support your client's
version or do they contradict it?

In answering these questions, you will have established the cause of action.

You have two lists of facts; they represent the facts the law recognises
® as giving your client a claim.

Poor on fact

The above method looks simple enough. It should not present a problem provided that you are instructed with a
complete or comprehensive set of facts. If you are poor on fact, be assured that the law is not going to save the
day by providing you with a convenient cause of action.

The danger is that when you are poor on fact the temptation to use the precedent may be too strong.

This exercise is not so simple where there are insufficient facts. This happens to practitioners: the client gives a
version, but it is incomplete or lacking in material details. You will need further instructions, take the client through
the gaps and get an explanation. If your client does not give you details, advise your client that he or she will not
be able to prove the essential elements of the cause of action and the claim will be unsuccessful. Remember you
are not to make up a version and fill in the gaps yourself. That is a useless exercise as there will be no proof of
those facts at the trial. You cannot also be the witness. Heavens no!!

It is certainly not unusual for you to be faced with insufficient facts. You do not simply give up. This is where you use
your skills at applying logic. Look at the facts as you have them, and understand the context. Then ask: what is
likely to have happened? If these are the established facts, what is the probable outcome likely to be? You may not
be able to work out what actually happened; but you can get close by asking what is likely to have happened. This
is the kind of reasoning you will employ using circumstantial evidence. Often enough you will not enjoy the benefit
of direct evidence but [Page 47] will have to make the best out of indirect evidence, circumstantial evidence and
inferential reasoning.

In this way you will have a set of facts to plead in your particulars of claim and which can be presented at a trial.

Further instructions
What further instructions?
Issue the summons
The case will not go to trial.

You have heard this one before. These are the cases that invariably go to trial.

4.2.4 Writing the first draft

You are now ready to begin writing the first draft. Here are the steps to be taken:

? Step one ­ Gather all the known facts.

? Step two ­ What do the facts say are the issues?

? Step three ­ Know the law (research), the rule.

? Step four ­ Decide on a cause of action. What does the law say is your claim?

? Step five ­ Identify all the elements or material facts of the cause of action. What are the material facts that
have to be proved to sustain the action?

? Step six ­ Ask yourself, do I have the facts, according to my version, to prove each of those elements?

A legal connection (causa) is required between the elements of the

® cause of action, the facts of your case and the desired remedy.

We take you through each of these steps below.

Here are the causes of action most commonly relied on and which you are likely to encounter in your office:

? Contractual claims

? Delictual claims

? Enrichment claims

? Statutory claims
? Claims of mixed origin, common law and statutory law (for example divorce and RAF actions)

? Labour disputes (LRA).

Concurrence of actions

Note that your facts may be able to sustain more than one cause of action. It is advisable to plead more than one
cause of action in the alternative rather than selecting one or the other at this stage. You cannot predict what will
happen at the trial. If you chose only one cause of action, you may find out that you backed the wrong horse. There
will be an expensive scrambling to amend your particulars.

In medical negligence claims, for example, a plaintiff's cause of action may be found in contract or delict or in both.
This is known as a concurrence of actions. We deal with pleading alternatives below.

[Page 48]

Sequencing revisited

We go
Step by step
Beginning to ending
In a sequence.
It is what judges want.
So why not present it the way they like it?

Never forget: there has to be logic in every step you take towards drafting your particulars. Remember also, writing
is thinking. Sequencing is logical thinking.

Before you draft, always sequence your facts; this is essential as it is part of logical thinking:

? Take all your facts and arrange them chronologically.

? Prepare a chronological sequence of the events.

? Always ask for documentary proof of the facts.

? In commercial disputes or any other dispute involving documents, arrange the documents in a chronological
sequence before considering them.

? Prepare 'chronology documents'; one for the whole case (a full chronology of the material facts as to what
happened) and one for each witness (a complete chronology of the events making up the witnesses' version).
This is a requirement in the Labour Court and is welcomed in all the other divisions of the High Court.

Before you start writing your first draft; here is a useful checklist:

? What are the facts that establish the issue/dispute?

? What facts provide the answer to the problem?

? Look to the facts to find an answer.

? Establish the main disputes or potential disputes.

? Identify the good facts in your case, the facts that support your client's version of the disputed facts.

? Identify the bad facts in your case, the facts that support your opponent's version of the disputed facts.

­ What will the witnesses say?

­ How will the documents help?

­ Who will I call as witnesses?

­ What happened between the client and the defendant?

­ Is my client's version of what happened probable, given the facts of the case?

­ Do the undisputed facts support my client's version of the facts?

­ What does my client want or hope to achieve by starting litigation?

­ Can the defendant satisfy a judgment?

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 4 Drafting skills/ 4.3
Precedents revisited

4.3 Precedents revisited

This is a subject we cannot avoid and so we decided to say a little more about it.

4.3.1 Precedent: Use it? Don't use it?

Unlike commercial contracts, it is not recommended that you use precedents when drafting for litigation. Here are
the reasons:

? When you use a precedent, you are not drafting anything; you are merely copying and pasting.

[Page 49]

? You will not develop the necessary skills you need, and you will remain a mediocre lawyer and a slave to
precedents. Precedents damage your confidence and compromise your skills.

? When you copy from a precedent you do not apply your mind as a lawyer. Your mind is not actively working on
the cause of action or defence; the result is that you will get the cause of action or defence wrong.

? When you do not use a precedent, your mind is forced to focus on the dispute and you are likely to produce a
successful outcome; use a precedent and you might even plead the wrong cause of action or defence.

? There is a danger in relying too heavily on a precedent. You will be tempted merely to copy and paste the
whole thing without focusing on the peculiar facts of your case.

? Precedents can compromise accuracy. Check your own work for accuracy if you used a precedent. Check the
spelling names, accuracy of dates and numbers, and ask yourself, does this come from my own facts?

? Precedents can compromise relevance. You can easily copy sentences and even paragraphs that are not
relevant to your peculiar case;

? There is a danger in using a precedent that might be old (most of them are). The law may have changed and
the cause of action in the precedent may be excipiable. Trust your own research where you looked at the
most recent cases of the highest court. Be ready to adapt your draft, bearing in mind the most recent changes
in the law (this can be statute and/or common law).

? Old precedents are not written in plain language. They often make generous use of jargon and legalese:
avoid this.

Remember: It is always better to think for yourself and apply your mind
® to the peculiar facts of your case instead of relying on someone's old,
and possibly irrelevant, precedent.

Having said this, we do not suggest that you stay away from precedents. If consulted responsibly, precedents can
be helpful and can save time.

4.3.2 The use of precedents

An inexperienced drafter can benefit from the guidance of a precedent. We recommend that before you consult a
precedent, try to draft from first principles, without looking at a precedent. Work out for yourself what needs to go
into your draft. Only after you have your own first draft, then look at precedents. You will make a habit of doing this,
to the point where you will no longer require precedents.

Precedents can assist you with the following:

? It can assist you with the legal requirements of your cause of action.

? It can help you determine what the material facts are that you have to allege and prove to sustain your claim.

? You can consult the precedent to see what facts have been stated; then you can compare this to your list of
material facts.

? Compare the precedent with your draft to see whether you have structured your particulars in a logical
manner.

? Precedents often contain well­established words and phrases that are useful in presenting your claim with
clarity. You may want to use these words and phrases provided that they are not in conflict with the peculiar
facts of your case and are not expressed in excessive legalese.

[Page 50]

? You are likely to have an electronic precedent; they are convenient and easy to use as you can merely edit
rather than write from scratch. We do not recommend merely copying and pasting, there is no benefit and you
can make mistakes (like copying the wrong clauses). [David Emmet (ed.) Drafting 18th edn (Oxford University
Press).]

I am sure we have said this already, but there is no harm in repeating it:

® Preparation for good writing is thinking, not finding a precedent.

If you must use a precedent

Let us consider the responsible use of precedents and how they can benefit your drafting:

? Here we immediately repeat that you must first have a go at drafting on your own. Do not start with a
precedent; start with your own draft first.

? Start by looking for an appropriate precedent; some people are known to have commenced using the wrong
precedent. This is embarrassing as it is irresponsible and unprofessional.

? Remember that before you consult a precedent you will have mastered the facts of your own case and
researched the law. This must be the first thing you do before consulting any precedents. You will avoid the risk
of ending up with the wrong precedent.

? In consulting a precedent do not lose sight of the peculiar facts of your own case.

? It is a sound technique to have already worked out your cause of action before looking at a precedent. You
must already know if your case involves delict or contract or family law or insurance or banking or some other
area of the law.

? What we propose is that before you turn to a precedent you must have carried out the steps set out in
chapter 2. You are now ready to use a precedent and to do so responsibly and in a manner that will enhance
your own drafting skills.

? An appropriate precedent can assist you with setting out your cause of action. It will help you to identify the
legal requirements or essential elements you are expected to set out. You should already have a list of
material facts of your case. A precedent will be helpful as a checklist to identify any omissions in your own list
of facts.

? A precedent can help you to prepare a logical structure so you can organise your facts in a persuasive
sequence that sets out your client's version.

? Precedents are useful for their use of established words and phrases, developed over time, which will help
you express yourself without having to write and rewrite your own draft. But remember, use plain language.

? Precedents will assist with sentence construction and choice of words.

? We do encourage you to draft in your own words and in plain language; however certain legal terms and
phrases have become developed to a point where lawyers know exactly what they mean and there is simply
no better way of drafting it. Using the precedent will help you draft more concisely and improve your skills.

? After you have completed your first draft, without the assistance of a precedent, you can use a precedent to
check if you got it right and this will improve your confidence. Eventually you should stop relying on
precedents.

[Page 51]

Where to find precedents

The art of using precedents includes where to find them. The following are publications available to you:

? Harms LTC Amler's Precedents of Pleading 9th edn (Durban: LexisNexis, 2018).

? Daniels H Beck's Theory and Principles of Pleading in Civil Actions 6th edn (Durban: Butterworths, 2002).

A good habit is to save every piece of your drafting in an accessible format. You will certainly have a similar case in
future. We also recommend that if you are a member of a firm or group, you should have a centrally located and
accessible file of all the drafting completed by colleagues. This can serve as a useful source of precedents.

However, merely requesting a colleague's 'precedent file' in the hope of lifting something out of it is not
recommended. You can be certain that not all precedents are good. There are many precedents out there that are
just bad and completely outdated.

We suggest you start your own precedent file with content you can trust. In the case studies below, we deal with a
number of drafting exercises. The answers to the case studies can be the start of your collection of precedents.

We leave the subject of precedents with some advice.

You cannot possibly develop into a competent and successful

® professional from copying and pasting. You do not even need an LLB to
copy and paste!!!

4.3.3 What to do with the facts

Just to remind you, you have not started drafting yet. This is repetitive, but we believe that this serves as a good
reminder. Having obtained the facts, here are some basic steps:

? Arrange the events in a chronological sequence.

? It is essential for you to write your client's statements and those of the witnesses in a chronological
sequence.

? Arrange all the documents in a chronological sequence before you read and analyse.

? Test your client's version of the facts by asking the following questions:

­ Are these facts relevant to the dispute?

­ Can I present these facts in court; are they admissible in their form?

­ How probable is my client's version of the facts? (If your client's version is improbable or unlikely to have
happened, you will not persuade a judge and your client will lose the case.)

? Can I work out my case concept? Can I tell a presiding officer what happened according to my client's version
of the facts?

Having answered these questions and having carried out these basic steps, you are now ready to draft pleadings.

4.3.4 Purpose of pleadings

We recommend at this stage you should already start preparing a chronology document for your case. This is a
separate document in which you note down, in a chronological sequence, all the material events in your client's
version of the facts. This will [Page 52] assist you to determine your cause of action or defence when you start
drafting. This is also a requirement for a trial and opposed motions. There is an advantage in starting early, you will
save time later.

The purpose of pleadings is to define the issues and thereby to inform the parties in advance of the case they have
to meet, thus enabling them to take steps to deal with it. Under case management your pleadings will come under
scrutiny at an early stage when you attend case conferences with the judge. The judge will only certify your matter
as trial­ready once agreement is reached as to the triable issues. Sound preparation and good drafting are
therefore essential.

You are reminded that if you merely used a precedent, you will be questioned by a judge as to what the peculiar
facts of your case are. This might result in embarrassment and costly amendments.

Poor preparation coupled with the use of a precedent will create a serious problem for you when the judge
requests the parties to write down what they agree to be the triable issue in the matter. You will be requested to
do so without reference to the pleadings. If your pleadings are poorly drafted, the judge will not be able to work
out what the triable issue is. Significantly, you will also struggle to identify the triable issue(s).

Also, bear in mind that at the pre­trial conference you and your opponent will have to agree on the triable issues.
Practitioners struggle with this and invariably agree to come back to it at some later stage. A case manager will not
certify your case as trial ready until you can commit to paper what you say is the triable issue between the parties.
Preparing your facts as we recommend here will assist you to deal with this problem easily.

Where you worked out the cause of action from your own peculiar facts,
® you will eventually, after pleadings close, be able to identify the trial
issues with no difficulty.

We deal with this in more detail below.

4.3.5 Applying the rules

When you write pleadings, you must apply rules 18 and 22 of the Uniform Rules. You are required to plead

? material facts only;

? the material facts relied on;

? material facts but not the evidence by which they are to be proved;

? material facts but not the law; and

? the material facts in a summary form.

® Plead the peculiar facts of your case. Do not rely on a precedent.

The Uniform Rules make it abundantly clear that you are required to plead the facts of your case. Your cause of
action will be made up of the material facts of your client's version. It must not come from a precedent or from
speculation on your part.

The key to drafting effectively is to identify each fact that you must prove in order for your client to be successful; in
other words, the facts that make up your cause of action.

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Drafting pleadings warrants considerable care and application. Resist

 ® the temptation to reach for the office precedent and start filling in the
gaps.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 4 Drafting skills/ 4.4
The particulars of plaintiff's claim

4.4 The particulars of plaintiff's claim

What is expected is clarity of presentation

A logical sequence
Relevant
Probable
Admissible
The judge gets it
Gets it the first time.

Getting started

This is what you need to know, now that you want to start writing:

? Ensure that all the relevant causes of action are canvassed.

? Where there are multiple causes of action, draft all of them in the alternative. You do not have to make a
choice now. That choice can be made at a case conference in preparation for trial or even at the trial itself.

? You must set out a complete cause of action. All the factual allegations necessary to establish the right to a
remedy or relief must be included. Do not take any comfort in the fact that you can amend.

? Only the material facts must be stated.

? Supporting evidence must not be included.

? The law should not be pleaded because the court can take cognizance of any law. You may plead conclusions
of law, which conclusions must be supported by the facts of your client's case.

Rule 18(4) requires that every pleading must contain a clear and precise statement of the material facts upon which
the pleader relies for his claim. If you do not know all the material facts of your client's case, you cannot draft this.

Rule 18(3) states the general requirements for drafting pleadings.

'Every pleading shall be divided into paragraphs (including sub­paragraphs) which shall be consecutively numbered
and shall, as nearly as possible, each contain a distinctive averment.'

Where there is more than one cause of action, each must be kept distinct. However, there are bound to be factual
allegations common to both causes of action. It will be clumsy to repeat them. It is better to commence your
pleading with a paragraph containing all the common factual allegations; thereafter deal with each cause of action
separately and where you need to rely on one or more of the common facts, simply cross­reference to 'the above
paragraph'.

Avoid the repeated use of 'and/or'; each alternative allegation must be

® set out separately in full.

4.4.1 The material facts

Before we go further let us deal with the most important component of our particulars of claim: the material facts.
The rules expect you to set out the material facts of your [Page 54] claim in a summary form. You are not required
to set out the supporting evidence and you are expected to be brief. How you achieve this is explained below.

4.4.2 Some guidance

Here we find the need to provide some guidance. The three most common questions that arise are:

? How much detail can I include?

? Is all reference to evidence forbidden?

? What reference to law can I make, if any?

We answer these questions below.

How much detail?

We repeat, you must include sufficient facts to enable the judge to understand your version of the dispute. The
judge must then see exactly what your cause of action is. This must come from your material facts, not from a
precedent. If these two aspects do not stand out, you have a poorly­drafted set of particulars and the judge will be
left wondering if you actually have a case.

Facts must be distinguished from law and evidence; we show you how to make this distinction.

? You are expected to state the material facts, that is to say, those facts which are necessary to establish your
cause of action. This will include allegations of fact such as 'the defective performance amounted to a breach
of contract' or 'in the circumstances the defendant was negligent'.

? You require the plaintiff to set out those material facts that, if proved, would entitle him or her to the remedy
sought in the prayer as a matter of law. Facts that fall outside this definition but form part of the plaintiff's
narrative or story and are necessary to understanding the nature of the case must be included and treated
as material facts.

? Material facts also mean the material facts of your client's case, or the peculiar facts of your client's case.
Avoid setting out facts you obtained from a precedent such as 'he failed to keep a proper look out' or 'there
was a failure to communicate' or 'there was no love and affection'. Tell the judge what happened according to
your client's own version of the dispute.

? You are expected to state all the material facts. If some material facts are left out, it might render your
particulars insufficient and you may be compelled to undertake costly amendments. This is not persuasive.

? It is important for the judge to understand the nature of the case. We recommend that before you set out
your cause of action, use a short paragraph to explain the nature of the case. This can be done under the
heading 'Factual Background' or 'Brief Introduction'. Here set out, briefly and without reference to evidence,
what happened and how this gave rise to your client's claim. This amounts to a short narrative and requires
none of the precision necessary to set out your cause of action. In fact, it should come across as an informal
explanation of what happened according to your client's version. Examples of this are dealt with below. A
comprehensive treatment of how to formulate and draft your cause of action is dealt with in the next
paragraph.

Note that a little more detail is better than a lack of detail. You will not
® be punished for providing a little more.

[Page 55]

Is all evidence forbidden?

What is evidence? It is those facts you require to provide proof of the material facts you rely on. You do not plead
these facts.

Having said that, we must state that inclusion of some evidence is certainly not forbidden. Being over­sensitive to
inclusion of evidence often results in bad pleadings where insufficient particulars are pleaded, leaving the judge to
speculate about what happened.

It is better to set out all the material facts the plaintiff relies on; no harm will be done if you also include some
evidence. Note that we have scrapped the useless and cost­wasting exercise that was 'A request for further
particulars to plaintiff's particulars of claim' [rule 21(1)]. Now you have to set out your claim fully so that the
defendant (and the judge) understands the nature of your claim and the cause of action you rely on. The technique is
to be able to draw a distinction between particulars and evidence.

Look at the rules

The Uniform Rules require you to set out the material facts in proper detail. Thus rule 18 tells you that, when you
say the parties entered into a contract, you have to state:

? Where the contract was entered into;

? When the contract was entered into;

? Who represented the parties;

? Whether the contract was oral or written;

­ If it was written, you are required to annex a copy thereof or of the part relied on, to the particulars of
claim; and

­ State what the material terms of the contract were.

[See rule 18(6).]

One can easily leave these particulars out on the basis that they amount to evidence.

Similarly, one cannot plead a case in delict by merely stating that 'defendant was negligent'; you have to state the
following particulars:

? The facts giving rise to the duty of care;

? What that duty entails;

? That there was factual and legal causation (proximity and foreseeability);

? That the defendant was in negligent breach of the duty of care;

? What was the duty of care;

? How and in what way the defendant was negligent; and

? The full extent of the loss and damage.

Note that in respect of any claim for money the rules require you to state fully how the amount is arrived at. [See
rule 18(10).]

However, the rule remains that you should not include evidence in your particulars of claim. It is an important rule
because unbridled inclusion of evidence will result in lengthy particulars of claim which will fail in their intended
purpose of defining the issues. The trick is to be able to work out what is fact and what is evidence. We deal with
this in more detail below.

What about the law?

We have explained that you are not required to plead propositions of law or legal arguments and submissions in
your particulars of claim. That is the rule and you must comply.

[Page 56]

However, in certain circumstances it is appropriate to refer to the law in order to make your cause of action clear.
Judges appreciate this and it will not attract any trouble for you. Where you rely on legislation to found a cause of
action (a statutory claim) you have to refer to the law. You also refer to the law where legislative compliance is
required, for example, a reference to notice compliance in actions against an organ of government.

4.4.3 The cause of action

So, you want to sue?

Can you sue?
What happened?
I need to know this.
I have to tell the Judge.

Before you draft you must have an understanding of your client's cause of action. This is a requirement, if your
particulars lack a cause of action it will be excipiable. You cannot afford to get this wrong!!

Remember you are not to lose focus on what happened according to your
® client's version of the facts. This will form the basis of your cause of
action.

Working it out

We have provided you with a step by step explanation of how to work out your client's cause of action. Now we
take this further.

Your instructions will amount to a statement of facts or a version or narrative from your client. You have to convert
this into pleadings. Not an easy task for a beginner. You have to resist the temptation to find a precedent and lift
the contents onto your document.

Here we assist you with how to go about finding and drafting a cause of action based on the peculiar facts of your
case.

We remind you that your first task is to obtain and record all the available facts from your client. We explain above
how to set about analysing your facts. This is an essential first step.

We also remind you that you should have put some work into your case concept ­ what happened according to your
client's version of the facts.

Once you have mastered the facts of the case, your legal training and experience will help you to recognise what
area of the law is involved: contract, delict, family law, enrichment, copyright, banking, insurance etc.

If it is not an area of the law you are familiar with, we suggest starting with a recent text book which will give you
an understanding of the basic principles. The text book is also useful for references to case law. Here we suggest
that you write down in a file what the requirements of law are.

The next step is to go to the law reports. Remember, the law is what the courts say is the law. Use the textbook to
refer you to the most recent case in the book's list of cases. Call this case up in the electronic law reports, click on
'annotations' in the headnote. The annotations set out the history of the judgment. Go to the most recent case in
the highest court. Then check the annotations here, do the same exercise, at the end of which you will have the
cases you need. Remember, the cases you require must not be distinguishable on the facts.

[Page 57]
 ® The best authority is the most recent decision of the highest court.

The basic technique

The law is an ass!!

No, it is not.
Ignore the facts.
First, look at the law.
You have the makings of an ass.

Here we assist you with a method to find an appropriate cause of action.

How do you go about this?

By now you should have all the available facts.

Begin by writing down, using numbered paragraphs, the material facts of your case.

Now read through what you have written; and ask this question: 'If I can prove these facts in court, what does the
law say is the remedy I am entitled to claim?'

You have to work out the essential averments (ingredients or material

® facts) that need to be established before your client's claim can
succeed.

(You can even use a precedent to check if the list of material facts you have written down is correct. Ambler is useful
for this. But you must never assume that the precedent is correct and you must focus on the peculiar facts of your
case.)

These ingredients are derived from your knowledge of the law or from the research you carried out after obtaining
all the facts.

Test your case by checking if the material facts you require do indeed emerge from your client's version of the facts.
Note that you will have to prove each of these facts; failing which your client will not be able to discharge the onus
and will be unsuccessful.

In answering this question, you will have established the cause of action.

® Your list of material facts will now form the basis of your first draft.

The method

We take you through the method, step by step and in a logical sequence.

There are ten steps:

Step 1

Gather all the known facts. You cannot begin to draft without a sound knowledge of your client's material facts. By
now you must have a complete set of statements, documents, maps, diagrams and photographs.

Step 2

Begin by answering this question: what happened according to my client's version of the facts? Write down the
main or material facts of your client's version (leaving out evidence); save this in a file. Remember to use numbered
paragraphs.

Step 3

Contextualise the matter. What area of the law, do my facts tell me, is relevant or applicable; is it contract or delict,
family law or insurance etc.

[Page 58]

Step 4

Know the law or research the law. The best source of law is case law. Find the most recent decision of the highest
court. When you read a judgment that you believe is relevant, keep an eye on the facts of that case. The decision
must not be distinguishable on the facts. What you are looking for are the elements of the cause of action. What are
the material facts that must be proved in order to succeed in obtaining the relief your client wants? What does the
law say is your claim? If you can prove the material facts you wrote down, what does the law say is the relief you
can claim?

A useful method here is to write down, using numbered paragraphs, the elements or material facts of the cause of
action as stated in the case law.
Step 5

You can now identify all the elements of the cause of action: what are the material facts that have to be proved to
sustain the action? Now write down each of your material facts in a chronological sequence. You can use the list you
wrote in step two.

'Here the law shows you how to organise and give legal significance to the facts.'

(David Emmet Drafting)

Include in your list the content required by the uniform rules [see rule 18] and make a list of the applicable
requirements and ensure they appear in your first draft.

Step 6

Check if these facts tell a story about what happened according to your client's version of the facts. Does the
nature of the case and a version emerge from these facts? If not, you have to immediately review what you have
and identify the gaps. You may have to take further instructions.

Step 7

Ask the question, do I have the facts (evidence) to prove each of those elements? If the answer is no, then there is
no point in proceeding further; call your opponent to a settlement conference.

Step 8

At this stage you prepare a plan for how you will draft your particulars.

The best method will be for you to set out the numbered paragraphs you will have. You get this from the two lists
you wrote and saved (Step 2 and Step 5 above). Give each paragraph a title or name based on the content. You
will use these as headings later.

Using your two lists as a reference point, write in as much detail as you believe you need for each paragraph.

Below, we give you examples of a rough plan with headings.

Step 9

It is now that you begin to draft towards the final product. We recommend you start by drafting one paragraph at a
time. At this stage you know what to write because you have worked out the cause of action.

You concentrate on how you express yourself. You have to write with clarity and say exactly what you want to say
and no more.

Remember the headings. Confine each paragraph to making a factual or legal averment. Remember to make the
main point in the first sentence. Write using the 'context before detail' method or the 'point first' writing method.

[Page 59]

When you have finished with a paragraph, check it for accuracy, look at things like dates, names and amounts.
Remember to remove legalese and write in plain language.

Step 10

Once you have completed the first draft, read it over and see if you succeeded in:

? Setting out your client's version;

? Accurately setting out the nature of the case;

? Stating your client's cause of action;

? Complying with the uniform rules and directives.

Check list

Then check this, as you read and read again: did you set out a legal connection (causa) required between the
elements of the cause of action, the facts and the remedy. If you set out your cause of action using the material facts
of your client's version, this requirement will be met.

Do each of your paragraphs flow logically from the previous one? Is there an easy to follow structure to your
particulars? Is it user­friendly and in compliance with the rules regarding font size and spacing?

A good habit is to hand your draft to a colleague and ask for comments. You must, and make this part of your
process, hand over the particulars of claim to the client and invite comment.

Analyses of the law

The best place to look for the law is in the most recent judgments on the subject. When you read a judgment, read
the whole judgment and consider the facts of the case. If the facts are materially distinguishable, the case will not
be helpful as it will not be binding on the judge.

Some helpful suggestions:

? Understand the substantive law which gives rise to the cause of action.

? Determine which material facts the law requires to make out or sustain a cause of action.

? Always remain focused on the peculiar facts of your case.

? Do not lift facts out of a precedent. It will contaminate your client's version and you will pay a price.

? When researching the cases, habitually check the annotations.

The legal conclusion you want must be supported by the facts of your
® case.

What do the rules say?

Why do we require pleadings? We require pleadings

? for the parties to be informed of the issues in dispute between them so that they may prepare for trial;

? to inform the other side of the case they have to meet;

? for the court to be informed of the dispute so that the limits of the dispute may be established;

? to define matters that are and are not in dispute;

[Page 60]

? to help the judge (or case manager) and the parties to agree on the triable issue(s); to agree on the real
issue or dispute between the parties, thereby limiting the scope of the trial;

? for there to be a record of the dispute and what the parties claim.

We recommend that you draft every set of particulars in the understanding that the matter will go to trial. In reality,
most of your matters will not end up in court, however thorough preparation will inevitably result in a good outcome
for your client, whether you go to court or not. Take all of the steps we set out above in every case you deal with;
there are no short cuts and there is no room for anything less than diligent application of the correct technique.

The main structure

The Uniform Rules tell you that your particulars of claim must contain the following in its main structure:

? a clear and concise statement of the facts relied on

? the nature of the claim

? conclusions of law the plaintiff is entitled to deduce from the facts

? the relief claimed.

The purpose of your particulars is to define the issues so that the

® defendant knows the case he has to meet. You are expected to plead
sufficient particularity to enable the defendant to reply thereto.

It is worth bearing in mind that a case manager (judge or magistrate) will, within 30 days of issuing the summons,
call you to a case conference where your pleadings will be subjected to close scrutiny.

® Do not rely on a precedent; plead the peculiar facts of your case.

4.4.4 Drafting the particulars of claim

Here we take you through some drafting exercises. We show you what to do and how to do it.

Before you put pen to paper, here is another check list (this might seem repetitive, but bear with us and you will
see the intended benefit):

? Did you obtain all the known facts?

? Did you obtain all the relevant documents, including electronic documents?

? Did you sequence all your facts?

? Did you sequence all the relevant documents?

? Are you satisfied that you know what your client's version is?
? What is your client's version of the disputed facts?

? Can you say what are the facts that support your client's version of what happened?

? Are you satisfied that your client's version is probable or likely to have happened, given the circumstances of
the case?

? Do you know how you will prove the material facts of your case?

? Who are the witnesses?

? What documents support your material facts?

[Page 61]

? Are you satisfied that your witnesses are credible?

? How reliable and sufficient is the available evidence?

? How did you ensure that your witnesses will turn up?

? How did you ensure that you will be able to provide proof of your material documents?

? Did you preserve original documents?

? Did you follow the protocols for preserving electronic documents and metadata?

You must be able to tick off all these requirements.

How to do?

Again, we provide you with a step by step approach. There is repetition but you will benefit from it; this is a training
manual. Predictably there are ten steps.

Consider this as a step by step approach:

Step 1

Obtain all the available facts and relevant documents.

Step 2

Carry out a fact analysis.

Step 3

Work out your client's version of the disputed facts.

Step 4

Test your client's version as follows: bearing in mind the circumstances of the case, is my client's version likely to
have happened?

Step 5

Write down, using numbered paragraphs, the main facts or material facts of your client's version.

Step 6

Research the law. Find out what the law says is your clients remedy if you are able to prove your material facts.

Step 7

Write down, using numbered paragraphs, the main elements of the claim in law; or the cause of action.

Step 8

Now apply this test: Can my client's facts support each of the elements of the cause of action?

Step 9

Check this: Can you establish the causal connection between your facts, the cause of action and the remedy?

Step 10

At this point you should assemble in one document, firstly the facts as you wrote them down in Step 5, and
secondly, the facts as you wrote them down in Step 7. You will now be looking at the basis of your first draft.

[Page 62]
You are ready to use the document in Step 10 to write your first draft.

Once you have a first draft it becomes easy to draft your particulars of claim.

This method will give you a sound understanding of your client's case as
you will become familiar with the peculiar facts of your client's case and
® the applicable law. This requires enthusiastic application on your part
and it beats reaching for a convenient precedent.

We take you through some case studies below to show you how this is done.

Having dealt with this check list, you are now ready to draft.

The following is what you have to draft in your particulars of claim. This represents the basic structure:

? A full and proper description of the parties and their addresses must be set out. Where one of the parties is a
company, close corporation, trust or association, check that you describe them correctly. It is advisable to do a
CIPC search just to make sure. Note that registered juristic persons are often, for various reasons,
deregistered by CIPC. Often your client will not know this. Please check with CIPC every time the plaintiff or
defendant is a company or close corporation; you cannot sue on behalf of or sue an entity that no longer
exists. This is just a practical suggestion; it does not take time and can save you time and costs at a later
stage. If a company or close corporation is deregistered, you have to take steps to reinstate it with CIPC
before you start litigation.

Names of persons must be spelt correctly. You will have to carry out FICA compliance. This means you will
have a copy of your client's identity document. There are no excuses for spelling your own client's name
incorrectly.

? Set out that the court has jurisdiction. This might flow from the facts and need not be specifically pleaded in
the High Court. However, in the magistrate's court, this must be pleaded after you have satisfied yourself that
you selected the correct court. Be alive to the fact that magistrates' court jurisdiction can appear to overlap
where the neighbouring regions and/or municipalities are close to one another.

? Set out the facts that give the plaintiff locus standi to sue. Again, this might flow from the cause of action itself
and will not require a specific averment. Typically, you will plead the facts giving your client locus standi in
cases involving both movable and immovable property such as evictions and vindications.

? Set out the material facts on which the plaintiff relies ­ the facta probanda.

? The facts must be pleaded clearly and concisely; and plead the peculiar facts of your case.

? You must set out only the material facts and not the supporting evidence or facta probantia.

? All the elements (material facts) of the proposed cause of action must be pleaded.

? Set out the conclusions of law that flow from the pleaded facts.

? You are not to plead the law itself.

? The amount of particularity required will vary according to the nature of your case.

? You are expected to plead the peculiar facts of your case; do not use a precedent for this.

? Where relevant, set out, compliance with statutory or procedural requirements.

? Set out the relief/remedy or order that the plaintiff claims. The relief must be capable of execution through the
sheriff.

[Page 63]

? Where the claim is for the return or delivery of property, a full and detailed description and the location must be
set out.

? Where the claim is for payment of money, exactly how the amount is made up must be set out.

? Where you rely on multiple causes of action, you are expected to set out each one separately and distinctly.
You may do so in the alternative.

? Remember to read the practice directives of the division of the High Court where you intend to bring the action.
In Gauteng, and in cases involving personal injury and loss of support, the identity number of the plaintiff
must be pleaded.

Below we show you how to use this general structure to draft your particulars.

What not to plead

Do not plead the following:

? Immaterial or irrelevant facts

? Evidence
? Law

? Legal argument

? Vexatious or scandalous matter.

If you plead such matter, it could be struck out with costs. It could also provide embarrassing cross­examination.

Do not plead a version of the facts which you know is improbable in relation to the facts of the case.

Remember that you must be satisfied that you can provide proof of the
® material facts you rely on to support your cause of action.

Formatting

The modern requirement is for documents to be user­friendly. The document itself must invite a person to read. If
your document looks terrifying, no one will read it. Judges and magistrates have enormous reading loads; if your
document is not user­friendly, they will not feel encouraged to read it.

Your particulars of claim must be user­friendly and easy to read and understand. In this regard the Uniform Rules
assist you with some prescribed formatting.

The rules tell you that particulars of claim must be divided into paragraphs, which must be numbered, and each
numbered paragraph must ideally contain a distinct averment and fact set. Use double spacing and write only on
one side of the page. We recommend that you use appropriate headings and sub­headings.

Below we assist you with how to draft in an acceptable format.

How?

? USE a reasonable font size (not smaller than 11 points and not bigger than 14 points). Use commonly used
font such as Calibri, Arial and Times New Roman.

? USE double spacing.

? USE only one side of the page.

? USE paragraphs and sub­paragraphs.

? USE headings.

[Page 64]

? Make your point up front, preferably in the first sentence of the paragraph: 'point first' writing.

? USE plain and precise language.

? AVOID using jargon and legalese.

Note that the reader must find your particulars of claim to be lucid, logical, easy to follow and persuasive. This will
make presenting your case easier in case conferences and when leading evidence.

Now it is time to put pen to paper

What follows is a guide to get you started.

Before we start writing, here is a useful checklist:

? Make sure that you know the facts.

? Be certain about the applicable law.

? Decide on a cause of action.

? Make sure you can comply with practice directives and rules.

? You are now ready to draft.

What follows is advice about and a series of suggestions for effective drafting. These are practical suggestions
which will serve you well in achieving the objective of persuasive drafting.

[See David Emmet Drafting and William Rose Pleadings without Tears]

Guide to the layout

Let us begin by taking you through some method in setting out your particulars of claim. The purpose of this chapter
is to alert you to the best practices in setting out your particulars of claim so that it becomes easy to read and
understand. It must also be user­friendly and persuasive. Your particulars of claim do not have to be merely a
boring legal document based on established precedents. It is much more; it tells the judge what happened to your
client and why, in law, he or she is entitled to certain remedies.
Bear in mind that judges are busy people who often have to contend with volumes of reading. Your particulars must
be easy to follow and provide the judge with a clear indication of what your client's case is about and why the
judge must come to his or her assistance. The idea is to present your particulars in such a manner that the judge is
not required to put in some hard work to understand your case; reading your particulars must be effortless. This is
persuasive writing.

Use the method below to achieve this objective.

Format and layout

Your particulars of claim must be pleasing to the eye and the judge must feel encouraged to read it. A busy
confusing format will have the opposite effect.

? Your particulars of claim must be drafted in consecutively numbered paragraphs and sub­paragraphs.

? Use appropriate headings and subheadings. A heading tells the reader what to expect in the paragraph and
is an indication that you are moving on to the next point; remember the technique of context before detail.
Examples of this appear below.

? Write on only one side of the page and take care over line spacing, use of white space and indenting. You first
choose the format you want, and then ensure you [Page 65] deliver this consistently. Do not change the
spacing, font type and size in the middle of your document. Ensure that you number each page.

? Your document must be divided into numbered paragraphs; how you set out these paragraphs in relation to
their content is important and will determine the logical flow of your particulars of claim. When setting out your
version of the facts and the essential elements of your cause of action, you are supposed to deal with each
issue in a separate numbered paragraph. This means that you are to state in separate numbered paragraphs
each fact or fact set that supports each element of your cause of action.

? Deal with one issue per paragraph; if your paragraph becomes too long, then you are probably dealing with
more than one issue or even fact set.

? Ensure that particulars of an allegation appear in the same paragraph as the allegation itself. Thus, if the
allegation is 'Defendant breached the contract'; then state what the breach is and how it was committed in
the same paragraph.

? When dealing with an issue, deal with it completely; do not leave some part out to be dealt with later. Avoid
the jumbled effect; judges hate it.

The material facts in a logical sequence

Your particulars must contain the material facts that will support the elements of your cause of action. These facts
come from your client's peculiar version of what happened. Set out these facts in paragraphs where the facts
appear in a logical and chronological sequence. First state where, when, how and who represented the parties
when pleading that a contract was entered into; then state the purpose of the agreement; then state the material
terms of the agreement on which your client relies. We deal with this in more detail below. Similarly, in a cause of
action based on negligent conduct of the defendant, first state the relationship of proximity between plaintiff and
defendant; then state the facts giving rise to the duty of care; next set out the negligent conduct of the defendant;
then state exactly what the conduct was.

You will notice that your paragraphs must flow in a logical sequence based on the essential elements of your
chosen cause of action.

When you get the sequence of issues right, it makes for easy understanding and is helpful to the judge.

Formal requirements

We also remind you that the formal requirements must be dealt with first. This can be done in separate numbered
paragraphs under the following headings:

? The Parties

? Jurisdiction

? Locus Standi

? Factual Background

These are general requirements for all the particulars of claim you draft. Thereafter draft the cause of action.

Complex particulars

When you have a complex set of facts or the case involves more than one claim and cause of action, it is useful to
draft a paragraph setting out the layout of your particulars. It will look like this:
'5. The particulars below are set out as follows:

(a) In Part A plaintiff sets out his claim in contract;

(b) In Part B plaintiff pleads his case based in delict;
[Page 66]
(c) In Part C plaintiff describes the consequences of defendant's conduct; and
(d) In Part D plaintiff deals with the appropriate remedies.'

Thereafter your particulars must be divided into these separate parts. This is done by writing, in the middle of the
page 'Part A'. On the next line next to the margin use another heading, 'The contract'. The paragraphs must be
consecutively numbered.

Note that this method is unnecessary when the plaintiff relies on a single cause of action based on a simple version.

Not persuasive

We remind you that your particulars will not be persuasive if based on a set of well­known and well­worn
allegations out of a precedent. Judges recognise these immediately and you will leave them wondering about what
actually happened. Your facts in support of the essential elements of your cause of action must come out of your
client's story. So, where your client's version is that the defendant failed to stop at a stop sign, then say so; do not
plead it as 'He failed to keep a proper look out'. If your client tells you that the defendant breached the contract by
using non­genuine parts to repair his vehicle; then say so. Do not morph the version into 'He failed to carry out the
work in a proper and workmanlike manner'. There is no harm in stating this, if you must, provided you first say what
actually happened. You have to tell the judge what happened according to your client's version of the disputed
facts.

What about the law

We have repeatedly advised you to tell the story; however, before you begin to tell the story, you must have a
thorough knowledge of the law or legal rules. You cannot set out the essential elements of your cause of action if
you have no knowledge of what those elements are and where to find the authority. You get this from researching
the law. Obviously sets of precedents are available for the more common causes of action. These will tell you
exactly what the law says are the essential elements to successfully sustain the cause of action. You can use these
precedents, but it is not recommended you do so to the exclusion of first reading the law. That way you will use the
precedent responsibly and you will reduce the risk of excluding an essential element in your draft.

You first have to identify correctly the cause of action and correctly work out what the essential elements are; then
you can plead your client's facts that establish them.

All the material facts

Your particulars of claim are in essence a statement of facts; your client's own version. The requirement is for you to
state all the material facts of your client's case. We remind you that material facts mean those facts that, if proved,
will entitle the plaintiff to a remedy; in other words, the facts which will sustain all the elements of your cause of
action. In order to identify these facts, you must know the law. Understanding the law will assist you to plead the
facts correctly and in the right sequence. If you merely use a precedent, there is a danger that the precedent is
wrong or inadequate; the foolish lawyer will not know this because he or she does not know the law. He will only
find out when his cause of action is struck out.

Practical test

The test is a simple one. First, work out the essential elements of the cause of action. Then consider all the facts in
your client's version of what happened. If any fact supports any of the essential element(s) of the cause of action,
that is a material fact and must be included in your particulars. Do not omit any facts.

[Page 67]

The material facts must be set out in a logical sequence to enable the defendant to respond to it. This will be helpful
in establishing the issues between the parties.

Accuracy

Accuracy is a matter of considerable importance. Firstly, the facts you plead must accurately reflect your client's
version of what happened. Practitioners can be very sloppy about this, especially where you rely heavily on a
precedent. You are not likely to find a precedent on all fours. Each case comes with a unique set of facts. Check with
the client if you pleaded the facts according to his or her instructions. Inaccurate pleading will inevitably result in
your client contradicting his pleadings in the trial. This can result in seriously damaging cross­examination. ['Did you
tell your attorney??']

Test the facts further by going over all of them as you have drafted them. Check whether you have presented
sufficient relevant facts to support each element of your cause of action. If there is a gap in the version, take further
instructions.

Your pleadings must be consistent with your instructions. Avoid the temptation to airbrush the facts because you
believe there is some advantage and that doing so makes your client's case look better.

Accuracy also means that all facts which involve numbers are as you were instructed. It is very easy to make errors
in typing numbers.
Full and sufficient

Finally, the material facts must be particularised fully. Where you rely on a breach of contract, give full particulars of
the breach.

For example:

'Defendant, in breach of the lease agreement, failed to pay the rental due for the months of: . . .'

Where you rely on negligent driving, give full particulars of how the defendant was negligent.

For example:

'Defendant drove at an excessive speed within an area where the limit is 60 kilometres an hour.'

Or:

'Defendant ignored a red light and proceeded into the intersection when it was not his right of way.'

Vagueness

A word of warning: avoid generalised allegations and never be vague about your own particulars. If your facts are
vague or generalised it may be that you did not obtain full instructions or, worse, that you just used a precedent.
Some practitioners believe that they should play their cards close to the chest and say as little as possible. They
invariably end up with particulars that are vague and of no assistance to the judge. They are also of no assistance
to their client.

Quantum

Here let us look at the quantum or amount of your claim. You must set out sufficient particulars to enable the
defendant to work out how you arrived at the amount(s) you claim (this is a formal requirement). Here we
repeatedly point out that you are not to inflate your amount. Make certain that the amounts you claim can be proved
or defended in court. Besides, an overinflated quantum will only attract the ire of the judge. Your client will
unnecessarily come across as an opportunist.

[Page 68]

Take full instructions regarding the loss or damage suffered by your client. In many cases you will require the
assistance of an expert whose report you will use to plead details of the damage and loss. You must set out all the
consequences suffered by your client. Omitting something may trigger an amendment at a later stage. See some
examples of this below.

Having identified all the loss and damage (injuries in personal injury cases) you have to turn these into heads of
damage and quantify each head of damage. You can use the expert reports.

Relevant

Lastly, keep your particulars of claim strictly relevant and avoid adding details that are not necessary. Do not plead
immaterial facts and allegations.

How to do? What to do?

Here we take you through a practical method, going step by step towards your first draft. Remember the ten steps
we set out above.

This is the method:

? Begin by writing down on a piece of paper (or open a document on the computer) material facts or elements
that are required to sustain your cause of action. Remember these must be the peculiar facts of your case.
Use the list of facts we suggested above.

? Now prepare a skeleton or rough plan. In this plan you can include the description of the parties, jurisdiction
and locus standi, where required.

? When preparing the rough plan, consider the order of the paragraphs, the numbering, headings and content.

? Now ask yourself if this makes sense. Do I have all the material facts to sustain the cause of action? Have I
pleaded too much or not enough detail?

? Now prepare the first draft based on the rough plan. At this stage you should have pleaded the cause of
action setting out the material facts that, if proved, will result in the relief your client wants.

? The next step is to draft the consequences of the defendant's actions. What are the details of the
consequences suffered by the plaintiff?

? Then turn the same consequences into heads of damage and quantify each such head of damage.

? Take the draft paragraph by paragraph, check it, improve it and ensure accuracy.

? Produce a final document and recheck it.

? It is always a good practice to hand your draft to your client and ask if he or she is satisfied with it.

? Finally, before issue and service, take a look at the material facts again and ask if you will be able to provide
proof of each fact in the event that the matter proceeds to trial.

We recommend, especially for inexperienced practitioners, that you actually write, from rough plan to final
document. Copying and pasting from a precedent is not going to improve your writing skills. Writing will compel you
to apply your mind to the content of what you are drafting. Your skills will improve with every draft you produce.
Writing is thinking.

[Page 69]

4.4.5 Two commonly encountered causes of action

Here we concentrate on the two most common causes of action you will find in daily practice: contract and delict.

As we pointed out above, your particulars of claim do not have to be a highly technical document, difficult to draft
and not easy to understand. Remember that for your particulars to be effective the judge must easily understand
what happened and why you are entitled to relief.

You have to tell the story from your client's (plaintiff) point of view. However, this is a formal document and you
have to tell the story in a structured way. It should look like this:

? This is who we are and this is how we earn a living . , .

? On a certain day this is what happened . . .

? As a result, this was the consequence . . .

? Now I state what relief I am entitled to in law . . .

[David Emmet Drafting]

This is the basic idea and you should remember this no matter how complex a matter you may be seized with. Just
remember to ensure that your client's version is likely to have happened, given the circumstances of the case. Also
note that you must tell your client's version in a chronological sequence.

Cause of action in contract

Before we deal with how to prepare a rough plan; we take a look at what the law tells us about a claim based in
contract. In other words; what does the law say are the essential elements or ingredients to sustain this cause of
action? This is well established in our law and should not be a problem for you; what we want to demonstrate is
how one goes about the task of drafting. A similar approach can be used for other causes of action.

Having researched the law on contract you will find that the following are the essential ingredients:

? There was or is a contract between the parties.

? Rule 18 of the Uniform Rules tells you to state the following:

­ where the contract was entered into;

­ when the parties entered into the contract;

­ who represented the parties in entering into the contract; and

­ whether the contract was oral or in writing.

? The contract contains an obligation that the defendant is alleged to have breached.

? That obligation can be found in the material terms of the contract as agreed by the parties.

? Before plaintiff can enforce his rights flowing from the contract, plaintiff must have performed his obligations in
terms of the contract (plaintiff's performance).

? At the time of defendant's breach, the contract subsisted and had not been brought to an end by either party
or some other event such as prescription.

? The defendant is in breach of her obligations. You must state the details of the breach.

? The plaintiff can accept the breach (repudiation) and elect to cancel the contract and claim damages, or reject
the breach and seek enforcement of the terms of the contract.

[Page 70]

? Plaintiff suffered loss or damage.

? The loss or damage was caused by defendant's breach of the contract.

? The loss or damage is recoverable in law.

? The loss or damage was reasonably within the contemplation of the parties at the time they entered into the
contract as a likely consequence of breach.

? There is no term in the contract that prevents or restricts liability or the recovery of damages.

? There is no time bar or any other statutory limitation.

? If your remedy is to claim payment of an amount of money, the uniform rules provide that you have to give a
full account of how the amount claimed is arrived at.

[See Christie's Law of Contract in South Africa]

What you have is the outline of the legal basis for your claim based in contract. You have to actually write this
down in the form of a list; as we just did above. Merely reading the law is not enough. Besides, you need the
discipline of writing to make you apply your mind. You also benefit from the fact that writing a list like this will
assist you in formulating your cause of action for purposes of your first draft.

Once you have this outline of the essential elements, your next task is to see if you can satisfy these elements from
the facts of your case. Here look at the list of material facts you wrote down. Now ask the question: Can these facts
support the essential elements of this cause of action? If the answer is no, then you have to take further
instructions; if yes, you are ready to draft.

We give you case studies below. See if you can draft these on your own.

Towards your first draft

Now you can proceed to write your rough draft or first draft.

The rough plan

This is what your rough plan should look like. Let us take a look at drafting particulars in a typical cause of action
based in breach of contract. Pay attention to the headings being used as you can use this in drafting all your
particulars involving contractual disputes. Once you have these headings, then it is a simple matter of stating the
material facts from your list of material facts according to your client's version of what happened. You do not have to
consult a precedent.

The parties

? The Plaintiff is . . .

? The Defendant is . . .

Remember the CIPC search.

Jurisdiction

? Jurisdiction of the court . . .

Pay attention to this when you sue in the magistrates' court.

Locus standi

? Locus standi of plaintiff . . .

Here this will flow from the fact that your client was a party to a contract. You do not have to specifically plead it
under this heading.

[Page 71]

Factual background

? Only in complex cases.

Set out, briefly, the factual background giving rise to the dispute, what gave rise to this agreement and what was
intended by the parties. Here, as far as possible, state facts that are not disputed or are unlikely to be disputed.
This is just so the judge immediately understands the nature of your case.

The contract

? Parties entered into a contract . . .

State

­ Where and when the contract was entered into

­ Who represented each of the parties

­ Whether the contract oral or in writing. (The contract can be partly oral and in part written.)

A word of warning: where the contract is written, you are expected to attach a copy of the document to your
particulars of claim. However, if the contract is lengthy, do not attach the whole document and thereby burden the
court file. Instead, make copies of the pages you need and only attach those ('the relevant pages of which are
annexed marked "A1" to "A5"'). Note that if you unnecessarily attach lengthy documents, the court will punish you
by disallowing the costs. [Rule 18(6).]

If the contract is to be inferred from previous dealings between the parties, set out (in a chronology) concisely what
the previous dealings were.

If there was significant pre­contractual negotiations, set this out (in a sequence) in order to tell your story.

Material terms

? The material terms of the contract relied upon by plaintiff.

Here set out only the terms you rely on. Where there is a written agreement set out the terms you rely on with
reference to the contract. Do not merely attach a copy of the contract and cross reference the annexure. State, in
your own words, what the term is and then refer to the annexed contract.

Plaintiff's obligations

? The plaintiff complied with his obligations in terms of the contract in that . . .

Here set out what was the obligation and how and in what manner plaintiff complied. You want to allege that
plaintiff performed in terms of the contract.

A common term in contracts is the obligation of the parties, in the event of a breach, to give written notice to
remedy the breach within a stated time. This clause must be pleaded as a material term of the contract. Then
you plead that written notice was given by plaintiff to defendant, and attach a copy.

Defendant's breach

? In breach of the contract defendant . . .

Here set out how defendant breached, giving details or particulars of the breach. Note that breach of contract must
be expressly alleged and particularised.

Consequences of breach

? As a consequence of the breach . . .

State if Plaintiff is cancelling the agreement and claiming damages or restitution or enforcing it.

[Page 72]

You have to expressly state that defendant 'repudiated' the contract and that gave plaintiff the right to treat
the contract to be at an end. You have to state that plaintiff accepted the repudiation.

Causation

It is not always obvious why the breach should have led to the loss claimed. You have to explain. Establish a
causal connection between the breach and the consequent loss ('as a result of defendant's breach, plaintiff's
apples were damaged and he was unable to export them to Europe').

You have to explain the nature of the loss and the basis on which plaintiff wants damages to be assessed.

Quantum

? Plaintiff claims . . .

Where you claim payment of money, set out how the amount is arrived at. 'Plaintiff claims an amount of R800
000 which amount is made up as follows: . . .'

You have to set out the financial loss in an itemised list and quantify each item.

The relief

? The relief sought by plaintiff . . .

Demand

Here set out that demand was made and deal with any statutory notice where applicable (if the defendant is
an organ of state).

Prayer

? The prayer/remedy:

Setting out what the court must grant in its order.

Now turn to the case studies below. You learn better from doing. Try the case studies and draft on your own. Check
the answer in the model provided.

Using the above method, you will be able to draft contractual disputes without the assistance of a precedent.

Claims in delict

What not to do

There is a tendency among practitioners to use precedents for these causes of action. We do not recommend this.
You will be familiar with these precedents as they are very well established. You will see that all motor collisions
were caused because the defendant 'failed to keep a proper lookout' and 'failed to avoid the collision when he could and
should have done so', and let us not forget that the defendant also 'failed to apply his brakes timeously or at all'. These
statements tell the judge nothing as they do not amount to a version; they are merely unhelpful comments of a
general nature. The judge will not know what happened according to your client's version of the disputed facts.
Even if you get away with this in your pleadings, you will pay a price at the trial as you will not be allowed to put a
version to your opponent's witnesses, and if your client testifies and comes up with a version he will be vulnerable
to an attack on the basis that he did not tell his lawyer and that the version was a recent fabrication. Not
persuasive; you will lose. As we show you below, the conduct causing loss and damage must be carefully set out so
there is a discernible and persuasive version before the judge. We show you how to do this.

[Page 73]

Causes of action in delict are likely to be encountered by you on a regular basis; knowing how to draft this is
essential. The most common cases involve motor vehicle collisions, assault, medical negligence and other forms of
personal injury. You will also encounter cases in defamation and other forms of injuria.

Method

By now you know, before you begin, to obtain all the available facts first.

We refer you to chapter 2 above. You must carry out a fact analysis. With cases in delict it is important to test your
client's version of what happened. In particular, test if the version is probable (likely to have happened) in relation
to the circumstances of the case. For example, in a motor vehicle collision case, your client tells you he was driving
'just below 60 kilometres an hour' immediately before the collision and that he was not speeding. You check the
police report and find that your client left a skid mark on the tarred road of 35 metres from the point of collision. You
should immediately be concerned that this was not likely if your client drove at a speed of below 60. You are more
likely to encounter improbable versions in delict than you are in contractual claims. Just be alert to this and
remember that a good lawyer does not merely accept everything his or her client says.

You can no longer hide behind the curtain of 'instructions'.

Lawyer: 'Well those were my instructions my lord.'

Judge: 'So you did not apply your own mind to this version.'

Lawyer: 'As the court pleases.'

Lawyer sits down. The case is lost.

® We emphasise that you are still required to tell a credible story.

The essential elements (ingredients)

Let us look at the essential elements of a typical claim in delict for recovery of damages caused by negligence.

? Plaintiff will have to establish the facts that show, in the circumstances, that defendant owes plaintiff a duty of
care.

? Such a duty of care arises:

­ Where there is a relationship of proximity between them;

­ It is reasonably foreseeable that defendant's negligence might cause harm to plaintiff; and

­ It is fair, just and reasonable to impose a duty of care on defendant.

? Defendant negligently breached the duty of care.

? Plaintiff, as a consequence, suffered injury, loss and damage.

? Such loss and damage were caused by defendant's negligence.

? The loss is not too remote; it was reasonably foreseeable, both in its nature and causation.

? Where plaintiff claims for damage or loss to property; plaintiff must be the owner of the property or it must be
alleged that the risk in the property passed to plaintiff.

Note that in certain cases it will not be necessary to state that defendant owed plaintiff a duty of care; this
will be inferred from the facts. Thus, if plaintiff and defendant were driving on the same public road when a
 collision occurred, as a matter of law the parties owed a duty of care to all other users of the road including
[Page 74] each other. Similarly, in a claim based on unlawful assault it is not necessary to state that
defendant owed plaintiff a duty of care not to commit assault.

You must understand that a delict comprises wrongful, culpable conduct by one person that factually causes harm
to another person that is not too remote.

When the harm in question is a violation of a personality interest caused by intentional conduct, then the person
w h o s u f f e r e d t h e h a r m m u s t i n s t i t u t e t h e actio iniuriarum (action for non­patrimonial damages) to claim
compensation for the non­patrimonial harm suffered.

Unlawful arrest and detention is a common action you will encounter. This is typically an action for non­patrimonial
damages. We therefore set out the requirements to be pleaded.

A claim under the actio iniuriarum for unlawful arrest and detention has specific requirements:

? the plaintiff must establish that his or her liberty has been compromised;

? the plaintiff must establish that this interference occurred intentionally. In claims for unlawful arrest, a plaintiff
need show only that the defendant acted intentionally in depriving him or her of his or her liberty and not that
the defendant knew that it was wrongful to do so;

? the deprivation of liberty must be wrongful, with the onus falling on the defendant to show why it is not; and

? the plaintiff must establish that the conduct of the defendant must have caused, both legally and factually,
the harm for which compensation is sought.

Read the judgment in the Constitutional Court of Bryan James De Klerk v Minister of Police case number CCT 95/18
decided on 22 August 2019.

Contributory negligence

As plaintiff's attorney you will also investigate contributory negligence and mitigation of damage. However, this is
not an essential averment for your cause of action. You can anticipate that this will be raised by defendant in their
plea. But be prepared for it, it can potentially become an issue. You may have to file a replication.

Test your facts

Now that you have read the law and worked out the essential elements of your cause of action, go back to the
facts of your case as you wrote them down, using numbered paragraphs and a chronological sequence, and test to
see if you can sustain each of the required elements with the peculiar facts of your case. If you are unable to do so,
take further instructions.

Now you can work on your first rough draft.

This is a rough plan for typical delictual actions:

Again, make a note of the headings below and remember them when
® you begin to draft on your own.

The parties

? The Plaintiff is . . .

? The Defendant is . . .

Here we suggest you look at the practice directives of your court. In Gauteng, in cases involving personal injury, you have
to state the plaintiff's identity number. In all other provinces, we recommend that you state the plaintiff's age.

[Page 75]

Jurisdiction

? Jurisdiction of the court . . .

You may not have to specifically plead this as the place of the incident will determine jurisdiction. However, for the
Magistrate's court you must check that you are in the correct court and make an allegation in your particulars of
claim.

Locus standi

? Locus standi of plaintiff . . .

For personal injury cases you do not have to deal specifically with locus standi; it arises as a matter of law.
However, if your client claims damage to or loss of property, he will have to allege that he is the owner of the
property or that risk in the property had passed to him. This can be simply put as follows:

'At all material times plaintiff was the owner of a motor vehicle being a 2017 model Toyota Corolla with
registration letters and numbers DS 25 BN GP ("plaintiff's vehicle").'
 Or:

'Plaintiff is the registered owner of an apartment being flat number 45A on the fourth floor of a block of
apartments known as Parkview Heights situated at erf 429, number 28 Sixth Avenue, Parkview, Johannesburg
("the property").'

Factual background

? Only in complex cases.

Set out, briefly, the factual background giving rise to the dispute. Here, as far as possible, state facts that are not
disputed or are unlikely to be disputed.

We recommend you have a short background in most of your cases. Keep it brief; its purpose is to tell the
judge the nature of your claim without giving too much detail. We give you examples of this in the case
studies below.

The delict

? Here set out the facts giving rise to a duty of care.

Commence by explaining the relationship between the parties and in particular their proximity to one another. This
usually emerges from your narrative and does not have to be a peculiar allegation.

It can be as simple as:

'Defendant was in occupation of plaintiff's property.'

'Plaintiff was employed by defendant as a machine operator.'

'Plaintiff was seated in a stadium owned by defendant.'

'Plaintiff and defendant were driving their respective vehicles on the M1 in Midrand.'

'Plaintiff was admitted as a patient in Leratong Hospital.'

'Plaintiff was treated for high blood pressure by his doctor the defendant.'

'Plaintiff was attending classes on the campus of the defendant.'

'Plaintiff's child was enrolled at the Robertsham Primary school.'

? Concentrate on the facts that give rise to the duty of care.

Here you will have to set out the details of the incident your client relies on.

You have to tell your client's version; do not rely on a precedent and make vague general allegations that do
not tell the judge what actually happened ('he failed to [Page 76] keep a proper lookout' is not good enough
on its own; it is meaningless and does not assist the judge. You can use this allegation after you set out the
negligent conduct of defendant. Then the judge knows what you mean.)

Particulars of an incident such as an accident, are best set out in a manner that is short, sharp and to the
point. Remember you do not have to plead the evidence, only the material facts of your case. This is better
than relying on precedent­based general allegations that are usually vague and mostly irrelevant to actually
what happened according to the plaintiff's version. So, if plaintiff tells you that defendant drove through a red
light, for heaven's sake do not translate this into 'he failed to keep a proper lookout'; there is nothing wrong
with stating that defendant was negligent in that 'he drove through or ignored a red light'. This is going to be
the evidence as it is your client's version. I have yet to meet a client who told me that the other driver 'failed
to keep a proper lookout', nor has anyone ever told me that the other driver 'failed to apply his brakes
timeously or at all'.

You have to describe the incident your client relies on with as much accuracy and as close to the version as
possible. The reason for this is that you will have to justify each incident or component of the incident as
being a breach of the duty of care. Also remember that inaccurate or careless drafting will provide your
opponent with fuel for cross­examination ('did you tell your attorney . . .'). You cannot draft a version that is
going to be contradicted by your witnesses at the hearing.

In a complex matter you may need several paragraphs to describe what happened. Remember to avoid
evidence, if you do include some evidence it is not fatal, so do not get anxious about this. Note that you must
set out your version in a chronological sequence.

Particulars of the incident your client relies on must be drafted with care because they are the basis of your
claim and will be led in evidence.

In personal injury cases such as medical negligence, you must give details of exactly what your client says is
the duty of care, to do what or refrain from doing what? See below for a case study that will show you how to
plead this.
Breach of the duty of care

? Here set out that there was a negligent breach of the duty of care. Mere breach of the duty of care does not
establish a cause of action in delict. It must be a negligent breach. Then state the facts that show there was
negligent breach.

You must set out all the ways in which you allege the defendant was negligent.

You have to list the specific acts or omissions your client relies on. This can be tricky in medical negligence
cases. You will have to rely on an expert to tell you how the negligence happened or what act or omission
amounts to negligence. Some practitioners merely attach the expert report or a summary to their particulars
of claim and refer to it. This is laziness and places the onus on the judge to figure it out. That is certainly not
persuasive. Instead you should work out what the negligent conduct is and set this out clearly and precisely;
you might have to consult the expert to assist you with this. Be careful that your particulars are not
contradicted in the expert report.

[We take you through some case studies below.]

Particulars of acts and omissions you rely on must come from the peculiar facts of your case. This will not be
difficult if you have conducted a fact analysis as recommended in the chapters above. Do not rely on
generalised allegations such as 'he failed to conduct himself in a professional or workmanlike manner'. This
tells the judge nothing.

[Page 77]

More than one cause

Sometimes you will have to rely on more than one cause of action. The best method is to use a separate
paragraph, and a separate set of particulars, for each new cause of action.

[In the case studies below you will see how this is drafted.]

Causation

? It is essential for you to state that the plaintiff suffered loss and damage as a result of the defendant's
conduct.

? Ensure that you have dealt with the allegation that the harm was reasonably foreseeable and not so remote
as to absolve defendant from liability. This can emerge from the facts as you drafted it and does not require
any reference to law.

On the question of proximity consider what the Constitutional court stated:

'No legal system permits liability without bounds. It is universally accepted that a way must be found to
impose limitations on the wrongdoer's liability. The imputation of liability to the wrongdoer depends on
whether the harmful conduct is too remotely connected to the harm caused or closely connected to it. When
proximity has been established, then liability ought to be imputed to the wrongdoer, provided policy
considerations based on the norms and values of our Constitution and justice also point to the
reasonableness of imputing liability to the defendant.'

Consequences of breach

? State what the consequences of negligent breach entail such as that plaintiff suffered injury, giving full details
of such injury; that plaintiff's property was lost or damaged, giving details of such loss.

Here we refer you to rule 18(10) of the Uniform Rules. You have to comply by giving full details of the injury,
loss or damage.

It is an important part of your particulars to clearly set out details of the consequence of defendant's conduct.
Note that the loss or damage you set out must be shown to have been caused directly by the conduct of
defendant.

When detailing consequences of personal injury, you will rely on an expert's report. Again, do not merely
attach the report, give a description then refer to the report; make certain there are no contradictions.

? What is required is all the facts which you want the judge to consider in determining an award for pain,
suffering and loss of amenities of life.

You must include the following in your particulars of claim:

­ A list of the injuries actually suffered;

­ The treatment for the injuries;

­ Plaintiff's current condition; state the degree of recovery and the lasting loss of amenities;

­ What is the prognosis; and

­ State other relevant facts, for example, plaintiff's way of life (before and after injury), his occupation,
and how the injury impacts on this.
Quantum

? You have to state the amount of the claim.

Here set out exactly how the amount is arrived at.

[Page 78]

In personal injury cases you may use the expert's report to assist you in quantifying the damages.

You have to comply with rule 18 of the Uniform Rules.

Where you claim for loss of property such as a motor vehicle, you have to state a figure and how you arrived
at it. The judge will require assistance in arriving at a fair value. All that is required is for you to state that the
amount claimed represents a reasonable value for a vehicle of that model. The value can be obtained from an
expert. If you do not want to incur the cost of an expert at this stage, make a reasonable estimate. Should
your opponent dispute the amount, you will file a notice to call an expert. In the event that the expert
disagrees with your estimate, no harm is done as you can amend the amount in your particulars. Similarly,
where you claim for the cost of repairs, an expert will give you an itemised quotation.

With certain types of cases, such as personal injury cases and a claim for loss of profit, the amount claimed
will be the sum total of many individual itemised heads of damage. This is typical of claims for personal injury.
Here we recommend that you prepare a separate schedule of all the items and their respective amounts. This
schedule can be annexed to the particulars of claim. In your particulars you merely state that the amount
claimed is made up as detailed in, for example, 'Annexure C'.

A word of warning: there is a tendency amongst some practitioners to overinflate the amount of their clients
claim. This is done in the understanding that one's opponent is then likely to settle for a higher amount than
what they would otherwise have offered. This practice is based on the assumption that your opponent is
stupid and will not realise that the amount claimed is exaggerated and that you are not likely to support the
claim with credible evidence. This is disrespectful of your opponent and an abuse of process. When you inflate
quantum, you are not assisting the judge nor are you giving your opponent an opportunity to make a proper
assessment of your client's loss so that a reasonable response may follow. Instead, your opponent will not
take you seriously and a judge is likely to punish you with a punitive costs order.

The amount of your claim must be an amount you can defend or justify in evidence if called upon to do so. The
amount must be such that a judge's prima facie view will be to think that the amount is reasonable and
justifiable and will be inclined to agree with it. Besides, with an inflated amount, your client might come under
an unreasonable expectation; only to feel let down when the judge pronounces on the claim.

The relief

? Set out what remedy you seek. It can be something as simple as the payment of an amount of money.

Where you claim return of property, you have to provide a comprehensive description and exactly where it is
located. This is to enable a sheriff to find and identify the property in order to effect attachment.

Demand

? Here set out that demand was made and deal with any statutory notice where applicable, such as when you
sue an organ of state. Here we recommend that you attach a copy of the notice that was served on the
relevant organ of state. This is not a requirement but experience tells us that if you do not attach a copy of
the notice, the state attorney, as a matter of routine, will file a special plea.

[Page 79]

Prayer

? The prayer/remedy: set out what the court must grant in its order.

® Treat every summons as if the matter will proceed to trial.

Bear in mind that a case manager will read your particulars at an early stage. Poor and careless drafting will lead to
early embarrassment.

A final check list

Before issuing the summons, consider the material facts in your particulars of claim.

Now ask yourself:

? Did I set out a version according to my client's story?

? What facts will I have to prove?

? Where will I find proof of the facts?

? How will I present the evidence in court?

® Nonsense remains nonsense no matter how elegantly you draft.

4.4.6 Case studies

Now look at the case studies below. Can you draft the particulars of claim?

First, consider the following statement you obtained from your client. We will then take you through the steps
towards drafting his particulars of claim.

You will benefit from this exercise if you revise the methods explained above, look at the facts, and follow the
process step by step. The object is not to merely see how it is done, but to understand why it is done in this way.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 4 Drafting skills/
Case Study One

Case Study One

We begin by presenting a statement you took down from your client Herbert Maseko.
He tells you what happened and instructs you to issue summons.

Statement of Herbert Maseko

1. I am a High School Teacher and I am 48 years old. I teach mathematics at the
Meadowlands High School where I am Head of Department. I am married to
Agnes Maseko who is also a teacher and she teaches Geography at the same
school. We have two young children, a seven­year­old boy and a five­year­old
girl. While we are at work the older child is at school and, after school, he goes
to day care. The girl is at day care all day and one of us fetches the children at
five o'clock every afternoon. We live at 124 Vilakazi Street, Meadowlands,
Soweto.
2. On 11 June 2018 I was on my way to a departmental meeting in the city. I was
travelling in the direction of the city centre in Booysens Road at about 9h00 when
my car was involved in a collision. I was driving my own car being a Toyota
RunX, a 2012 model with registration KJL 541 GP. I have owned this car for the
past five years.
3. The collision happened near the intersection of Booysens Road and Link Street. I
was driving towards the city approaching the intersection when I noticed a car
being driven aggressively in the oncoming side going away from the city. It was
weaving between cars and was going fast. As I approached the robots, I noticed
that the light had just turned orange. I slowed down and prepared to stop. As I
did so, I heard a loud screeching of tyres and cars hooting. The speeding car had
attempted to speed

[Page 80]

through the intersection, but a car entered the intersection from Link Street, and
this car tried to avoid it but managed to glance off the left side of the car that
came out of Link Street. After hitting this car, the speeding car was spinning out
of control and slammed into the front of my car. There was nothing I could do
about it and it all happened too quickly.
4. After impact everything went dark. I recall the airbag exploding and after that I
lost consciousness. When I regained consciousness, I found myself in
Baragwanath Hospital.
5. I found out that I was transported from the scene of the accident by ambulance
and that my car was damaged beyond repair. When I saw my car I realised I
was lucky to be alive.
6. I spent three weeks in hospital and underwent surgery three times. I suffered
various injuries, including a fractured skull, a broken collar bone, my left ankle
was badly twisted and my right knee cap broken. I also had a ruptured spleen.
The first operation was an emergency operation to release the pressure on my
brain caused by the fracture of my skull. Thereafter, and four days later, I
underwent surgery to repair a severe tear on my spleen. A week later I had
surgery for the third time; this time they put a pin in my left knee.
7. I found the surgery exhausting and for two weeks I was barely aware of my
surroundings as I was under heavy sedation.
8. After I felt better and was able to talk, I was visited by Sergeant Khumalo of the
Booysens police station. He was investigating a case of reckless and negligent
driving against a certain Edward Brown who turned out to be the driver of the car
that went out of control and collided with my car. The sergeant explained that
Brown was found to have double the legal limit of alcohol in his blood at the time
of the collision. He was tested immediately after the collision at the district
 surgeon's office.
9. At the time of the collision Brown was driving a company car, being his
employer's vehicle. He was on his way to deliver spare parts that were urgently
needed by a factory in Booysens. Brown's employer is Swiss Instruments (Pty)
Ltd of 28 5th Avenue, Techno Park, Bramley, Johannesburg.
10. The vehicle he was driving is a VW Caddy registration KHF 595 GP. The police
officer also told me that the first car Brown collided with was driven by a lady,
Mrs Tanya Lubbe, who is a chartered accountant in the employ of KPMG. Her car,
a Mercedes Benz C180, 2017 model was badly damaged. Mrs Lubbe suffered
some whiplash but appears to be in good health.
11. I am unable to teach as my mobility is severely compromised. My knee still has
a pin in it and is expected to remain in place for six months. I currently move
about with the aid of crutches; my movement is very limited as I suffer pain
whenever I move.
12. I will run out of paid leave by the end of this month and after that I will have no
income until I go back to work in seven months' time. I also spent most of my
savings on medical expenses as my medical aid was exhausted. I am unable to
drive and cannot fetch my children from day care as I usually did. This has put
further strain on me financially as I have to pay a taxi to fetch them every day.
My wife is struggling as she must go to work and find time for the children and
myself. I have no quality of life and I am struggling with depression. I am being
treated for depression at the moment and I take anti­depressant tablets daily. I
also have absolutely no social life as I am confined to my home. I cannot play
with my children.
13. Before the collision I gave extra math lessons to a number of learners after
school and this brought in an additional income for the family. I cannot teach
these extra classes from home.
14. My life has been ruined by Brown. I want to sue.

[Page 81]

Let us see how you should approach this.

The context
1. Having read the statement it is obvious that this case involves a motor vehicle
collision.
2. This is a delictual action based on the negligent driving of Brown.
3. Client suffered damages and wants to sue for compensation.
[For purposes of this exercise we will ignore the fact that this involves a Road Accidents
Fund claim.]

Notice the use of headings. Make a habit of using them from the
®
moment you begin to draft.

Locus standi
1. Client is the owner of his car.
2. Client suffered personal injury.

The material facts

[Here make a list of your material facts.]
1. Client involved in a motor vehicle collision.
2. This happened on 11 June 2018 and in Booysens, jurisdiction of the Gauteng
Local Division.
3. Exact location of the collision: intersection of Booysens Road and Link Street in
Booysens. The intersection is robot controlled.
4. How the collision happened:
­ Position before collision: client driving in easterly direction in the direction
of the city; Brown was driving in the opposite side of the road going away
from the city in a westerly direction.
­ In the intersection of Booysens Road and Link Street client stopped at a
red robot when Brown's car crashed into his car.

Negligence of Brown
[Here write down all the ways in which, according to your facts, Brown was negligent.]
1. He was speeding
2. He drove aggressively, weaving in and out of traffic
3. He was in a hurry
4. He failed to stop at the red light
5. He failed to brake in time due to his high speed
6. He crashed into Lubbe's car
7. He lost control over his vehicle
8. He was drunk
 9. He crashed into client's car.

Causation
1. The collision was caused by the negligent driving of Brown.
2. There is a possibility that Lubbe entered the intersection when it was not her right
of way.
[You do not have to allege that Brown owed your client a duty of care. By operation of
law he owed all other road users a duty of care.]

[Page 82]

Injuries and damage to client

[Here write down all the injuries and damage sustained by your client.]
1. Fractured skull
2. Ruptured spleen
3. Broken collar bone
4. Twisted left ankle
5. Broken left knee cap
6. Suffered from depression
7. The car was written off.

Consequences
[Now list all the consequences for your client.]
1. Lost consciousness
2. Haemorrhaging in the brain
3. Severe pain for six weeks
4. Thereafter moderate to severe pain for five months
5. Three operations
6. Disability, unable to walk normally
7. Unable to work for seven months
8. Unable to teach extra classes
9. Loss of income
10. Cost of taxis
11. Medical expenses
12. Depression
13. Loss of amenities of life
14. Loss of his vehicle.

Heads of damage
[Here take each of the above 14 consequences and turn them into heads of damage.
For the personal injuries and medical treatment, past and future, you will need the
hospital records and the assistance of an expert(s).]
It will look something like this:
Past medical expenses R125 000
(see attached schedule of invoices Marked 'M1')
Future medical expenses R180 000
(see Dr Smith's report Annexed Marked 'M2')
Loss of income R250 000
(see schedule Marked 'M3')
Cost of taxis for six months R1 440
Pain and suffering and loss of amenities R350 000
Reasonable value of Toyota R60 000

Who to sue?
[Here apply your mind to the facts.]
These are the possible parties:
1. Clearly Edward Brown
2. Brown's employer Swiss Instruments (Pty) Ltd, vicarious liability.

[Page 83]

3. Tanya Lubbe; likely that Brown might blame her for the collision, he might join
her or you may have to sue her as well.
[We now want you to take a look at the above list; you will immediately see your
particulars of claim taking shape. It will be the basis for your first draft.]

The legal framework

 [The next step is to write down the material elements of your cause of action; you do
this after you have analysed the facts and only after you have researched the law. We
set out the essential elements above. Make a list of your own using the analysis we
gave you.]

A word on legal research

Remember that you are a practitioner, not an academic lawyer. The best place to
look for the law is in the most recent judgment of the highest court. If you are not
familiar with the area of law, then start by reading a current text book. Text books
are useful for two purposes: firstly, they tell you what the legal principles are; and,
secondly, they give you references to the case law. However, the case references
might be dated. Your next step is to find the most recent cases referred to in the
book, then check the annotations to each of those judgments, this will refer you to
the most recent cases in the highest court. You must learn how to use annotations;
they save you time and assist you to find the law quickly. Annotations also assist you
to avoid the extreme embarrassment of relying on a judgment that, unknown to you,
was set aside by the SCA. [We deal with legal research in more detail in the chapters
on drafting heads of argument and opinion writing.]

[You are now ready to draft.

Take a look at the particulars of claim as we have drafted it. Notice the comments or
commentary in italics between the paragraphs.]

Particulars of Plaintiff's Claim

The parties
1. Plaintiff is Herbert Maseko, an adult male school teacher who resides at 124
Vilakazi Street, Meadowlands, Soweto. Plaintiff's identity number is
700717 5129 051.
2. First defendant is Edward Brown an adult male driver of 21 Lee Street,
Robertsham, Johannesburg.
3. Second defendant is Swiss Instruments (Pty) Ltd, a company duly registered in
terms of the company laws of South Africa and having its principal place of
business at 28 5th Avenue, Techno Park, Bramley, Johannesburg. Second
defendant is joined herein in its capacity as the employer of first defendant.
Second defendant imports and supplies parts and instruments to the mining
industry.
[Note that we sued Brown's employer. Brown may not be able to satisfy a
judgment and it is thus prudent to join his employer. Further, you might want to
join Tanya Lubbe as she could have, on the probabilities, caused the collision or,
at the very least, contributed towards its cause through her own negligence. In
reality you can expect Brown or his employer to join Lubbe and claim indemnity
from her. Notice the inclusion of Plaintiff's identity number. This is a requirement
in Gauteng. You can do no harm by including it no matter which Provincial
Division is involved.]

Jurisdiction
4. The whole cause of action arose within the area of jurisdiction of this honourable
court.
[This is not necessary in the high court as the place of the collision will determine
jurisdiction. But we have included it here as a reminder that for magistrate's
court, you need to plead this after you have made certain that you are issuing
out of the correct magistrate's court.]

[Page 84]

Locus standi
5. At all material times plaintiff was the owner of a motor vehicle, being a model
2012 Toyota RunX with registration KJL 541 GP.
[You do not have to plead nor annex any proof of ownership. If defendant denies
this fact, you will discover your documents to prove ownership. Usually you can
then expect the defendant to make an admission. This allegation is necessary for
the claim in respect of damages to the car.)

Defendant's vehicle
6. At all material times second defendant was the owner of a light delivery vehicle
being a VW Caddy bearing registration KHF 595 GP ('defendant's vehicle').
[We immediately justify joining the second defendant. The proximity with plaintiff
is already being established even before we deal with vicarious liability.]

The collision
7. On 11 June 2018 and in Booysens, plaintiff's car was involved in a collision with
defendant's car.
 8. The collision occurred in the intersection of Booysens Road and Link Street in
Booysens. The intersection is robot­controlled.
9. Immediately before the collision plaintiff was driving in an easterly direction in
the direction of the city; first defendant was driving on the opposite side of the
road going away from the city in a westerly direction.
10. In the intersection of Booysens Road and Link Streets plaintiff stopped at a red
robot when defendant's car crashed into his car.
[Notice the effective use of headings and that under each heading a different fact
set is dealt with.
Here you do not deal with negligence or cause of the collision. You merely say
that there was a collision stating when and where it occurred.]

First defendant's negligence

11. The collision was caused by the negligent driving of the first defendant who was
negligent in one or more or all of the following ways:
(a) He was speeding
(b) He drove aggressively, weaving in and out of traffic
(c) He was in a hurry
(d) He failed to stop at the red light
(e) He failed to brake in time due to his high speed
(f) He crashed into a car which was in the intersection
(g) He lost control over his vehicle
(h) He was drunk
(i) He crashed into plaintiff's car.
[Without pleading too much evidence, we set out details of first defendant's
negligent driving. The judge can work out plaintiff's version of how the collision
happened. There are no general and vague descriptions like 'he failed to keep a
proper lookout'. The details pleaded are consistent with your client's version of
what happened and you can expect a consistent version from your witnesses in
court. It is not persuasive to rely on general precedent­based descriptions.]

[Page 85]

Consequences
12. As a result of first defendant's conduct, plaintiff suffered the following
consequences:
(a) Plaintiff's vehicle was damaged beyond repair
(b) Plaintiff suffered the following injuries:
­ Fractured skull
­ Ruptured spleen
­ Broken collar bone
­ Twisted left ankle
­ Broken left knee cap
(c) Immediately after the collision, plaintiff lost consciousness and was
transported to hospital by ambulance
(d) Plaintiff suffered haemorrhaging in the brain
(e) Plaintiff suffered severe pain for six weeks
(f) Thereafter moderate to severe pain for five months
(g) Underwent three operations
(h) Suffered disability, being unable to walk normally
(i) Was unable to work for seven months
(j) Was unable to teach extra classes
(k) Suffered loss of income
(l) Suffered cost of taxis
(m) Suffered medical expenses
(n) Suffered from depression
(o) Suffered loss of amenities of life.
[Notice that a full description of what happened to your client as a result of the
collision is set out. This will tell the judge the extent of the injuries and their
sequelae and gives the court a basis for awarding damages.]

And/or Alternatively

Plaintiff's claim against second defendant

13. Plaintiff repeats paragraphs 5­10 above (The collision to Consequences)
[Notice that we did not say 'hereinabove stated']
[There is a cause of action against second defendant. What you see here is that
this claim is pleaded separately from that against first defendant. The judge must
 read it as a separate stand­alone claim. Do not mix the two causes of action.]

Vicarious liability
12. At all material times and in particular on 11 June 2018, first defendant was
employed by second defendant as a driver whose job was to deliver parts and
instruments to second defendant's customers.
13. When first defendant caused the collision, as stated above, he was acting within
the course and scope of his employment with second defendant.
14. In the premises second defendant is liable for first defendant's conduct and the
consequences of such conduct.
[Here you set out the material facts needed to sustain a cause of action based on
vicarious liability. Notice that on your facts, you have the evidence to satisfy
these requirements.]

[Page 86]

Quantum of plaintiff's claim

15. In the premises plaintiff suffered damages in the amount of R966 440, which
amount is made up as follows:
(a) Past medical expenses R125 000
(see annexed invoices marked 'B1' to 'B5')
(b) Future medical expenses R180 000
(see Dr Smith's report annexed marked 'C')
(c) Loss of income R250 000
(see schedule annexed marked 'D')
(d) Cost of taxis for six months R1 440
General damages for pain and suffering and loss of
(e)
amenities of life R350 000
(f) Reasonable value of Toyota R60 000
R966 440
[The amount is what you can reasonably claim and defend in court. Do not claim
for R3 million. You discredit your client and your firm when you overinflate the
amount.]

The relief
16. Plaintiff is entitled to claim from defendants the amount of R966 440, jointly and
severally, the one paying the other to be absolved.

Demand
17. Notwithstanding demand, defendants refuse to pay the amount or any other
amount.

The prayer
18. Wherefore plaintiff claims from defendants, jointly and severally the one paying
the other to be absolved:
(a) Payment of R966 440
(b) Interest on this amount at 9% per annum from a date 14 days from
judgment to date of payment
(c) Costs of suit
(d) Further and or alternative relief.
[Look at this draft and you will notice that it is based on the lists written above. It
therefore pays to follow the step by step approach recommended above. There
is logic to the method and the logic will equally become evident in your drafting.
Make a note of how well the headings and paragraphing work to make your
particulars easy to follow and the nature of the claim and your client's version to
work out.
You can do this with any set of facts emerging from your instructions. Just do the
basics right . . . and have a go!!!]

[Page 87]

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 4 Drafting skills/
Case Study Two

Case Study Two

Contractual Dispute
 You receive the following instructions from your client, Speedy Print Services (Pty) Ltd.
1. I am George Thompson the managing director of Speedy Print Services (Pty) Ltd
(the company). We were established in 1999 as a print shop where members of
the public walked in for various printing and copying services. The company's
business is at 54 York Street, Selby, Johannesburg. Initially the business was in
Prichard Street, Johannesburg and relied mostly on walk­in customers. Since
2000 the business began growing into a different market. We began designing
and printing restaurant menus. As this business grew, we became less reliant on
walk­in customers and began finding business through agents and
representatives, who called on restaurants and hotel chains throughout Gauteng,
Mpumalanga and Limpopo.
2. The business outgrew the Prichard Street premises and in 2001 we moved to a
warehouse in Selby. This place could accommodate the new machines we
installed to produce products for our clients.
3. The company engaged a marketing strategy where we promised customers a
very quick turnaround time. We promised to deliver the printed materials within
24 hours.
4. This strategy worked and the company acquired a reputation for delivering high
quality printing in a short time and at a competitive price. The industry is highly
competitive and any failure will result in reputational damage.
5. The company sourced its printing machines from a reputable firm, Top Rank
Machines Ltd. They supplied us with fast machines for many years. During
January 2018 one of our agents, Ralph Khumalo, introduced me to Vuyo Ngcobo,
CEO of Togo Hotels, a multinational chain of hotels. Vuyo told me that his
company was in the process of opening 14 new hotels around the SADC region.
They required a printer to print the in­room menus for all the hotels. This was
our first job for Togo and we delivered the menus on time. Vuyo was impressed
and indicated that he wanted us to print menus for the whole chain for the Africa
and East Asia regions. He asked if we had the capacity to handle such a contract.
6. This was an enormous breakthrough for the company and I promised Vuyo I
would get back to him about this contract. I realised we had to buy new
machines to deliver the large volume orders from Togo. Word got around that we
were looking for machines. I went to Top Rank and told them what we needed.
They were able to supply the machines we needed and gave us a quotation for
R8 million.
7. I felt the price was high but knew that their machines were good. On 12 February
2018 I received a call from a Mr Toby Vorster who wanted to see me in order to
introduce his company to me. I agreed to see him as they were suppliers of
high­speed printing machines.
8. We met on 15 February 2018 at his company at 21 Bearing Street, Industria. The
name of the company is HSP Print Machines (Pty) Ltd. I was taken through their
product lines by Toby Vorster, who is the marketing manager, and Mr Mike Butler
an engineer. They showed me their latest high capacity machines, in particular a
model called HSP Speed 21. I saw the machine in action and I was impressed by
its speed and quality of the print.
9. The engineer took me through the specifications; the following was impressive:
The machine
­ Printed 5 000 menus per hour
­ Used any standard paper
­ Used laser printing and did not need ink
­ Used less energy than its competitors and only needed phase one
electricity supply
­ Was capable of being run off a standard generator (when load shedding
happens).

[Page 88]

10. The best thing about this machine was the price: R5 million, and substantially
cheaper than any comparable machine on the market.
11. Both Vorster and the engineer assured me that the machine was extremely
reliable and operated with minimal down time. They also took me through the
company's after sales service and warranties. This is what was promised:
­ An unconditional warranty for 24 months
­ Installation at their expense
­ A turn­key experience, all we had to do was to switch on and go
­ 24­hour access to a trained technician, with access to a 24­hour call centre
­ A guarantee that a technician would arrive, if necessary, within one hour.
12. I was most impressed.
13. I returned to my company and reported back to the board. They were impressed
and we resolved to purchase this machine for the Togo contract.
14. On 28 February 2018 I sent an email to Togo confirming that the company would
take on their contract.
 15. On 9 March 2018 and at Industria the company entered into a contract with HSP
for the purchase of an HSP Speed 21. I have a copy of the contract for you.
Vorster signed on behalf of HSP and I signed for the company. The material
terms are as follows:
­ The machine will be delivered and installed by 23 April 2018
­ The price is R5 million, payable on delivery
­ The machine will perform according to the promised specs
­ The machine will run on a 24­hour basis and produce 5 000 copies an hour
using standard printing paper
­ The agreement also records the promised after­sales service and
warranty.
16. On 16 March 2018 and at our premises I entered into a contract with Togo to
print in­room menus for their African and Asian operations. The contract was for
12 months with a minimum order of R2.5 million per month.
17. The contract was due to commence on 2 May 2018 when the first print order
would be placed.
18. After signing the contract, HSP sent a team of technicians to prepare the site for
the machine. The technicians were aware that we did not have second­phase
electricity supply and set out the cables from our existing electricity supply.
19. They tested the machine and we were all delighted to see it work. It was
certainly fast and the print quality was excellent. We paid the full amount of the
purchase price.
20. On 2 May 2018 the first order from Togo was placed and the menus had to be
delivered by 10 May 2018. We started the production run immediately and found
that the machine fell far short of 5 000 menus per hour. In fact, the maximum
production could not be taken to above 2 000 copies per hour. This was a
disaster as that was too slow for our purposes.
21. On 3 May 2018 we called HSP and a technician was sent out. I must add that the
technician did not arrive within an hour as promised, but arrived five hours later.
I told him this was unacceptable. He confirmed the machine was slow and
pointed out that we were using the wrong paper. The machine can only reach the
desired speed if SAPPI Superfine paper was used. That was bad news as this is
the most expensive paper and we did not price our contract with Togo on this
cost. In order to complete our first job for Togo as we wanted to impress them,
we bought the expensive paper and proceeded to run the machine. At first it
looked like performing at 5 000 copies an hour but then it began cutting out
every 15 minutes.

[Page 89]

22. The technician arrived and came up with more distressing news. This machine
required second­phase electricity supply to work. HSP knew that we did not have
second phase as it is too expensive and Eskom is reluctant to supply it. We were
not going to produce at the rate the Togo contract required.
23. I urgently called Vorster and complained. Vorster told me that there was no need
for panic as the matter could be rectified with a simple conversion to the
machine. He told me they would engage the best electrical engineering company
in Gauteng to do the conversion. This is ACDC Electrical Engineers (Pty) Ltd.
They publicly held themselves out to be experts in the field.
24. The engineers arrived on 5 May 2018 and said that after they had carried out a
conversion the machine would run on the phase­one electricity supply. They
spent all day working on the machine and eventually they switched it on and it
ran without cutting out. I thought the problem was solved.
25. At about midnight on 5 May 2018 I received a frantic call from our foreman
Mr Isaac Tshabalala who asked me to come to the factory immediately. I arrived
at the factory to find the staff extremely distressed. They pointed to the machine
and it was a burnt­out wreck. The report I received was that at about 23h30 the
machine caught fire. It burned furiously until the staff used fire extinguishers to
put out the blaze. Thank heavens the fire did not spread through the rest of the
factory. The machine was destroyed.
26. On 5 May 2018 I notified Vorster about the fire and he promised to send
someone. In the meantime, I called Mr Neil Hawks an electrical engineer to look
at the machine. He confirmed that there was an electrical fire and traced the fault
to the machines power supply board. The board was modified but the wrong
gauge of cable was used causing it to catch fire. This was negligence on the part
of ACDC. I requested a report from Hawks.
27. Vorster also arrived with his engineer who examined the machine. I saw him
gravely shake his head. They then left without saying anything.
28. On 6 May 2018 I called Vorster and complained that this machine did not perform
as promised in our agreement and that he was responsible for the fire. I
informed him that we were cancelling the contract and wanted our money back.
29. As for the Togo contract, we were not going to deliver the menus on time. I
called Vuyo and explained what happened and that these were factors outside
our control. He was not sympathetic saying he had a hotel chain to run. Within an
 hour I received an email from Vuyo in which he stated that the company was in
breach of the contract and that he could not wait. He cancelled the contract. I
was devastated.
30. HSP in the meantime was not responding to my emails.
I want to sue.
Signed George Thompson
[This is a typical story you will hear from a client. Your task is to work out the cause of
action and draft the particulars of claim.
We take this step by step so you can follow and understand how this is done and why it
is done in that way.]
Your analysis
[You've read your instructions. Now do an analysis as follows.]

The context
It will be abundantly clear that this is a contractual dispute. However, it is not as
straight forward as that. You will see there is a possible claim against HSP in delict as
well.
What about ACDC? They acted on a contract with HSP. So, you do not have a claim in
contract against them. What about a claim in delict? You have to look at the possibility
of a cause of action against ACDC in delict based on their negligent conduct.
What about treating ACDC as servants of HSP? A cause of action based in vicarious
liability, perhaps?

[Page 90]

The research
You have to find the legal basis or framework.
Read the law of contract. This is not complex as the law is well established and you will
have no difficulty finding the elements of this cause of action. See the discussion above
on claims in contract. Look at the headings we used. Can you use them here?
Read the law of delict; what are the elements of the cause of action? The claim is based
in negligent conduct which caused harm to a client.
Read the law on vicarious liability. What are the elements of this cause of action?
Potentially, here you have three causes of action against two different parties. A
concurrence of causes of action. What do you do? At this stage be prepared to draft all
three causes of action in the alternative.

The material facts

In this step you must write down, in point form using numbered paragraphs, your
client's material facts. When you do this use a chronological sequence. Where you refer
to any documents, sequence the documents. As a good lawyer you will, as a matter of
routine, think and act sequentially. You will keep inquiring if the sequence makes sense.
If it does not, you have a problem; stop and rectify before proceeding any further.

The list
Your list should look like this:
1. The history of the company. Grew from small printer to handling bulk orders.
2. The Togo contract was important for its growth.
3. Had to source new machinery to service Togo Contract.
4. On 15 February 2018 HSP, represented by Vorster and their engineer, made the
following representations regarding their HSP Speed 21:
(a) The machine printed 5 000 menus per hour
(b) Used any standard paper
(c) Used laser printing and did not need ink
(d) Used less energy than its competitors and only needed phase one
electricity supply
(e) Was capable of being run off a standard generator (when load shedding
happens)
5. This was represented regarding after sales service:
(a) An unconditional warranty for 24 months
(b) Installation at their expense
(c) A turn­key experience, all we had to do was to switch on and go
(d) 24­hour access to a trained technician, with access to a 24­hour call centre
(e) A guarantee that a technician would arrive, if necessary, within one hour.
6. Client accepted these representations as true.
7. On 9 March 2018 the company, represented by George Thompson, and HSP,
represented by Toby Vorster entered into a written agreement: see copy (you
can assume that a copy was handed over by the client).
8. In terms of the agreement the company purchased an HSP Speed 21 printing
 machine from HSP for a purchase price of R5 million. The material terms include
the same as the above representations (paragraphs 4 and 5).
9. On 16 March 2018 the company, represented by George Thompson, and Togo,
represented by Vuyo Ngcobo, entered into a written agreement, to print menus
for the hotel chain.
10. The contract was for 12 months with a minimum order of R2.5 million per month.
11. On 23 April 2018 the printer was installed and plaintiff paid the purchase price in
full.

[Page 91]

12. On 2 May 2018 the company received the first order from Togo, which had to be
completed and delivered before 10 May 2018.
13. On 2 May 2018 the machine was used and found to produce only 2 000 copies
per hour.
14. On 3 May 2018 an HSP technician confirmed that the machine could produce
2 000 pages per hour only if expensive paper, SAPPI Superfine, was used. This
is a breach of a term of the contract.
15. On 4 May 2018 the HSP technician informed the client that the machine was
cutting out as it required second­phase power. This is a further breach of the
contract.
16. On 5 May 2018 ACDC engineers converted the machine to run on phase­one
power.
17. Midnight of 5 May 2018 the machine caught fire and was completely destroyed.
18. Early on 6 May 2018 an independent engineer determined that ACDC was
negligent in using the wrong wiring to convert the machine's power supply. This
caused an electrical fire.
19. On 6 May 2018 Togo cancelled the agreement.
20. On 6 May 2018 the company cancelled its agreement with HSP.
[Notice how the main incidents are covered and they derive from your client's
version of what happened. The list is drafted in a chronological sequence and
can, in future, also be used as a Chronology Document. If you carry out an
overview of this list, you will see two things emerging:
(a) The makings of a cause of action against the defendants; and
(b) The makings of your first draft.]

Consequences
21. The machine was destroyed.
22. Client could possibly enforce the warranty on the contract and claim a new
machine. But client cancelled the contract and wants the purchase price back.
23. The Togo contract was lost; claim for loss of profits as a recoverable damage.
24. Check if reputational damage is recoverable.

Quantum
25. The purchase price of R5 million is not disputed.
26. Client must calculate and instruct on loss of profits.
[If you read this analysis from paragraphs 1 to 25, you will notice your particulars of
claim taking shape. Also notice how the facts are kept in a chronological sequence. This
will help you later to draft chronology documents for trial.
In fact, why not stop reading and try to draft this yourself.
You can check your work against the particulars of claim as we have drafted it below.]

Particulars of Plaintiff's Claim

The parties
1. Plaintiff is Speedy Print Services (Pty) Ltd, a company duly registered according
to the company laws of South Africa having its principal place of business at 54
York Street, Selby, Johannesburg. Plaintiff's business is fast printing of menus for
the restaurant and hotel industry.
2. First defendant is HSP Print Machines (Pty) Ltd, a company registered according
to the company laws of South Africa having its principal place of business at 21
Bearing Street, Industria, Johannesburg. First defendant manufactures and
supplies high­speed printing machines.

[Page 92]

3. Second defendant is ACDC Electrical Engineers (Pty) Ltd, a company duly

incorporated according to the company laws of South Africa having its registered
offices at 15th Floor, Office number 32, Sandton Office Tower, 189 Rivonia
Street, Sandton. Second defendant is a firm of consulting electrical engineers.
 [Each of the parties is a company. You can do no harm by taking the precaution
of checking each one's status with CIPC, including your own client.]
Jurisdiction
4. The parties carry on business within the area of jurisdiction of this court, and the
cause of action relied on by plaintiff took place within the area of jurisdiction of
this court.
The layout of these particulars
5. Plaintiff presents its particulars as follows:
(a) In Part A plaintiff pleads its case against first defendant based on a claim
in contract. Plaintiff claims that first defendant was in breach of a written
agreement between the parties.
(b) In Part B plaintiff pleads its case against first defendant in an action based
on first defendant's negligence.
(c) In Part C plaintiff claims against first defendant in a cause of action based
in vicarious liability for the negligent conduct of second defendant.
(d) In Part D plaintiff makes a claim against second defendant based on the
latter's negligent conduct in effecting a conversion to plaintiff's machine.
(e) In Part E plaintiff sets out particulars of its loss and damage.
[This tells the judge how your particulars are set out. It also, at this early stage,
tells the judge what your cause of action is against each defendant. Now when
the judge moves on to the next paragraph, factual background, he or she will
immediately understand the nature of the dispute and what your client's case is.]
Factual background
6. Plaintiff established itself as a printer for the requirements of the restaurant and
hotel industries. In particular, plaintiff gained a reputation for high­speed printing
of menus of a high quality.
Plaintiff won a contract with an international hotel chain, Togo Hotels Ltd, for
printing room­service menus for its entire chain in Africa and East Asia.
To service this contract plaintiff entered into a contract with first defendant to
purchase a high­speed printer.
The printer was not fit for the purpose, caught fire and was completely
destroyed.
Plaintiff suffered loss and damage and sues for compensation and return of the
purchase price of the machine supplied by first defendant.
[Here you set out, very briefly, without giving too much detail about the
supporting evidence, what led to plaintiff's cause of action against defendant. It
tells the judge about the nature of your client's claim.]
Part A
The contract
7. On 9 March 2018 and at Industria, plaintiff and first defendant entered into a
written agreement. Plaintiff was represented by George Thompson and first
defendant was represented by its CEO Mr Toby Vorster. The relevant pages of
the agreement are annexed marked 'A1' to 'A5'.
[This complies with rule 18(6) of the Uniform Rules.
This is a lengthy contract and it is not advisable that you attach the whole
document to the particulars of claim. This merely burdens the record or court
file. Besides, you can be certain that if you attach the whole document, it will be
lost in the registrar's office . . . never to be seen again.
Attach only the pages you require. The whole document can be made available
to defendants through discovery.]

[Page 93]

Material terms
8. The following are material terms of the contract:
(a) Plaintiff purchased an HSP Speed 21 high­speed printer (the printer) from
defendant
(b) The purchase price for the printer was R5 million
(c) The printer will print 5 000 menus per hour
(d) The printer can use standard grade paper to print the menus
(e) The printer operates using phase­one electricity supply
(f) There is a 24­month unconditional warranty
(g) There is after­sales service including the availability of an engineer within
an hour of a call out.
[It is usual to indicate which paragraphs of the agreement are applicable. Thus,
after 8(a) you can add 'See paragraph 4 on page 2 of the agreement, a copy of
which is annexed and marked "A2"'.]

Plaintiff's performance
 9. Pursuant to the contract:
(a) Plaintiff gave first defendant access to its premises for the purpose of
installing the printer; and
(b) On 23 April 2018 plaintiff paid the purchase price in an amount of R5
million.
[This is an essential averment. The law will tell you that if plaintiff did not comply
with its obligations in terms of the contract, its claim or cause of action is not
triggered.]

First defendant's breach

10. In breach of the agreement first defendant failed to deliver a printer:
(a) capable of using standard grade paper
(b) capable of printing 5 000 menus per hour
(c) capable of using first­phase electric power
(d) fit for purpose.
11. In further breach of the agreement:
(a) First defendant failed to send a technician within an hour
(b) First defendant attempted to rectify the power source of the printer by
employing incompetent and negligent technicians
(c) Caused the printer to catch fire, thereby destroying it.
[Notice that defendant's breach is detailed fully and is supported by your client's
version of what happened.]

Consequences of breach
12. As a consequence of the breach:
(a) Plaintiff was entitled to cancel the agreement, alternatively hereby cancels
the agreement
(b) Plaintiff is entitled to recover payment of the purchase price
(c) Togo Hotels Ltd cancelled the contract with plaintiff
(d) Plaintiff suffered loss of profits over a 12­month period.
[Here you detail what happened to your client as a result of defendant's' conduct.
This prepares the judge for the damages you will claim.]

[Page 94]

Part B

Plaintiffs claim in delict

[You will notice that this cause of action is pleaded separately to the case in contract.
You are expected to separate the causes of action where there is a concurrence of
causes. If you mix the causes of action, it will be clumsy and confusing. The judge will
have to work at finding out what your case is. Not appreciated and certainly not
persuasive.]

The duty of care

13. In the circumstances it was reasonable for first defendant to foresee that plaintiff
would suffer damage if they failed to supply a printer fit for purpose and to
provide plaintiff with reliable and competent after­sales service.
14. In the premises, first defendant owed plaintiff a duty of care to:
(a) Supply a printer fit for purpose
(b) Provide reliable and competent after­sales service
(c) Ensure that the printer functioned as stated in the agreement.
[It is not enough to merely plead that defendant owed plaintiff a duty of care.
You must set out the facts giving rise to the duty of care. In this case, the fact
that the parties entered into a contract will establish the proximity and the duty
of care.
You must plead what the duty of care entails. Defendant had to do or not do
certain things.]

Negligent breach
15. In negligent breach of the duty of care, first defendant:
(a) Failed to supply a printer fit for purpose
(b) Failed to provide reliable and competent after­sales service
(c) Caused the printer to catch fire, thereby destroying it.
[Note that a mere breach of the duty of care is not good enough; you have to
plead that there was a 'negligent breach' of the duty of care. Thereafter you
plead details of the negligent conduct.]

Consequences of breach
16. As a consequence of first defendant's breach:
 (a) The printer was not fit for the purpose
(b) The printer was destroyed in a fire
(c) Plaintiff lost the contract with Togo Hotels Ltd.

Part C

Vicarious liability
17. On 4 May 2018 plaintiff informed first defendant that the printer cannot operate
on first­phase electric power. As a result, first defendant employed second
defendant to convert or modify the printer to use phase­one electric power.
18. On 5 May 2018 second defendant effected the conversion in the printer.
19. Second defendant failed to effect the conversion in a proper workmanlike
manner, alternatively did so in a negligent manner, in that:
(a) ACDC carried out the conversion using incorrect wiring or by using wiring
that was of the wrong gauge
(b) ACDC thereby caused the printer to catch fire, thereby destroying it.
[N o t e t h a t t h e g e n e r a l p h r a s e ' f a i l e d t o c a r r y o u t t h e w o r k i n a p r o p e r
workmanlike manner' is used. However, that in itself does not tell the judge
anything about what happened to your client. Thus, details are given as to what
exactly is meant by this phrase, based on plaintiff's version.]

[Page 95]

20. At all material times, and in particular on 5 May 2018, second defendant, in
effecting the conversion to the printer, was acting within the course and scope of
their employment with first defendant.
21. In the premises, first defendant is liable for the conduct of second defendant in
effecting a conversion to the printer.

Second defendant's conduct

22. In effecting the electrical conversion, second defendant failed to carry out the
work in a proper workmanlike manner in that they:
(a) Failed to use the correct gauge of wiring
(b) Failed to adequately test the printer before handing it over to plaintiff
(c) Caused the printer to catch fire, thereby destroying it.

Part D

Claim in delict against second defendant

The duty of care

23. At all material times, second defendant publicly held itself out to be experts in
the field of electrical engineering.
24. When second defendant agreed to carry out the conversion on the printer it could
reasonably foresee that their work could potentially cause a fire risk, and could
reasonably foresee that if the conversion was not carried out in a proper
workmanlike manner, plaintiff would suffer damages.
25. In the premises second defendant owed plaintiff a duty of care to ensure that:
(a) Their work did not create a fire risk
(b) The correct and appropriate components were used to effect the
conversion
(c) The conversion was subjected to testing before being handed to plaintiff.
[There is no contract between plaintiff and second defendant. Plaintiff's claim is in
delict. The facts pleaded here establish the proximity between plaintiff and
second defendant and the duty of care is established.]

Second defendant's negligence

26. In negligent breach of the duty of care second defendant:
(a) Carried out the conversion using incorrect wiring or by using wiring that
was of the wrong gauge
(b) Failed to test the printer adequately or at all
(c) Failed to satisfy themselves that the printer was safe to use
(d) Caused the printer to catch fire, destroying it.

Part E

Particulars of plaintiff's recoverable damage

27. In the circumstances, plaintiff suffered the following loss and damage:
(a) Lost the printer which was valued at R5 million
(b) Lost its contract with Togo Hotels Ltd
(c) Suffered reputational damage in the market.
[You are to claim only damages recoverable at law. There is no doubt that you
 can recover the cost of the machine and loss of profits due to the loss of the
Togo contract. However, there is a question over whether or not you can claim
for loss of reputation. In certain circumstances your client may be able to make
out a cause of action for this. It is also very difficult to quantify and you will need
an industry expert to assist.]

[Page 96]

Quantum
28. Plaintiff suffered damages to the amount of R11 000 000 which amount is made
up as follows:
(a) Reasonable, alternatively market value of the printer R5 000 000
Loss of profits, being 12 months of profit at R500 000 per
(b) R6 000 000
month

R11 000 000

[For the purposes of this case, your quantification of loss of profits may be
adequate. Usually be prepared to explain how the profit is made up, per month,
and give full details as to how you arrive at the claimed figure. You can do this in
a separate annexure to which you make reference in your particulars.]

Demand
29. Notwithstanding demand, defendants refuse to pay the said amount or any other
amount.

Prayer
Wherefore plaintiff claims payment against defendants, jointly and severally, the one
paying the other to be absolved:
(a) Payment of an amount of R11 000 000
(b) Interest on the amount at the rate of 9% from a date two weeks from this order
to date of payment
(c) Costs of suit
(d) Further and/or alternative relief.

A checklist
Having drafted your particulars of claim, it is important to check the following before
you issue the summons:
? Did you carry out a CIPC search for all the parties (including your own client)?
? Are we in the correct jurisdiction?
? Have I established our case concept or theory of case? Are we going to stick with
this case concept or does it need some amendment?
? Can I provide proof of my client's material facts?
? Who will be my witnesses, and how can I ensure they will be available at the
trial?
? Have I received and preserved the necessary documents?
? Will we need the services of an expert? [You also need this information to issue
summons in the Gauteng Local Division.]

[Page 97]

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 4 Drafting skills/
Case Study Three

Case Study Three

Personal Injury
Claims involving personal injury are commonly encountered and you must know how to
draft these claims.
Let us consider some cases involving claims based on medical negligence.

Statement of Mary Green

Your client, Mary Green, makes the following statement:
1. My name is Mary Green. I am 29 years old and I reside at 21 Oak Lane, Sophia
Town, Johannesburg. I live in my mother's home and have been living there for
the past eight years. I am employed as a receptionist at an electrical company in
Bramley, Acme Electrical (Pty) Ltd.
2. During 2010 I met Tony Roberts at a friend's party and we began dating. We
then became involved in a relationship which went on for about five years. Tony
and I were going to get married. My mother Ethel disliked Tony from the start
 and warned me that he was a layabout who would hurt me and not take care of
me.
3. Tony did not have permanent employment and was unable to rent decent
accommodation for us. I had to continue living with my mother. He is a carpenter
but seemed to go from one contract to the next with long periods in between
when he was unemployed. He often borrowed money from me.
4. During February 2013 I was shocked to find out that I was pregnant. I did not
plan this but was very happy to be expecting my first child. I told Tony about this
and expected him to be very excited. I thought this would be what he needed to
bring him to his senses and to start being more responsible. His reaction to the
news was, at best, lukewarm. Not what I expected.
5. I did not see much of Tony after this. When I called him, he said he was on a big
contract in Vereeniging and was very busy. I thought this was good. However, by
the end of February he stopped answering his phone and I have not seen nor
heard from him since. He simply disappeared and none of his family members
could tell me what became of him. To this day I have not heard from him. My
mother could not resist and said: 'I told you so'.
6. After my third month I began attending the local clinic where I was examined by
a nurse and on some occasions by a doctor. The nurses gave me good advice
about my diet and lifestyle.
7. After my sixth month I was given an ultra sound and I saw my baby for the first
time. The doctor told me everything was fine and gave me a picture of my baby.
He told me I was expecting a boy. I attended the clinic once a month and the
staff told me I was having a normal pregnancy. I experienced no problems and
all looked well. I went to work normally and only took leave to attend my routine
clinic check­up.
8. In October 2013 I went on maternity leave as I was expecting to give birth within
four to six weeks. This is what the clinic told me and they referred me to the
Roodepoort Regional Hospital. I took a letter and went to the hospital. They
booked me for my birthing and told me to come back as soon as I felt
contractions.
9. On 2 November 2013 I began feeling contractions. My mother called for an
ambulance and I was taken to the hospital. I was admitted by a staff member
who asked me to sign a number of forms. I was uncomfortable and feeling
nauseous and did not read all the forms. I assumed they were admission forms.
10. I was taken to the maternity ward and given a bed. There were eight other
patients in the ward. I was admitted at about 14h00. The nurse came and took
my blood pressure and asked about the intervals of my contractions. I told the
nurse it was very close. She looked at me and said it was still early for me and
she would call the doctor when I was ready.

[Page 98]

11. I was not happy with this and requested to see a doctor as soon as possible. The
nurse said that she would see who was available. No doctor came and at 16h00 I
complained of severe labour pains. Again, the nurse examined me and said it
was too early; my water had to break first. I was unhappy and insisted on seeing
a doctor. I was told that a doctor would soon come to do the ward rounds.
12. At 18h00 my water broke and I experienced severe labour pains for about four
hours. I pleaded with the nurse to call a doctor. At about 19h00 a young man
came to my bed and said he was a doctor. He examined me and said that I
should have a natural birth and it was still too early. This young man, Dr Wagner,
turned out to be a trainee doctor. The nurse told me they would only call a
specialist when it was strictly necessary. I was appalled to learn that it was the
senior nurse or matron who decided whether a patient needed specialist care.
13. I was in severe pain and kept calling for a gynaecologist. The nurse called the
matron who told me that the specialist would only come in the next morning and
I must wait, just like all the other patients. I explained that I had been in labour
since 14h00 and there had to be some intervention. The nurse then said she
would give me a drug to induce me to give birth. I was unhappy with this but
agreed to take the drug as I was in excruciating pain. I asked the matron if I
could have a caesarean operation to get my baby out. I was afraid of
complications that might affect my baby.
14. The matron informed me that it was the hospital's policy not to perform
caesareans on request. I complained that this was not merely a request and that
I had been in labour for six hours and this was not good for my baby. The nurse
told me to be patient as they had other mothers to attend to. I felt helpless and
was terrified that something would happen to the baby.
15. Since my admission, only my blood pressure was taken, twice, no other
monitoring was carried out.
16. I struggled through the night with no relief. I was in constant pain and concerned
for my baby. No one came to my assistance. At 7h00 the next morning a new
shift of nurses came on duty. This time a nurse came to my bed and saw that I
was in a state. I was still in labour and my body was covered in sweat. She
called a doctor who came to examine me. He too was not a specialist and told
 me that the consulting gynaecologist would arrive at 9h00. I remained in labour
for a further two hours. No one bothered to check if my baby was okay.
17. At 9h30 a Dr Schmidt came and examined me. I told him that I had been in
labour for a long time and I was worried about my baby. He said he would take
me to theatre and induce stronger contractions. I asked if my baby was okay. He
merely said it should be okay as this was fairly routine and I had nothing to
worry about.
18. At 11h00 that morning I was taken to the theatre where I was given a drug. I
asked if a caesarean was the better option; the doctor and the nurses said it was
not necessary in my case. After the drug took effect, it felt as if I was going to
die. The contractions became very strong and I was in excruciating pain.
19. The birthing took long and I was beside myself for the safety of my child. When
the baby was born the nurse brought him to me. I was so excited but noticed he
had turned blue and was not breathing. I screamed that there was something
wrong with the baby. The nurse came and took him away saying that this was
normal. The baby was taken away and I did not know where he was taken.
20. After I was taken to the ward, I kept asking to see the baby. The matron came
and told me not to worry as the child was taken to the paediatric department for
routine treatment. At about midday I insisted on seeing my baby. I was unable to
walk properly and had to be taken in a wheel­chair. I was then handed the baby
and as I looked at him, I realised that he was not normal. He was having
difficulty breathing and they had been giving him oxygen. The child was very
pale and was not responding. I asked what the problem was and was told that
the specialist would come and talk to me later.

[Page 99]

21. They put the baby in an incubator and returned me to the ward. When my
mother came to visit, I told her about the baby. She went to the paediatric ward
to see for herself. She came back and I could see she had been crying. I asked
her what she saw and she confirmed that the child did not look normal and no
one wanted to tell her what happened.
22. On 4 November 2013 I was still in the ward when a paediatrician, Dr Ray
Solomon, came to see me. He asked me to accompany him to an office as he did
not want to have a discussion in a general ward. My heart sank as I knew that
this was bad news.
23. The doctor and I sat at a desk and he told me that he was sorry to convey to me
that there were complications during the birth of my baby. He did not explain
fully what the complications were and what had caused them. He said that during
vaginal delivery the child suffered from compromised oxygen supply which
resulted in brain damage. The child was now permanently suffering from cerebral
palsy and mental retardation. All I remember is that I burst into tears and the
nurses were called to take care of me.
24. My child was returned to me and I could tell he was not normal. He was not
reacting to me as a normal baby would. He held his head at an odd angle and he
kept drooling from the corner of his mouth. He had difficulty feeding and refused
to breast feed. He also just cried a lot.
25. On 6 November 2013 I was discharged with my baby. I named the baby Ralph,
after my late father. The child needed constant attention and I was unable to go
to work. My employer was sympathetic and extended my leave to six months.
During this time, I spent all my time with the child hoping he would improve. I
took him back to the paediatric department for monthly check­ups and
medication. One of the specialists explained that the child suffered a hypoxic­
ischemic insult due to perinatal asphyxia and/
or hypoxia, causing the child to sustain severe brain damage. The child will be
permanently disabled and will never be normal. I was too distressed for words.
26. I struggled to cope with raising a child with this condition and relied heavily on
my mother to assist me. The child is five years old now and has to go to a
special school. He walks with an abnormal gait and his speech is impaired. He is
also moody and given to bursts of anger. This child will need specialised care for
the rest of his life.
27. I am dissatisfied with the medical staff at the hospital. If they had attended to me
this would not have happened.
Mary Green
[This is how you will consider proceeding to carry out your instructions to sue for
damages:
It is worth repeating that you must obtain all the relevant facts. You already have a
good statement from the client. These are the additional steps to take.]
(a) Obtain all the medical records from the clinic and from the hospital.
(b) Already, and at this early stage, appoint a specialist who will assist you as an
expert. At least get a gynaecologist immediately; you can instruct a paediatrician
later. [ Note that for Gauteng you have to indicate to the registrar, when you
issue the summons, that experts will be used.]
(c) The time periods should cause some concern as you can expect the state
 attorney to raise prescription. You should prepare an application for condonation
in terms of the Prescription Act 68 of 1969; you should have no difficulty
obtaining it. However, here your claim is in respect of a minor child and
prescription does not run. Remember to plead this in your particulars.
(d) Your claim will be against a state hospital, which means you must attend to
giving notice in terms of the Institution of Legal Proceedings against Certain
Organs of State Act 40 of 2002.

[Page 100]

Fact analysis
[After you have gathered all the facts, including hospital records, make a list of only the
material facts of your case in a chronological sequence.]
It will look like this:
1. Mary fell pregnant in February 2013.
2. Three months into her pregnancy she began attending the clinic for check­ups.
3. At six months she had an ultra sound; the baby was normal.
4. Routine clinic checks continued; no problems detected.
5. Took maternity leave in October 2013.
6. On 2 November 2013 admitted to hospital.
7. Admission was at 14h00.
8. Blood pressure monitored; contractions were close.
9. Requested attention from a doctor. None arrived.
10. At 16h00 severe pain experienced and Mary requested a doctor, again.
11. No further or other monitoring by staff.
12. At 18h00 her water broke; she called for a doctor.
13. At 19h00 a trainee doctor, Dr Wagner, said Mary was okay and could expect to
give natural birth.
14. Requested intervention of a specialist; this was refused.
15. Mary now in severe pain, repeatedly calling for a doctor.
16. Mary now in labour since 14h00; told a doctor will attend the next morning.
17. Mary requested a Caesarean; informed it is not policy to perform the procedure
on request.
18. Mary informed nurse she was in labour for six hours and was concerned for the
baby.
19. On 3 November 2013 at 7h00 Mary in a state, in pain and covered in sweat.
Nurse calls a doctor. Informed he was not a specialist; a specialist would arrive
at 9h00.
20. No monitoring of the baby was carried out.
21. At 9h30 examined by Dr Schmidt.
22. At 11h00 on 3 November 2013 Mary taken to theatre and stronger labour
induced. Given a drug, caused severe pain.
23. Birthing lasted a long time, and Mary expressed concerns about complications.
No monitoring of mother and baby.
24. Baby born, not well, turned blue, not breathing well.
25. On 4 November 2013 Mary informed by paediatrician, Dr Solomon, child suffered
complications caused by compromised oxygen supply during birthing.
26. Dr Solomon confirms child has cerebral palsy and mental retardation.
27. On 6 November 2013 Mary and baby discharged.
28. Child taken to paediatric department for monthly treatment. Child confirmed to
have suffered a hypoxic­ischemic insult due to perinatal asphyxia and/or hypoxia
causing the child to sustain severe brain damage.
29. Child confirmed to be permanently disabled.
[If you review this list, you will already see your cause of action taking shape. You will
also save this list as it will be used to prepare chronology documents for case
management and the trial.]

[Page 101]

Contextualise
[Apply your mind to the area of law applicable to the facts.]
Here you will identify:
(a) A claim based in contract: There was a contract between the hospital and Mary.
(b) A claim based in delict: There was negligence in the treatment of Mary and her
child.
(c) Vicarious liability: The hospital's staff were responsible for the treatment
provided to Mary.
 (d) The Constitution, in particular the Bill of Rights: Mary's treatment at the hands of
the hospital is a breach of her constitutional rights and the Constitution provides
a basis for a duty of care.

The onus
[Your particulars of claim must address two principal issues:
(a) First, whether the medical staff in the employ of the MEC were negligent; and
(b) Second, whether that negligence is causally connected to the permanent brain
damage and consequent cerebral palsy sustained by Mary Green's child.
These issues represent two of your essential elements of your cause of action. Go back
to the case studies above and have a go at writing the particulars of claim. It must look
like this:]

Explanatory note
We drafted the particulars below using a very comprehensive set of allegations. We
did this for purposes of demonstrating how these particulars are pleaded and to
present you with all the options you have. Usually, you will not need such a
comprehensive set of allegations. We also point out that as a result, the paragraphs
contain sentences that are too long. This comes about by reference to various
alternatives in the same sentence with the use of 'and/or'". You should avoid this
where you can. Choose the allegation you want to rely on and express it using
short sentences.
We also introduce you to a cause of action based on your client's constitutional
rights in the Bill of Rights.

Particulars of Plaintiff's Claim

The parties
1. The Plaintiff is Mary Green, an adult female of full legal capacity, born on 20
February 1987 and residing at 21 Oak Lane, Sophia Town, Johannesburg, who
sues herein in her representative capacity as mother and natural guardian of her
minor son Ralph Green, born on 3 November 2013 ('the Minor') of the same
address.
[Mary sues in her representative capacity. This is pleaded. Being a personal
injury case, you have to plead the age or date of birth of the minor. It will also
do no harm to include the minor's identity number in this paragraph.]
2. The Defendant is the Member of the Executive Council for Health of the Gauteng
Provincial Government ('the Department'), who:
2.1 is sued herein in a representative capacity as nominal Defendant for all
claims arising against the Roodepoort Regional Hospital ('the Hospital'),
situated in 68 Mbeki Drive, Roodepoort, Gauteng, such hospital falling
under the authority of, and is controlled and operated by, the Defendant;
2.2 is an institution established, funded and managed by the Gauteng
Provincial Government and who, in terms of section 2(2) of the State
Liability Act 20 of 1957, is the entity who is responsible in law for the acts
and/or omissions of persons in the employ of the Defendant; and

[Page 102]

2.3 is situated at 89 Commissioner Street, 30th Floor, Johannesburg, Gauteng.

[This is the proper way of citing the state in an action like this. The requirement
can be found in the State Liability Act. If you merely sued the Minister of Health,
the state attorney will file a special plea that the wrong entity was sued. You
must, as a rule, avoid any risk of a special plea being filed against your client.
However consider the De Klerk judgment referred to above.]

Factual background
3. Plaintiff was admitted to the Hospital where she gave birth to the Minor. The
treatment was poor and as a result there were complications to the Minor during
the birthing process.
4. During treatment, the Minor suffered loss of oxygen which in turn resulted in
irreversible brain damage. The Minor is permanently disabled having suffered
from cerebral palsy and mental retardation.

Vicarious obligations
5. Any and all medical practitioners and nursing staff (some of whose identities are
presently to the Plaintiff unknown) who were involved in, or who were by virtue
of their respective positions obliged to become involved in, the admission to and
the rendering of medical services, and the examination, monitoring and/or
treatment of the Plaintiff at the Hospital:
5.1 were either permanent or temporary employees and/or representatives of
the Defendant who acted within the course and scope of their duties as
permanent or temporary employees and/or representatives, alternatively
who acted in representing and/or furthering the interests of the Defendant;
 alternatively
5.2 were duly authorised agents and/or representatives of the Defendant who
were acting as such in the fulfilment of the Defendant's vicarious
obligations to the Plaintiff and the Minor to render medical treatment, care
and advice to the Plaintiff (including her unborn child) as a patient,
alternatively who acted in representing and/or furtherance of the interests
of the Defendant in rendering medical treatment, care and advice to the
Plaintiff (including her unborn child) as a patient.
[Note that there is a logical sequence to this. First the details of the MEC is
pleaded followed immediately by his vicarious obligations.]

Contract
6. At all relevant times hereto, and in particular between 2 November 2013 and 6
November 2013:
6.1 an oral agreement, alternatively a written agreement, having been
concluded at the Hospital between the Plaintiff, acting personally, and the
Defendant, represented by an unknown authorised employee and/or
representative of the Defendant, the express and/or implied and/or tacit
terms of which are as follows:
6.1.1 the Defendant will provide medical, surgical, nursing and
midwifery treatment, monitoring, advice, supervision and care to
the Plaintiff in respect of her labour and the delivery of the Minor,
and all reasonable medical services associated thereby; and/or
6.1.2 all personnel of the Defendant as set out in paragraph 3 above
that were involved in the examination, treatment and rendering of
advice to the Plaintiff during her admission to the Hospital from 2
November 2013 to 6 November 2013 undertook to the Plaintiff to
examine the Plaintiff and to render such medical examinations,
care, treatment and advice to her, and the monitoring of her
labour, as was reasonably required in the circumstances, more
specifically in that:

[Page 103]

6.1.2.1 they will employ and/or ensure medical attention by

suitably qualified and/or proficient and/or experienced
medical practitioners and/or nursing staff who would be
available, able and/or capable to examine, treat and/or
provide whatever reasonably required assistance and/or
advice to the Plaintiff as may be reasonably required
and/or appropriate regarding her labour and delivery,
and in particular in respect of performing a Caesarean
Section if and when required, either at the Hospital or at
all;
6.1.2.2 they will ensure that such medical practitioners and/or
nursing staff were in attendance at all material and
relevant times;
6.1.2.3 they will employ and/or ensure medical attention by
suitably qualified and/or proficient and/or experienced
medical practitioners and/or nursing staff who were able
to assess, monitor and manage the Plaintiff's labour and
delivery;
6.1.2.4 they will ensure that the Hospital was suitably,
adequately, appropriately and/or properly equipped to
provide such medical attention as was reasonably
required by the Plaintiff at all relevant times hereto, and
in particular to allow the timeous and proper
performance of a Caesarean Section when it was
required;
6.1.2.5 they will take any and/or reasonably required steps to
ensure the proper, timeous and professional assessment
of the Plaintiff, her monitoring and management of
labour and/or assistance during the Plaintiff's labour and
her process of birth;
6.1.2.6 they will implement such steps as could and would
reasonably be required to prevent the occurrence of any
complications;
6.1.2.7 they will avoid any complications when by the exercise
of reasonable care, skill and diligence they could and
should have done so;
6.1.2.8 they will properly and or sufficiently assess, examine,
treat or advise the Plaintiff as may be reasonably
required in the circumstances;
6.1.2.9 they will monitor the Plaintiff's general progress of
labour and her foetal well­being appropriately, with
sufficient regularity, or at all;
 6.1.2.10 they will request or call for assessment or medical
examination of the Plaintiff by any other or better
qualified medical practitioners when the circumstances
indicated a need for it;
6.1.2.11 they will perform or request the performance of accurate
and/or proper cardio­topographic tracings ('CTG
tracings') of the foetal heart rate and maternal
contractions, and/or by failing to recognise that the
foetal heart pattern on the cardio­topograph was
unsatisfactory and/or medically unstable;
6.1.2.12 they will monitor the foetal heart rate appropriately,
timeously or with sufficient frequency and/or at all,
thereby failing to detect that the Minor was in foetal
distress;
6.1.2.13 they will note and/or appreciate the significance of the
lack of appropriate and/or timeous progress of the
Plaintiff's labour;
6.1.2.14 they will monitor, either appropriately, timeously, with
the necessary frequency, or at all, the Plaintiff's process
of labour, alternatively by failing to heed the Plaintiff's
requests for medical assistance;
6.1.2.15 they will maintain a proper or accurate partogram;

[Page 104]

6.1.2.16 t h e y w i l l s u m m o n , e i t h e r t i m e o u s l y o r a t a l l , f o r
purposes of the Plaintiff's assessment, treatment of for
purposes of medical advice, the assistance of a specialist
gynaecologist, a suitably qualified medical practitioner
and/or any other medical practitioner as may be
reasonably required in circumstances where it was
necessary and indicated to do so;
6.1.2.17 they will timeously perform or request to be performed,
a Caesarean Section on the Plaintiff where it was
necessary and indicated to do so;
6.1.2.18 they will advise the Plaintiff, either timeously or at all,
that prolonged labour and/or that failure to perform a
Caesarean Section timeously could jeopardise the health
and well­being of her unborn child;
6.1.2.19 they will inform the Plaintiff, either timeously or at all, of
any and all reasonable circumstances which could or
would prevent the medical and nursing staff and/or the
attending medical practitioner from rendering reasonable
medical, nursing and/or midwifery services with such
professional skill and diligence as could reasonably be
expected of medical practitioners, nursing staff and/or
midwives;
6.1.2.20 they will obtain a comprehensive and/or complete
and/or sufficient obstetric history from the Plaintiff;
6.1.2.21 t h e y w i l l p r o v i d e a n d / o r r e n d e r t h e r e q u i s i t e a n d
reasonable medical, surgical, nursing and midwifery
services with such professional care, skill and diligence
as may be reasonably expected in the circumstances of
medical practitioners, nurses and midwives;
6.1.2.22 they will ensure that an emergency Caesarean Section
was performed without delay;
6.1.2.23 they will prevent the delay in delivering the Minor and
any complications and/or the consequences thereof
when, by the exercise of reasonable medical care, skill
and diligence these could and should have been
prevented;
6.1.2.24 t h e y w i l l p r o v i d e a n d / o r r e n d e r a d e q u a t e a n d / o r
appropriate neo­natal resuscitation immediately after the
birth of the Minor;
6.1.2.25 they will prevent the Minor from suffering a hypoxic­
ischemic incident, and by the exercise of reasonable
skill, care and diligence it could and should have been
prevented.
[Notice that here we plead a comprehensive set of steps the hospital should have
taken, in terms of the contract. But, most importantly, notice that each of the 25
allegations made, can be supported by the facts of Mary's version of what
happened. The facts are comprehensively pleaded so that all the evidence that
may be led at the trial will be covered. During the trial certification process some
of these issues will be narrowed according to what the experts say.]

Alternatively, to paragraphs 4.1 to 4.1.2.25 above:

 The duty of care
6.2 The Defendant, by reason of:
6.2.1 the existence of the Hospital as a public facility and that the
Defendant, held out to the public, and in particular the Plaintiff,
that the Hospital was a public facility where reasonable medical
care, treatment and advice is rendered to members of the public;
and/or

[Page 105]

6.2.2 the Plaintiff's admission as a patient at the Hospital and the

undertaking by the Hospital to render medical care and treatment
to her and her unborn child; and/or
6.2.3 the provisions of section 9 (the right to equality), section 10 (the
right to dignity), section 11 (the right to life) and section 27 (the
right to health and health care services) of the Constitution of the
Republic of South Africa, 1996 ('the Constitution'); was under a
legal duty of care, a legal duty which extended to the Plaintiff and
the Minor to ensure the rendering of medical care, treatment and
advice to the Plaintiff and her unborn child with such skill, care and
diligence as could reasonably be expected of appropriately
qualified medical practitioners and nursing staff, obliging the
Defendant to ensure that proper, sufficient and reasonable health
services were provided to members of the public (in particular
those who could not reasonably make use of medical services
provided by institutions other than a public Hospital), more
specifically in that they had a duty to:
6.2.3.1 employ and/or ensure medical attention by suitably
qualified and/or proficient and/or experienced medical
practitioners and/or nursing staff who would be
available, able and/or capable to examine, treat and/or
provide whatever reasonably required assistance and/or
advice to the Plaintiff as may be reasonably required
and/or appropriate regarding her labour and delivery,
and in particular in respect of performing a Caesarean
Section if and when required, either at the Hospital or at
all;
6.2.3.2 ensure that such medical practitioners and/or nursing
staff were in attendance at all material and relevant
times;
6.2.3.3 employ and/or ensure medical attention by suitably
qualified and/or proficient and/or experienced medical
practitioners and/or nursing staff who were able to
assess, monitor and manage the Plaintiff's labour and
delivery;
6.2.3.4 ensure that the Hospital was suitably, adequately,
appropriately and/or properly equipped to provide such
medical attention as was reasonably required by the
Plaintiff at all relevant times hereto, and in particular to
allow the timeous and proper performance of a
Caesarean Section when it was required;
6.2.3.5 take any and/or reasonably required steps to ensure the
proper, timeous and professional assessment of the
Plaintiff, her monitoring and management of labour
and/or assistance during the Plaintiff's labour and her
process of birth;
6.2.3.6 implement such steps as could and would reasonably be
required to prevent the occurrence of any complications;
6.2.3.7 avoid any complications when by the exercise of
reasonable care, skill and diligence they could and
should have done so;
6.2.3.8 properly and or sufficiently assess, examine, treat or
advise the Plaintiff as may be reasonably required in the
circumstances;
6.2.3.9 monitor the Plaintiff's general progress of labour and her
foetal well­being appropriately, with sufficient regularity,
or at all;
6.2.3.10 request or call for assessment or medical examination of
the Plaintiff by any other or better qualified medical
practitioners when the circumstances indicated a need
for it;
6.2.3.11 perform or request the performance of accurate and/or
proper cardio­topographic tracings ('CTG tracings') of
the foetal heart rate and maternal contractions, and/or
by failing to recognise that the foetal heart pattern on
 the cardio­topograph was unsatisfactory and/or
medically unstable;

[Page 106]

6.2.3.12 monitor the foetal heart rate appropriately, timeously or

with sufficient frequency and/or at all, thereby failing to
detect that the Minor was in foetal distress;
6.2.3.13 note and/or appreciate the significance of the lack of
appropriate and/or timeous progress of the Plaintiff's
labour;
6.2.3.14 monitor, either appropriately, timeously, with the
necessary frequency, or at all, the Plaintiff's process of
labour, alternatively, by failing to heed the Plaintiff's
requests for medical assistance;
6.2.3.15 maintain a proper or accurate partogram;
6.2.3.16 summon, either timeously or at all, for purposes of the
Plaintiff's assessment, treatment of for purposes of
medical advice, the assistance of a specialist
gynaecologist, a suitably qualified medical practitioner
and/or any other medical practitioner as may be
reasonably required in circumstances where it was
necessary and indicated to do so;
6.2.3.17 t i m e o u s l y p e r f o r m o r r e q u e s t t o b e p e r f o r m e d , a
Caesarean Section on the Plaintiff where it was
necessary and indicated to do so;
6.2.3.18 advise the Plaintiff, either timeously or at all, that
prolonged labour and/or that failure to perform a
Caesarean Section timeously could jeopardise the health
and well­being of her unborn child;
6.2.3.19 inform the Plaintiff, either timeously or at all, of any and
all reasonable circumstances which could or would
prevent the medical and nursing staff and/or the
attending medical practitioner from rendering reasonable
medical, nursing and/or midwifery services with such
professional skill and diligence as could reasonably be
expected of medical practitioners, nursing staff and/or
midwives;
6.2.3.20 o b t a i n a c o m p r e h e n s i v e a n d / o r c o m p l e t e a n d / o r
sufficient obstetric history from the Plaintiff;
6.2.3.21 provide and/or render the requisite and reasonable
medical, surgical, nursing and midwifery services with
such professional care, skill and diligence as may be
reasonably expected in the circumstances of medical
practitioners, nurses and midwives;
6.2.3.22 e n s u r e t h a t a n e m e r g e n c y C a e s a r e a n S e c t i o n w a s
performed without delay;
6.2.3.23 p r e v e n t t h e d e l a y i n d e l i v e r i n g t h e M i n o r a n d t h e
complications and/or the consequences thereof when, by
the exercise of reasonable medical care, skill and
diligence these could and should have been prevented;
6.2.3.24 provide and/or render adequate and/or appropriate neo­
natal resuscitation immediately after the birth of the
Minor;
6.2.3.25 prevent the Minor from suffering a hypoxic­ischemic
incident, causing the Minor to sustain severe brain
damage, by the exercise of reasonable skill, care and
diligence it could and should have been prevented.
[Here we establish the duty of care. This arises from the fact that there was an
agreement (contract) and the right to decent health care in terms of the Bill of
Rights. Note that we do not merely allege there was a duty of care, we set out, in
full, exactly what this duty entails. Notice further that the details given above are
supported by the facts of your case.]

[Page 107]

The treatment
7. On or about 2 November 2013 Plaintiff was admitted to the Hospital with her then
unborn child, the Minor.
8. During the course of 2 November 2013 to 3 November 2013 Plaintiff endured
prolonged periods of labour and required appropriate medical attention,
treatment and/or advice to ensure the safe birth of a healthy child.
9. On 3 November 2013 the Minor was born by way of vaginal delivery ('the birth').
 10. Despite the aforementioned agreement, alternatively t h e d u t y o f c a r e , t h e
Defendant carried out the birth in breach of the agreement alternatively the duty
of care by being negligent in one or more or all of the respects listed in
paragraph 13 below ('the incident').
[Note that the breach of duty of care must be negligent. It is not enough to
merely plead that there was a breach of the duty of care. Thereafter you plead
the details of how you say defendants acted negligently.]
11. As a result of the prolonged labour, a lack of attention and medical care as may
be reasonably required in the circumstances, and in particular a failure to
timeously perform a Caesarean Section to deliver the Minor, the Minor suffered a
hypoxic­ischemic insult due to perinatal asphyxia and/or hypoxia, causing the
Minor to sustain severe brain damage, as a result of which the Minor is
permanently suffering from cerebral palsy and mental retardation ('the
Complications').
12. The Complications occurred as a result of the negligence of the Defendant,
alternatively, as a result of the negligence of the Defendant's employees and/or
representatives and/or agents, alternatively, as a result of the combined and
cumulative negligence of the Defendant and the Defendant's aforesaid
employees, representatives and/or agents.

Negligence
13. The Defendant's employees, representatives and agents were negligent in one or
more or all of the following respects, in that either upon the Plaintiff's admission
at the Hospital, or at any relevant stage thereafter up to and including the time of
the Minor's birth, as well as for the duration of the Minor and the Plaintiff's
clinicisation at the Hospital thereafter they:
13.1 failed to employ and/or ensure medical attention by suitably qualified and/
or proficient and/or experienced medical practitioners and/or nursing staff
who would be available, able and/or capable to examine, treat and/or
provide whatever reasonably required assistance and/or advice to the
Plaintiff as may be reasonably required and/or appropriate regarding her
labour and delivery, and in particular in respect of performing a
Caesarean Section if and when required, either at the Hospital or at all;
13.2 failed to ensure that such medical practitioners and/or nursing staff were
in attendance at all material and relevant times;
13.3 failed to employ and/or ensure medical attention by suitably qualified and/
or proficient and/or experienced medical practitioners and/or nursing staff
who were able to assess, monitor and manage the Plaintiff's labour and
delivery;
13.4 failed to ensure that the Hospital was suitably, adequately, appropriately
and/or properly equipped to provide such medical attention as was
reasonably required by the Plaintiff at all relevant times hereto, and in
particular to allow the timeous and proper performance of a Caesarean
Section when it was required;
13.5 failed to take any and/or reasonably required steps to ensure the proper,
timeous and professional assessment of the Plaintiff, her monitoring and
management of labour and/or assistance during the Plaintiff's labour and
her process of birth;

[Page 108]

13.6 failed to implement such steps as could and would reasonably be required
to prevent the occurrence of the Complications;
13.7 failed to avoid the Complications when by the exercise of reasonable care,
skill and diligence they could and should have done so;
13.8 failed to properly and or sufficiently assess, examine, treat or advise the
Plaintiff as may be reasonably required in the circumstances;
13.9 failed to monitor the Plaintiff's general progress of labour and her foetal
well­being appropriately, with sufficient regularity, or at all;
13.10 failed to request or call for assessment or medical examination of the
Plaintiff by any other or better qualified medical practitioners when the
circumstances indicated a need for it;
13.11 failed to perform or request the performance of accurate and/or proper
cardio­topographic tracings ('CTG tracings') of the foetal heart rate and
maternal contractions, and/or by failing to recognise that the foetal heart
pattern on the cardio­topograph was unsatisfactory and/or medically
unstable;
13.12 failed to monitor the foetal heart rate appropriately, timeously or with
sufficient frequency and/or at all, thereby failing to detect that the Minor
was in foetal distress;
13.13 failed to note and/or appreciate the significance of the lack of appropriate
and/
or timeous progress of the Plaintiff's labour;
13.14 failed to monitor, either appropriately, timeously, with the necessary
frequency, or at all, the Plaintiff's process of labour, alternatively, b y
 failing to heed the Plaintiff's requests for medical assistance;
13.15 failed to maintain a proper or accurate partogram;
13.16 failed to summon, either timeously or at all, for purposes of the Plaintiff's
assessment, treatment of for purposes of medical advice, the assistance of
a specialist gynaecologist, a suitably qualified medical practitioner and/ or
any other medical practitioner as may be reasonably required in
circumstances where it was necessary and indicated to do so;
13.17 failed to timeously perform or request to be performed, a Caesarean
Section on the Plaintiff where it was necessary and indicated to do so;
13.18 failed to advise the Plaintiff, either timeously or at all, that prolonged
labour and/or that failure to perform a Caesarean Section timeously could
jeopardise the health and well­being of her unborn child;
13.19 failed to inform the Plaintiff, either timeously or at all, of any and all
reasonable circumstances which could or would prevent the medical and
nursing staff and/
or the attending medical practitioner from rendering reasonable medical,
nursing and/or midwifery services with such professional skill and diligence
as could reasonably be expected of medical practitioners, nursing staff
and/or midwives;
13.20 failed to obtain a comprehensive and/or complete and/or sufficient
obstetric history from the Plaintiff;
13.21 failed to provide and/or render the requisite and reasonable medical,
surgical, nursing and midwifery services with such professional care, skill
and diligence as may be reasonably expected in the circumstances of
medical practitioners, nurses and midwives;
13.22 failed to ensure that an emergency Caesarean Section was performed
without delay;
13.23 failed to prevent the delay in delivering the Minor and the Complications
and/or the consequences thereof when, by the exercise of reasonable
medical care, skill and diligence these could and should have been
prevented;
13.24 failed to provide and/or render adequate and/or appropriate neo­natal
resuscitation immediately after the birth of the Minor;

[Page 109]

13.25 failed to prevent the Minor from suffering a hypoxic­ischemic incident,

causing the Minor to sustain severe brain damage, as a result of which the
Minor is suffering from cerebral palsy and mental retardation when, by the
exercise of reasonable skill, care and diligence it could and should have
been prevented.
[The details of the medical procedures and consequences described here will
typically come from your expert report. You have to read the report with the
facts of your client's version. Notice that the allegations of negligence are not
made in broad or vague non­specific terms. Full details are pleaded, which detail
is supported by the facts of Mary's version.]

Consequences of breach
14. As a result of the Defendant's negligence referred to above, the Minor:
14.1 has suffered foetal distress and perinatal birth asphyxia with resultant
brain damage, cerebral palsy and mental retardation;
14.2 has experienced pain, suffering and discomfort, and will continue to
experience pain, suffering and discomfort as a result of cerebral palsy,
mental retardation, marked developmental delays, speech deficits and
behavioural problems;
14.3 underwent hospital, medical and related treatment, and will in future
undergo such treatment, the details and likely prognosis of which are set
out below;
14.4 has required and will continue to require various modalities of therapy,
special adaptive aids and devices, specialised schooling, permanent and
continuous care, the details of which appear below;
14.5 has experienced and will in future experience a loss of amenities of life as
would be experienced by a person of the same age and standing as the
Minor, an inability to function independently and to enjoy the freedom of
independent and unrestricted mobility, meaningful privacy, social
interaction, free communication, parenthood and in general leading a
fulfilled life;
14.6 is permanently disfigured as a result of the cerebral palsy, and has and
will continue to experience a total disability;
14.7 will experience loss of earnings and/or earning capacity and/or be unable
to generate any meaningful income;
14.8 will suffer from psychological problems and sequelae;
14.9 will require the services and protection afforded by a caregiver as well as
a Trustee to protect any funds awarded to the Minor.
 [Again, the details pleaded here will usually come from expert reports. You can
see the benefit of engaging an expert at an early stage, that is to say, before
you issue summons. Here you will need the services of an occupational therapist.
In Gauteng you will be expected to indicate to the registrar, on issuing, that
experts will be used.]

The damages and quantum

15. The Plaintiff in her representative capacity as mother and natural guardian of the
Minor has suffered the following damages as a result of the Complications and
the sequelae thereof consequent upon the aforesaid negligence of the Defendant
and breach by the Defendant of its legal duty:
[The consequences pleaded are as a result of both breach of contract and
negligent breach of the duty of care.]
15.1 Future hospital, clinical, medical and related expenses in the amount of Rx,
being in respect of any or more of the following:
15.1.1 Speech and language therapy Rxxxx
15.1.2 Occupational therapy Rxxxx
15.1.3 Physiotherapy Rxxxx
15.1.4 Podiatry Rxxxx

[Page 110]

15.2 Future loss of earnings and/or loss of earning capacity and/or loss of
employability in the amount of Rxy, being an estimated globular amount
based on the following:
15.2.1 The estimate makes allowance for the fact that the Complications
a n d sequelae thereof have severely interfered with the Minor's
earning capacity, causing the Minor a loss of employment
prospects and/or a general loss of employability and/or a loss of
productivity and efficiency which effectively render the Minor
unemployable;
15.2.2 The Minor will therefore suffer a loss of earnings for the entire
forty­five­year period during which the Minor would have been
gainfully employed but for the Complications and the sequelae
thereof.
15.3 General damages for pain and suffering, loss of amenities of life, shock,
disability, loss of consortium, disfigurement and infringement of
fundamental constitutional rights in the amount of Rxx, which is based on
inter alia paragraph 14 and its sub­paragraphs above, and which globular
sum is not capable of being practically apportioned to each of the sub­
heads of damages.
15.4 The costs associated with the protection of any funds that may be awarded
to the Minor are a charge which constitutes damages for which the
Defendant is liable, this being the appointment of a Trustee to administer
the estate of the Minor and the relevant costs thereof as contemplated by
the Trust Property Control Act 57 of 1988, and which costs are calculated
at 7.5% of the capital value amounting to a claim for Rxx.
[Here we set out the different methods of pleading quantum. We did not state
any amounts; however, you will be advised on this by your experts; you may
have to engage an actuary. What is required, where possible, to plead how each
amount is calculated.]

Prescription
16. By virtue of the Minor's minority at the time of the accrual of the cause of action
the period of prescription is postponed and delayed in terms of the Prescription
Act 68 of 1969.
[We decided to deal with prescription as it is common for clients to come to you
more than three years after the incident or treatment that caused the damage.
Always check the chronology, if you are at risk of a special plea of prescription,
apply your mind to an application for condonation. The Prescription Act provides
for it and our courts rarely refuse it.]

Statutory notice
17. The Minor's minority has pardoned the Plaintiff from compliance with any
statutory time limitation, alternatively, on 14 September 2018 the Plaintiff gave
due and written notice to the Defendant in terms of section 3(2)(a) o f t h e
Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002,
further alternatively, the Plaintiff shall seek condonation for any non­compliance
with any statutory time limitation. A copy of the notice is annexed marked "X".
[It is not unusual for clients to come to you long after the time for notice has
expired. This is one way to plead it. You will then approach the state attorney to
agree to condonation. If they refuse you will have to bring an application. Again,
especially where a minor child is involved, our courts will grant condonation.]

Indebtedness
 18. In the premises the Defendant is indebted to the Plaintiff in the total sum of Rxx
which amount the Defendant fails and/or refuses to pay.

[Page 111]

Jurisdiction
19. The whole cause of action arose within the jurisdiction of the above Honourable
Court.
[Being in the High Court, this paragraph is, strictly speaking, not necessary. We
drafted it as a reminder to apply your mind to jurisdiction, especially where you
sue in the Magistrates' Court. It is also preferred that this paragraph be inserted
at the beginning just after the description of the parties.]

Wherefore the Plaintiff claims for an order as follows:

1. Payment in the sum of Rxxxx.
2. Interest a tempore morae on the amount awarded in favour of the Plaintiff at the
rate of 9% per annum.
3. The costs of establishing a Trust for the protection of the aforesaid capital.
4. Cost of suit.
5. Further and/or alternative relief.
[Well, how did you do in your first attempt. Notice that this is not difficult,
provided you follow the step by step method we detailed above.
Let us look at another case study involving medical negligence where, in
addition, we introduce a cause of action based on the Constitution.]

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 4 Drafting skills/
Case Study Four

Case Study Four

Explanatory note
To begin with, we replicated the standard format of a Combined Summons so you can
see how this is done. There is no drafting skill involved as you will use an available
template.
In this case study we do not set out the facts of the case for you to analyse. We merely
provide you with a second example of how this cause of action is drafted.
The case itself is about a person who suffered trauma to the abdomen and went to
hospital. He was given a laparoscopy; a surgical diagnostic cut is made to the abdomen
for the purpose of examining the organs within the abdomen. There is a risk of
damaging the ileum (part of the small intestine) which can lead to sepsis and further
serious consequences.
On client's version, he was not told about the risks and was unable to give informed
consent for the procedure.
The risk of perforation of the ileum materialised and client suffered damages. The
cause was negligent treatment and client wants to sue.
Read the commentary in italics to get a better understanding of why the particulars are
pleaded in this manner.

Combined Summons
CASE NUMBER: E3529/2019
[For Gauteng Local Division you have to inform the registrar when you issue the papers
that you will be using expert witnesses; hence the case number. This is for purposes of
case management. For Gauteng practitioners, please read the latest practice directives
for personal injury and RAF claims.]

[Page 112]

IN THE HIGH COURT OF SOUTH AFRICA

Gauteng Local Division, Johannesburg

In the matter between:
John Mokoena
Plaintiff
and
The Member of the Executive Council for Health of the Gauteng Provincial
Government
Defendant
 To the sheriff or his deputy:
Inform the Member of the Executive Council for Health of the Gauteng
Provincial Government, who is sued herein in its representative capacity as nominal
Defendant for all claims arising against the Thelle Mogoerane Hospital, situated within
the jurisdiction of the above Honourable Court in Johannesburg, Gauteng, an institution
established, funded and managed by the Gauteng Provincial Government and who, in
terms of section 2(2) of the State Liability Act 20 of 1957, is the official who is
responsible in law for the acts and/or omissions of persons in the employ of the
Department of Health of the Gauteng Provincial Government of 37 Sauer Street, Bank
of Lisbon Building, Marshall Town, Johannesburg, being within the jurisdiction of the
above Honourable Court,
(hereinafter called 'the Defendant')
that
John Mokoena, an adult male of full legal capacity, born on 20 September 1990 and
residing at 35 East Street, Linden, Johannesburg, Gauteng.
(hereinafter called 'the Plaintiff')
hereby institutes action against the Defendant in which action the Plaintiff claims the
relief and, on the grounds, set out in the particulars annexed hereto.

Inform the Defendant further that if the Defendant disputes the claim and wishes to
defend the action, the Defendant shall:
(i) Within TWENTY (20) days of the service upon the Defendant of this summons, file
with the Registrar of this Court at cnr Von Brandis and Pritchard Streets,
Johannesburg Notice of the Defendant's intention to defend and serve a copy
thereof on the Attorneys of the Plaintiff, which notice shall give an address (not
being a post office or poste restante) referred to in rule 6(5) for the service upon
the Defendant of all notices and documents in the action.
(ii) Thereafter and within TWENTY (20) days after filing and serving a notice of
intention to defend as aforesaid, file with the Registrar and serve upon the
Plaintiff a Plea, Exception, Notice to strike out, with or without a Counter­claim.
Inform the Defendant further that if the Defendant fails to file and serve the notice as
aforesaid, judgment as claimed may be given against the Defendant without further
notice to the Defendant, or if having filed and served such notice, the Defendant fails to
plead, except, make application to strike out or counter­claim, judgment may be given
against the Defendant,
And immediately thereafter serve on the Defendant a copy of this Summons and return
the same to the Registrar with whatsoever you have done thereupon.
Dated at Johannesburg on this the ..... day of May 2019.

______________________________
Registrar of the High Court
ACME Attorneys
Attorneys for Plaintiff
10th Floor, Suite 1001
Carlton Centre Office Towers

[Page 113]

ANNEXURE

Particulars of Plaintiff's Claim

The parties
1. The Plaintiff is John Mokoena, an adult male of full legal capacity, born on
20 September 1990 and residing at 35 East Street, Linden, Johannesburg,
Gauteng. Plaintiff's identity number is 900920 3528 08 5.
[Inclusion of the identity number is a Gauteng requirement. You can do no harm
by including it in your particulars irrespective of which court.]
2. The Defendant is The Member of the Executive Council for Health of the
Gauteng Provincial Government ('the Department'), who is sued herein in a
representative capacity as nominal Defendant for all claims arising against the
Thelle Mogoerane Hospital ('the Hospital'), situated within the jurisdiction of the
above Honourable Court at 45 Robert Sobukwe Drive, Vosloorus, Gauteng, an
institution established, funded and managed by the Gauteng Provincial
Government and who, in terms of section 2(2) of the State Liability Act 20 of
1957, is the official who is responsible in law for the acts and/or omissions of
persons in the employ of the Department situated within the jurisdiction of the
above Honourable Court at 37 Sauer Street, Johannesburg.

Contractual and delictual liability

3. At all relevant times hereto, and in particular between 15 March 2016 and
30 March 2016:
3.1 the Defendant was (and to date remains) the responsible person in respect
of any and all contractual, delictual and constitutional liability of the
Department;
 3.2 the Hospital was and remains a public Hospital which falls under the
authority of and is controlled and operated by the Department;
3.3 the Defendant, by reason of:
3.3.1 the existence of the Hospital as a public facility and that the
Defendant, through the Department, held out to the public, and in
particular the Plaintiff, that the Hospital was a public facility where
reasonable medical care, treatment and advice is rendered to
members of the public; and/or
3.3.2 an oral, alternatively, a tacit agreement having been concluded at
the Hospital between the Plaintiff, acting personally, and the
Defendant, represented by an unknown authorised employee
and/or representative of the Defendant, in terms whereof the
Defendant, its employees, representatives and/or agents
undertook to provide medical, surgical, nursing, monitoring,
advice, supervision and care to the Plaintiff in respect of his
treatment, and all reasonable medical services associated
thereby; and/or
3.3.3 the Plaintiff's admission as a patient at the Hospital and the
undertaking by the Hospital to render medical care and treatment
to him; and/or
3.3.4 the provisions of section 9 (the right to equality), section 10 (the
right to dignity), section 11 (the right to life) and section 27 (the
right to health and health care services) of the Constitution of the
Republic of South Africa, 1996 ('the Constitution');
was under a legal duty of care to ensure the rendering of medical care,
treatment and advice to the Plaintiff with such skill, care and diligence as could
reasonably be expected of appropriately qualified medical practitioners and
nursing staff, obliging the Defendant to ensure that proper, sufficient and
reasonable health services were provided to members of the public (in particular
those who could not reasonably make use of medical services provided by
institutions other than a public hospital);
[Note that we have now established that there was an agreement, which in itself
places a duty of care on defendant to render proper medical care and treatment;
Chapter 2 of the Constitution places a further duty of care on defendant.]

[Page 114]

3.4 Any and all medical practitioners and nursing staff (whose identities are
presently to the Plaintiff unknown) who were involved or who were by
virtue of their respective positions obliged to become involved in the
admission to and the rendering of medical services, and the examination,
monitoring and/ or treatment of the Plaintiff at the Hospital:
3.4.1 were either permanent or temporary employees and/or
representatives of the Defendant who acted within the course and
scope of their duties as permanent or temporary employees
and/or representatives, alternatively, who acted in representing
and/or furthering the interests of the Defendant; alternatively
3.4.2 were duly authorised agents and/or representatives of the
Defendant who were acting as such in fulfilment of the Defendant's
vicarious obligations to the Plaintiff to render medical treatment,
care and advice to the Plaintiff as a patient, alternatively, who
acted in representing and/or furtherance of the interests of the
Defendant in rendering medical treatment, care and advice to the
Plaintiff as a patient;
3.5 All personnel of the Defendant as set out in paragraph 3.4 above that were
involved in the examination, treatment and rendering of advice to the
Plaintiff during his admission to the Hospital from 15 March 2016 to 30
March 2016 undertook to the Plaintiff to examine the Plaintiff and to render
such medical examinations, care, treatment and advice to him, as was
reasonably required in the circumstances;
3.6 All temporary and permanent employees, and any and all duly authorised
agents and representatives of the Defendant were individually under a
duty of care to render medical care, treatment and advice to the Plaintiff,
particularly, but not necessarily limited to, the safe and uncomplicated
performance of a laparotomy with such skill, care and diligence as could
reasonably be expected of medical practitioners and/or nursing staff with
reasonable and appropriate surgical knowledge.

Liability and treatment

4. On or about 15 March 2016, Plaintiff attended at the Hospital, with abdominal
discomfort. The Plaintiff, acting personally and a member of the Defendant's
staff, who was acting within the course and scope of his/her employment with the
Defendant, and whose full and further particulars are to the Plaintiff unknown,
entered into an oral agreement, in terms of which the Plaintiff was admitted
under the Defendant's care for an appropriate diagnosis and treatment of his
condition (hereinafter referred to as 'the agreement').
 5. On or about 15 March 2016, at the Hospital a member of the Defendant's staff,
who was acting within the course and scope of his/her employment with the
Defendant, and whose full and further particulars are to the Plaintiff unknown,
diagnosing blunt abdominal trauma, ordered a laparotomy (hereinafter referred
to as 'the treatment').
6. Despite the aforementioned duty of care and agreement the Defendant,
represented by a surgeon whose full and further particulars are to the Plaintiff
unknown and on 16 March 2016 carried out the procedure in breach of the duty
o f c a r e a n d / o r a g r e e m e n t a n d / o r n e g l i g e n t l y b y perforating the ileum
(hereinafter referred to as 'the incident').
7. As a result of the incident, the Plaintiff presents with severe abdominal pain,
contracted sepsis and is unable to eat anything solid (hereinafter referred to as
'the Complications').
8. The Complications occurred as a result of the negligence of the Defendant,
alternatively, as a result of the negligence of the Defendant's employees and/or
representatives and/or agents, alternatively, as a result of the combined and
cumulative negligence of the Defendant and the Defendant's aforesaid
employees, representatives and/or agents.

[Page 115]

9. This negligence constitutes a breach of the agreement and the legal duty of care
which rested on the Defendant and the Defendant's aforesaid employees,
representatives and/or agents as more fully set out in paragraph 3 and its sub­
paragraphs.
10. The Defendant and/or the Defendant's aforesaid employees, representatives
and/ or agents were negligent in one or more or all of the following respects:
10.1 they failed to employ and/or ensure medical attention by suitably qualified
and/or proficient and/or experienced medical practitioners and/or nursing
staff who would be available, able and/or capable to examine, treat and/or
provide whatever reasonably required assistance and/or advice to the
Plaintiff as may be reasonably required and/or appropriate regarding the
Plaintiff's condition, in particular the safe and uncomplicated performance
of a laparotomy with such skill, care and diligence as could reasonably be
expected of medical practitioners and/or nursing staff with reasonable and
appropriate surgical knowledge;
10.2 they failed to ensure that such medical practitioners and/or nursing staff
were in attendance at all material and relevant times;
10.3 they failed to employ and/or ensure medical attention by suitably qualified
and/
or proficient and/or experienced medical practitioners and/or nursing staff
who were able to assess, diagnose and treat the Plaintiff's condition
appropriately and safely;
10.4 they failed to ensure that the Hospital was suitably, adequately,
appropriately and/or properly equipped to provide such medical attention
as was reasonably required by the Plaintiff at all relevant times hereto,
and in particular to allow the timeous and proper performance of
corrective treatment once the complications had become apparent;
10.5 they failed to implement such steps as could and would reasonably be
required to prevent the occurrence of the complications;
10.6 they failed to avoid the complications when, by the exercise of reasonable
care, skill and diligence, they could and should have done so.

Negligence
11. The Defendant's employees, representatives and/or agents were negligent in one
or more or all of the following respects, in that they:
11.1 failed to properly and or sufficiently assess, examine, treat, diagnose or
advise the Plaintiff as may be reasonably required in the circumstances;
11.2 failed to request or call for assessment or medical examination of the
Plaintiff by any other or better qualified medical practitioners when the
circumstances indicated a need for it;
11.3 failed to summon, either timeously or at all, for purposes of the Plaintiff's
assessment, treatment or for purposes of medical advice, the assistance
of a specialist surgeon, a suitably qualified medical practitioner and/or any
other medical practitioner as may be reasonably required in circumstances
where it was necessary and indicated to do so;
11.4 failed to inform the Plaintiff, either timeously or at all, of any and all
reasonable circumstances which could or would prevent the medical and
nursing staff and/or the attending medical practitioner from rendering
reasonable medical, nursing, radiological, surgical services with such
professional skill and diligence as could reasonably be expected of medical
practitioners, and/or nursing staff;
11.5 negligently perforated the Plaintiff's ileum which caused the Complications
and consequent damages described below;
 11.6 failed to properly and adequately care for the Plaintiff;

[Page 116]

11.7 failed to properly monitor the Plaintiff's condition during the course of the
treatment prescribed by them, more particularly following the apparent
Complications;
11.8 failed to properly and timeously observe, discover, diagnose, and treat the
perforated ileum and the consequent Complications suffered by the
Plaintiff and/or refer the Plaintiff for further evaluation, diagnosis and
treatment, when they knew or ought to have known that the Plaintiff was
not recovering from the Complications;
11.9 failed to provide proper and careful medical services, procedures and
prescriptions to the Plaintiff in accordance with the standards which
persons generally would be entitled to expect in the circumstances in
which they practised at the time;
11.10 failed to inform, alternatively, adequately inform the Plaintiff regarding the
risks associated with treatment recommended and performed by them so
as to afford the Plaintiff the opportunity to make an informed decision on
whether to consent to the treatment, more particularly in that they:
11.10.1 failed to inform the Plaintiff of reasonable alternatives to the
procedure, which were available and what the probable outcome
would be in the absence of any treatment;
11.10.2 failed to inform the Plaintiff of the risk of a perforated ileum during
the prescribed treatment;
11.10.3 r e c o m m e n d e d t o t h e P l a i n t i f f t h a t t h e p e r f o r m a n c e o f a
laparotomy was in the Plaintiff's interest;
11.10.4 failed to comprehend the perforated ileum as a product of the
procedure and/or to take any measures to inform the Plaintiff so
as to enable the Plaintiff to seek timeous treatment;
11.11 failed to provide and/or render the requisite and reasonable medical,
surgical, and nursing services with such professional care, skill and
diligence as may be reasonably expected in the circumstances of medical
practitioners, and nurses with necessary surgical experience;
11.12 failed to prevent the Plaintiff from suffering from the perforated ileum and
the resultant Complications when, by the exercise of reasonable skill, care
and diligence the Complications could and should have been prevented.
[Here you see how two causes of action are pleaded in the alternative; contract
and delict. We also show you how to draft where the patient complains that there
was no informed consent given for the procedure to be carried out. However, the
lack of information does not found a cause of action on its own; you still have to
plead that there was negligence and that it was such negligence that resulted in
consequences for the patient.]

Consequences of breach
12. As a result of the injuries referred to above, the Plaintiff underwent
hospitalisation and received medical treatment, was disabled and suffered pain
and loss of amenities of life, particulars whereof are the following:
12.1 Hospitalisation and medical treatment
12.1.1 Following the treatment, a doctor immediately performed a
primary anastomosis as well as a prophylactic appendicectomy
and the Plaintiff was admitted to the Intensive Care Unit. The
Plaintiff was discharged on 18 March 2016 with medication and a
return date.
12.1.2 On or about 20 March 2016 Plaintiff returned to the Hospital, where
he was examined and the wound clips removed. The Plaintiff was
given medication and a further return date.

[Page 117]

12.1.3 On or about 22 March 2016 Plaintiff attended at the Hospital where

he was assessed and the wound was considered healed. The
Plaintiff was discharged for surgery with a specialist surgeon.
12.1.4 On or about 25 March 2016 the Plaintiff, under the care of a
surgeon, whose full and further particulars are to the Plaintiff
unknown, and at the Hospital underwent an exploratory
laparotomy, and was diagnosed with a bowel obstruction. The
Plaintiff was discharged with medication and a return date.
12.1.5 On or about 27 March 2016 the Plaintiff returned to the Hospital
with a history of an open draining wound post laparotomy for an
acute abdominal bowel obstruction. The wound was drained,
cleaned and dressed and the Plaintiff was discharged with
medication.
12.1.6 On or about 29 March 2016 the Plaintiff attended the Hospital with
a history of post laparotomy wound sepsis. The wound was
 drained, cleaned and dressed and the Plaintiff was once again
discharged with medication.
[The description of the treatment here was obtained from hospital records and
from an expert's report. Although it is worth obtaining an expert report before
summons are issued, it is not always convenient to do so as you might not have
funding to pay for an expert. In such a case it is advisable to obtain the hospital
records first. You should be able to draft the particulars of claim from the details
obtained from this report and your client's version. It is also worth noting that
experts can be approached to accept work on a contingency. This is essential if
your firm is also acting on a contingency basis.]
12.2 Pain and suffering
12.2.1 The Plaintiff initially suffered severe pain and continues to do so to
date.
12.2.2 I t i s a n t i c i p a t e d t h a t w h e n t h e P l a i n t i f f u n d e r g o e s f u r t h e r
envisaged conservative and surgical management, he will
experience attendant pain, discomfort and disablement associated
therewith.
12.3 Disability
12.3.1 The Plaintiff was totally/temporarily disabled during his period of
hospitalisation and recuperation.
12.3.2 The Plaintiff is currently totally disabled for any form of physical
activity. With the severity of the Complications, it is unlikely that
the Plaintiff will ever recover fully.
12.3.3 The Plaintiff will be totally/temporarily disabled during any future
periods of hospitalisation.
12.3.4 Despite future envisaged surgical and conservative management,
the Plaintiff will be left permanently disabled.
12.4 Loss of amenities of life
12.4.1 The Plaintiff has lost those amenities of life normally associated
with the injuries as set out above. The Plaintiff is unable to attend
a gymnasium as a result of the sequelae of his injuries. He is
unable to run, or participate in any activity that requires full
mobility, is house bound and restricted from all activities of daily
living.

Quantum
13. In consequence of the Defendant's negligence, alternatively, breach of its duty of
care, the Plaintiff has suffered damages in the sum of Rxxxx, which amount is
calculated as follows:
13.1 Future hospital, clinical, medical and related expenses in the amount of
Ryyy, full details of which appear in Dr Simelane's report which is annexed
marked "JM1".

[Page 118]

13.2 Past and future loss of earnings and/or loss of earning capacity and/or loss
of employability in the amount of Rxxx, an estimated globular amount
based on the following:
13.2.1 The Plaintiff was employed as a fibre optic technician at Blue
Telecoms (Pty) Ltd earning an income of approximately Rxxx per
month.
13.2.2 As a result of the sequelae of his injuries the Plaintiff has been
rendered unemployable in the open labour market.
13.2.3 As well as accounts for the period that the Plaintiff has been
unable to be employed as a result of the sequelae of his injuries.
13.2.4 The estimate makes allowance for the fact that the Plaintiff's
aforesaid injuries have interfered with his earning capacity and/or
promotional prospects.
13.2.5 As well as accounts for the possibility of the Plaintiff being unable
to be gainfully employed in the future as a result of the sequelae
of his injuries.
13.3 General damages for pain and suffering, loss of amenities of life, shock,
disability, loss of consortium, disfigurement and infringement of
fundamental constitutional rights in the amount of Rxxx, based on inter
alia paragraph 12 and its sub­paragraphs above, which globular sum is not
capable of being practically apportioned to each of the sub­heads of
damages.
[Note that here we show you a different method of setting out quantum from
what we did with the previous case study. This method is acceptable, although
less accurate, and does comply with the Uniform Rules and directives.]
Constitution
13.3.1 The Constitution e s t a b l i s h e s a c a u s e o f a c t i o n b a s e d o n t h e
infringement of a fundamental right entrenched in Chapter 2
thereof;
 13.3.2 The remedy in terms of the aforementioned cause of action is
constitutional in nature and has as its objective:
13.3.2.1 The vindication of the fundamental right itself so as to
promote the values of an open and democratic society
based on freedom and equality and respect for human
dignity;
13.3.2.2 The deterrence and prevention of future infringements of
fundamental rights;
13.3.2.3 The punishment of those parties which have infringed
fundamental rights in a particularly egregious fashion;
and
13.3.2.4 Compensation for harm caused to those in consequence
of the infringement of fundamental rights.
13.3.3 The South African private law of delict is flexible and should be
developed by the above Honourable Court with due regard to the
spirit, purport and objects of the Constitution and particularly the
Bill of Rights forming Chapter 2 thereof;
13.3.4 In the instant case, it is clear that Plaintiff's right to equality, right
to dignity, right to life, right to family care and right to health and
health care services were infringed by the First Defendant,
alternatively the Second Defendant, alternatively the Third
Defendant; and
13.3.5 T h e a b o v e m e n t i o n e d r i g h t s a r e s a c r o s a n c t i n t e r m s o f the
Constitution and all deserve to be fully protected such that the
above Honourable Court should award appropriate relief to give
credence to the protection of these rights in the form of general
damages which incorporate such constitutional damages.
[Note that this cause of action is not well developed in our jurisprudence and you
should keep an eye out for more recent cases. It is nevertheless a viable cause
of action. If it does not succeed, for some reason, you are adequately covered
by your claims based in contract and delict.]

[Page 119]

Jurisdiction
14. The entire cause of action arose within the jurisdiction of the above Honourable
Court.
[We prefer it if this paragraph is drafted in the beginning as paragraph 3. But no
harm in locating it here.]
Demand
15. In the premises, the Defendant is indebted to the Plaintiff in the sum of Rxxx
which amount, notwithstanding demand, the Defendant has failed and/or refused
to pay to the Plaintiff.
Statutory notice
16. On 22 May 2017 the Plaintiff, in writing, gave the Defendant a notice in terms of
the Institution of Legal Proceedings against Certain Organs of State Act 40 of
2002. A copy of the notice is annexed marked 'LM2'.
Wherefore the Plaintiff claims for judgment against the Defendant, as follows:
(a) Payment in the sum of Rxx;
(b) Interest a tempore morae on the amount awarded in favour of the Plaintiff at the
rate of 9% per annum;
(c) Costs of suit;
(d) Further and/or alternative relief.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 4 Drafting skills/
Case Study Five

Case Study Five

Look at the following statement obtained from your client, Mr Cyril Nkosi.

Statement of Cyril Nkosi

1. I am the sole director of Nkosi Apples (Pty) Ltd. The company's place of business
is 42 3rd Avenue, Industria, Kempton Park.
2. I am 57 years old and I built up my business from scratch. After I left school, I
began working for a green grocer in Boksburg. I began work as a packer and my
job was to take stock from the store rooms and pack them on the shelves. After
three years I was made in charge of the store rooms where I supervised the
receipt and packing of fresh produce as it was received from the market. It is in
 this job that I learned about the different grades of fruit and where they came
from.
3. I worked for this company, Fruit and Veg Town, for ten years. The business was
then taken over by a bigger chain of companies and I found myself being
retrenched. I used my retrenchment package to start my own small business. I
knew all the suppliers at the Johannesburg Market in City Deep. I approached
them and they agreed to supply me with fruit. I then purchased various varieties
of apples and started hawking them at a taxi rank in Kempton Park. I did well
and soon other hawkers began purchasing their stock from me.
4. I then found a small warehouse in Industria and started a wholesale business
selling apples to hawkers and café owners. I bought a used cold room and fitted
it in my warehouse. This enabled me to buy stock in bulk and saved me the cost
of daily trips to the market. On one of my trips to the market I was talking to one
of my suppliers who told me that he received a request from a big multi­national
supplier from Europe who wanted to buy South African apples. He did not know
how to go about exporting to Europe and asked if I would be interested. I saw an
opportunity.
5. I then called the buyer of this European dealer who said that he was willing to
purchase large quantities of apples from South Africa. However, he was looking
for a particular type of apple and emailed me the specifications. He wanted
export grade Granny Smith apples of a certain size and shape.

[Page 120]

6. I managed to find a farmer in Grabouw in the Western Cape and sent him the
specifications. This farmer said that he was familiar with the EU specifications and
that he grew these apples. I agreed to buy apples from him.
7. I exported my first consignment to Europe and the dealer was very pleased with
the stock. He placed repeat orders with me and I kept up a steady supply of
apples to the dealer.
8. I recently received requests for more apples and found that my small cold room
was inadequate.
9. During January 2018 I requested Mzansi Cold Rooms to design, install and
maintain a cold storage room for my business at my warehouse. I met with a
representative of Mzansi and explained that the cold room was for the purpose of
storing apples for export to the EU. He told me that he was aware of the EU
regulations and said that they will supply a new cold room that will be fit to store
apples for export to the EU.
10. On 25 January 2018 we concluded a written agreement. I will email you a copy.
We signed the contract in Kempton Park.
11. Mzansi sent a team to my warehouse and they built the cold room and completed
it on 3 March 2018. I spent a week testing the cold room and it worked well. I
then began storing Granny Smith apples in it which were destined for the EU.
12. During the first week of June 2018 I stored a large consignment of apples in the
cold room. The value of these apples was R1 000 000. These were Granny Smith
apples due to be exported to the EU.
13. A few days before export I noticed that the apples had discoloured and went
from green to light brown overnight. As a result, these apples were no longer fit
for export. The EU will not so much as tolerate a small blemish; they would
certainly reject this consignment. The apples were due to be sold in Europe for
R2 500 000. I was unable to sell these apples locally as the colour made them
look like they were spoiled and unfit for consumption.
14. I managed to find a dairy farmer who agreed to buy the apples as feed for his
cows. He paid me R700 000 for all the apples.
15. This was a disaster for my business. I called in an expert to tell me why the
apples went brown. I had never experienced anything like this before. The
expert carried out some tests and gave me a report. The apples went brown due
to being exposed to Ammonia gas inside the cold room. The source of the gas
was a faulty evaporator which allowed the gas to seep into the cold room. There
were weld defects in the manifold of the evaporator which caused the gas to
escape into the cold room. The evaporator is an integral part of the cold room
and I was aware that Mzansi had engaged a specialist to build and install it.
16. The evaporator itself was built by Superior Evaporators (Pty) Ltd who publicly
held themselves out to be experts and the leading builders of evaporator
manifolds in the country.
17. I want to sue.
[Draft this on your own using the technique and method explained above. Then
compare what you drafted with the particulars below.]

Particulars of Plaintiff's Claim

The parties
1. Plaintiff is Nkosi Apples (Pty) Ltd a company duly incorporated according to the
company laws of the Republic of South Africa having its principal place of
 business at 42 3rd Avenue, Industria, Kempton Park.
2. First Defendant is Mzansi Cold Rooms (Pty) Ltd a company duly incorporated
according to the company laws of the Republic of South Africa having its principal
place of business at 435A Downs Road, Marlboro.

[Page 121]

3. Second Defendant is Superior Evaporators (Pty) Ltd a company duly

incorporated according to the company laws of the Republic of South Africa
having its registered address at 20 Main Road, Isando.

Jurisdiction
4. The whole cause of action arose within the area of jurisdiction of this honourable
court.

Claim Against First Defendant

Factual background
5. Plaintiff purchases apples from various suppliers, packages them and exports the
fruit to Europe.
6. The apples have to be stored correctly to preserve the quality until export to
Europe. The EU will not accept any apples that do not satisfy their peculiar
requirements.
7. The apples are stored in a cold storage room.

The contract
8. During January 2018 and at Kempton Park the Plaintiff and First Defendant
entered into a written agreement. The Plaintiff was represented by Cyril Nkosi,
the sole director of the Plaintiff, and the First Defendant was represented by a
duly authorised employee. A copy of the agreement is annexed marked 'A'.

Material terms of the contract

9. The following were, inter alia, the express terms of the contract:
(a) First Defendant will design, install and maintain a cold storage room at the
Plaintiff's premises;
(b) First Defendant will, at all material times, do the work in a proper
workmanlike manner;
(c) The cold storage room will be suitable for the storage of fresh apples;
(d) The cold storage room will be suitable to maintain the condition of the
apples for export purposes to the EU;
(e) The storage room will be installed by the end of March 2018;
(f) The price is R120 000.

Plaintiff's obligations
10. Pursuant to the contract Plaintiff:
(a) afforded First Defendant access to its premises for the purpose of installing
and maintaining the cold storage room;
(b) paid the First Defendant the agreed price;
(c) took delivery in March 2018 and began using the cold storage room to
store apples during the second week of March 2018.

Breach of contract
11. In breach of the material terms of the contract First Defendant failed:
(a) to design and install the cold storage room in a proper workmanlike
manner;
(b) to maintain the cold storage room;
(c) to deliver a cold storage room that was suitable for storage of fresh
apples; and
(d) to notice that ammonia was leaking into the cold storage room.

Consequences of breach
12. As a consequence of the breach:
(a) Ammonia gas leaked into the storage room;
(b) The apples, to the value of R1 000 000, stored in the cold room turned
brown in colour;

[Page 122]

(c) The apples were no longer suitable for export and had to be sold as animal
feed;
(d) Plaintiff suffered damages through the loss of the export market in Europe.
13. First Defendant is liable to compensate Plaintiff for the loss of profit incurred.
 14. Plaintiff cancelled the contract; tenders return of the defective cold room and is
entitled to a return of the agreed price.

Quantum of damage
14. Plaintiff suffered damages in the amount of R920 000, which amount is made up
as follows:
Selling price on export R2 500 000
Less cost of apples R1 000 000
Profit on export R1 500 000
Less sale as animal feed R700 000
Loss suffered R800 000
Return of agreed price R120 000
Total due to Plaintiff R920 000
Alternatively

The duty of care

15. Plaintiff repeats paragraphs 5 to 9 above and states that in all the circumstances:
(a) First Defendant could reasonably foresee that in the event that the cold
storage room was not fit for its intended purpose, Plaintiff will suffer
damages;
(b) First Defendant owed Plaintiff a duty of care to ensure that the cold
storage room was designed, installed and maintained in a proper
workmanlike manner and was fit for the purpose of storing fresh apples.

Breach of the duty of care

16. In negligent breach of the duty of care First Defendant failed:
(a) to design and install the cold storage room in a proper workmanlike
manner;
(b) to maintain the cold storage room;
(c) to deliver a cold storage room that was suitable for storage of fresh
apples; and
(d) to notice that ammonia was leaking into the cold storage room.
17. Plaintiff repeats paragraphs 12, 13 and 14.
18. In the premises First Defendant is liable to pay to Plaintiff the amount of
R920 000.

Claim against second defendant

19. Plaintiff repeats paragraphs 5 to 10.
20. At all material times:
(a) Second Defendant held itself out to be an expert in manufacturing
evaporator units;
(b) First Defendant contracted Second defendant to manufacture and fit the
evaporator unit in the cold storage room in Plaintiff's premises.

The duty of care

21. In all the circumstances Second Defendant:
(a) could reasonably foresee that in the event that the cold storage room was
not fit for its intended purpose, Plaintiff will suffer damages;
(b) owed Plaintiff a duty of care to ensure that the evaporator was designed,
installed and maintained in a proper workmanlike manner; and
(c) was under a duty to ensure that ammonia gas did not leak into the cold
storage room from the evaporator.

[Page 123]

Breach of the duty of care

22. In negligent breach of the duty of care, Second Defendant:
(a) failed to construct the evaporator in a proper workmanlike manner;
(b) failed to affect the welding in the evaporator in a proper workmanlike
manner; and
(c) caused ammonia gas to leak into the storage room.
23. Plaintiff repeats paragraphs 12 and 14.
24. Second defendant is liable to compensate plaintiff for the damages suffered in
the amount of R800 000.

Demand
25. Notwithstanding demand, defendants refuse to pay the amount of R800 000 or
any other amount.
Wherefore Plaintiff claims payment from the defendants jointly and severally the one
paying the other to be absolved as follows:
 (a) Payment of the amount of R800 000;
(b) Against First Defendant, payment of R920 000;
(c) Interest from 14 days from date of judgment to date of payment;
(d) Costs of suit;
(e) Further and/or alternative relief.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 4 Drafting skills/
Case Study Six

Case Study Six

Now have a go at this case.

1. You are instructed on behalf of the plaintiff, Mr Peter Mabaso (Mabaso).
2. Mabaso purchased 'Big Jumbo', a fast food business from the defendant,
Mr Sidney Trust and paid a purchase price of R250 000. Mabaso claims that he
was misled in the transaction.
3. You are instructed to draft particulars of claim for a claim against Mr Trust
seeking the necessary relief, including the recovery of damages, if appropriate.
4. You obtained a statement from your client Mabaso, as follows:

Statement of Peter Mabaso

1. I am an adult male and reside at No. 9 11th Avenue, Houghton, Gauteng.
2. During June 2016 I came across an advertisement in a local newspaper which
read:

Fabulous Fast Food Business for sale.

An opportunity not to be missed!!
Magnificent turnover in prime position with established clientele.
Telephone: S Trust at 011 726­1858

3. I had been saving money to start my own business. I telephoned Mr Trust and
told him that I was interested in purchasing the business and arranged to meet
with him. We met later that afternoon at the premises on the corner of Empire
and Ridgeway Roads in Auckland Park, Johannesburg. The fast food business
located on the corner had a prominent sign which stated 'Big Jumbo for the best
hamburgers in town'. The business seemed to be doing a bustling trade. I noticed
a constant stream of customers purchasing fast foods. The business is located in
the middle of a number of office blocks and it appeared that people working in
the area came to the shop. I also drove around the block and saw that there
were no other food outlets within four blocks of the shop. This was good.

[Page 124]

4. Trust was accompanied by his father, Ronald Trust. Trust told me that the
purchase price for the business was R250 000 payable in cash upon possession
of the business being handed over. Trust further said that the business had a
monthly turnover of R85 000 against expenses of R40 000, which left a monthly
net profit of R45 000. Trust further said to me that, because the business was
registered in the name of a close corporation, Big Jumbo CC, I would merely be
required to take over his member's interest in the close corporation, which would
entail a cost saving for me.
5. Ronald then took me aside and impressed upon me what a good deal I was
looking at. He said that the business had a stable client base, an established
track record and had a great future at the location. I was taken in by the
sincerity of Trust Snr and was particularly impressed by the fatherly way in which
he placed his hand on my shoulder, while earnestly impressing upon me the
virtues of the business.
6. Trust said to me that there was no need to draft a written agreement and that
the deal could be done on a handshake, to which I agreed. He said there was no
need to spend money on lawyers. That same day, 19 June 2016, I went to my
bank and withdrew the purchase price in cash. Later that afternoon I met again
with Trust and his father at the business premises and handed over the cash.
While Trust was in the back room counting the money, his father again
impressed upon me what a good future the business had.
7. The business went well for the first two months after the purchase and turnovers
held out to me were maintained. To my horror I then heard Trust Snr owned the
entire building in which the business was housed, that the building was to be
demolished and that an office block was to be erected on the site. There is no
doubt in mind that Trust Snr was acutely aware of these facts when he was
impressing upon me to purchase his son's business. I cannot say if Trust was
 aware of the facts but, as far as I am concerned, he should have been aware
thereof, having regard to the fact that he was the son of the owner of the
building. It must be the reason why he sold such a good business.
8. In the two months that I had the business, I spent R68 000 purchasing new
ovens and computer equipment to facilitate the smooth running of the business.
The ovens alone cost R40 000. When the building is to be demolished, the ovens
will have to be scrapped but I will still be able to use the computers for other
purposes.
9. I must say that I would not have purchased the business had it not been for the
rosy representation made to me by Trust and his father. The business in truth
has no future. The building has already been gutted and demolition is due to start
in ten days' time. I wish to take whatever steps necessary to recover my money
and to claim whatever damages I can.
10. Trust and his father live at Chelsea Mansions, 8 Ridgeway Road, Auckland Park,
Johannesburg.
[Go about analysing the facts as we suggested above. You will have to contextualise the
case. You will see that it involves the law of contract. As a lawyer you must ask the
question; what happened? Plainly your client was duped into buying this business. Had
he known the truth; he would not have purchased. This then should narrow down the
law for you.
You will read the law on formation of contracts. Then write down the material facts you
are required to allege in order to formulate the cause of action. Write this down, you
need to do this on your own.
Having made a list of the requirements, move on to the next step by answering this
question: can I satisfy those requirements based on the facts of my case? Here you
apply the law to the facts.
This process, as you have read above, will assist you to write your first draft.
Once you have finished your draft, compare it to the particulars of the claim below.]

[Page 125]

Particulars of Plaintiff's Claim

The parties
1. Plaintiff is Peter Mabaso an adult male business man residing at 9 11th Avenue,
Houghton, Johannesburg, Gauteng.
2. First Defendant is Sydney Trust an adult male, whose full particulars are
unknown to plaintiff and who resides at Chelsea Mansions, 8 Ridgeway Road,
Auckland Park, Johannesburg.
3. Second Defendant is Ronald Trust an adult male businessman who resides at
Chelsea Mansions, 8 Ridgeway Road, Auckland Park, Johannesburg.
[Notice that we joined the Second Defendant. There is a cause of action against
him. As a good lawyer you always apply your mind to the question of satisfying a
judgment. Second Defendant owns property and appears to be prosperous; he is
likely to satisfy a judgment.]

Jurisdiction
4. The whole cause of action arose within the area of jurisdiction of this honourable
court. The parties are ordinarily resident within the area of jurisdiction of this
honourable court.

Factual background
5. Plaintiff purchased a fast food business from First Defendant as a going concern
for an agreed price of R250 000.
6. The premises in which the business is located belongs to plaintiff's father, the
Second Defendant.
7. In negotiating the sale First and Second Defendants failed to disclose that the
building was about to be demolished and the business enjoyed no security of
tenure.
8. Had the Defendants disclosed this fact Plaintiff would not have purchased the
business.
9. Plaintiff consequently suffered loss.

The agreement
10. On 19 June 2014 and at Johannesburg, Plaintiff and First Defendant entered into
an oral agreement in terms of which Plaintiff purchased 100% of the member's
interest in Big Jumbo CC from First Defendant for an agreed price of R250 000
('the agreement').
11. In effect Plaintiff purchased a fast food business owned by Big Jumbo CC which
traded under the name and style of 'Big Jumbo Hamburgers' from premises
situated at the corner of Empire and Ridgeway Roads, Auckland Park ('the
premises').
 12. Pursuant to the agreement:
(a) Plaintiff paid the First Defendant the full purchase price, in cash, on
19 June 2014; and
(b) Plaintiff took delivery and ownership of the business and commenced
trading;
(c) Plaintiff installed new ovens, at a cost of R40 000, and computers in the
business.

Material non­disclosure/Misrepresentation
13. During the course of negotiations First and Second Defendants represented to
the Plaintiff that the business had a secure and prosperous future. Second
Defendant urged Plaintiff to purchase the business as it had a stable set of
customers and was well established. Second Defendant stated that the business
had a great future and was an excellent opportunity for Plaintiff.
14. First and Second Defendants represented to Plaintiff that the business enjoyed
security of tenure in the premises.

[Page 126]

15. The representation was material and was made with the intention of inducing
Plaintiff to enter into the agreement.
16. The representations did induce the Plaintiff to enter into the agreement.
17. At all material times the representation was, to the knowledge of Defendants,
false in that:
(a) The premises were situated in a building owned by Second Defendant;
(b) The whole building was about to be demolished;
(c) Plaintiff will be forced to vacate the premises;
(d) The business enjoyed no security of tenure; and
(e) The business had absolutely no future prospects.
18. In the alternative Plaintiff states:
(a) During and after the negotiations and before the agreement was
concluded, Defendants were aware of the falsity of the representation;
(b) Defendants were aware that Plaintiff did not know that the premises was
about to be demolished;
(c) In the premises Defendants were under a duty to inform Plaintiff that the
premises were about to be demolished;
(d) In breach of the duty Defendants intentionally failed to disclose that the
premises were about to be demolished.

Consequences of misrepresentation
19. As a consequence of the Defendants' non­disclosure/misrepresentation:
(a) Plaintiff cancelled the agreement, alternatively, hereby cancels the
agreement and tendered return of the business;
(b) Plaintiff is entitled to return of the purchase price; and
(c) Plaintiff suffered damages.

Quantum
20. Plaintiff is entitled to claim an amount of R290 000, which amount is made up as
follows:
(a) Purchase price R250 000
(b) Loss of ovens R40 000

R290 000

Demand
21. Plaintiff tendered the business and demanded payment of R290 000.
22. Notwithstanding demand, Defendants refuse to pay the amount claimed or any
other amount.

Wherefore Plaintiff claims against defendants jointly and severally, the one paying the
other to be absolved:
(a) Payment of the amount of R290 000;
(b) Interest on the aforesaid amount;
(c) Costs of suit;
(d) Further and/or alternative relief.
Having completed these case studies, you should have the confidence to start drafting
on your own. The idea is to draft as much as possible, the more you draft the better
you get.
 Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 5 Drafting the plea

5
Drafting the plea

TABLE OF CONTENTS
5.1 Introduction
5.2 The plea
5.3 Technical points
5.4 Initial steps
5.5 What do the rules say?
5.6 The method
5.7 Drafting the plea
5.8 Strategy
5.9 Counterclaims
5.10 Case studies
Case Study Seven
Case Study Eight

[Page 127]

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 5 Drafting the plea/
5.1 Introduction

5.1 Introduction

You are now representing the defendant. You are expected to file a plea on behalf of your client. What do you do?

We deal with the techniques in drafting a plea on the basis of two assumptions:

? Plaintiff made out a proper cause of action and there is a case to be answered; and

? Your client does have a defence.

You are not to draft and file a plea merely for the purpose of delay. That is an abuse of process and a case manager
will find you out immediately. There will be consequences.

You have to accept that a judge will read plaintiff's particulars of claim and will be persuaded that plaintiff has a
valid claim in law. The judge will then read the defendant's plea and will anxiously look for a defence. If the plea is
vague and replete with reservations of rights rather than a version setting out a positive defence, the judge will be
even more convinced that the plaintiff has a clear case and should be granted the relief they seek. Not what you
want if you are the defendant's lawyer.

If your client does not have a positive defence, do not concoct one; obtain a mandate to settle the matter. This is
what you are required to do under the case management regime. Filing a bare denial is not an option. On this
aspect we also point out that, if your client does give you a version, it is your job to test it and not to merely
proceed on the basis of 'those are my instructions'. When your client's version is not an answer to plaintiff's claim or
may be improbable and stand no chance of convincing the most gentle of judicial officers, tell your client and
recommend that settlement may be a better option.

If you merely proceed with an unlikely version this is what you can expect:

Judge: 'Mr Jones, do you really expect me to believe that?'

Mr Jones: 'Well, those are my instructions, my Lord'.

Judge: 'Are you not an officer of this court, Mr Jones?'

Mr Jones, hastily sitting down: 'As the court pleases, my Lord.'

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 5 Drafting the plea/
5.2 The plea
5.2 The plea

Look for the bare denials

The simple bare denials
Forget about your worries and your strife
I mean the bare denials
Old precedent file necessities
A recipe
That brings the defence into strife.

[Page 128]

Once you have read the plaintiff's particulars of claim, there are certain basic steps to take. The idea is for you to
understand precisely what plaintiff's claim is in order to respond. Here is the initial inquiry you are expected to
undertake after you read and reread plaintiff's particulars of claim. You can use this as a convenient and useful
checklist:

? Did the plaintiff make out a cause of action?

? Did the plaintiff sue in the correct name? (If the plaintiff is a juristic person, do a CIPC search.)

? Did the plaintiff sue the correct defendant? If so, did they get the name(s) right. (Do a CIPC search for your
own corporate client.)

? Is the claim subject to a time bar (prescription or other statutory limitation)?

? Does the plaintiff have locus standi?

? Have all the interested parties been joined?

? Did the plaintiff correctly plead jurisdiction, or sue in the right court?

? What is the cause of action?

? Did the plaintiff plead the material facts of his or her chosen cause of action?

? Did the plaintiff set out the material facts to support the elements of his or her cause of action?

? Did the plaintiff set out the facts with sufficient detail and clarity to enable you to respond?

? Did the plaintiff comply with the uniform rules and/or applicable directives?

? Are the particulars pleaded with sufficient particularity to enable you to tell exactly what the claim is?

? Did the plaintiff allege the correct jurisdictional facts (where necessary)?

? Is the relief claimed available as a matter of law, and is it within the jurisdiction of the court? Note that
practitioners often go to the High Court where the matter is within the jurisdiction of a Regional court. Banks
are fond of doing this. Be warned, the judges in Gauteng will not tolerate it and will readily strike matters from
the roll.

? Is the relief claimed capable of being satisfied by your client?

? If the claim is for money, did the plaintiff set out how the amount is arrived at?

? Does the plaintiff claim relief that the court is capable of awarding?

Systematically go through this checklist before you decide how you intend to respond in your plea.

You may find that you have certain points of procedure and/or law available to you.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 5 Drafting the plea/
5.3 Technical points

5.3 Technical points

At the outset we point out that our courts discourage technical points taking, especially if this involves interlocutory
proceedings in the motion court. If there is something wrong with your opponent's papers that has nothing to do
with the merits of the case but is purely procedural in nature, do not take a formal point. Just call or email your
opponent, say what is wrong and invite her or him to fix it. This will avoid costly delays.

If the defect is substantial or your opponent fails to remove the cause of complaint, consider whether

? it is necessary to give the plaintiff notice to remove a cause of complaint;

? the particulars of claim are excipiable.

[Page 129]

Under case management, if there is something wrong with plaintiff's pleadings, tell him or her about it and request
that it be rectified. Do not take technical points in court. Avoid interlocutory applications if possible; they are a
waste of time and costs and do not actually advance the case. When your opponent disagrees with you, refer the
dispute to a case manager.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 5 Drafting the plea/
5.4 Initial steps

5.4 Initial steps

Here are some basic steps to take:

? It is worth repeating that you should get the facts first.

? Carry out an analysis of the facts as we recommend above.

? Find out what happened according to your client's version of the facts.

? Read all the documentation available: plaintiff's and defendant's.

? It is the facts that will provide you with a defence.

? Look to the facts for answers.

? Do not plead a version of the facts that is improbable or implausible.

? Only when you have the facts should you consider the law.

? Make certain that the law you rely on is supported by the facts of your case.

? Look for the law in the most recent decisions of the highest court. Remember to always check the annotations.

A defence can be defined as a set of facts recognised by the law as

® giving you a defence or answer to plaintiff's claim.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 5 Drafting the plea/
5.5 What do the rules say?

5.5 What do the rules say?

Make sure that you have a good understanding of rules 18 and 22. The plea is the defendant's response to the
material facts relied on by the plaintiff. The rules require the defendant to respond to the facts relied on by the
plaintiff by doing one or more of the following:

? Admit a fact: When your client has personal knowledge of what plaintiff alleges and does not dispute it, then
an admission must be pleaded. Note that there is no such thing as a 'tactical denial'.

Remember a case manager will interrogate the facts as soon as

® pleadings close, and your client will be compelled to make admissions in
an attempt to further define the triable issues between the parties.

? Deny a fact: To merely deny a fact is very simple. But this is not what you are required to do. You should deny
an allegation when the matter is within the defendant's personal knowledge, and your instructions are that it
is not true, and you intend to put forward a positive version or defence to the contrary.

You have to say, with precision, which factual allegation is being denied. There may be more than one
allegation in a sentence and you have to ensure you are responding to each one of them.

The requirement is to deny a fact and then give reasons for doing so. Say why defendant disagrees with
plaintiff's version. This can be done by stating your own version of what actually happened. Anything less will
not amount to a proper plea.

A plea is also about telling a story:

­ I disagree with your version;

[Page 130]

­ Your version is false;

 ­ This is what actually happened; and

­ I do not owe you one cent.

? Confess and avoid: Admit and justify a material fact. Often you will find that your client admits a material fact
but tells you why he will not be held liable notwithstanding such an admission. In effect, your client puts up a
version of facts that provides him or her with a positive defence to plaintiff's claim.

Thus, when plaintiff sues on a cause of action based on a suretyship and alleges that your client signed the
document, your client can admit the signature but can allege that his or her signature was obtained as a
result of fraud or that he or she signed under duress and is therefore not bound by his or her signature.

? State or set out the material facts on which the defendant relies: This requirement is basically saying defendant
must state his or her version of what actually happened. When you put up a positive defence, you have to set
out those facts that, if proved in evidence, will amount to a defence to plaintiff's claim.

We show you below how this can be done by stating all your facts in one stand­alone paragraph.

5.5.1 Pleading a non­admission

This has become an accepted option although it is not mentioned in the rules.

This is pleaded when the defendant does not bear knowledge of the correctness of an allegation and wishes to put
it in issue. It is not recommended that you should use this when dealing with the material facts of your opponent's
case. Rather deny before you plead a non­admission, because you may not be allowed to cross­examine on an
issue where you pleaded as such. Obtain specific instructions in this regard.

Thus, in a motor collision case, you can plead a non­admission in respect of the plaintiff's alleged ownership of the
car.

For example:

'Defendant does not have any knowledge as to the allegations, does not admit same and plaintiff is put to the
proof thereof.'

However, this is not an option when defendant does have personal knowledge. You cannot plead a non­admission
regarding the accident itself; your client will have personal knowledge of the collision and must therefore respond
according to the rules.

When it comes to the substance of the plaintiff's particulars ­ the material facts he or she relies on ­ you cannot
plead a non­admission.

5.5.2 No new options

You are not to create other options for purposes of pleading.

For example:

'The allegations are noted.'

This is not an option you will find in the rules and, besides, it is meaningless. When you plead this, the judge will
treat it as an admission, or, worse, treat it as an evasive response.

5.5.3 Answer the point

When you deny an allegation of fact you are not to do so evasively; you are expected to answer the point of
substance.

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There are typically two types of responses that are commonly pleaded:

? A denial of a fact which raises a factual dispute or issue ('plaintiff denies entering into a contract with
defendant'); and

? Pleading a defence which introduces new matter ('plaintiff admits signing the contract but pleads that the
contract was induced by fraud').

When you deny a material fact, you are expected to plead a factual basis for the denial. Why are you denying this
fact? A bare denial is not a proper plea and will be considered to be evasive. A case manager will not allow you to
get away with a bare denial or any other form of evasive response.

Note that a defendant who fails to deal with an allegation will be taken
® to have admitted the allegation.

5.5.4 Avoid evasive denials

Your client does not benefit from evasive responses. Some practitioners believe that they should not disclose too
much and would rather reserve their client's rights. Vague or evasive pleadings do not amount to any reservation of
rights; they merely irritate judges who want to see what the defence is. If you do not tell the judge what the
defence is, do not expect the judge to assume that there is one; the judge will assume the opposite.

When finalising your first draft, consider the provisions of rule 22(3):
'Every allegation of fact in the combined summons or declaration which
® is not stated in the plea to be denied or to be admitted, shall be
deemed to be admitted. If any explanation or qualification of any denial
is necessary, it shall be stated in the plea'.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 5 Drafting the plea/
5.6 The method

5.6 The method

Take your client through the plaintiff's particulars of claim, paragraph by paragraph.

? Explain to the client what the plaintiff's cause of action is.

? Ask your client why he or she wants to defend. What is his version of the facts?

? Does your client have a defence?

? Take your client through each of the material facts relied on by the plaintiff. Make sure you get a response
from your client.

? If your client denies a material fact, look for a basis in fact for such a denial. Otherwise it might amount to a
bare denial.

? When you deny a fact, you are not only saying the version is not true; you are also saying that the plaintiff's
witnesses will be cross­examined and you intend to lead evidence of your own.

? If your client admits a material fact, make sure that you explain to your client the consequences of making an
admission and ensure the client is certain that he or she wants to make the admission.

? You should explain to the client the consequences of making a bare or bald denial. This is contrary to the rules
and certainly does not disclose any defence.

? Establish during the consultation whether the defendant has a counterclaim against the plaintiff. The
counterclaim is then delivered with the plea.

? Establish whether the defendant has any claim for indemnification or contribution against any person or entity
that can be joined as a third party. (This typically happens in motor vehicle collision cases where multiple
vehicles are involved.)

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5.6.1 Abuse of process

Point out to the client that entering an appearance to defend solely for the purpose of delay is an abuse of the
processes of the court and that there may be serious consequences.

For example:

'Get me six months, I will pay.'

You have heard that one before.

If your client has no defence, call the plaintiff and arrange a meeting where you can settle the matter. If you file a
bare denial, a case manager will want an explanation.

For example:

'I'll take instructions and revert.'

You have heard that one too.

5.6.2 Taking instructions

Remember that the purpose of taking instructions is to obtain all the relevant facts. Also obtain all the documents;
and need we remind you, think sequentially. Always confirm the instructions received from your client by forwarding
correspondence to your client confirming your consultation, to ensure accuracy and to avoid a dispute at a later
stage.

Again, you will carry out analyses of the facts and the law before you consider putting pen to paper. The method is
exactly the same as we explained above.
5.6.3 The test

The following, regarding your version, is essential and is worth repeating:

? The facts must be relevant to the dispute.

? The facts must be capable of being proved in court (admissible).

? The version of your client's facts must be probable.

? The facts and documents must be arranged in a chronological sequence.

For your own benefit, read the particulars of claim and carefully mark out the material facts, or elements, of the
plaintiff's cause of action. Then remember to take your client through each of these facts and insist on a positive
response.

A good technique is for you to merely ask your client to tell his or her own story; only then take the client to the
material facts as you have marked them off.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 5 Drafting the plea/
5.7 Drafting the plea

5.7 Drafting the plea

Use the following practical suggestions:

? Before working on a rough draft, write down the material facts on which your client relies. Write each fact
using numbered paragraphs.

? Write down the conclusions of law that you want.

? Establish whether the facts of your client's version support the conclusion of law you want.

? Ask how you will provide proof of the facts in court (there is no point in pleading facts you cannot prove in
court).

? Apply your mind to questions of onus and duty to begin.

? Remember that it is not advisable to plead in a manner that might attract the onus or impose on the
defendant the duty to begin.

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? Apply your mind to the fact that your client will be subjected to cross­examination based on the plea; if you
get careless or inaccurate, your client will pay a price under cross­examination ('did you tell your attorney
. . .?' or 'you did not tell your attorney that, it is a recent fabrication . . .').

? Apply your mind to the appropriate prayer; in some cases, you may have to propose alternatives to the relief
claimed by plaintiff.

® Note that you must plead as if the matter will go to trial.

You will, in the course of practice, also plead some cases in the hope that the matter will not go to trial. Usually it is
these very matters that end up in court.

For example:

'Don't worry, this matter will not go to court.'

You have heard that one before.

5.7.1 Putting pen to paper

You are now ready to draft.

? Start with a rough plan, setting out the numbering and which paragraphs in the plaintiff's particulars of claim
you are specifically dealing with.

? Make certain you have responded to the plaintiff's particulars, fact by fact.

5.7.2 The stand­alone paragraph

When you draft a plea, you are responding to someone else's particulars. This does not mean you are strictly tied
to formatting your plea according to the paragraphs of plaintiff's particulars of claim. In fact, your client's version
may be such that you are unable to provide a logical explanation of it by responding to plaintiff's particulars
paragraph by paragraph.

To address this problem, we recommend the use of a stand­alone paragraph where you set out the whole of your
client's defence.

When you rely on a complex set of facts for a defence or your client has a very different version of what happened,
it is useful to set out all of these material facts in a single paragraph before dealing with each of the plaintiff's
paragraphs. You may then conveniently cross reference to this paragraph later in your plea:

For example:

'For reasons set out in paragraph 6 above, defendant denies liability . . .'

This is a useful technique and we recommend you use it:

Number this paragraph separately and give it a heading 'Defendant's response' or 'Defendant's defence'.
Thereafter, using numbered paragraphs or subparagraphs, set out your client's version of what happened. The
facts must be set out in a chronological sequence and must amount to a positive response to plaintiff which
amounts to a defence. In other words, you set out defendant's whole defence in one stand­alone paragraph
instead of scattering it around your various responses to each of plaintiff's paragraphs.

The clear advantage in drafting this way is that the judge will read this paragraph and immediately see what the
defence is. It is persuasive. In effect, you set out the defendant's case first before you deal with the plaintiff's
version paragraph by paragraph.

For example, in a motor vehicle accident case, your client disagrees with the plaintiff's version of how the collision
happened. Instead of setting out your version in a disjointed

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set of paragraphs, you tell the whole story in one paragraph. Thereafter you can deal with the plaintiff's version as
follows:

'Ad paragraph 4.6

For reasons set out in paragraph 6 above, defendant denies that he failed to stop at the red light and plaintiff is
put to the proof thereof.'

This method will result in a plea that is logical and less clumsy. The advantage is that the judge can see your
defence from reading this paragraph, without having to work it out from your various responses paragraph by
paragraph.

This method can be employed in contractual disputes as well. We give you some examples below.

? Now write your first draft responding to each of plaintiff's facts.

? In all cases get client to consider your draft and invite comments.

? Now prepare the final document, check it and check it again.

5.7.3 Special plea

In appropriate cases you may wish to plead a special plea. This must be pleaded separately under the heading
'Special plea'.

This paragraph is pleaded at the beginning of the plea. These pleas are usually based on a point of law and are
capable of being dealt with before entering into the merits of the case.

Where an opportunity exists to file a special plea, it is advisable that you do so. There is no benefit in 'springing'
this on your opponent at the trial. Examples of special pleas are prescription, non­joiner, non­compliance with
statute etc.

After pleading a special plea, you state as follows:

'Wherefore defendant prays that plaintiff's case be dismissed with costs.'

Thereafter, on the next line you will begin pleading to plaintiff's particulars. You begin by stating:

'In the event the special plea is unsuccessful, defendant pleads over as follows: . . .'

Then follows a plea to plaintiff's particulars, paragraph by paragraph.

Remember to set out the peculiar facts of your case. Do not rely on a precedent.

For example:

'The allegations are denied as if specifically traversed, and plaintiff is put to the proof thereof.'

If this is not preceded by a proper version, it is completely meaningless and of no assistance to the judge. It sounds
important but it is merely a bare denial.
 ® A timely reminder: Use plain language when drafting the plea.

In drafting all pleadings:

? Use plain language

? Avoid jargon

? Avoid archaic expression ('hereinbefore stated')

? Avoid the use of foreign languages

? Avoid the use of long sentences

? Avoid a big word when a small word will do

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? Use numbered paragraphs and headings

? Use the recommended font and spacing

? Plead a version that is likely to have happened.

5.7.4 Useful words and phrases

Here are some commonly used words and phrases that are helpful:

? Further or in the alternative: This means that the allegation following it is in addition to, or an alternative to,
the allegation already made. This gives the pleader an option to succeed with one or the other or both.

? As alleged or at all: This is helpful in pleading a defence as a wide denial of the facts pleaded by the plaintiff or
any other cause.

? If, which is denied: This phrase is useful in a plea where you deny a fact, but if the fact is found to be true you
may rely on other facts or law for a defence.

? In the premises: This phrase is useful for the purposes of drawing conclusions from facts or law stated in a
previous paragraph.

? At all material times: This phrase is useful in showing that a particular state of facts continued throughout the
period covered by the pleading.

? As if specifically traversed: This phrase is useful in a plea to indicate that you have dealt with the whole extent
of the paragraph you are responding to.

When drafting particulars of claim or even a plea, avoid attaching lengthy

® or bulky documents as annexures.

Instead, annex only the relevant pages and state 'the original document will be made available at the hearing'. This
is in fact superfluous as the document will be made available in discovery, but it is popularly used.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 5 Drafting the plea/
5.8 Strategy

5.8 Strategy

It often happens in practice that your client will admit or dispute only part of the plaintiff's claim. What happens is
that you will have an undisputed amount based on your client's own version. It is recommended that your client
tenders payment of what he or she admits to be owing while contesting the balance. Where no tender is made of
the undisputed amount, defendant will be discredited. It might lead to unnecessary and avoidable cross­
examination.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 5 Drafting the plea/
5.9 Counterclaims

5.9 Counterclaims

From time to time you will come across a client who will have a counterclaim against the plaintiff. This is pleaded
after the plea and under a separate heading 'Defendant's Counterclaim'. The technique is to continue to describe
the parties as they appear in the plaintiff's particulars of claim. The drafting method is exactly the same as we set
out in the chapter on drafting particulars of claim.
Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 5 Drafting the plea/
5.10 Case studies

5.10 Case studies

Now refer to the case studies. Can you draft the plea?

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Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 5 Drafting the plea/
Case Study Seven

Case Study Seven

This is a simple example and will easily get you started.

Your client is John Smith. He arrives in your office and presents you with a summons he
just received. He is sued by his former employer Peter Jones. The summons was
served on Smith on 1st April 2016.
The following is a copy of the plaintiff's declaration.

PLAINTIFF'S DECLARATION

1. The plaintiff is Peter Jones, an adult businessman, who resides at 12 14th

Avenue, Parkview, Johannesburg.
2. The defendant is John Smith, an adult salesman, who resides at 20 Forest Road,
Robertsham, Johannesburg.
3. On 10 September 2012 at Johannesburg, the defendant signed an
acknowledgement of debt in terms of which:
3.1. He acknowledged himself to be truly and lawfully indebted to the plaintiff in
the sum of R40 000;
3.2. He undertook to make payment of the said sum to the plaintiff on 1
December 2012.
A copy of the acknowledgment of debt is annexed hereto marked annexure 'A'.
4. The defendant has failed to pay the said sum of R40 000 or any part thereof
either on due date or at all.
Wherefore the plaintiff claims:
1. Payment of the sum of R40 000;
2. Interest on the sum referred to in prayer 1 hereof at the legally prescribed rate a
tempore morae from 1 December 2012 to date of payment;
3. Costs of suit;
4. Further or alternative relief.
You ask your client what happened. He tells you that the defendant admits the identity
and description of the parties and that he signed the acknowledgement of debt. The
defendant alleges that he signed the acknowledgement of debt in the following
circumstances:
? During 2012 your client was employed by Peter Jones as a salesman. On arriving
at work on 10 September 2012, your client was confronted by Jones with the
accusation that he had, in the period from January to September 2012, stolen
R40 000 from the takings of Jones's business. Jones, there and then, placed the
acknowledgement of debt in front of client and advised him that unless he signed
it, Jones would report him to the police and would lay a charge of theft. Jones
pointed out that he knew the station commander at the local police station and he
would have your client arrested and locked up.
? Your client was so fearful of the consequences of being reported to the police and
having a charge laid against him and of the embarrassment that would have
cause him and his family that he signed the acknowledgment of debt
notwithstanding that he had not stolen the money and does not owe plaintiff one
cent.
You are expected to draft client's plea.
[Again, carry out a fact analysis as explained above. You should remember to arrange
the facts in a chronological order. If you check the chronology here you will see that
plaintiff's claim has prescribed. What is the significance of this? You will immediately
think of pleading a special plea of prescription.]

[Page 137]
 This is what your draft should look like:

DEFENDANT'S PLEA TO PLAINTIFF'S DECLARATION

A. Defendant's Special Plea

Defendant pleads that the plaintiff's claim has prescribed in terms of the Prescription
Act 68 of 1969 in that:
1. Plaintiff's cause of action arose on 1 December 2012;
2. Plaintiff served the summons on 1 April 2016;
3. More than three years has elapsed.
Wherefore defendant prays that plaintiff's claim be dismissed with costs.
[Note that the dates are clearly set out and the judge can easily work out that three
years has elapsed. Do not merely plead that plaintiff's claim has prescribed. That will be
vague. Plead the relevant dates as you see here.]

B. Defendant's Plea­over
In the event that defendant's special plea is not successful, defendant pleads over as
follows:
1. Ad paragraphs 1 and 2
The allegations are admitted.
2. Ad paragraphs 3 and 4
The allegations are admitted. Defendant avers that for reasons set out in
paragraph 3 below, defendant is not obliged to pay the plaintiff the amount
claimed or any other amount.
3. The defence
Defendant is not obliged to make payment as the acknowledgement of debt is
void in that:
(a) During 2012 the defendant was employed as a salesperson by the plaintiff;
(b) On 10 September 2012 the plaintiff falsely accused the defendant of
stealing an amount of R40 000 from the business takings;
(c) The plaintiff presented the defendant with the acknowledgement of debt
and requested the defendant to sign;
(d) the plaintiff threatened the defendant that, if the latter did not sign the
document, he would report the matter to the police and charge the
defendant with theft;
(e) The plaintiff made the threat with the intention of inducing the defendant to
sign the acknowledgement of debt;
(f) The defendant reasonably and bona fide believed that the plaintiff would
carry out the threat and expose the defendant to arrest and the criminal
justice system;
(g) The defendant reasonably feared the embarrassment that would result to
himself and his family;
(h) In the premises the defendant signed the acknowledgement of debt under
duress, but for which the defendant would not have signed the document.

Wherefore the defendant prays that the plaintiff's claim be dismissed with costs.
[Note that the defence is set out in a stand­alone paragraph. The judge does not have
to work it out. It is user­friendly and persuasive.]

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Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 5 Drafting the plea/
Case Study Eight

Case Study Eight

For this case study, go back to the particulars of claim in the Speedy Print Services
(Pty) Ltd case in chapter 4 Case Study Two.
This time assume you are acting for the first defendant HSP Print Machines (Pty) Ltd.
You are instructed to file a plea.
Your client, represented by Toby Vorster, disputes plaintiff's claims and tells you the
following:
(1) I admit HSP supplied plaintiff with a printer in terms of a contract. I have a copy
of the contract. Of significance is that the contract contains the required
specifications of the printer supplied to plaintiff. In paragraph 15 on page 28 of
the contract the specs are set out. The machine supplied to plaintiff is exactly the
spec specified in the contract. When delivery was made, plaintiff, represented by
an employee, signed a document on delivery which provides that plaintiff
confirms delivery of a machine, as described in the contract. This document was
 signed after the machine was tested by plaintiff and after they satisfied
themselves that the machine worked according to the agreed specs.
(2) The contract itself states that no representations were made by defendant
regarding the specs other than those contained in the contract. This can be found
in paragraph 52 of the agreement.
(3) It is further stated in the contract that any and all warranties in respect of the
machine will only be valid if the machine is operated according to the operator's
manual supplied by HSP. This is in paragraph 35.
(4) At first, plaintiff complained that the machine did not produce the number of
pages promised and also complained that the machine kept cutting out. I
personally attended the premises of plaintiff with a technician. We discovered
that plaintiff was using an extremely cheap quality of paper which kept getting
stuck causing the machine to cut off. While on site I informed plaintiff's foreman
that the paper was wrong, and I showed him the specs in the contract as well as
in the operator's manual. The grade of paper is clearly stated as 'white paper of
80 grams per square meter'. Plaintiff's staff was using 60­gram paper. The
foreman explained they were merely using up their old stock of 60­gram paper. I
personally tested the machine using 80­gram paper and it worked perfectly.
(5) As for the number of pages the machine prints per hour, I refer to the contract
where in the specs it is clearly stated that the machine produces 2 000 pages per
hour using 80­gram paper. I deny that anyone warranted that the machine would
produce 5 000 pages per hour. There is no machine anywhere in the market, at
this price, that will produce 5 000 pages per hour. A 5 000­pages­per­hour
machine will cost at least three times the price of this machine. Plaintiff indicated
it could not afford so much. In any event plaintiff's claims regarding the number
of pages is contrary to the express terms of the agreement.
(6) The owner's manual states that if the machine is run on 24­hours­a­day basis,
after each 24­hour cycle, the machine had to undergo a service. The details of
the service are set out in the manual and the owner is obliged to carry it out. The
details of each service had to be logged in the manual. Failure to log the services
would result in the warranty becoming invalid.
(7) After the machine caught fire, I took one of our engineers and proceeded to
plaintiff's premises. The machine was burnt beyond repair. We carried out an
inspection of the machine and I called for the machine's log book. The foreman
informed me they were running the machine on a 24­hour­a­day basis. The log
book was not filled in and it indicated that the machine had not been serviced as
required. The foreman told me that they had fallen behind with their orders and
were trying to catch up production.
(8) Our engineer determined that neglect by plaintiff's staff caused the machine to
overheat. This was the cause of the fire. I also asked ACDC to inspect the
damage and provide me with their findings. They found that there was no
electrical fault in the machine and that the power supply had been built according
to the required specs. Their engineers also agreed that the machine had
overheated.

[Page 139]

(9) I explained to plaintiff that we were not responsible for the damage. I deny that
we walked away and failed to communicate with plaintiff. I also deny that we are
liable for the damages. Our experts are available to confirm that the damage
was caused by the plaintiff and its employees.
Using your client's version, draft the plea. Note that you act only for HSP.
Carry out a fact analysis then look at the law. When you contextualise this problem, it is
a matter involving contract law.
You have a contract. As a first step, read and understand the terms and conditions.
Does the contract assist your client? Is there an answer in the contract? Is your client's
version supported by the terms of the contract?
After your own attempt look at the plea below:

FIRST DEFENDANT'S PLEA

1. Ad paragraphs 1 to 5
Without admitting to any breach of contract and/or negligence, first defendant
does not dispute the contents.

2. Ad paragraph 6
First defendant does not dispute the background to the contract. As will appear
below, first defendant denies that the printer was not fit for purpose.
3. First defendant's defence
For all the reasons that follow, first defendant denies being indebted to plaintiff
for any damages:
(a) First defendant refers to the express terms of the contract, in particular
the following:
(i) Paragraph 15 where the specifications of the printer are set out.
 First defendant avers that the machine supplied was according to
such specifications. Included in the specifications is the printer's
capacity to produce 2 000 pages an hour using only 80­gram paper;
(ii) On taking delivery of the printer, plaintiff satisfied itself that the
printer was according to the specifications stated in the contract.
Plaintiff stated this in writing in the delivery note, signed by a duly
authorised employee. A copy is annexed, marked 'A';
(iii) First defendant denies making any representation that the machine
produces 5 000 pages an hour. Paragraph 52 of the contract
provides that no representations, other than those recorded in the
agreement, are binding on the parties;
(iv) Paragraph 35 provides that the warranty will lapse if the machine is
not operated strictly according to the owner's manual. The manual
provides that if the machine is used on a 24­hours basis, routine
service had to be carried out according to the operator's manual. To
this end the operator was obliged to keep a log of the hours per day
the machine was used and to record the servicing that was carried
out.
(b) Plaintiff, in breach of the contract:
(i) Failed to use 80­gram paper and used 60­gram paper, thereby
causing the machine to stall;
(ii) Failed to use the machine according to the owner's manual;
(iii) Operated the machine on a 24­hour basis and failed or neglected to
carry out routine service, thereby causing the machine to overheat
and catch on fire;

[Page 140]

(iv) Failed to fill out the machine's log book.

(c) First defendant denies that the fire was caused by its negligence or by that
of any of its agents or representatives.

4. Ad paragraph 8
First defendant denies, for reasons stated in paragraph 3 above, that it was a
term of the contract that the printer would produce 5 000 menus per hour, and
that there was an unconditional warranty.
5. Ad paragraph 9
The allegations are admitted.
6. Ad paragraphs 10 to 12
For reasons stated in paragraph 3 above, the allegations are denied and plaintiff
is put to the proof thereof.

7. Ad paragraph 13
The allegations are admitted. First defendant did supply a printer according to the
contract.

8. Ad paragraphs 14 to 22
For reasons stated in paragraph 3 above, the allegations are denied as if
specifically traversed and plaintiff is put to the proof thereof.

9. Ad paragraphs 27 to 29
For reasons stated in paragraph 3 above, first defendant denies it was the cause
of plaintiff's damage and plaintiff is put to the proof thereof. In the premises first
defendant is not liable to pay plaintiff the amount claimed or any other amount.

Wherefore first defendant prays that plaintiff's claim be dismissed with costs.
[Look at the method used here. Instead of scattering the defence in responding to each
individual paragraph, defendant's defence is set out fully in paragraph 3. Consider the
judge: having read plaintiff's particulars of claim, the judge will be anxious to get to the
plea to see if defendant has a defence. This way the judge only has to read paragraph
3 and the defence is before him. There will be no need to work through 20 pages of
pleadings to work out what the defence is. This is persuasive. The bad news is that this
method of drafting a plea only works where the defendant actually has a defence and can
instruct you with sufficient facts.
This is the preferred method of drafting a plea, use it. It is part of the point first drafting
method . . . so effective.]

REPLICATION

Introduction
At this stage the defendant would have filed a plea to plaintiff's particulars of claim. The
rule allows the plaintiff fifteen days to file a replication 'where necessary'. A replication
is an answer to defendant's plea; it is a defence to the defence. You will find in practice
that if you prepare your particulars of claim well and state your cause of action with the
support of your client's version of the facts, a replication will not be necessary. Please
read Rules 25 and 29 of the uniform rules.
 When to file
Rule 25(1) tells you to file only when necessary. Rule 25(2) then tells you that you do
not need to file a bare denial of what was raised in a plea. You file a replication only
when you have to plead new facts in answer to a plea.

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We explained in the chapter on drafting a plea that a plea can raise either or both of the
following:
? A denial of fact; and
? New facts which introduce a new issue.
As far as a denial of fact is concerned, you will not need a replication. It is when new
facts introducing a new issue are pleaded that you may have to replicate by answering
the fresh allegation. You will also typically have to file a replication when the plaintiff
confesses and avoids. The facts pleaded in the avoidance may require an answer from
the plaintiff.
Filing a replication may be advisable in any of the following circumstances:
? When the plaintiff wishes actively to contest some matter raised in the plea. The
plaintiff wants to deny an allegation rather than leave the defendant to prove it.
? When the plaintiff wants to confess and avoid an allegation in the defendant's
plea.
? When, without the replication, the plaintiff's case will not be fully stated.
? When remaining silent will not sufficiently define the issues between the parties.
The plaintiff needs to be clear whether something is denied or requires proof.
A good example is when the defendant pleads contributory negligence. If this is not
replied to, it may well leave the defendant and the court unsure about what facts in the
allegation are actually in issue. A replication will clarify the issues.

How to answer
The method is the same as that for drafting a plea. You will consider the new facts and
you will:
? Deny, giving reasons for the denial; or
? Confess and avoid.
You may even admit certain facts, which might narrow the issues.
The replication must be kept short and must be supported by the facts of the plaintiff's
version. Remember that the plaintiff is required to set out a positive defence or case. A
bare denial serves no purpose other than irritating the judge.
You are not expected to deal with every issue in the plea. If you fail to deal with an
issue, no harm will be done as the defendant will still have to prove it.
What is required is that you respond to only certain paragraphs of the plea where you
deem it necessary for the plaintiff to respond. Thus, you will refer to the paragraph in
the plea as '1. Ad Paragraph 8', then set out your response, dealing only with the issues
in that particular paragraph. See the example below.

What not to do
? Do not respond with a bare denial. It is unnecessary.
? Do not see this as a convenient place to introduce a new cause of action.
? Do not see this as a convenient place to correct material imperfections in your
cause of action as you pleaded it in plaintiff's particulars of claim.
The defendant will object.
Your best option is to amend the plaintiff's particulars of claim. A replication is not for
introducing amendments or corrections to what appears in the particulars of claim.

Example
Assume that the plaintiff pleaded that the parties entered into a written contract and
that the defendant was represented by Joseph Khoza, a duly authorised representative.
The plaintiff seeks to enforce the contract against the defendant.
The defendant files a plea, paragraph 5 of which reads as follows:
'5. Ad paragraph 4.
5.1 The allegations are denied as if specifically traversed and plaintiff is put to
the proof thereof.

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5.2 In particular defendant pleads that Joseph Khoza was not authorised by
defendant to enter into the contract and plaintiff is put to the proof
thereof.'
The plaintiff's replication will look like this:
'5. Ad paragraph 5.
5.1 The allegations are denied as if specifically traversed and defendant is put
to the proof thereof.
 5.2 On 25 July 2018 and at Benoni defendant, represented by its managing
director, Paul Tracy, informed plaintiff, represented by Ralph Moyo, that
Joseph Khoza had been appointed as purchasing manager for plaintiff.
5.3 The agreement entered into between the parties falls within the normal
business of defendant, and Khoza was acting within the scope of his
employment as purchasing manager.
5.4 At no time did defendant inform plaintiff that Khoza was not the purchasing
manager or that he had no authority to represent defendant.
5.5 Plaintiff was induced by this representation to believe that Khoza was
authorised to enter into the agreement on behalf of defendant. Acting on
the representation, plaintiff believed that Khoza was duly authorised and
entered into the agreement.
5.6 Defendant is accordingly estopped from denying that Khoza had authority
to represent defendant.

WHEREFORE Plaintiff joins issue.

Dated at Johannesburg on 8 September 2019.'

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 6 Motion proceedings

6
Motion proceedings

TABLE OF CONTENTS
6.1 Introduction
6.2 Drafting the notice of motion
6.3 Two­part notice of motion
6.4 Drafting the founding affidavit
6.5 Case studies
Case Study Nine
Case Study Ten
Case Study Eleven
Case Study Twelve

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Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 6 Motion
proceedings/ 6.1 Introduction

6.1 Introduction

In this module we assist you to draft notices of motion and founding, answering and replying affidavits.

Before considering how to draft notices of motion and affidavits, you must apply your mind to the following:

? You must understand rule 6 of the Uniform Rules.

? You must be familiar with the practice peculiar to the division of the High Court where you intend to launch
your application.

? You must read and understand the practice directives of the different divisions. For motion work in particular,
you must be familiar with the practice directives where you intend launching the application.

? For Gauteng, you must have access to the Practice Manual of the Gauteng Local Division of the High Court a s
supplemented by the practice directives.

? For the Western Cape you must have access to the new Cape High Court Practice Notes.

? If you are outside of Gauteng, we nevertheless recommend that you have access to the Practice Manual. This
is useful as it contains the format and layout of all the notices of motion as well as draft orders. You should
have all the forms, notices and orders in electronic form as it becomes easy to use.
 Failure to comply with practice directives will result in wasted costs and
® delays.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 6 Motion
proceedings/ 6.2 Drafting the notice of motion

6.2 Drafting the notice of motion

The purpose of the notice of motion is to inform the respondent, the registrar and the court of the following:

? The relief that the applicant seeks.

? The documents that the applicant relies on for supporting the relief that he claims.

? When the matter will be set down in the event that the application is unopposed.

? When the respondent is expected to file a notice to defend.

? The time frame for the filing of an answering affidavit and replying affidavit.

Your notice of motion must be in the recommended form in terms of the

® schedule to the Uniform Rules and the practice directives.

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Some of our High Courts require a peculiar form or format for certain applications, for example in search and seizure
applications. Check the practice directives first before you draft the notice of motion.

This, in fact, makes it easy, as all you have to do is use the recommended form as a template.

Before you start drafting, the following is useful to know:

You must distinguish between substantive applications and interlocutory

or incidental applications. The form of the notice of motion differs.

A substantive application requires a form similar to the long form

® prescribed in the schedule to the Uniform Rules, while an interlocutory
application requires a short form. T h e l o n g f o r m i s u s e d w h e r e
opposition is expected; the short form is used where no opposition is
anticipated and in interlocutory applications and urgent applications.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 6 Motion
proceedings/ 6.3 Two­part notice of motion

6.3 Two­part notice of motion

Recently we have seen the introduction of the 'two part' notice of motion. This form replaces the notice of motion
where the applicant seeks a provisional order with a return date, a rule nisi. Instead of applying for a rule nisi this
notice of motion contains two parts, viz. Part A, which contains the interim or provisional order that the applicant
seeks, and Part B, which contains the final order that the applicant seeks. Instead of granting a rule, the court now
grants an order in terms of Part A and postpones Part B sine die.

In Gauteng the rule nisi has been abolished in favour of the two­part
® notice of motion. This form has also been adopted in all other provincial
divisions.

The two­part notice of motion saves costs and is more efficient than a rule nisi. You will save time and costs by not
having to make repeated trips to the unopposed­motion court to extend the rule. We provide an example below.

If you apply the prescribed forms, drafting the notice of motion does not require any particular skill. You will merely
be using a template.

However, you must apply your mind to the relief your client seeks. This must be drafted in clear terms and in a form
that is capable of being executed through the office of the sheriff (with the exception of declaratory orders). In this
regard, it is recommended that you consider the forms as they appear in the Practice Manual of Pretoria and
Johannesburg. Also look at the draft orders in the practice manuals and directives.

Certain forms of relief are complicated and require good drafting skills, for example, the different types of interdicts,
search and seizure orders (Anton Piller) and compromises in terms of the Insolvency Act and Companies Act. Again,
it is recommended that you use the forms prescribed in the Practice Manual for Pretoria and Johannesburg. In the
practice directives for Gauteng Local Division you will find a recommended form for a notice of motion in an Anton
Piller application. This is widely accepted in our courts, but be warned: Western Cape Provincial Division, KwaZulu­
Natal Provincial and Local Divisions and the Eastern Cape Provincial Division each have their own preferred version
of a notice of motion in an Anton Piller application. We present a version from Gauteng below.

Most of our High Courts have standardised the forms of the orders that are routinely granted in the motion court.
You must know how to prepare 'draft orders'. This is very

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simple: consult the practice directives and use the draft orders recommended therein. In some of our divisions, for
example KwaZulu­Natal, you are expected to file three copies of a draft order in unopposed applications. We
recommend that you should, as a matter of routine, go to the motion court armed with a draft order. Judges like it
as it makes their task easier.

For the form of the relief, first check the practice directives of the
® particular division that is to hear the matter.

We give you a few examples below. However, we recommend that you obtain the Gauteng manual and use the
templates provided. They are good for all the other divisions as well.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 6 Motion
proceedings/ 6.4 Drafting the founding affidavit

6.4 Drafting the founding affidavit

The first thing to remember is that the founding affidavit is there to

® support the relief that you claim in the notice of motion.

It is here that you must set out the applicant's cause of action and the supporting evidence.

The founding affidavit must contain:

? The material facts that make up the applicant's cause of action;

? The evidence that supports the material facts;

? The submissions and conclusions of law that flow from the facts;

? The whole of the applicant's case; do not count on supplementing it in a replying affidavit;

? Jurisdiction of the court;

? Correct references to the annexures supporting the material facts.

6.4.1 Taking instructions

The basic technique is the same as in drafting particulars of claim.

Note that your affidavit must comply with the rules of evidence.

Here are some practical suggestions:

? It is worth repeating that the purpose of taking instructions is to gather all the facts.

? When you have all the facts, ask the question ­ is it appropriate for motion proceedings to be used?

? Take full instructions where you believe that there might be material disputes of fact.

? Make sure you read the case of Plascon­Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).
Understand the 'Plascon test'.

? When you have gathered all the facts, always arrange them in a chronological sequence before drafting the
affidavit. You must present your facts in the affidavit in a chronological sequence. Note that in Gauteng you
are required to file a 'chronology document' with your short heads of argument in opposed applications.

? Only when you have all the facts, consider the applicable law. Make a note of the authorities, textbooks,
cases and statutes; you may want to incorporate legal submissions in the founding affidavit.

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? Discuss with client the relief that he or she wants; you must be absolutely certain about this. In particular,
draft the relief carefully in consultation with your client where you apply for interdicts.

? Where the applicant relies on documentation, insist on seeing the original copies. Always check the
 authenticity of the documents. Remember to arrange the documents in a chronological sequence. You are not
to attach original documents for purposes of issuing and service. You will take the originals to court on the
hearing date. Learn how to obtain and prove electronic documents.

? As a rule, you must set out only the relevant facts in your affidavit.

? The evidence/facts must be relevant to the elements of the cause of action. The stated facts must support the
material allegations you rely on.

? You must, in setting out the facts, observe the rules of evidence. This is not difficult. The facts must be
relevant to the cause of action, they must be admissible in their form and probable (the version must be likely
to have happened) in relation to the facts of the case.

® The founding affidavit must be persuasive in order to be effective.

6.4.2 How do you draft an affidavit that is persuasive?

Be aware of the following:

? In motion proceedings affidavits serve a dual function of both pleadings and evidence.

? Firstly, the affidavits set out the essential averments necessary to found a cause of action or defence.

? Secondly, they supply the evidence to support a finding of the correctness of the material facts that support
your cause of action or defence.

? In simple terms, in motion proceedings the affidavits serve not only to place evidence before the court but
also to define the issues between the parties. This is not only for the benefit of the court but also for that of
the parties.

? The parties must know the case that must be met and in respect of which they must adduce evidence in the
affidavits.

The first thing to remember is that your affidavit must be user­friendly. It must be pleasing to the eye. It must not
look busy and complex. For this purpose, there are rules and directives that tell you how the document must be
presented.

How do you do this?

? Use a prescribed font such as Arial, Times New Roman, Calibri

? Use the prescribed font size (10 to 12 points)

? Use double spacing

? Use numbered paragraphs

? Use headings and sub­headings

? Use numbered pages

? Print only on one side of the page.

® Gary Vaynerchuk: Content is king, but context is god.

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6.4.3 Context before detail

Before proceeding any further, you are reminded to use the technique of ' context before detail' or 'point first writing'.
The technique is very much a part of logical thinking. This is essential when you write affidavits, heads of argument
and opinions.

In a founding affidavit you want the judge (the reader who really matters) to follow what you are saying and to
understand what your case is. This must be achieved by the judge seamlessly and effortlessly. A judge who is left
scratching his or her head is not being persuaded. Worse still, they will just stop reading.

This technique directs the judge to your particular train of thought. It will assist you to avoid unwanted
interpretation and misdirection.

The technique requires you to state your point at the beginning, up front, first sentence. Then state the details
leading you up to the point. In plain language, first tell the reader what your point is, then tell the reader how you
got there. Do not start with the details, then end with the point you want to make. You want to use the method of
'point first writing'.

When you are about to present the judge with substantial details (factual or legal), give the context or point of the
detail first. This method of context and point first gives the judge the best chance of grasping your details. Start with
a topic sentence. Tell the judge what your paragraph is trying to explain or prove; then present the details of your
submissions or supporting evidence.
For example, in an application for an interdict you want to tell the judge there is no other remedy. Do not start by
stating how your attorney wrote to respondent seeking a written undertaking, and that no response was
forthcoming etc. Instead begin with a topic sentence:

'Despite demand, respondent refuses to give any undertaking; there is no other remedy.'

Then give details of how you wrote to respondent and received no response.

Where you allege a breach of contract, do not begin with the details of how respondent breached the contract.
Start with

'Respondent is in breach of material terms of the contract.'

Then provide the details.

First start with the conclusion or material fact. Then add supporting
® information or evidence to show that your position or submission is
correct.

6.4.4 Affidavit as a whole

Use this method when you plan your founding affidavit. Tell the judge up front what the issues are, what findings of
fact and law can be made and what relief you seek. Also set out how you deal with this in your affidavit; tell the
judge what to expect in the lay out of your affidavit.

The affidavit should be planned as follows:

? Introduction.

? The issues you are addressing.

? Your answer to the problem.

? The main points (of fact and law) you rely on.

? Details of your main facts.

[Page 148]

? Application of the law.

? The relief.

You will notice that this structure tells the judge what to expect, what the issues are, what you want the judge to
find and how you arrived at this conclusion. You will then use numbered paragraphs where you deal with a
separate topic in each paragraph. You will use an appropriate heading for each paragraph. You will start each
paragraph with a topic sentence.

This is point first writing and it works. We present some examples of this below.

6.4.5 Have a strategy

Before you put pen to paper, just take some time to think about the case and how you will approach the founding
affidavit. We suggest that you write down your ideas.

? Begin with a rough plan.

? Then prepare a skeleton.

? Use headings and sub­headings in your skeleton.

? Focus on the cause of action.

? Research the law.

? Write down the elements or material facts of the cause of action.

? Focus on the material facts and the supporting evidence.

? Determine whether your facts can support the elements of your cause of action.

? Focus on the undisputed facts between the parties.

? Determine whether the undisputed facts support your client's version of what happened.

? Focus on the applicable law.

? Determine the conclusions of fact and law.

? Determine what your remedy or relief is.

? Determine whether a judge, sitting in the motion court, can grant the relief you want.

? Determine whether your affidavit supports your notice of motion.

6.4.6 What goes into the affidavit?

Here is a useful checklist of what is required:

Before you get started, work out your case concept; in other words, do you know what actually happened according
to your client's version of the facts?

? The whole of your cause of action and supporting evidence must be set out.

? Anticipate matters that might be raised in the answering affidavit.

? Note if final or interim relief is sought (for interim relief, you have to make out only a prima facie case).

? What documentary evidence will you need?

? You will set out the cause of action.

? You will set out the material facts that support the cause of action.

? You will set out the supporting evidence/facts.

? You will make legal submissions.

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Here is a recommended layout of the founding affidavit:

? Identify the parties

? Establish the applicant's locus standi

? Establish the deponent's authority to depose to the affidavit

? A short introduction

? A short summary of the relief you seek

? A brief reference to applicable law

? The material facts relied on; here it is useful to point out the undisputed facts between the parties. Set out
your facts in a chronological sequence

? The conclusions of fact

? The conclusions of law

? The remedy

? The costs

Take note that an affidavit must be expressed in the first person. If the deponent does not have personal
knowledge of the facts, a supporting or confirmatory affidavit, by someone who has personal knowledge, must be
annexed to the affidavit.

6.4.7 Keep it short

As a rule, you must avoid producing affidavits that are unnecessarily lengthy, nor should you be tempted to annex
every available document. Keep the affidavit short and relevant. Unnecessarily lengthy affidavits are not
persuasive.

It is vitally important in motion proceedings that you should carefully set

® out all the undisputed facts between the parties that you rely on, in the
founding affidavit.

We recommend that you set out the undisputed facts between the parties in a separate stand­alone paragraph.
You can even give it a heading: 'The Undisputed Facts'. The benefit of doing this is that it forces the respondent to
deal with these facts in an answering affidavit. It does not give the respondent any opportunity to avoid them.

Remember the Plascon test! Should there be a dispute of facts raised by

® your opponent, this paragraph of undisputed facts will assist the judge
in applying the Plascon test.

6.4.8 Structure and logic

A well laid out, logical, lucid and user­friendly affidavit is persuasive. How do you achieve this?
? We repeat: keep it short and strictly relevant to the issues. Long affidavits may impress your client but not
the judge sitting in a busy opposed­motion court.

? The facts ­ that is to say, the material facts ­ supporting your cause of action, together with the supporting
evidence, must be strictly relevant and stated in a chronological sequence.

? Often, the nature of the application is such that you cannot avoid a lengthy affidavit, in which case use the
following technique:

­ Logic dictates that you inform the judge up front what your case is, what the legal framework is and
how you set out your affidavit.

[Page 150]

­ You want the judge to immediately understand your case without having to work it out from reading
fifty or more pages.

­ Start with a short introduction, very short. The judge will have read your notice of motion and will know
the nature of the case.

­ Then state what relief your client wants and, briefly, state the legal framework. Here explain that in
terms of the law, the judge can grant the relief you seek.

­ Thereafter give a short account of the factual background. Here tell the judge what gave rise to the
dispute or issues in the matter.

­ Then begin to set out the material facts of your case. Remember to set them out in chronological
sequence.

­ Once you have dealt with the facts, tell the judge the legal conclusions the court can make.

­ Finally deal in some detail with the remedy. State why it is appropriate, fair and just to make the order
you want. Make certain that the order you want is one the judge can make.

A note on documents

It is important for you to refer to relevant documents in support of your cause

of action or defence, or in support of the evidence you present.
You are not merely to annex documents to your affidavit and request the court
to have regard to them. What is required is the identification of the portions
thereof on which reliance is placed and an indication of the case which is
sought to be made out on the strength thereof. The judge must easily see the
relevance and point of attaching the document. You also do not want the judge
to read more than is necessary.

We deal with some case studies below so you can see how the affidavit is drafted.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 6 Motion
proceedings/ 6.5 Case studies

6.5 Case studies

How it is done

Here is an example of the layout, using these headings, of an affidavit in support of an application for an interdict:

? The parties

? Jurisdiction of the court

? Locus standi of the applicant

? Introduction

? Factual background

? Clear right

? Impending harm/Actual harm

? No other remedy

? Balance of convenience favours applicant

? Urgency
? The remedy/relief

? The prayer.

[Page 151]

Where your cause of action is based in statute, for example, applications for sequestration/winding up etc., the
peculiar legislative requirements (which make up your cause of action) can be used as your headings in the
affidavit, for example 'Indebtedness', 'Act of Insolvency', 'Advantage to Creditors', 'Service on the Master' etc.

Here are some useful suggestions:

? Remember to use plain language.

? Use the technique of 'context before detail'. Tell the reader what to expect or make the point first before
giving the details.

? The facts and sequence of events you rely on must be set out in a chronological sequence.

? Use paragraphs and sub­paragraphs to separate categories of facts or fact sets.

? Use separate paragraphs to set out different legal submissions and conclusions of law.

? Use headings at the start of paragraphs dealing with a particular fact set or legal submission.

For example:

'Respondents Breach', 'Consequences of Breach', 'Remedy', 'Balance of Convenience' etc.

? In complex cases, provide the reader with a 'roadmap'. This is a paragraph, at the beginning of the affidavit,
which briefly sets out what the reader can expect in the main body of the affidavit. This is also an opportunity
to announce your case and inform the reader of what your case is about and why you are entitled to the relief
you claim. You give a brief overview.

? It is useful to begin each separate paragraph with 'an impact sentence' or 'topic sentence'. This is
persuasive.,

For example:

'The respondent, in breach of the material terms of the contract . . .'

Or:

'The respondent is about to leave the country with the minor children.'

Or:

'The respondent is unable to pay its creditors in the ordinary course of business.'

? Your facts and submissions must be set out concisely so that your reader gets to the point quickly.

? You must present the facts from your client's point of view. Be sure to emphasise your client's good facts and
de­emphasise the bad facts.

? Set out your good facts in detail. Do not describe your good facts in vague or general terms. The good facts
are those facts that support your client's version of what happened. Be general about your bad facts.

? Text must be grammatically correct, correctly punctuated and free of spelling errors. Apply your mind to
accuracy. Take time after the final draft to ensure the document is perfect. Correct all defects.

[Page 152]

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 6 Motion
proceedings/ Case Study Nine

Case Study Nine

You act for Mr Joseph Maseko who instructs you to bring an urgent application against a
local golf club. You are consulted on Friday midday and the application has to be
brought that same afternoon.
Here we show you how to draft a notice of motion and founding affidavit in a typical
application for an urgent interdict.
Your client gives you the following statement.

JOSEPH MASEKO'S STATEMENT

Joseph Maseko
 4 Crescent Place
Pine Lodge
Taken on 5 September 2016
I live in a luxury cluster house at the above address and moved in two days ago. The
previous tenant had moved out. It is one of four homes which were completed six
months ago. The other three homes are currently unoccupied and have been so since
completion. The back fences are along the rough next to the fairway leading to the fifth
hole of Pine Lodge Golf Course. There are 18 holes in all. The fifth is a 400m fairway
dog­legging to the right. The tee is approximately 100m from my home which is to the
right of the fairway as you stand to tee off. The 'rough' consists of a 25m wide belt of
long grass with sporadic undernourished and stunted trees set at one­meter wide
intervals. None of them is more than 1'5m tall and they have very sparse foliage. There
is a series of small hillocks just beyond the cluster houses that children use at the
weekend to ride their bikes on.
I was standing in my back garden this morning at about 11h30 when I heard a whistling
sound coming from overhead. This was followed by a dull 'thunk' as something hit a
terracotta pot. The thing, which I now know was a golf ball, ricocheted off the pot
through a window and landed in my kitchen. I located the ball beneath my dented
refrigerator door. I was puzzled as to where the ball had come from, until I heard a
voice saying, 'Can I have my ball back?'
I turned and saw a man in a yellow cap looking over my fence. I walked out into the
yard and opened the back gate, to be greeted by the fellow who was wearing a yellow
Pringle top and black trousers. He had an expensive­looking trolley with a number of
golf clubs in an expensive leather bag trailing behind him. I was about to ask him about
the ball when he called out 'fore'. There was another whistling sound and a ball
caromed off his golf bag and sailed onto my roof. A tile shattered.
He said, 'That was a close thing.'
He introduced himself as Gary North, the secretary of the club.
I remonstrated with him about the damage done by the two balls.
He said, 'You were luckier than the last tenant. He was hit by a ball in that back garden
about two weeks ago. He was taken to hospital with a head injury. He gets out soon.
We have had a bit of trouble with balls leaving the fairway in the past because people
try to take a short cut by driving across the crook in the dog leg to straighten it out and
shorten the distance to the hole. Shortly after he was hit, the club closed the fifth down
and sought some advice about building a fence. I know that the board members are still
thinking about it. I understand that there was a problem because an effective fence
would disturb the habitat and the local authority may not approve its construction and,
anyway, fences are expensive.'
I asked, 'Why was the fifth reopened?'
He said, 'We have a big amateur tournament starting tomorrow at 08h00. It is to raise
money. I suggest you stay inside over the weekend.'

[Page 153]

I said, 'I have no intention of doing that. I'll see my attorney. You ought to close the
hole down until a fence is built. There will be kids riding on the hillocks at the weekend.
They might get hit.'
He said, 'We're not going to do that. We've got amateurs coming from all over the
country for this tournament. It's a fund­raiser to get the golf club back on its feet. It's a
tradition that a prize be awarded for the longest drive on the fifth. That's why many
people come here. I said, 'We'll see about that.'
He said, 'Do what you like but we'll be playing off the fifth tomorrow.'
He then left. I kept the ball. I don't see why I should have to leave my house or be
imprisoned inside if I stay here. There are 17 other holes they can use. I want the
tournament stopped. I had no idea when I moved in that the previous tenant had been
hurt. There had been no golf balls in the back garden prior to the one this morning. I
can't afford to pay for any damage. I've just renovated at great expense and I can't
afford to insure. I have drawn a diagram ­ just a sketch ­ to make the position clear.
 Analysis
Having considered all the facts, it should not be difficult to work out that your client
needs to do something to address the danger of amateur golf players teeing off next to
his property.
You can conclude that your client will have to bring an urgent application for an
interdict.
Before you proceed, answer the following questions (another useful check list):
? Do I have sufficient facts to justify an urgent application;
? Am I familiar with the requirements of the practice directives regarding urgent
applications;
? Can I, on the facts, satisfy the requirements of an interdict against the golf club;
? What relief can I obtain from a judge in the urgent court, bearing in mind it is
Friday afternoon;
? Do I approach the court for a final order or a provisional order;

[Page 154]

? Do I have to serve papers on the respondent club; and

? What form of notice of motion should I use in the circumstances?
You will also consider that you will have to provide the judge with a draft order; it is late
on Friday and you are not likely to have a typist available.
The possible options
Before you draft the notice of motion, you must consider the options available to you in
terms of the relief or order that you want and that you believe a judge will be willing to
grant.
We recommend you write down the available options in consultation with your client;
this will concentrate your mind and ensure you do not end up before the judge with
options that he or she will be unwilling to grant.

A useful suggestion: Always look for the options in the facts of your
® case.

Need we remind you; the answer is in the facts.

Here are the possible options. Your list should look like this:
1. Client wants the club to be interdicted from holding the tournament;
2. The fifth tee must be moved;
3. The fifth hole must be redesigned;
4. Do not offer any prizes at the fifth;
5. Take steps to ensure no one takes a short cut from the fifth tee;
6. Build the fence;
7. Close the fifth hole for the tournament.

Appropriate options
Remember it is Friday afternoon and the tournament is starting early the next day.
Which option is the most viable, and why?
(a) Options 2, 3 and 6 will certainly solve the problem. But the court cannot order
the club to do these things overnight; it is not possible. And if such an order were
granted it would not serve your client's interest. However, they do present a
permanent solution to the problem, and you must keep this in mind when you
draft your notice of motion.
(b) Options 4 and 5 will not work as the golfers will still be tempted to use the short
cut during the tournament in any event;
(c) H o w a b o u t o p t i o n 1 . H e r e y o u m u s t a p p l y y o u r m i n d t o t h e balance of
convenience. You know that the club spent money on staging the tournament and
accepted entry fees from many golfers. The tournament is meant to raise much
needed funds for the club. A last­minute cancellation of the tournament will be a
financial disaster for the club, from which they might never recover. They will
suffer irreparable damage.
 The club will suffer more harm than your client if this order is granted. The
balance of convenience does not favour your client. To obtain an interdict, you
have to show that the balance of convenience favours the applicant. A judge, in
the urgent court, will refuse this order. He will suggest that your client leave his
premises for the day, return, assess the damage, and sue the club. This is not
what your client wants.
(d) The best option is number 7. On the club's own version, they were aware of the
danger. They were unable to build a fence. To prevent damage, they closed the
fifth hole. Moreover, the tournament is an amateur tournament and no one will
complain that they were unable to play the fifth hole; they can play another hole
twice to make up 18 holes.
The facts tell you that the obvious answer is to close the fifth hole only. This way,
your client will be safe and the tournament can proceed. The balance of
convenience favours your client and a judge will give you such an order.

[Page 155]

Should you act for a respondent in an application of this nature, you would consider the
issue of balance of convenience as you can turn this into a defence. You can show in
your answering affidavit that the balance of convenience does not favour the applicant,
and the order sought cannot be granted.

Method
When you deal with any interdict, the method of reviewing all your options, as
described above, is recommended. Do not go with the first thing that comes to mind,
nor are you to merely accept suggestions from your client. Write down all the possible
options, then consider each one and ask the simple question: which option is the judge
most likely to accept? Always present the judge with the most sensible option. The best
option will be the one where the balance of convenience favours the applicant. It is also
advisable to go to court with a draft order.

How to draft the notice of motion

Bearing the above facts in mind as well as the analysis of all the possible remedies, you
have to draft the notice of motion. What appears below is an example of a two­part
notice of motion which will be suitable for your client's needs.

IN THE HIGH COURT OF SOUTH AFRICA

Gauteng Local Division

Case number: 0236/2019
In the matter between:
JOSEPH MASEKO Applicant
and
PINE LODGE GOLF CLUB Respondent

NOTICE OF MOTION

Please take notice that the Applicant will move for an order, on Tuesday 7 May 2019, at
14h00, for an order in the following terms:

Part A
(1) Declaring this application to be a matter of urgency and dispensing insofar as is
necessary in terms of rule 6 (12) with the usual forms and service provided for in
the Uniform Rules of court;
(2) Pending Part B, the respondent is interdicted and restrained from opening and
using the fifth hole of their golf course;
(3) This order is of immediate effect;
(4) Costs of suit;
(5) Further and/or alternative relief.

Part B
(1) Respondent is ordered to build a fence along the fairway of the fifth hole
adjoining applicant's property;
Alternatively
(2) Respondent is ordered to redesign the fifth hole by eliminating the dog leg
fairway;
(3) Costs of suit;
(4) Further and/or alternative relief.
Take notice further that the affidavit of Joseph Maseko will be used in support thereof.

[Page 156]

If you intend opposing this application, please file your answering affidavit by 12h00 on
 Tuesday, 7 May 2019.
Dated at Johannesburg this 6 May 2019.

___________________________
John Smith and Partners
Applicant's Attorneys

Commentary
What you see above is a typical two­part notice of motion. Where you move for a
provisional order, not a final order, you must use the two­part notice of motion. It
will prevent wasted costs and the inconvenience of repeatedly going to court to
extend the return date of a rule nisi.

Urgency
Please take note of prayer (1) in Part A. In all urgent applications you will seek an
order that the matter be heard in terms of rule 6(12). You cannot proceed with the
application until the court rules that the application is urgent. Respondents regularly
oppose urgent applications on the basis that the matter is not urgent and should be
struck off the roll. Therefore, you will have to deal with the question of urgency in your
founding affidavit.
Instead of obtaining a rule nisi use the two­part notice of motion where this is what
happens in court:
? You move for an order in terms of Part A; and
? Apply to the judge to postpone Part B sine die.
The effect of this is your client obtains immediate relief while the club is given an
opportunity to decide whether to oppose the order in Part B and file an answering
affidavit, build the fence, or redesign the fifth hole. Your client is protected by the
interdict in Part A, and the club can take as much time as they want to decide what to
do without going back to court every two weeks to extend the rule. When the parties
are ready to go to court for a final order or to dismiss the application, having filed an
answering and replying affidavit, Part B is set down on the opposed motion roll.
Note that with a two­part notice of motion, the respondent still retains the right to come
to court on short notice to oppose the relief obtained.
The rule nisi
Our courts issue rules nisi on a daily basis. Before the two­part notice of motion was
introduced, courts routinely, where provisional or interim orders were sought, granted
rules nisi. You must know how to draft the notice of motion.

A rule nisi, by definition, is an order directed at particular persons calling

® on them to appear in court on a certain date and show cause why the
court should not grant a final order.

The court may grant interim relief by ordering that the rule nisi or parts of it operate as
a temporary interdict. It is useful in ex parte applications and various interdicts where
the court will not grant a final order, or where the applicant wants interim relief while
the respondent is given time to consider his or her position.
You can use a rule nisi for an interdict in our golf club example. It will look like this:
(We leave out the usual court heading.)
'Please take notice that applicant will move for an order, on Tuesday 7 May 2019, in the
following terms:
1. A rule nisi is issued, calling upon the respondent to show cause on 21 May 2019
at 10h00, or so soon thereafter as the matter may be heard, why an order
should not be made in the following terms:

[Page 157]

(a) Respondent is ordered to build a fence along the fairway of the fifth hole of
its golf course;
(b) Costs of suit.
2. Pending the return day respondent is interdicted from:
(a) Opening the fifth hole;
(b) Costs of suit.
Take notice further that the affidavit of Joseph Maseko will be used in support thereof.'

Ex parte application
From time to time you will have to bring an ex parte application on behalf of your client.
This is where, owing to the circumstances, your client cannot give the respondent notice
of the application, as to do so might defeat the purpose of the application. In such an
application a judge will not grant any final order against the respondent, as doing so
would be offensive to the audi alterem partem rule. The court will grant a provisional
order and it is preferred that you use the two­part notice of motion. You can also use
the rule nisi as explained above.
Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 6 Motion
proceedings/ Case Study Ten

Case Study Ten

Let us look at another example.

Mr Trevor Martin is the Manager for East Bank Vehicle Finance Ltd. He rushes into your
office in a panic and tells you this:
1. The bank financed a vehicle for Swift Transport (Pty) Ltd, which is owned by
Mr Daniel Botha. The vehicle is a truck, a 2017 Mercedes Benz Actros 22­wheel
super link, valued at R4 million. Botha signed the finance agreement and also
gave personal surety for the money advanced. The finance was over a period of
60 months and the monthly payments were R85 000.
2. In January 2018 Botha stopped paying his monthly commitments and fell into
arrears. The bank sent out its debt collectors to Botha's premises and found it to
be empty. There was no sign of the truck. It was a term of the contract that, at
all material times, Botha would inform the bank as to where the truck is located.
He did not do so.
3. For three months the bank's investigators searched for Botha and the truck but
to no avail. They seemed to have disappeared. In the meantime, Botha failed to
contact the bank and no payments were received. The bank's only security for
the money advanced is the truck.
4. This morning an investigator called the bank and informed us that the truck was
spotted at the City Deep fresh produce market where quantities of fresh
vegetables were being loaded. The market manager confirmed that he knew
Botha and that the vegetables were to be transported across the border to
Botswana. He also mentioned that Botha had shifted his business to Botswana.
5. Your client tells you that the truck must be attached immediately to secure the
bank's interests.
What is expected of you is to bring an urgent application to attach the truck. You also
know that if you give Botha notice he is likely to disappear across the border very
promptly. You will have to bring an urgent ex parte application. You will approach the
judge in court, or even in chambers, without serving any papers on Botha. The judge
will not grant a final order; the judge will want to give Botha an opportunity to be heard.
This is how you draft the notice of motion (we leave out the usual headings):
'Please take notice that applicant will bring an application on Thursday 9 May 2018 at
10h00 for an order in the following terms:

[Page 158]

Part A
1. The application is heard in terms of rule 6 (12) of the Uniform Rules;
2. Pending Part B, the Sheriff is authorised to attach a super link truck being a
Mercedes Benz Actros with registration BD 55 CG GP, and to hold the vehicle in
safe custody;
Alternatively
3. Pending Part B, the Sheriff is authorised to attach a super link truck being a
Mercedes Benz Actros with registration BD 55 CG GP, and to deliver the vehicle
to applicant;
4. This order is of immediate effect;
5. Costs of suit;
6. Further and/or alternative relief.

Part B
1. Respondent is ordered to pay to applicant an amount of R2 200 000;
2. Costs of suit;
3. Further and/or alternative relief.

Commentary
This order enables your client to secure the truck pending enforcement of payment.
If the order is not granted the truck could be lost and the bank will suffer irreparable
harm. The balance of convenience will favour the applicant bank.

The respondent will still have the option of coming to court on short notice to oppose
the relief. Here if you act for respondent you will be faced with the following:
1. He has just loaded a consignment of fresh produce onto his truck. If the truck is
attached, the fresh produce will be damaged and will result in disastrous
consequences for his business.
2. If the truck cannot be used, he will lose contracts and it will spell the ruin of his
business.
 3. He tells you that he is not in arrears with his payments and he was engaged in a
dispute with the bank over his payments.
Your instruction is that the vehicle has to be released immediately. One method to
employ is to shift the balance of convenience from applicant to respondent. You can use
the balance of convenience as a defence.
Provide the bank with security for its claim. Once this is done, the balance of
convenience, on these facts, will shift in favour of respondent.
The two­part notice of motion works well; it is efficient and saves wasted costs. Drafting
it is not difficult.

Notes on urgent applications

You must know how to draft and bring urgent applications. They are not different from
the usual motion proceedings, save that they are brought to court in a short time on an
urgent basis.
Every provincial division of the high court has its own unique processes and procedures
for dealing with urgent applications. You will find this in the practice directives. Please
read and comply before you launch any urgent application.
As explained above, the judge has to make a finding that the matter is urgent before
proceeding with the merits of the application. In your founding affidavit you are
expected to draft a paragraph in which you explain why the matter is urgent. What you
want is to set out the facts which tell the court the matter must be heard immediately.
Following our example above, that paragraph will look like this:

Urgency
This application must be heard in terms of rule 6 (12) of the Uniform Rules in that:
(a) applicant's truck had disappeared for the past four months;

[Page 159]

(b) respondent failed to pay for the truck in terms of his contract;
(c) the truck represents the only security for the debt;
(d) the truck was removed from the Republic in breach of the contract;
(e) respondent intends to drive the truck to Botswana tomorrow morning;
(f) respondent is acting in fraud of applicant;
(g) if the truck is removed from the Republic, applicant will suffer harm as it will not
be able to recover the debt.

Note how each material fact is set out. The facts appear in separate
® sub­paragraphs, are easy to follow and are persuasive.

If you are not convincing regarding urgency, and if you do not set out sufficient facts to
justify a finding of urgency, you risk being struck off the roll for want of urgency.

Search and seizure/preservation

Another form of interdict worth covering is the 'search and seizure' application, also
known as an 'Anton Piller' application. This application is brought by a party who is
about to embark on litigation and has reasonable grounds to believe that the opponent
or another party is in possession of evidence which he needs to prove his case and has
a reasonable apprehension that the other party will destroy the evidence and frustrate
the latter's case.
Here a search and seizure application is brought. The application will be ex parte.
Typically, you will seek an interdict coupled with a rule nisi. This type of application
amounts to a drastic procedure and became much abused by litigants. As a result the
judges of the Gauteng Provincial Division prepared an order which they were prepared
to give. This order contains a number of checks and balances to avoid unnecessary
harm to a respondent who is not in court when the order is made.
We replicate below a court order from the Practice Manual of the Gauteng Local Division
(26 May 2017). This is what the judges require; please use it. Also note that this order
must be included in your notice of motion. When you go to court to move an
application, prepare a draft that complies with the draft that appears below.
Incidentally, if you do not use this draft, the judge might refuse the order or will ask
you to prepare a draft that is consistent with the recommended order.

Note that all of our high courts have their own version of this order.
® Please check the practice directives.

However, if you used the version below in any division outside Gauteng, you should not
have a problem.
When you draft the founding affidavit in an application like this, include the following:
1. This is an interdict. You will have to set out the four requirements of an interdict,
as explained above.
2. Give a detailed account of why notice cannot be given to respondent. State the
facts that show applicant has a reasonable apprehension that material evidence
will be destroyed.
3. State what your cause of action is against respondent and what relief you seek.
 You can conveniently attach a copy of your particulars of claim that will be
served simultaneously with your application and this order.
4. Provide a detailed description of what evidence, in possession of respondent, is
at risk. You cannot be vague about this and avoid creating the impression you
are on a fishing expedition. A useful suggestion is for you to request access to
only the evidence you strictly require, do not cast the net too wide. The court will
not allow a blanket search for unspecified documents or evidence.
5. You must give details of where the evidence or information is located and how
access can be obtained. Please ensure you deal with electronic documents and
access to

[Page 160]

hard drives, servers, third party hosted information etc. Consult the order below
and use it as a guide.
6. State what is to become of the evidence after you get access. Deal with the
question of how the evidence will be protected and with the fact that access will
be restricted. Again, consider the provisions of the order below for guidance.
7. You are expected to identify the independent supervising attorney. Attach a letter
of acceptance from the appointed attorney. Also identify the forensic experts and
attach letters of acceptance from them. In the letters of acceptance, the
supervising attorney and forensic experts must state the following:
(a) That they understand the nature of the application;
(b) That they have read the draft order applicant intends to seek;
(c) That they know and will comply with the confidentiality requirements of the
order.
The draft order below is very comprehensive and
(a) You need not use every provision therein; and
®
(b) You will have to make additions dictated by the unique facts of
your case.

A useful technique is to read this order first, find the provisions you require based on
the facts of your case, then include a reference to each of them in your founding
affidavit. To put this plainly, set out the facts in your founding affidavit which will
support each of the prayers or terms in the order you seek.
[For the requirements of an Anton Piller order, see Viziya Corporation v Collaborit
Holdings (Pty) Ltd and Others 2019 (3) SA 173 (SCA).]

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 6 Motion
proceedings/ Case Study Eleven

Case Study Eleven

IN THE HIGH COURT OF SOUTH AFRICA

Gauteng Local Division, Johannesburg

Case number: xxxxx

In the urgent ex parte in camera application of:
Xxxxxx First Applicant
Xxxxxx Second Applicant
in re
Xxxx First Applicant
Xxxx Second Applicant
and
Xxxx First Respondent
Xxxx Second Respondent

DRAFT ORDER

On the xxxx
Before:
Having heard counsel for the applicants and having read the papers filed of record and
having been given the following undertakings by the applicants:

[Page 161]

URGENCY AND SECRECY

 1. This application is ­
1.1 heard as one of urgency in terms of rule 6 (12), the requirements of the Rules of
Court in respect of notice and service being dispensed with and the applicants'
departure therefrom are condoned;
1.2 heard in camera;
1.3 not be enrolled on the motion court roll;
1.4 not be made public until the service and execution of the order set out below.

UNDERTAKINGS
2. This order will not be executed outside the hours between 08h00 and 18h00 on a
weekday.
3. The applicants will prevent the disclosure of any information gained during the
execution of this order to any party except in the course of obtaining legal advice or
pursuing litigation against the respondents.
4. The applicants will compensate the respondents for any damage caused to the
respondents by any person exceeding the terms of this order.
5. The applicants will compensate the respondents for any damage caused to the
respondents by reason of the execution of this order should this order subsequently be
set aside.

IT IS ORDERED THAT:
1. The first and/or second respondent (referred to jointly as 'the respondents') and/or
any other adult person in charge or control of the respondents' premises located at
xxxxx ('the premises') shall grant to the following persons access to the premises and
to such motor vehicle(s), if any, in the respondents' possession or under their control,
situated at the premises:
1.1 the sheriff or deputy sheriff of this Court for the district of xx ('the sheriff');
1.2 attorney xxxxxxx ('the independent supervising attorney'); and
1.3 xxxxx, identity number xxxx, and/or xxxx, identity number xxxx of xxxxxx ('the
forensic expert(s)');
1.4 a representative of the applicant and/or the applicant's attorney, who shall not take
part in the search referred to below, but may be called upon by those mentioned in 1.1
to 1.3 above to identify documents falling within the evidence referred to in 2.1 below.
2. The first and/or second respondent and/or any other adult person in charge or
control of the premises must grant access to the premises and to the respondents'
vehicle(s) on the premises, if any ('the vehicle(s)'), to the forensic expert(s), and the
sheriff, as the case may be (collectively, 'the search persons'), solely for the purposes
of:
2.1 searching the premises and the vehicles in order to enable any of the search
persons to identify and point out to the sheriff 'the evidence', being:
2.1.1 originals or copies of xxxxxx;
2.1.2 xxxxxx
2.2 searching the premises and vehicles for purposes of finding and thereafter
searching and examining any networks, desktop computers, laptop computers, tablet
computers, portable information storage devices, external data storage devices,
including external hard drives, flash drives, iPods, shufflers, compact discs (CDs),
digital versatile discs (DVDs), stiffy disks, floppy disks, jazz drives, zip drives, data
cartridges, memory sticks, mobile phones, SIM cards and electronic devices or media
with the capability of storing information and/or data digitally, as well as any data, data
storage location or network component (including but not limited to Cloud Hosting,
Dropbox, virtual servers or other data hosted locally or internationally) to which the
respondent/defendant has access or control

[Page 162]

over or ownership of by directly, indirectly or remotely connecting thereto (collectively

described as 'digital devices or media') on the premises or in the vehicle(s), by
connecting each of the digital devices or media to forensic computers, for the purpose
of identifying it and determining whether it contains the evidence;
2.3 permitting and allowing the forensic experts to make two disc copies and/or
compact disc copies and/or to capture forensic images and/or to make two complete
mirror images and/or digital images (for identification purposes) of the hard drives of
any digital devices or media located on the premises or in the vehicle(s), or to
download or create a data dump of online or hosted data, once it is determined that
such digital devices or media contain the evidence or part thereof;
2.4 permitting and allowing the forensic experts to make print­outs of any of the
evidence located on any such digital devices or media, if copies of the hard drives
cannot be made.
3. The first and/or second respondent and/or any other adult person in control of any
digital devices or media on the premises or in the vehicle(s), must forthwith disclose to
the search persons any passwords and/or procedures required for effective access to
such digital devices or media for the purposes of paragraph 2 hereof.
4. In the event that the first and/or second respondent and/or any other adult person
in charge or control of the premises refuses to grant access to the premises and to the
 respondents' vehicle(s) on the premises, a member of the South African Police Service,
assisted, if necessary by a locksmith, may obtain access to the premises and/or
vehicle(s) as necessary.
5. Subject to paragraph 13 hereof, the sheriff is authorised to attach any items pointed
out by any of the aforesaid persons and any digital devices or media, and any forensic
copies of hard drives of any digital devices or media, or print­outs of any such items
(collectively, 'the identified items').
6. The sheriff shall keep the identified items in his or her custody until the applicants
authorise their release to the respondents or this court directs otherwise.
7. In the event that the forensic experts are unable, for any unforeseen reason, to fulfil
their functions in terms of this order, they are authorised to conduct such forensic
investigations as contemplated in this order, in the presence of the independent
supervising attorney and the sheriff, no later than one day after the identified items
have been taken into custody by the sheriff.
8. Until completion of the search authorised in the preceding paragraphs hereof, the
respondents may not access any digital devices or media or any area where documents
or items of the class mentioned in paragraphs 2.1 hereof may be present, except with
the leave of the independent supervising attorney, or to make telephone calls or send
any electronic message to obtain the attendance and advice mentioned in the notice
which is handed over immediately prior to execution of this order.
9. The sheriff shall, before this application is served or this order is executed ­
9.1 hand to the first and/or second respondent, or any other person found in charge or
control of the premises, a copy of the notice which is annexed hereto as Annexure A;
and
9.2 explain to first respondent, the second respondent or such person paragraphs 2, 3
and 4 thereof; and
9.3 inform the first respondent, the second respondent or such person of the following:
9.3.1 that any interested party may apply to this court on not less than twenty­four
(24) hours' notice to the offices of the applicants' attorney for a variation or setting
aside of this order, the court's practices and rules applying unless the court directs
otherwise;
9.3.2 that the respondents are entitled to make a copy of any document which the
sheriff intends to remove, unless the sheriff declares that the time involved would make
the procedure impractical and the sheriff either does not remove the relevant item or
remove it in a container sealed by the sheriff, which the sheriff may not open except to
give effect to this order or to any further direction from the court;

[Page 163]

9.3.3 that the respondents or their representative are/is entitled to inspect the items in
the sheriff's custody for the purpose of satisfying themselves that the inventory is
correct.
10. The first and/or second respondent and/or any other adult person(s) in charge or
control of the premises, must disclose to the sheriff the whereabouts of any item falling
within the categories of items referred to in paragraphs 2.1 hereof, whether at the
premises or elsewhere, to the extent that such whereabouts are known to the
respondents or either of them or such person(s).
11. In the event that any item is disclosed to be situated at any other place than the
premises or the vehicle(s), the applicants may approach this court ex parte for leave to
permit execution of this order at such other place.
12. The sheriff shall make a detailed inventory of the identified items immediately after
taking custody thereof, and shall provide a clear copy of such inventory to the Registrar
of this court, the applicants' attorney, the independent supervising attorney and the
respondents.
13. In the event of the respondents raising any contention in law why any of the
identified items should not be inspected and/or copied, the respondents shall, within a
period of three (3) court days after the identified items have been taken into the
custody of the sheriff as provided above, identify on oath the item in respect of which
objection is taken to such inspection and/or copying and state on oath the reasons for
the objection and serve such affidavit on applicants' attorneys.
14. After the inspection described in the preceding paragraphs hereof, the sheriff shall
retain the identified items pending the outcome of this application.
15. The sheriff shall inform the respondents that the execution of this order does not
dispose of all the relief sought by the applicants and shall simultaneously serve the
notice of motion and explain the nature and exigency thereof.
16. The independent supervising attorney shall monitor and oversee all aspects of the
execution of this order and, together with the sheriff, shall make a list of all items
removed by the sheriff in terms of this order, one copy of such list to be handed to the
respondents, if present, or to the person(s) upon whom service is effected as referred
to above, and one copy of the such list to be retained by the sheriff.
17. The independent supervising attorney accompanying the sheriff, within ten (10)
days of the execution of this order, shall cause to be filed an affidavit or affidavits ­
17.1 setting out fully the manner in which the order was executed and stating whether,
in the independent supervising attorney's opinion, there occurred any abuse or breach
 of any provisions of this order; and
17.2 attaching the inventory compiled in terms of this order.
18. This order, including paragraph 19.3 shall, upon proper service on the respondents,
operate as an interim order with immediate effect.

RULE NISI
19. The respondents are called upon to show cause before this court, on xxxxx at
10h00 or so soon thereafter as the matter may be heard, why an order in the following
terms shall not be made final ­
19.1 that the identified items in the custody of the sheriff shall be retained by the
sheriff pending the further direction of this court;
19.2 that the applicants are permitted to:
19.2.1 make copies of the identified items in the custody of the sheriff; and
19.2.2 take possession of the two forensic copies of hard drives of any digital devices
or media in the custody of the sheriff, for the purposes of instituting the further
proceedings against the respondents foreshadowed in this application;

19.3 that the respondents are interdicted and restrained whether jointly or individually,
from xxxxxx.

[Page 164]

20. Should the respondents wish to oppose the relief set forth, they shall deliver their
answering affidavits, if any, or a notice envisaged in terms of rule 6(5)(d)(iii) of the
Uniform Rules on or before xxxxxx.

COSTS
21. The costs of this application are reserved for determination in the further
proceedings to be instituted by the applicants, foreshadowed in this application, save
that ­
21.1 if no such proceedings are instituted within thirty (30) days of the execution of this
order, either party may, on no less than 96 hours' notice to the other, apply to this
court for an order determining liability for such costs and determining what must be
done about the identified items and any copies thereof;
21.2 any other person affected by the grant or execution of this order may, on no less
than 96 hours' notice to the parties hereto, apply to this court for an order determining
liability for the costs of such person and determining what must be done about any of
the identified items pertaining to such person or any copy thereof.

BY ORDER OF THE COURT

_____________________
THE REGISTRAR

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 6 Motion
proceedings/ Case Study Twelve

Case Study Twelve

For our next case study, we chose a review application. This is commonly encountered
in practice.

Explanatory note
First, we set out a typical notice of motion. The review dealt with below is made in
terms of rule 53 of the Uniform Rules.
The supporting affidavit is just a skeleton and does not contain a full set of facts.
The purpose of this affidavit is to show you what the layout should look like. It also
shows you, importantly, the logical reasoning involved in drafting user­friendly and
persuasive affidavits.
The review we deal with relates to an administrative decision and is brought in
terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). You must
know how to draft this as it has become increasingly relevant to daily practice.

The facts below are sketchy and are intended only to provide context.
Your client instructs you as follows:
1. My name is Tim Modise and I am the managing director of Mzansi Printing works
(Pty) Ltd. I am also a share holder in the company which is situated at 29 Bertha
Street, Silverton, Pretoria. I am authorised to act on behalf of the company.
2. Mzansi is a high volume, high speed printer. Its main clients are publishers of
books, magazines and newspapers. It also prints materials for several
government departments.
 3. During January 2017 the Department of Basic Education (DBE) advertised and
invited tenders for a project that involved printing and distribution of history
textbooks for grades three to twelve in all schools run by the DBE countrywide.
This was tender number DBE 188/17.
4. The tender documents included the special conditions and what was expected of
prospective contractors. Mzansi was well placed to execute such a project and
duly submitted a tender.

[Page 165]

5. After the closing date of the tender, a short list of possible contractors was made.
Mzansi was on the short list. Thereafter an assessment was made of the capacity
of each contractor to successfully deliver such a large project. A further short list
was then made and only two companies were selected.
6. Mzansi was one company and the other was Bulk Print Projects (Pty) Ltd (BPP).
These two bids were referred to a bid evaluation committee (BEC), who then
referred their recommendations to a bid adjudication committee (BAC), who in
turn referred their recommendation to the director general (DG) of the DBE.
7. The reason only two companies were short­listed was the unusually high
functionality requirement of the tender. Contractors had to score 80% on
functionality. Only the two short­listed companies showed in their bid documents
that they were capable of delivering this project.
8. The BEC was then tasked to evaluate two bids. The main task of the BEC was to
evaluate the two companies on functionality (the ability to perform in terms of
the tender).
9. On 30 March 2017 the BEC recommended that the contract be awarded to BPP.
On 30 April 2017 the BAC accepted this recommendation and made a similar
recommendation to the DG.
10. On 30 April 2017 the DG accepted this recommendation and awarded the
contract to BPP. The contract was for a period of three years and was valued at
R20 million per year.
11. I was shocked by the decision as I knew my company had the same capacity as
BPP, but we were substantially cheaper. On 15 May 2017 I requested the DG to
give reasons for his decision. I received no response. After about six weeks I
received a response after threatening to obtain an interdict.
12. The reasons given by the DG were vague and did not tell me why BPP was the
preferred bidder. This is a copy of the DG's response.
13. I then obtained a copy of the record of the bid process and discovered that many
irregularities existed. The main irregularities were committed by the BEC in their
scoring of the two companies on functionality. I also noticed a clear bias in
favour of BPP.
14. I want to review and set aside the DG's decision to award the contract to BPP.
That briefly sets out the context to the examples that follow.
As a practitioner you will consider the following:
(a) You will have to bring an application for review in terms of rule 53 of the Uniform
Rules;
(b) You will take a look at the provisions of PAJA, in particular sections 6, 7 and 8;
(c) This involves a tender so you have to consider section 217 of the Constitution;
(d) You must be familiar with the legislative framework for supply chain
management in government. Look at the following:
­ The Public Finance Management Act(PFMA);
­ The Preferential Procurement Policy Framework Act 5 of 2000 (PPPFA);
­ Preferential Procurement Regulations, 2001 pertaining to the Preferential
Procurement Policy Framework Act 5 of 2000. This was amended in 2011
and again in January 2017, effective 1 April 2017.
­ General Procurement Guidelines;
­ Policy Strategy to guide uniformity in procurement reform processes in
Government;
­ National Treasury instruction note on the amended guidelines in respect of
bids that include functionality as a criterion for evaluation (issued
September 2010); and
­ National Treasury instruction note on enhancing compliance monitoring
and improving transparency and accountability in supply chain
management.

[Page 166]

(e) You must consider the following decisions:

­ City of Tshwane v Nambiti Technologies 2016 (2) SA 494 (SCA);
­ Department of Transport v Tasima [2016] ZACC 39;
­ Allpay Consolidated v SASSA 2014 (1) SA 604 (CC); and
 ­ Allpay Consolidated v SASSA (No 2) 2014 (4) SA 179 (CC).

Good lawyers do not hesitate to read and understand the law before
putting pen to paper. Please, if you are serious, read the above
® legislation and case law. It is essential reading, there are no short cuts.
This reading will assist you with the cause of action.

Bearing in mind the facts of your case and the legislation and case law referred to
above, you should be able to work out your cause of action and prepare a draft
affidavit.
We begin with the notice of motion.
You will include the following parties:
­ Mzansi will be the applicant;
­ The Minister of Basic Education will be the first respondent;
­ The DBE will be the second respondent;
­ The DG of DBE will be the third respondent; and
­ BPP will be the fourth respondent.
Take note of the commentary that appears between some paragraphs, in italics.

NOTICE OF MOTION

PLEASE TAKE NOTICE that the applicant intends to make application to this court in
terms of rule 53 of the Uniform Rules of Court on a preferent date to be allocated by
the Deputy Judge President for final relief in the following terms:
[In a case like this there will be some urgency. It involves the constitutional rights of
learners to a quality education. This matter cannot be heard on the usual opposed
motion roll, where the waiting time for a date runs into many months. The DJP can be
approached, in consultation with your opponents, for a special allocation of a hearing
date. You will have to motivate this in your founding affidavit. Also remember to tell the
DJP you might require two to three days for a hearing of this nature.]
1. Condoning any non­compliance of this application with the Rules of this court and
allowing the review application to be heard on an urgent and expedited basis in
terms of rule 6 (12) of the Uniform Rules.
2. Declaring that the third respondent's decision not to award the tender DBE
188/17: Printing, packaging and distribution of history textbooks for the second
respondent, to applicant and to award the tender to fourth respondent is
unconstitutional and unlawful and is reviewed and set aside.
3. Directing the third respondent:
(a) To award the tender to applicant; alternatively
(b) To have applicant's and fourth respondent's bids re­evaluated, with due
regard to the findings of this court, and award the tender within 30
calendar days of the date of this order, with the bid validity period
extended accordingly; further alternatively
(c) To re­advertise the tender.
4. Declaring the contract entered into between second and fourth respondents
pursuant to the award of the tender is constitutionally invalid.
5. To the extent necessary, suspending the declaration of invalidity in paragraph 2,
as just and equitable, for such period of time as is necessary to ensure that the
distribution of

[Page 167]

textbooks to learners pursuant to the contract is not disrupted, during any re­
evaluation or re­advertising period provided for in paragraph 3.
6. Costs of the application, including the cost of two counsel.
7. Any further just and equitable relief as required to be ordered in the court's
discretion in terms of section 172 (1) (b) of the Constitution.
[Note the following regarding the relief you prayed for:
? You have to deal with this application in terms of rule 6(12) and a motivation will
appear in your founding affidavit;
? The relief in 3(a), although this is your first prize, is not likely to be awarded in
review proceedings. A court is not competent to evaluate competitive bids. This
is best left to the second respondent. That is why we include an alternative in
3(b) and (c). This must also be motivated in your founding affidavit, where you
will deal with what you say is the most appropriate order in the circumstances.
The strategy, in any application, as we explained above, is to look at all the
possible options available to you. Never ask for relief, without alternatives,
where it is doubtful if the judge will be willing to grant the order.
? In these cases, your client will come to you at a time when fourth respondent has
already begun work on the textbooks. When there is public interest in the matter,
as there is here, the interests of learners must be taken into account. You will
have to address this question in your founding affidavit. Explain that it is not
intended by applicant to compromise delivery of books to learners. Thus, the
 remedy in 5.
? Prayer 7 is derived from section 172 (1) (b) o f the Constitution. This section
deals with the powers of courts in constitutional matters; please read this and
remember it whenever you deal with a case like this or one involving any other
constitutional matter. Our courts have powers to exercise an important discretion
in making orders that are just and equitable.]
TAKE NOTICE FURTHER that the accompanying affidavit of Tim Modise, together with
the supporting documents annexed hereto, will be used in support of this application.
TAKE NOTICE FURTHER that applicant has appointed the offices of Tendermans Inc as
set out below as the address at which he it will accept service of all process and
proceedings.
TAKE NOTICE FURTHER that second and/or third respondents are called upon, in terms
of rule 53 (1) (a) to show cause why the decision referred to above should not be
reviewed and corrected or set aside.
TAKE NOTICE FURTHER that the third respondent is hereby called upon to dispatch,
within 15 days of receipt of this notice of motion, to the Registrar of this court, the
record of the decision sought to be reviewed (including all correspondence, including
emails, reports, memoranda, documents, evidence, transcripts of recorded proceedings
and other relevant information serving before the third respondent when the decision
was made), together with such reasons as are desirable to provide, and to notify
applicant that this has been done. The record of the decision should include but not be
limited to the following:
(a) All completed score sheets and moderation sheets used during the evaluation
process;
(b) The BEC functionality results sheet;
(c) All completed functionality evaluation forms;
(d) All completed functionality scorecards;
(e) The BEC's recommendations/report;
(f) The BAC's recommendations/report;
(g) The minutes of the BEC and BAC's meetings;
(h) All due diligence reports compiled during the bid evaluation process;
(i) Letters of appointment of the BEC and BAC members, and/or any other
documents related to their appointments.

[Page 168]

TAKE NOTICE FURTHER that the applicant may, within ten days after the Registrar has
made a complete record available, by delivery of a notice and accompanying affidavit,
amend, add to or vary the terms of this notice of motion and supplement the founding
affidavit.
TAKE NOTICE FURTHER that should respondents wish to oppose the order prayed for in
this notice of motion, they are required to:
(a) Within 15 days after receipt of this notice of motion or any amendment thereof,
to deliver notice to applicant that they intend to oppose and, in such notice, to
appoint an address within 15 kilometres of the office of the Registrar at which it
will accept notice and service of all process in these proceedings;
(b) Within 30 days after expiry of the time referred to in rule 53(4), to deliver any
affidavit that they may desire in answer to the allegations made by applicant.
DATED AT PRETORIA THIS THE DAY .... OF 2019.

_______________________________
TENDERMANS INC
Attorneys for Applicant
Insert address
And to:
The Registrar of the above court.
And to:
[Insert names and addresses of all four respondents.]
[Note that the above draft complies with the provisions of rule 53. The time allowed for
filing is as provided for in rule 53. However, where there is urgency and you bring the
application in terms of rule 6 (12), you can reduce the number of days provided, for
example, you can provide for 15 days instead of the 30 days prescribed in rule 53 (5)
(b). But be reasonable about this; do not give too little time as the respondents might
approach the court for more time and you will cause unnecessary delays.
Note, too, that we specify certain documents to form part of the record. This is not
strictly provided for in the rule; however, the rule can be vague and it is recommended
you use the above method where you work out the most important documents for your
review, and detail them in the notice of motion.]

Founding affidavit

Explanatory note
The affidavit below is merely a rough draft and does not contain a full set of
 material facts. The purpose is to demonstrate how to effectively set out a founding
affidavit using the method of point first writing.

Again, take note of the commentary appearing in italics between paragraphs.

Here you will draft the usual heading.

APPLICANT'S FOUNDING AFFIDAVIT

I the undersigned:
Tim Modise
Do hereby make oath and say that:
1. I am the managing director of applicant and the facts stated are within my
personal knowledge and are correct. I am duly authorised to depose to this
affidavit and to represent the applicant in these proceedings. A copy of a
resolution of the applicant is annexed marked 'A'. My address is ....

[Page 169]

The parties
2. [Here give a full description of the applicant and respondents.]
Jurisdiction
3. Applicant's cause of action arose within the area of jurisdiction of this honourable
court.
Factual background and applicant's review
4. Applicant (Mzansi) and fourth respondent (BPP) responded to a tender advertised
by the Department of Basic Education (DBE). The tender was DBE 188/17 for
printing and distribution of history textbooks for all the schools in the country,
administered by the DBE.
5. After the closing date of the tender, two companies were short listed, Mzansi and
BPP. Thereafter and pursuant to a bid evaluation and adjudication process, the
tender was awarded to BPP by the third Respondent (DG).
No adequate reasons
6. Mzansi was advised of the decision in a letter, but no reasons for the decision
were given. Immediately Mzansi, through its attorneys, requested reasons for
the decision. The DG took six weeks to respond. Notwithstanding taking so much
time, the DG failed to provide full and proper reasons and at best his response
was vague. A copy thereof is annexed marked 'B'.
PAJA
7. Accordingly, in terms of section 5(3) of the Promotion of Administrative Justice
Act 3 of 2000 (PAJA) it must be presumed that the DG took the decision without
good reason.
Section 217
8. Therefore, this is an application to review and declare the DG's impugned
decision unconstitutional and unlawful in terms of PAJA, read with section 127(2)
of the Constitution, and to set aside the impugned decision.
Why urgent
9. Given the importance of textbooks for learners countrywide, and the state's
constitutional obligations in relation to basic education and its obligations to
ensure all procurement is fair, transparent, competitive and cost effective
(section 217 of the Constitution), it is important that this review be heard on an
urgent basis.
10. Any delay in the adjudication of this review application could lead to prejudice to
school learners, and to the state and tax payers, given that it could lead to the
DBE paying significantly more for the printing and distribution of these textbooks
rather than procuring through a competitive and cost­effective tender process.
11. Moreover, any delay in determining this review could also limit the extent and
nature of an appropriate relief that this court can grant.
The main issues
12. [In what follows, I address the following issues:]
(a) The purpose of the tender and the special conditions of the tender;
(b) An explanation of the evaluation and adjudication process, where you
show that applicant, despite satisfying all the special conditions, was
wrongly excluded from the award;
(c) An explanation of the scoring and moderation method employed in the
evaluation of the bids and how the method was not applied equally to both
parties;
(d) An explanation of the score cards and how Mzansi was excluded from the
final phase of the evaluation based on price and equity.
(e) Show, with reference to the record, that some individuals in the bid
evaluation committee (BEC) were biased in favour of BPP.
[Page 170]

(f) Show that Mzansi was treated unfairly in the evaluation process for not
satisfying certain requirements which were not actually in the special
conditions.
(g) Mzansi was unfairly excluded on the basis that it did not meet the
minimum requirements for functionality.
(h) The DG's failure to provide adequate reasons for his decision.
(i) The grounds for review in terms of PAJA.
(j) The Nature of the relief sought.
(k) The need for the review to be heard on an urgent basis.
[Note the following:
­ In paragraph 4 an abbreviated form for describing the parties is introduced. You
can do this in your paragraph where you describe all the parties. This is
convenient and makes for easy reading. A good technique to use.
­ What you see here is the point first writing method in use. In one short
paragraph, without stating too much detail, you told the judge what to expect in
the affidavit and how you intend to develop your case. You also made some of
your strong points, such as the wrong scoring method was used on your client's
bid and there is evidence of bias.
­ Ensure that you set out the various issues in the same order as you intend to
deal with them in the affidavit.
­ Get ready to use these points as headings when you draft the rest of the
affidavit.
­ Under the heading 'Factual background and applicant's review' you briefly tell the
judge where the disputes come from and what the legal framework for resolving
the dispute is.
­ There is logical reasoning in this layout. You tell the judge what the application is
about, what legal framework applies and the main points you will rely on.
­ Most importantly, you told the judge, up front, what your cause of action is.
­ See how headings are used below. They are effective in providing context before
details.]
The tender and special conditions
13. [In this paragraph set out:]
(a) Exactly what the tender is for. What services over what period;
(b) State the special terms and conditions of the tender;
(c) Describe the scoring method to be used;
(d) Set out how functionality will be evaluated and against what criteria;
(e) The term of the contract to be awarded.
[As an example of 13(d) you can draft it as follows:]
The functionality evaluation will be evaluated against four major criteria, each with its
own weighting:
(a) Capacity;
(b) Operation strategy;
(c) Risk management strategy; and
(d) Local economic development strategy.
You can then attach a copy of the Special conditions, Annexure 'C'.
The evaluation process
[It is important for the judge to understand the process involved in evaluating bids.
Here you will set it out simply without indulging in jargon. It will look like this:]

[Page 171]

14. The bid evaluation process is conducted in four phases as follows:

(a) First, there would be an administrative evaluation where an assessment is
made as to whether a bid satisfied the mandatory requirements, as stated
in the Special conditions. If a bid fails to comply, for example, the bidder
failed to attach a tax clearance certificate, the bid is immediately
disqualified and does not proceed to the next phase;
(b) Second, there will be a functionality evaluation. This is conducted by a
BEC;
(c) Third, there will be a financial and preference evaluation; and
(d) Fourth, there will be a recommendation and award of the tender.

It is important to note that only bidders that achieve the minimum

® qualifying score of 80% for functionality will be evaluated for price and
preference (B­BBBE status level of the contributor).

The BEC and BAC

 15. [Here you give details, from a reading of the record, how the two bids were
evaluated by these two committees.]

Do not merely copy and paste lengthy portions of the record. Instead
tell the judge in your own words what happened and give a reference to
® the record. Remember the judge will have the record, which was
delivered in terms of rule 53.

Grounds of review
[Having explained the process of evaluation; you now present the details of what
actually happened, why this amounts to an irregularity and how this amounts to a
ground of review. Before you embark on this, read section 6 of PAJA again. The
following section is applicable here: section 2(a)(iii), (b), (c), (e), (f) and (i).]
17. [Begin by dealing with section 5 of PAJA. In this paragraph, commence with your
main point:]
The DG failed to give any or any adequate reasons for his decision not to award
the tender to Mzansi as contemplated in section 5 (2) of PAJA. This court will be
urged to make a presumption that the DG made the decision without good
reason.
18. [Then set out:]
(a) The chronology of events after the awarding of the tender was announced.
Attach the relevant correspondence with the office of the DG. Point out
how much time was taken by the DG to eventually respond;
(b) Make reference to the reasons given by the DG and show, using numbered
sub­paragraphs, in what way it amounts to no reasons and/or inadequate
reasons.
(c) State that in the circumstance the court should make a presumption in
terms of section 5(3).

In reality, this will not be your best point, so do not spend too much
® time on it; keep it short. The strength of your case depends on the
irregularities committed in the bid evaluation for functionality.

Bid evaluation for functionality

[This is an important paragraph for your case. Your first sentence should look like this:]
19. In this paragraph I will show that:
(a) In scoring Mzansi, a different set of criteria was unfairly used;
(b) Only Mzansi's scores were subjected to moderation and were thereby
unfairly reduced to below 80%;

[Page 172]

(c) Certain members of the BEC were biased and scored Mzansi much lower,
on certain criteria, than BPP;
(d) The BEC took account of facts that were irrelevant and failed to take into
account facts that were relevant to the question of functionally.
20. [Thereafter, with reference to the record, show where the irregularities
occurred.]

You will have to make a clear case as judges are reluctant to interfere
with the exercise of administrative decisions, especially where it
concerns the question of scoring bids. This is where you set out the
® FACTS of your case. But be aware that there is little or no scope for you
to go outside of the record. This means that before you draft, go
through the record with a fine­toothed comb, this is how you obtain the
facts you want to rely on.

[In drafting this section, use the above points for headings; such as:]
Scoring criteria
Unfair moderation
Bias
Facts relevant to functionality.
DG's decision reviewable
[Having set out proof of irregularities in the evaluation process, you now want to tell the
judge that the DG's decision is reviewable. Your paragraph should look like this:]
21. In the circumstances, the DG's impugned decision, which was taken without good
reason, is reviewable on one or more of the following grounds:
(a) In terms of section 6 (2) (c) of PAJA in that the impugned decision was
procedurally unfair;
(b) In terms of section 6 (2) (e) of PAJA in that the impugned decision was
taken arbitrarily or capriciously;
(c) In terms of section 6 (2) (f) (ii) of PAJA in that the impugned decision is
not rationally connected to the purpose of the empowering provision or the
information before the administrator;
 (d) In terms of section 6 (2) (h) of PAJA in that the impugned decision is
unreasonable; and/or
(e) In terms of section 6 (2) (i) of PAJA in that the impugned decision is
otherwise unconstitutional or unlawful.
The relief sought
[You have to assist the judge to make an order. You must explain exactly what relief
you want and how the judge can make it an order of court. In an application of this
nature you have to take your notice of motion and address each relief that you set out.
The paragraphs should look like this:]
Rule 6 (12)
[Here explain why the matter should be heard on an expedited basis. As in any urgent
application, the judge must first rule that the matter can be heard in terms of rule
6(12). You can include this:]
22. Millions of learners have a constitutional right, in terms of section 29 o f the
Constitution, to receive all necessary textbooks, and the DBE has a concomitant
obligation to provide those books.
23. There is therefore a need to review the impugned decision on an urgent basis.
This will ensure a lawful outcome where constitutional requirements are met,
while also ensuring that this is done in a manner that upholds the principle of
legality and the requirement that all procurement is done in a manner that is fair,
transparent, competitive and cost effective.

[Page 173]

24. Pursuant to the award of the tender, BPP have already started production of the
textbooks for the new academic year. This alone justifies a hearing in terms of
rule 6 (12).
Impugned decision must be declared unlawful and set aside
[In this paragraph you deal with paragraph 2 of the notice of motion. It should look like
this:]
25. For reasons set out above the DG's impugned decision was unlawful.
26. Therefore, in terms of section 172 (1) (a) of the Constitution, read with section 8
of PAJA and in the light of binding Constitutional Court authority, the decision
must be declared unconstitutional and unlawful, and must be set aside.
Contracts entered into to be declared invalid
[Here you deal with prayer 4 of the notice of motion. Do this:]
27. The tender was awarded to BPP. Pursuant to the award, a contract was entered
into between DBE and BPP for the printing and distribution of history textbooks.
28. The DG's impugned decision is unlawful. Therefore any contract entered into
pursuant to the decision must equally be declared unlawful and must be
cancelled.
29. Such relief is required by section 172 (1) (a) of the Constitution.
Just and equitable relief
[Here you deal with prayers 3 and 5 of the notice of motion; the question of just and
equitable relief. In this paragraph you must deal with matters of public interest, such as
the interests of learners. It should look like this:]
30. In terms of section 172 (1) (b) of the Constitution, the court is empowered and
required, consequent upon a declaration of invalidity, to grant just and equitable
relief.
31. Regarding the DG's decision, it will be appropriate relief to either hold a fresh
tender, alternatively, a reconsideration or re­evaluation of Mzansi and BPPs'
tenders by a newly constituted BEC and BAC.
32. Only in the event the record shows that Mzansi should have been awarded the
tender, in which event the required exceptional circumstances would have been
established to seek an order that it should be awarded the tender.
33. Bearing in mind that the new academic year is a few months away and delivery
of textbooks to schools cannot be interrupted, the court can consider suspending
the declaration of invalidity for such time as will ensure that there is no disruption
to deliveries of books pending a re­evaluation of the bids or pending re­
advertising of the tender.

Conclusion
[You can now conclude in the usual manner:]
34. In the premises, Mzansi prays for relief set out in the notice of motion.

Explanatory note
Although we have used a case study based on a tender, the method used can be
applied to most review applications encountered in daily practice. What you must
note is that the layout features an application of logical thinking and point first
writing. This must become a feature of all affidavits you draft, including answering
and replying affidavits. You will encounter this technique again in the chapter on
drafting heads of argument.
 The answering affidavit
As the name suggests, this is the respondent's answer to the applicant's case as made
out in the founding affidavit.

What should your approach be?

? Read the founding affidavit and ask: What is the applicant's cause of action?
? Write down the facts that are the main elements of the applicant's cause of
action.

[Page 174]

? Now ask the next question: Do the facts support the conclusion/s of law relied on
by the applicant?
? Explain the cause of action to the client/respondent and take instructions.

Taking instructions
The method is not different from what is set out above.
It is worth repeating that your main purpose is to gather all the relevant facts.
Here are some practical suggestions:
? First sit back and listen to your client, let him or her tell you his or her version of
the facts. What happened according to his or her version of the facts? You have
to find out what your client's version of the disputed facts is. Do not go further
until you know this. This is your case concept.
? Then take your client through the founding affidavit, paragraph by paragraph,
highlighting the material facts relied on by the applicant.
? Make sure that you get a response to all of the applicant's material facts.
? Where the respondent denies a material fact, do not be satisfied with a bald/bare
denial. Always look for a basis in fact for that denial.
? Having gathered the relevant facts, now consider what your client's defence is.
? Research the law.
? Will the law recognise your client's facts as providing a defence to applicant's
claim?
? Does your client have sufficient facts that the law recognises as providing a
defence?
? You have to write down your client's version. Use numbered paragraphs for ease
of reference; and maintain a chronological sequence.
? Test the version:
­ Does it answer applicant's case?
­ Are the facts of your client's version admissible?
­ Is the version probable; likely to have happened?
­ Did you make a note of all the undisputed facts between the parties? Make
a list of these.
­ What does the law say about your client's version?
­ Can you formulate a viable defence?
This test will assist you in determining whether your client has a genuine
defence and is not merely attempting to cause delay with a recently
fabricated version.
You are now ready to start drafting.

You should not be tempted to simply pick up a dictaphone and rattle off
® an affidavit in the client's presence ­ you must first consider the overall
structure of the defence. This requires planning and strategy.

Here are the requirements:

? You must set out not only the defence but also the evidence/facts that support it.
? Bare denials of fact will be inadequate. Denials of material facts must be
accompanied by an explanation or justification which must itself have a basis in
fact.
? The affidavit must disclose sufficient facts to justify the conclusion that the
respondent's resistance is bona fide and reasonable.
? Again, just as in a plea, be very careful about making admissions. Equally,
failure to deal with a fact will result in it being treated as an admission.
? Advise your client that the mere introduction of disputes of fact which cannot be
supported is an abuse of the processes of the court.

[Page 175]

Ad Paragraph 8
The allegations are noted.
What?
 Stop doing this.
Judge: Very well, I will treat it as an admission.
Where did that sinking feeling come from?

The method
Here is the preferred method of setting out your affidavit:
? First a reminder: You are now familiar with the technique of point first writing.
You also know that your affidavit must be logical and easy to follow. These
techniques must be employed when you write an answering affidavit.
? Deal with the deponent's authority to depose to the affidavit or/and that he or
she has personal knowledge of the facts.
? Next, write a paragraph wherein you say how you intend to oppose applicant's
case. In other words, briefly tell the judge what can be expected in the affidavit.
The layout of this paragraph should contain the following:
­ first, say what your defence is;
­ second, say what the main facts are that you will rely on and that appear
in your affidavit in more detail;
­ third, briefly say what your legal framework is, what legislation and legal
principles apply;
­ fourth, give a brief summary of how you intend to deal with the applicant's
main facts and/or submissions;
­ fifth, deal with the remedy you will seek.

You are required to deal with the above five steps in separate numbered
® paragraphs. Keep it short.

Now move on to the next stage.

? Set out a full and detailed account of your client's version and answer to the
applicant's claim. This must be set out in a separate paragraph at the very
beginning of the affidavit, straight after the five steps mentioned above. You can
use a heading: 'Respondent's response'. Here set out all the material facts. The
benefit of doing this is that the reader gets to see your answer immediately and
does not have to work it out from reading the response to each paragraph in the
founding affidavit.

From a reading of the five steps above coupled with your paragraph setting out your
client's whole version, the judge actually finds out what he or she needs to know.
®
Most judges will not even bother to read on. Actually, there will be little benefit in
reading on.

? Then for the rest of the answering affidavit you can refer back to this paragraph
for your reason for denying or admitting an allegation. Ensure that your version
of the facts is set out in a chronological sequence. The version must be probable.
Your affidavit must be persuasive.
? You are required to set out the conclusions of fact and law that you rely on.
? Then deal with the founding affidavit, paragraph by paragraph.
? You must admit, deny, confess and avoid. You must also set out the material
facts you rely on. This can conveniently be done by reference to your
paragraphs at the beginning of the affidavit where your client's whole answer is
set out. From this point, your affidavit should be very short.
? 'For reasons stated in paragraph 8, above, the allegations are denied.'

[Page 176]

? Thereafter deal with the remedy you seek; it might be a mere dismissal of the
applicant's case or a claim for other relief.
? In some cases, you may have to consider a counter application.
? Remember that a user­friendly format is essential.
? Avoid lengthy affidavits with volumes of annexures.
In the chapter on fact management, we mentioned the Plascon test. Please do not
engage in opposed motions if you have not read and understood the Plascon test. When
you set about drafting your answering affidavit, consider the possible impact of the
Plascon test.

From a reading of the five steps above coupled with your paragraph
setting out your client's whole version, the judge actually finds out what
® he or she needs to know. Most judges will not even bother to read on.
Actually, there will be little benefit in reading on.

The replying affidavit

? The general technique in taking instructions is the same.
? It is important to read the answering affidavit carefully. It is a very useful
exercise to consider all the material facts of each party's case and write down
the facts that are not in dispute, and to write down the facts that are in dispute.
Now: identify those issues that give rise to a material dispute of fact, and identify
 the facts that the applicant is required to respond to.
? Now you are ready to take your client through the answering affidavit.
Concentrate on the material facts that are in dispute, and what your client's
response to them is. Where new facts emerge, you will require further
instructions.

The replying affidavit is not an opportunity to set about introducing a

® new or different cause of action.

You are now ready to draft.

? The general technique is the same.
? Although you are not to introduce new material, this is not a strict prohibition. If
new facts emerge that are important to your case, you may introduce them. The
respondent may apply to have them struck out, in which event a judge may, in
the interests of justice, allow the new material albeit subject to the respondent's
further right to answer.
? As a general rule your replying affidavit must be brief.

® A lengthy reply means you are heading for trouble.

? Only deal with those paragraphs in the answering affidavit that require a
response. Present your response and do no more.
? If you have drafted your founding affidavit well, there is usually no need to file a
reply.

Good drafting
Remember that good drafting involves:
? Obtaining full instructions
? Thorough planning
? Applying the principles of plain language in drafting; and
? Applying point first writing as a technique.

You will never ever become competent at drafting if you habitually rely
® on precedents.

Just have a go yourself. You will just get better at it, until it becomes
effortless.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 7 Drafting heads of
argument

7
Drafting heads of argument

'This is the first time that you will really be pulling all the strings together ­ combining argument and evidence in a
manner so irresistible that the Judge will wonder how the other side can possibly have a case at all ­ until, off
course, he reads their side of the story!'

William Rose

TABLE OF CONTENTS
7.1 Introduction
7.2 Formulating a persuasive argument
7.3 Writing techniques
7.4 Before you draft
7.5 Drafting your heads
7.6 Final draft

[Page 177]

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 7 Drafting heads of
argument/ 7.1 Introduction
7.1 Introduction

This is a writing manual, so let us deal with some initial practical advice regarding method. The following are, by
now, not entirely new to you; it is however, worth emphasising and giving you a reminder. For those of you who
started by reading this chapter only, you must observe the practical advice below. There are four things worth
noting.

? First, know your case concept or theory of the case.

It does not matter why you draft heads; it may be for a trial, an application or an appeal, but you cannot draft
without first knowing your case concept or theory of the case. This is the central theme of your main
submission. Without it you cannot tell the judge what happened and why your client's case must be accepted
as persuasive. This is what gives you direction in presenting your argument. It is the very foundation on which
you will build your logical reasoning, which the judge will find so hard to resist.

We repeat, for your convenience and because it is important, what is meant by case concept or theory of the
case.

Thomas Mauet defines theory of the case as follows:

'Theory of the case is a logical, persuasive story of "what really happened". It is your position and approach to
all the undisputed and disputed evidence that you anticipate will be presented at trial. Developing a theory of
the case is the process of integrating the undisputed facts with your version of the disputed facts to create a
cohesive, logical position which illuminates the evidence in the most favourable light to your client.

This position must remain consistent through each phase of the trial. When, at the end of the trial, the trier of
fact is faced with the question, "what really happened?" your position must constitute the most plausible
explanation.'

So, it is your client's version of the disputed facts. This is your explanation of how the events are likely to have
happened.

You cannot draft heads of argument without knowing this. After you have mastered the facts of your case,
take time to formulate your case concept. What happened, according to my client?

® Now write this down.

[Page 178]

Do not merely formulate this in your mind, then proceed on the basis of 'well, I know what happened'. Write it
down, each material fact making up your client's version of the disputed facts.

At this stage it is a good method to write down all the undisputed facts between the parties. Then determine
your version of the disputed facts, making certain that the undisputed facts support your client's version of
what happened, and what valid inferences can be drawn from these facts. This is the logical reasoning you
apply when writing heads of argument.

? Secondly, be prepared to use point first writing.

By now you must be familiar with the method of 'context before detail' dealt with. This is an essential method,
in particular, where you draft heads of argument.

The idea is to first tell the judge what your point is, then develop it and give details. We explain this further
below.

You have to start your heads of argument by telling the judge what
® your point is in respect of each of the issues. Only then do you provide
details and reasoning.

? Thirdly, use the technique of write as you research. Write as you think. It is not a good method to write heads
from 'Introduction' to 'Conclusion' in one go, start to finish. You will struggle. As we pointed out above, get to
your first rough draft as quickly as possible; below we show you how to do this.

Get into the habit of writing as you research the facts and the law. When you think of a point to make in a
submission, write it down.

The main benefit of writing as you go along is that you will be forced to THINK. You will be more critical about
what you write and you will have a better understanding.

? Fourthly, more good advice. Seriously, if you can do this, you will be successful:

'Keep it clear. Keep it short. Keep it relevant. Keep it logical.'

®
William Rose

You are expected to provide a concise summary of your client's submissions on the issues that have been
raised, and you should be as brief as the nature of the case allows.
 In the paragraphs below, we explain how you can achieve this.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 7 Drafting heads of
argument/ 7.2 Formulating a persuasive argument

7.2 Formulating a persuasive argument

Before we plunge into the methods involved in writing persuasive heads, we think it will be useful to talk about how
to formulate argument before we tell you how to draft it.

7.2.1 The facts

The basic logic goes like this:

? first absorb all the facts of your case;

? what valid inferences can be drawn from these facts;

? what will a judge make of these facts?

? find the applicable law;

? apply the law to the facts;

? make submissions regarding why you should win, given the facts and the law.

[Page 179]

So far, we have dealt with fact rather exhaustively; we do not intend to dwell on it any further.

7.2.2 The law

We have also dealt with legal research. However, to enhance your understanding of the methods, we think it
convenient to refer to the 'seven­step' method recommended by Nigel Duncan and Alison Wolfgarten:
'1. Plan your legal research. Identify the "size" of the research, how long it might take and where you might
find the resources.

2. Analyse the client's problem. Summarise the material facts and identify potential legal issues and any
questions of law that need to be answered. This will flesh out your initial plan of research.

3. Categorise the legal issues and identify keywords. Categorise to find broad subject areas and identify
keywords that reflect specific aspects of the problems you need to research.
4. Research the issues. Choose as your starting point a legal commentary that covers the principal area of
law. Follow through all references to your chosen keywords, then to other sources, and finally to primary
sources. Establish legal authorities ­ statutes and case law ­ for a statement of law.

5. Update your findings. Check to ensure the statute has been brought into force and whether it has been
amended or repealed. Are your selected cases still valid law or have they been overruled or distinguished?
Check the annotations.
6. Check back to your client's problem. Look again at your list of legal issues, the original question, and your
client's objectives, and check to ensure you have answered all the questions that arise. Have further issues
arisen during your research? If so, look for other resources and issues, and then update.

7. Analyse and summarise the law. Apply the law to the facts of the case before you.'

7.2.3 Deciding the issues

You now know the material facts of your case and you have researched the law. This is the next step:
'(a) Consider and decide precisely what issues the court will have to determine;
(b) Decide precisely what legal principle(s) you consider may be applied to each issue;

(c) Determine whether your opponent is likely to argue either that these legal principles do not apply or that the
court should determine differently what the legal principles are;

(d) Apply the precise legal principles to the facts on each issue separately; and
(e) Set out your view on the conclusion the court is likely to reach:

(i) on the facts (if possible); and

(ii) on the legal issue.'

[Nigel Duncan and Alison Wolfgarten]

[Page 180]
Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 7 Drafting heads of
argument/ 7.3 Writing techniques

7.3 Writing techniques

At the outset, it pays to remind ourselves that a good lawyer is a good communicator. A good lawyer is a professional
communicator. This is especially true for lawyers who litigate. An effective litigator is one who communicates in a
manner that his or her client's case is accepted as persuasive.

The process of persuasion is at the heart of the legal process. Lawyers present their client's cases in order to
persuade. You want to persuade the court to accept your client's version of the facts. You want to persuade your
opponent to settle.

You persuade through written advocacy. The degree of persuasion depends on the content of the document and
the manner in which the material is presented. This is true for drafting heads of argument. Drafting heads of
argument and argument is all about persuasion. This is where the lawyer comes into his or her own. When you
come across persuasive argument, it is then that you realise why there was need for a good lawyer.

The persuasiveness of your heads of argument depends on its substantive content:

? The evidence

? The facts

? The logic

? The legal principles.

The substance of the message and the style of presentation together determine its persuasiveness. The two go
hand in hand.

It is therefore essential that lawyers master the art, technique and skill
® of persuasive legal writing.

We refer you to chapter 1 on plain language writing. Please read it again and apply the techniques when you write
heads of argument. Indeed, in each of the chapters above, we refer to and explain various methods of writing
effectively. They too apply to drafting heads of argument.

Below we refer to certain writing methods that are relevant to drafting heads in particular.

7.3.1 Context before detail

Always tell the judge what to expect. Put context before detail. Tell the judge what your case is about and set out
your most important points up front. You do this by framing the material issues at the outset. The idea is to first
state the context before you start with the details.

There is no benefit in stating the details of your case if the judge knows nothing about your case. Give your reader
a 'roadmap' or 'heads­up'.

This technique is essential in drafting heads of argument. You must state the issues up front. Then state how you
want the court to deal with them. Only then go into the details of your submission.

You are reminded to use point first writing.

7.3.2 Frame the issues ­ be brief

Framing the main issues is vital. This is what you do in your heads. It is important to state what the issues or
disputes are and what you want the court to decide. This must be done briefly as the details will follow.

[Page 181]

There is no point in going to court if the lawyers have not worked out
® what the case is about.

7.3.3 Stating the facts

Once you have framed the issues, your task now is to state the material facts. The facts must be stated concisely
and in a chronological sequence. The reader must be able to see your point easily. Note that the Supreme Court of
Appeal Rules require you to prepare and file a chronology table or chronology document with your heads of
argument. There is a similar requirement in the Constitutional Court Rules. We advise you to prepare chronology
documents whenever you draft heads of argument in any court. We refer you to chapter 2 where we deal with
drafting chronology documents.

The idea is not to make your reader do the work. You have to do the work in drafting your heads. Good writing
makes the reader's job easier; bad writing makes it harder.
7.3.4 Use headings

You will typically have to separate your facts into paragraphs; each paragraph should deal with a separate fact set
or allegation. Similarly, you will separate your legal submissions and arguments into paragraphs.

Use headings at the start of these paragraphs. This is a signpost that tells the judge what to expect.

For example:

'The Main Issues', 'The Legal Framework', 'Factual Background'.

7.3.5 Write short paragraphs

It is convenient and user­friendly to use paragraphs. You may even break up a paragraph into sub­paragraphs.
Your paragraphs should contain separate fact sets or submissions, and each new paragraph must build on the
previous paragraphs.

This technique makes it easier for the reader to digest what you are saying. The proper numbering of the
paragraphs and sub­paragraphs makes referring to the text much easier during argument.

7.3.6 Form and format

Make your document user­friendly. Make it look good: Make it easy to read and easy on the eyes. Use the right
font, spacing, paragraphing and headings. Consult the court directives in this regard. Also consult the rules and
directives in the Supreme Court of Appeal and the Constitutional Court. They tell you how to set out your heads,
what font type to use, what spacing to use and even how to bind your heads.

7.3.7 Keep it short

Lengthy heads are not persuasive. More pages do not mean more quality. The thicker the document the less
persuasive it becomes, ask any judge. Keep your writing relevant, concise and to the point. Judges have to read a
lot; they do not have time to read irrelevant material. Now you know why the Supreme Court of Appeal and
Constitutional Court impose page limitations for heads of argument.

Avoid repetition and the inclusion of factual detail and documents not necessary to resolve the dispute. Too much
detail could damage your client's case.

[Page 182]

Lawyers equate length with effort, assuming that the longer the document, the harder the writer worked on it. In
fact, the opposite is true. It takes longer to write crisp precise heads than loose, long baggy ones.

'I had no time to write short heads, my Lord.'

7.3.8 Footnotes

The biggest interruption to the reader's train of thought is the lowly footnote.

It is not persuasive if your reader has to repeatedly break away to look at a footnote.

When you are tempted to insert a footnote, ask yourself if the material
® is germane to your point. If so, find the correct place for it in your text. If
not, ask why you are including it at all.

Use footnotes only for the purpose of giving references to authorities.

7.3.9 Quotations

Avoid quoting copiously from authorities. This is not persuasive. Judges end up not reading it. It is better to make
the point briefly, in your own words, and give the reference.

If you must quote, make it short and relevant.

Note that the Supreme Court of Appeal Rules state that you are to limit quotations [Rule 10]. If you copy and paste
from law reports and other authorities, you will be penalised with a cost order by the court.

For a user­friendly approach, consider this:

? Be short, relevant and clear.

? Make the layout easy on the eyes. Do not produce busy documents.

? Document structure and paragraph and clause order must reflect the logical thinking that goes into them.

? Remember headings make for a user­friendly document.

? Keep using the point first writing technique.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 7 Drafting heads of
argument/ 7.4 Before you draft

7.4 Before you draft

7.4.1 Rules and directives

Before you draft heads of argument you must be familiar with the court rules and practice directives. Failure to
comply with these rules and directives will have disastrous consequences. Please obtain all the High Court Rules
and directives. Make sure that you keep up with amendments and updates that appear from time to time.

Each of our high courts has rules and directives dealing with the following:

? The requirements for the filing of heads

? When the parties are required to file heads

? The format of heads of argument

? The font size

? Numbering of paragraphs

? When concise heads are required

? When comprehensive heads are required

[Page 183]

? Page limitations

? Chronology documents

? Lists of authorities

? Method of binding.

® Make sure you comply with all these requirements.

7.4.2 Why heads?

You have to file heads as a matter of procedure in appeals, motion matters and in all courts that enjoy appeal
jurisdiction.

Heads of argument are useful for the following:

? Drafting heads is the best way to prepare yourself for argument.

? Drafting heads focuses your mind on the strengths and weaknesses of your case.

? They assist during argument in court.

? They help you to get the judge to listen.

? They act as important reference points for the judge when he or she is considering judgment.

7.4.3 The different types of 'heads'

You will encounter drafting heads as follows:

? Written argument in the Constitutional Court (Note: not heads of argument)

? Concise heads for motion court (short heads)

? Comprehensive heads for motion court

? Heads of argument on appeal

? Heads of argument on trial.

The Constitutional Court

In this court you have to file 'written argument', not heads of argument. The requirements are:

? Written argument must not exceed 50 pages of typescript, double spaced and be in 14­point font.

? You may exceed 50 pages only in exceptional circumstances and with the leave of the Chief Justice.
? It must contain a table of contents.

? It must contain a table of authorities, with references to the pages in the document on which they are cited.

Here is an example of a table of contents, which must be placed at the beginning of the document:

'A. INTRODUCTION 3

B. FACTUAL BACKGROUND 8

C. MANNER IN WHICH ISSUES WERE RAISED 12

D. THE APPROPRIATE TEST 17

E. YARDSTICK FOR CONSTITUTIONAL VALIDITY 21

F. THE FINDINGS OF UNCONSTITUTIONALITY 26

[Page 184]

G. ANALYSIS OF FINDINGS 33

H. CONCLUSION 40'

In all our provincial divisions as well as the Supreme Court of Appeal

and Constitutional Court, the heads of argument have to be
® accompanied by practice notes and concise heads as well as chronology
documents.

You will find this in the rules and directives of the respective courts.

The Supreme Court of Appeal (SCA)

? You must comply with rule 10 of the SCA rules and the directives.

? Note that there is a page limit of 40 pages.

? The format is also prescribed in this rule [rule 10(3)].

For example:
'(3) Format.­(a) (i) The heads of argument shall be clear, succinct and without unnecessary elaboration.
(ii) Each point should be numbered and be stated as concisely as the nature of the case allows and must be
followed by a reference to the record or an authority in support of the point.

(b) (i) The heads of argument shall not contain lengthy quotations from the record or authorities.
(ii) The heads of argument must state, in respect of each authority cited, the proposition of law that the
authority states, and if more than one authority is cited for a proposition the reason for citing the additional
authorities must be stated.

(c) References to authorities and the record shall not be general but to specific pages and paragraphs.
(d) (i) The heads of argument of the appellant shall be accompanied by a chronology table, duly cross­
referenced, without argument.
(ii) If the respondent disputes the correctness of the chronology table in a material respect, the
respondent's heads of argument shall be accompanied by the respondent's version of the chronology table.

(e) (i) The heads of argument shall be accompanied by a list of the authorities to be quoted in support of the
argument and shall indicate with an asterisk the authorities to which particular reference will be made during the
course of argument.

(ii) If any such authority is not readily available, copies of the text relied upon shall accompany the heads
of argument in a separate volume.

(iii) The heads of argument shall define the form of order sought from the Court.

(f) A photocopy, or a printout from an electronic database, of those provisions of any statute, regulation, rule,
ordinance or by­law directly at issue, shall accompany the heads of argument in a separate volume.

(g) The heads of argument of any appellant or respondent shall not exceed 40 pages, unless a judge, on
request, otherwise orders.

(4) Form.­(a) The heads of argument shall be clearly typed on stout A4 standard paper in double­spacing in black
record ink, on one side of the paper only.

[Page 185]
(b) All annexures to the heads of argument shall be bound separately.

(c) Heads of argument and annexures thereto shall be bound with plastic comb binders and card covers, white
for the appellant and blue for the respondent.'

On appeal
Make certain that you comply with the rules and directives. The provincial and local divisions have rules and
directives regarding civil and criminal appeals.

On motion

In Gauteng and in some of the other provinces, there is a requirement for the filing of Concise Heads of Argument. Here you
have to state the following:

? The issues that fall for determination

? Your contentions in respect of those issues

? The authorities relied on.

In Gauteng you are also expected to file, with your concise heads, a chronology document.

It is now the practice that at the hearing of the opposed motion, full or comprehensive heads are handed up.

On trial

There is no procedural requirement that heads must be filed in a trial. However, and especially in a lengthy and
complex trial, heads of argument are essential. In some cases, the presiding judge will request that heads be
presented and will even give you time to prepare.

Ideally, you should prepare heads before the trial and you should run the trial accordingly.

After you have gathered all the known facts relevant to the dispute, now work out:

? What is the client's objective; what does he or she want to achieve?

? How best do we obtain those objectives?

The next step is to start writing heads of argument. This is a fantastic opportunity to sit back and make an
assessment of your case, of its strengths and weaknesses. There is nothing like writing heads to make you apply
your mind and start thinking like a lawyer.

Apply your mind to the following:

? What are the issues before the court?

? What is my position in respect of each of these issues?

? How do I want the court to rule?

? What are my client's material facts?

? Can these facts support my client's cause of action?

? How will I present these facts to the judge?

? Who will be my witnesses and what fact(s) will each witness provide as proof?

? In what order will I call my witnesses?

? What documents will I require? How am I going to prove them if they are not admitted?

? Will I require experts; and on what issue?

[Page 186]

? What is my legal position; what does the case law tell me?

? What will be my opponent's position and how can I deal with the facts that support his version?

? What do I want from my opponent's witnesses?

? What cases support my opponent's possible submissions?

7.4.4 Argument and heads of argument

You are expected to draft and present heads of argument. Let us consider what this means and what the
requirements are.

' A r g u m e n t ' m e a n s r e a s o n a d v a n c e d , f o r o r a g a i n s t ; methodical

® reasoning.

Heads of argument require methodical reasoning; this is what our courts expect. Heads of argument certainly do
not mean that you present large chunks of quotations from the evidence and from authorities. This is not helpful
and is actively discouraged by our courts.

Harms JA said about 'Heads of Argument':

 'The SCA rule requires the lodging of "main heads of argument". There is a clear distinction between "heads of
argument" and written argument ­ the rules do not require or permit the latter. The operative words are "main",
"heads" and "argument":
"main" refers to the most important part of the argument;

"heads" means "points", not a dissertation; and

"argument" involves a process of reasoning that must be set out in the heads.

In addition, and to emphasise the point, the rule requires the heads of argument to be clear, succinct, and without
unnecessary elaboration.'

Argument is justifying your position with reference to the facts and the
law.
®
The process of reasoning must be evident in your writing.

What Harms JA said has been adopted in all of our courts with appeal jurisdiction.

Helpful decisions can be found in the following cases:

? Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd and Another 1998 (3) SA 938 (SCA)

In the Caterham case the SCA said:

'There also appears to be a misconception about the function and form of heads of argument. The Rules of this
Court require the filing of main heads of argument. The operative words are "main", "heads" and "argument".
"Main" refers to the most important part of the argument. "Heads" means "points", not a dissertation. Lastly,
"argument" involves a process of reasoning which must be set out in the heads. A recital of the facts and
quotations from authorities do not amount to argument. By way of a reminder I wish to quote from Van der
Westhuizen NO v United Democratic Front 1989 (2) SA 242 (A) at 252B­G:

[Page 187]
"There is a growing tendency in this Court for counsel to incorporate quotations from the evidence, from the
Court a quo's judgment and from the authorities on which they rely, in their heads of argument. I have no
doubt that these quotations are intended for the convenience of the Court but they seldom serve that
purpose and usually only add to the Court's burden. What is more important is the effect which this practice
has on the costs in civil cases . . . Superfluous matter should therefore be omitted and, although all
quotations can obviously not be eliminated, they should be kept within reasonable bounds. Counsel will be
well advised to bear in mind that Rule 8 of the Rules of this Court requires no more than the main heads of
argument . . . The heads abound with unnecessary quotations from the record and from the authorities.
They reveal, moreover, another disturbing feature which is that the typing on many pages does not cover
the full page . . . Had the heads been properly drawn and typed I do not think more than 20 pages would
have been required. The costs cannot be permitted to be increased in this manner and an order will
therefore be made to ensure that the respondent does not become liable for more than what was
reasonably necessary."'

'[38] Practitioners should note that a failure to give proper attention to

® the requirements of the practice note and the heads might result in the
disallowance of part of their fees.'

? Ensign­Bickford (South Africa) (Pty) Ltd and Others v AECI Explosives and Chemicals Ltd
1999 (1) SA 70 (SCA)

In the this judgment, the SCA had this to say:

'This Court had recently had occasion to comment on the function and form of heads of argument. See Caterham
Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd and Another 1998 (3) SA 938 (SCA) at 955B­F. The
defendants' heads in this appeal cover 115 pages. The first 55 pages consist of a dissertation on the defences
raised, the law, and a review of the evidence of witnesses. None of this is related to any specific argument
or contention to be made. As far as the only point upon which the appeal has succeeded is concerned there is,
in this part of the heads, a reference to an authority and a two­line observation that the law on obviousness is trite
and need not be repeated. In the remainder of the heads five pages are devoted to this topic. These pages consist
of a quotation from the document put to the witnesses (to which I have referred) and another memorandum, and
of summaries of what other witnesses have said. No process of reasoning is set out. I give this only as an
example. The same may be said quite generally about the heads.

"The heads of the plaintiff also consist of lengthy quotations and a recital of facts which in themselves are of
no great assistance ­ again with little mention of any process of reasoning directed to submissions to be
made. Attention is again directed to para [38] in the Caterham judgment."'

Compliance with rule 10 of the SCA rules is taken seriously and will be
® enforced.

[Page 188]

In this regard see:

? Bonugli and Another v Standard Bank of South Africa Ltd 2012 (5) SA 202 (SCA)
 The court pointed out as follows:
'Before concluding, there is one other aspect that requires mention. Rule 10A(a)(ix) of the rules of this court
requires of counsel to indicate which portions of the record are in their opinion necessary for the determination of
the appeal. The rationale for this rule is twofold. First the number of appeals that may be enrolled for hearing
during any given court term is determined by the length of the record and the amount of reading that the
members of the court will have to do in order to prepare for the upcoming term. Second, the object of the rule is
to direct the attention of the judges of this court in their preparation to what counsel deem necessary for the
determination of the appeal. It goes without saying that the less material there is to read the more appeals will be
enrolled for hearing. The obvious advantage to litigants is self­evident. This rule serves the public interest in that it
promotes expeditious disposal of appeals in this court, both in securing that a date can be allocated for hearings
and in facilitating the judicial task of preparation. This laudable objective is not served and indeed is undermined if
counsel only pays lip service to the provisions of this rule.
[34] In this case both counsel indicated in their practice notes, inter alia, that the entire record was necessary for
the determination of the appeal supposedly in compliance with the rule. But in court counsel for the appellants
informed us that for purpose of the appeal it was only necessary to have regard to the evidence of Mrs Leukis,
who testified on behalf of the respondent. When the members of the court enquired why, in that case, we were told
that it was necessary to read the entire record comprising 2190 pages, if it were thought that only the evidence of
the one witness was necessary, all he could do was to tender an apology.

[35] This court has on various occasions explained the object of this rule, which is, as we have said, twofold. First,
it enables the President in settling the roll to estimate how much reading matter is to be allocated to a particular
judge and second, to assist judges in preparing the appeal without wasting time and energy in reading irrelevant
matter. This court has also on various occasions in the past expressed its utmost displeasure at the frequency with
which this particular rule is often flouted. In some cases, it has warned that failure to comply with the spirit of the
rules and practice notes may lead to an adverse costs order, whereas in others it has made punitive costs orders.
In this appeal counsel were agreed that approximately 90% of the material incorporated in the appeal record was
not necessary to determine this appeal.'

The Ensign and Caterham decisions are applicable in the High Court of Gauteng regarding the filing of heads of
argument in appeals. [See practice directives in chapter 7.]

So far we have concentrated on matters of procedure and compliance. We now deal with drafting.

[Page 189]

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 7 Drafting heads of
argument/ 7.5 Drafting your heads

7.5 Drafting your heads

7.5.1 The three stages

Your approach to drafting heads involves three broad stages of preparation:

? What is the context of your case? Contextualise the matter; is it civil or criminal? Is it contract or delict? This
will help you focus on the correct legal framework.

? Carry out an analysis of the issues and the evidence.

? Have a plan on how to present your argument.

7.5.2 Analysing

Before putting pen to paper, follow this analysis ­ it works:

Analyse the issues

? Identify the factual issues ­ that is to say, those disputes of fact which are not agreed by your opponent and
which must be proved in law for a successful outcome.

? Identify the legal issues by applying the facts to the legal framework.

? Identify a potential 'theory' of the case.

? Identify the gaps and ambiguities in the facts.

Analyse the evidence

? What are the undisputed facts?

? What is the dispute?

? What are the facts that support your version of the disputed facts?

? Do the undisputed facts support your version of the disputed facts?

? Analyse the strengths and weaknesses in your case and that of your opponent.

? Establish 'proof of your facts' ­ so the facts are justified by evidence.

® 'Fact' means 'proof to the satisfaction of the court'.

Can you meet this standard with the available evidence?

Before dealing with how one prepares heads of argument, it is convenient to set out what we consider to be a
general layout that works.

7.5.3 Method

Here is a suggested method to follow in this order:

? Start with a short introduction; this must be no more than ten lines.

? Give a short statement of the issues that require adjudication.

? State what you want the court to find in respect of each of the issues.

? Set out a short statement of the main points you will rely on.

? Take each of your points and present full argument, point by point, with reference to the facts and the law.

? Conclude with the relief that you want.

[Page 190]

Context before detail

® Remember:

Point first writing

Drafting heads for a trial

Let us first look at what you have to do when drafting heads for a trial.

There are no rules that require you to present heads of argument in a trial. But a good lawyer always does. Your
heads will assist you to persuade the judge to find in your favour. The judge will be encouraged to listen to your
closing argument and not to spend energy on writing down your main points. Remember that at the end of your
argument your heads will remain as a record of your argument that the judge will refer to later when the decision is
being made.

Let us look at the steps you need to take in drafting your argument:

? You must understand your client's main objective or goals. Then you must identify what the issues are that
require a trial. Note that under case management, these aspects will be defined before you enter the court.

? Be ready to deal with the issues separately. The argument must progress logically from one issue to the next.

? Now identify the relevant factual material. Where is the evidence that supports your client's version of the
facts? You can achieve this by carrying out a fact analysis before you go to court. You must know or have:

­ proof of the facts that come from each witness and why that fact is relevant;

­ proof of the facts that come from the discovered documents, document by document;

­ proof of the facts that come from expert witnesses;

­ what the agreed and undisputed facts are;

­ whether the undisputed facts support your case concept;

­ what is the impact of any admissions of fact made by you in pleadings and conferences with the judge
and your opponent;

­ who are likely to be your opponent's witnesses,

­ what facts you want from each of your opponent's witnesses; and

­ whether you are satisfied that each witness is relevant, that his or her evidence is admissible and that
his or her version probable.

? Identify the helpful and supportive legal material. Be prepared to show how the legal principles assist your
case. Note that there is no point in making legal submissions that are not supported by the facts of your case.
Always start your legal research by looking at the most recent decided cases.

? Look at your opponent's case and identify his goals and the facts that support his version. Now ask: what is
 the answer to my opponent's case? Again, a good fact analysis is required. How can I distinguish the case law
relied on by my opponent?

? Now you can prepare your first draft. This will be adapted and improved before handing it to the trial judge.

? When you address the court on findings of fact, you are required:

­ to identify only witnesses whose evidence is relevant, and, on the probabilities, supports your client's
version of the facts;

­ to take each witness and show why the evidence is credible and/or reliable;

[Page 191]

­ to be able to show that in all the circumstances of the case, your witness's version is the most probable
and therefore most persuasive;

­ to show, with reference to the totality of the evidence, that you were able to provide proof to the
satisfaction of the court of all the factual elements that you had to prove in discharging your onus;

­ to show that all the undisputed facts support your case.

It is an excellent strategy to have drafted heads of argument before

® you go to trial. It is the best way to help you prepare for trial.

? Your heads must include a discussion of the relief you want. In appropriate cases it is helpful to prepare a
draft order.

? Where you refer to authorities, prepare a list of authorities and attach it to your heads. If you use authorities
that are not easily accessible, attach copies. It is a good habit to provide the judge with a bundle of
authorities.

Drafting heads for the Court of Appeal

'The purpose of heads of argument is to convince the court of appeal that the court below has either erred or was
correct. This means that the judgment below has to be addressed.

Too often counsel simply ignores that judgment and re­argues the case, quite regularly by recycling the heads
used in the trial court. This approach is not only disrespectful towards the court of first instance ­ it is also
unhelpful and misses the point that appeals are not re­hearings.' [Harms JA]

Before you start drafting, apply your mind to the following:

? The test on appeal

? The terms of the order granting leave to appeal

? Whether the appeal is directed at findings of fact or law or both

? The approach of the court to appeals against findings of fact

? Whether you are familiar with the rules and directives regarding heads of argument and the provision of
practice notes.

To prepare your heads you must

? apply your mind to the grounds of appeal (remember: you do not have to address all the grounds, only the
ones that will be decisive of the whole appeal)

? carry out a comprehensive fact analysis using the record of the case as your sole basis for establishing the
facts

? identify the issues as they appear in the record

? identify the evidence in respect of each issue

? make an assessment of the credibility and/or reliability of the evidence in respect of each issue. Now ask if the
required standard of proof was met

? apply your mind as to where the court a quo was wrong or may be supported, if you are for the respondent

? determine how the court a quo dealt with the application of the law

? carry out an examination of the judgment to determine in what respects the judgment was wrong (or can be
supported).

You are now ready to construct your argument to support your

® contentions.

[Page 192]
The test on appeal

The test on appeal is important. The test is whether the judgment appealed against is wrong; the court will not
reverse the judgment if it merely has a reasonable doubt about the correctness of the decision. It must be satisfied
that the judge was wrong. Thus, the appellant's heads must explain why the judgment is wrong. The respondent's
heads will support the decision.

The test on an appeal on facts is set out in R v Dhlumayo and Another 1948 (2) SA 677 (A).

The court held:

'The principles which should guide an appellate court in an appeal purely upon fact are as follows:

(1) An appellant is entitled as of right to a re­hearing, but with the limitations imposed by these principles; this
right is a matter of law and must not be made illusory.

(2) Those principles are in the main matters of common sense, flexible and such as not to hamper the appellate
court in doing justice in the particular case before it.

(3) The trial Judge has advantages ­ which the appellate court cannot have ­ in seeing and hearing the witnesses
and in being steeped in the atmosphere of the trial. Not only has he had the opportunity of observing their
demeanour, but also their appearance and whole personality. This should never be overlooked.

(4) Consequently, the appellate court is very reluctant to upset the findings of the trial Judge.

(5) The mere fact that the trial Judge has not commented on the demeanour of the witnesses can hardly ever
place the appeal court in as good a position as he was.

(6) Even in drawing inferences the trial Judge may be in a better position than the appellate court, in that he may
be more able to estimate what is probable or improbable in relation to the particular people whom he has
observed at the trial.
(7) Sometimes, however, the appellate court may be in as good a position as the trial Judge to draw inferences,
where they are either drawn from admitted facts or from the facts as found by him.
(8) Where there has been no misdirection on fact by the trial Judge, the presumption is that his conclusion is
correct; the appellate court will only reverse it where it is convinced that it is wrong.

(9) In such a case, if the appellate court is merely left in doubt as to the correctness of the conclusion, then it will
uphold it.

(10) There may be misdirection on fact by the trial Judge where the reasons are either on their face
unsatisfactory or where the record shows them to be such; there may be such a misdirection also where, though
the reasons as far as they go are satisfactory, he is shown to have overlooked other facts or probabilities.

(11) The appellate court is then at large to disregard his findings on fact, even though based on credibility, in
whole or in part according to the nature of the misdirection and the circumstances of the particular case, and so
come to its own conclusion on the matter.

[Page 193]
(12) An appellate court should not seek anxiously to discover reasons adverse to the conclusions of the trial
Judge. No judgment can ever be perfect and all­embracing, and it does not necessarily follow that, because
something has not been mentioned, therefore it has not been considered.

(13) Where the appellate court is constrained to decide the case purely on the record, the question of onus
becomes all­important, whether in a civil or criminal case.

(14) Subject to the difference as to onus, the same general principles will guide an appellate court both in civil and
criminal cases.

(15) In order to succeed, the appellant has not to satisfy an appellate court that there has been "some
miscarriage of justice or violation of some principle of law or procedure".

(16) The English practice in regard to "concurrent findings of fact by two courts" has no application in South Africa.

Per SCHREINER, J.A.: Ordinarily the appellant in a criminal appeal has to satisfy the appellate court that the
verdict was wrong, at least to the extent that the trial court should have had a reasonable doubt as to his guilt.
Where, however, the judgment appealed from is shown to be seriously unsatisfactory the appellate court may
consider that proper advantage has not been taken of the favourable opportunities presented by seeing and
hearing the witnesses, and may then, without being actually satisfied that the verdict was wrong, be convinced that
the appeal ought to be allowed.'

The above principles are well established, and you must consider them when you draft. They apply to both civil and
criminal appeals.

The heads of argument should contain a summary of your argument on the issues of fact and law opened up by the
notice of appeal. Issues of fact and issues of law will be dealt with differently by the court on appeal. You should
similarly deal with them differently. [Marnewick Litigation Skills for South African Lawyers]

7.5.4 Making submissions of fact

Marnewick points out that submissions of fact should be made in a stepped process as follows.
'Step 1: Specify the challenged finding and locate it in the judgment, giving reference to the volume and page
numbers.

Step 2: Indicate, in the form of a submission, the basis for the challenge;
 Step 3: Summarise the relevant evidence in support of the submission, giving the name of the witness or
document ­ give references to the record;

Step 4: Specify the nature of any misdirection or any principle that was applied incorrectly and deal with it as
a submission of law but link it to the evidence;

Step 5: Summarise the relevant evidence (giving references to the record) in support of the general
submission that the ultimate conclusion of the court a quo was wrong.'

7.5.5 Making submissions of law

Marnewick similarly recommends the following steps in making submissions of law:

'Step 1: Specify the challenged ruling or finding and locate it in the judgment. Give the reference to the
volume, page and line numbers.

[Page 194]
Step 2: Indicate, in the form of a submission, what ruling or finding should have been made instead;
Step 3: Formulate the propositions upon which the submission is made;

Step 4: Identify the authorities relied upon in support of each submission, giving full reference details.'

[We recommend that you read the article by Harms JA ­ Heads of arguments in courts of appeal.]

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 7 Drafting heads of
argument/ 7.6 Final draft

7.6 Final draft

After you have drafted your heads, check and re­check them. It is recommended that, after you have carried out
your final check, you leave your heads alone for a day or two then read them again. Make sure you check for
accuracy regarding references to the record and authorities.

7.6.1 How to draft a set of heads

Here we assist you with how to draft a set of heads. The emphasis is on method and some practical advice.

Basic technique

Before you put pen to paper, we remind you of the following:

Step 1: You must have first mastered the facts of your case. Here you should have carried out a fact analysis as
suggested in chapter 2.

Step 2: Refer to facts that are relevant to the dispute. Discard everything else. Do not include factual material
that will not assist the judge in determining the dispute. Tell the judge what the case is about.

Step 3: You must have researched the law. In particular, did you read the most recent decisions of the highest
courts on the subject? Remember that the cases you rely on must not be distinguished on the facts. Did
you check the annotations in each case you want to rely on?

Step 4: You must identify the issue(s) between the parties. You must be able to define the issue(s) with
precision. If you come across as vague and uncertain about the issues, you will not be persuasive.

Step 5: Check if you are familiar with the rules and practice directives of the court; see to it that you comply.

Step 6: Remember the following basic tips:

­ Keep it clear

­ Keep it short (there will be page limitations)

­ Keep it relevant to the issue(s).

Step 7: Remember to avoid inserting lengthy quotations from cases and other authority. You must equally avoid
making lengthy recitals of the facts or evidence. This is not argument and amounts to no assistance to
the court.

Step 8: Your heads must demonstrate a process of reasoning. A mere review of the law and the evidence is not
argument. You must show your ability to justify your position with reference to the facts and the law.
There must be a demonstrable application of logic on your part. Make certain that you do not come
across as confused.

Note that your submissions must not be hard to read and difficult to
® understand.
[Page 195]

What about his Lordship?

When a judge is seized of a matter, these are probably the questions that go through his or her mind:

? What is the nature of this matter?

? What are the issues I am called upon to decide?

? Is there a dispute as to the law?

? Are the facts agreed or am I being called on to make a finding of fact?

Your job is to provide the judge with a clear answer to all these
® questions; and you will do it up front.

In matters where your heads deal with various points relating to fact and law, present a brief chapter on the layout
of your heads. This chapter will be written at the beginning of your heads (but you will draft it after you finish the
first draft). It must be located after your chapters setting out the issues and what you want the court to decide in
respect of each issue.

7.6.2 Tell the judge what to expect in your heads

This paragraph is a roadmap telling the judge what to expect in your heads. It should look something like this:
'In the paragraphs that follow, the submissions are made as follows:

(a) In Part A of our heads we deal with the issue of onus where we show that the defendant failed to prove that
the deceased's signature was forged;
(b) In Part B of our heads we analyse the evidence of the experts and point out that Mr Jones was a credible
witness who found that the signature on the will is certainly that of the deceased;
(c) In Part C we assist the court with reference to some relevant cases, in particular two SCA decisions which
cannot be distinguished on the facts; and
(d) In Part D we deal with the remedy the court can award.'

Note that in addition to setting out a roadmap; you also tell the judge what your objective is, you get the judge
thinking according to your strategy already.

A checklist

It is useful to have a checklist, in finalising your heads, in other words:

Does your 'factual background' tell the judge what gave rise to the
® dispute?

7.6.3 Produce a rough draft

The question that arises now is: Did you set out 'the issues' to the rough draft?

Here we assist you with how to produce a rough draft. Once you have a first draft, it becomes easier to refine to
the point where you can sign it off.

The point is that you are not to start writing heads from introduction to
® conclusion in one go. It is possible to do this, but you will have to be an
extraordinarily talented individual.

[Page 196]

The following is a useful process using eight (or more) files:

File one

Begin by opening a file and writing down what you say are the issue(s) before court. Note that if you identify a
single issue capable of being resolutive of the whole matter, then make a note of this and place an emphasis on it.
Save this file (call it File one).

You will open up to ten separate files. In each file write your points and
® submissions in separate numbered paragraphs. Remember to give your
paragraphs headings.

File two

When you begin, you will first carry out your own review of the facts. We told you that you are not to present
lengthy recitals of the facts. Instead look for the facts that support your client's version of the disputed facts.

Prepare a chronology of these facts (write this down in a file and save it as File two; you will have to file this with
your heads being the required chronology document).

File three

Now select those facts or evidence that is strictly relevant to the issue(s). Open a file and write this down and save
it as File three. Remember to present your facts in a chronological sequence.

Evaluate your facts by testing them as follows:

­
Are these facts relevant to the issue(s)?

­
Are these facts admissible in its form? Were these facts presented
by credible witnesses?
®
­
Do these facts amount to a version that is probable? Is this version
likely to have happened bearing in mind the circumstances of this
case?

If the answer to any one (or more) of these tests is 'no', leave those
facts out of your heads.

File four

The next step is to write or present your facts in the form of a submission to enable the judge to make a finding of
fact in your favour. Again, open another file and start writing. Identify the facts and write down why this advances
your case. Explain why the court should accept your version and reject that of your opponent. There must be a
process of reasoning. You are meant to refer to the evidence and make comment. Tell the judge why the evidence is
important to your case. Do not copy and paste from the record; it is of no use to the judge. What is important is your
comments in the form of submissions. Your job is not to present quotations from the record. Your job is to refer to
the record and comment. Tell the judge what to make of your facts. Your job is to show the way. Save this file as
File four.

Remember to emphasise those facts that support your version of what

® actually happened.

File five

We now turn to the law. By now you have completed your research and are ready to present your submissions.
This is what you look for:

[Page 197]

? When you select a case (judgment) satisfy yourself that it cannot be distinguished on the facts, thereby
rendering it of no use to you. You must prefer to rely on cases binding on the court.

Before you decide to use a case first check the annotations to check the recent history of the judgment.
Obviously if the judgment was set aside by a higher court, it is of no use to you.

Remember, all you need is one binding decision of the highest court
(Constitutional Court, Supreme Court of Appeal, Full Bench of a
Provincial or Local Division). Note that in the SCA you are expected to
® refer to one case only, the most recent decision of the highest court. If
you have to refer to more cases on the same point, there must be a
good reason for doing so.

? Now open another file. Here take each judgment you want to rely on and write down, in your own words, what
the legal point is and how it supports your case with reference to the facts of your case.

Refrain from copying and pasting chunks of the law report.

Make a note like this for each case you have. Save this file as File five.

If you refer to other authorities, such as text books, journals etc., do

® the same thing. Open a file and write down, in your own words, the
point you want to make. Refrain from copying and pasting.

File six

Having carried out factual and legal research, apply your mind to the issues as identified by you. Now open a file
and here write down, in respect of each issue, how you want the court to determine or decide it. Save this file as File
six.

File seven

Next take each issue in turn and write down the main points you rely on. Here make reference to the facts and the
law and the evidence and where to locate it. Save the file as File seven.

File eight

The last step for you to consider is the remedy you require. What should the court order look like from your client's
perspective? Write this down and save it as File eight.

You should now have saved a total of eight files or more.

Now copy and paste your files on a new document in the following order:

File one; File six; File two; File three; File four; File five; File seven; File eight.

® You now have your first rough draft.

7.6.4 Refine the rough draft

Before doing any further work on the draft, you have to clean it up; consider this:

? Begin by numbering all the paragraphs.

? Correct the font size (12­point font is preferred; 14 point in the Constitutional court ) and use double spacing.

? Split up the paragraphs using headings, for example 'The Issues', 'The Court's Determination'; 'Plaintiff's Main
Points'.

[Page 198]

? Remember to keep an eye on the number of pages you have. If you are writing argument for the
Constitutional Court, heads of argument for the SCA or in the High Court, there will be page limitations. In any
event, you are not to present lengthy heads; they just do not work.

? Determine whether you can produce a chronology document.

? You are now ready to work on the draft towards a final document.

A useful check list

Just to see if you are on the right track, and not working without a firm strategy, answer these questions:

? Can you tell what you or your client wants?

? On what basis in fact and law is your case founded?

? What are the material facts and where can you find the supporting evidence?

? What is the law; have you read the most recent decisions of the highest courts?

? Did you weigh each material fact? Ask: 'Why does this fact mean I should win?' [Ian Morley]

? Can you write down a summary of the points you extrapolated from the above?

? If the judge accepts your submissions on these points, will you succeed in obtaining the outcome you want?

? Have you identified a problem in your case and have you dealt with it?

Never ignore a problem, it will not go away and the judge or your
® opponent will certainly pick it up and assume you have no answer.

What not to do

At this point it will be useful to tell you what not to do; what irritates judges and discredits your good submissions.
To this end we can do no better than to quote William Rose:
'(a) No rhetoric;

(b) No rhetorical questions;

(c) No descriptive preamble, unless it is directly relevant to the argument;

(d) No repetition of points ­ one good point well made is better than six near misses ­ likewise a good point
does not need repetition, and a bad one should not be made in the first place;

(e) Do not repeat the evidence;

(f) Do not copy and paste from authorities;

 (g) If on appeal, do not merely rehash the argument you used in the court a quo;
(h) In an appeal, do not be vague about the grounds of appeal. Be precise about this and avoid precedent
based allegations like: "The learned judge made findings of fact against the evidence and the weight of the
evidence".'

7.6.5 Towards a final document: Drafting the relevant paragraphs

Your heads should have a layout that covers the following in this order:

? Start with a short introduction; this must be no more than ten lines.

? Give a short statement of the factual background.

[Page 199]

? Give a short statement of the issues that require adjudication.

? State what you want the court to find in respect of each of the issues.

? Set out a short statement of the main points you will rely on.

? Take each of your points and present full argument point by point with reference to the facts and the law.

? Conclude with the relief you want.

® The point first writing technique is used.

Below we assist you to draft your paragraphs under the layout stated above.

The introduction

This must be short ­ no more than ten lines. The purpose is to merely set out the nature of the matter.

For example:
'This is an action for damages arising out of medical negligence. Both merits and quantum are in dispute.'

or
'Plaintiff claims damages arising out of breach of contract. The parties agreed to separate merits and quantum.
This matter proceeds in respect of the question of breach only.'

Do not be tempted to say too much as you will invariably end up

® repeating it in the paragraphs that follow.

Factual background

Tell the judge what happened according to your client's version, what gave rise to a dispute or how the dispute
came about You are not expected to give details of the evidence.

For example:
'The parties entered into a written contract in terms of which Plaintiff sold to Defendant a quantity of spare parts
for a plant producing bottled beverages. Plaintiff agreed to sell spare parts as specified by Defendant. The parties
agreed on a purchase price and delivery dates. It is not disputed that the parties entered into a contract.

Plaintiff duly delivered the parts as specified and invoiced the Defendant for an amount of R500 000. Payment was
due within 30 days of delivery. Notwithstanding delivery and acceptance of delivery by Defendant, the latter failed
to pay the invoiced amount.

Defendant claims that the parts were defective, alternatively, not to specification, further alternatively, not fit for
purpose. All of which allegations are denied by Plaintiff.'

The purpose of this paragraph is to give the judge an indication of the

® nature of the matter and the scope of the dispute.

The issues

Before you draft this paragraph, you must be certain in your own mind as to what the issues are. Write this out as
a rough draft first, then go over the draft carefully while concentrating on the accuracy of what you have stated.
[Your File one above.]

[Page 200]

This is crucial and you have to get this right. You have to state the issues in clear and unambiguous terms. It is a
good idea to consult with your opponent and have a common understanding of exactly what issues are for
determination by the judge.

Avoid dealing with this by referring to pleadings or affidavits that have been filed. They are usually unhelpful.
If this is for a trial that was preceded by case management, the parties would have agreed on the issues with the
assistance of the judge. The issues will be stated in the pre­trial minutes. All you have to do is work out which of
the agreed issues remain in issue. The remaining issues will then be for determination by the judge.

Often you may recognise four different issues. Ask yourself: Is there one issue which, if determined, will dispose of
the whole matter? Judges appreciate it if you tell them to deal with this issue first, as it might not be necessary to
deal with the other three.

In stating the issues, present each issue, in order of importance, in separate numbered paragraphs. Do not cluster
them in one paragraph. You can refer to them as 'First issue', 'Second issue' etc.

Indicate where there is a dispute of fact by stating exactly what the dispute entails.

Where there is a dispute of law, state exactly what the dispute is.

It is useful to stop and ask: What is my client's goal? What does client
® want from this case? How can I achieve it?

The desired outcome

Take each issue mentioned in the above paragraph and tell the judge how you expect the matter to be
adjudicated. You will tell the judge the outcome that you want. Identify precisely what the court is being asked to
do.

For example:
'In respect of the first issue, we submit that the defendant was in breach of paragraph 15 of the agreement.'
'In respect of the second issue the court must find that the parts supplied were according to the specifications
provided by defendant.'

The main points

In separate numbered paragraphs set out the main points you rely on to support the outcomes stated in the
previous paragraph.

You are only to state the main points without presenting any arguments. The purpose is to tell the judge, before
you present the argument, what your main points are. Remember, point first writing.

Present your points in the order of the issues as you stated them above.

The points you make may relate to a finding of fact or law or both.

Set out the most important points you rely on, without elaborating. Each point must be stated in a separate
numbered paragraph.

In dealing with a point of law, you can state the main cases you will rely on.

The argument

Note that what you write in this part must demonstrate a process of reasoning. This is where you apply the law to
the facts.

Go back to the rough draft and incorporate what you saved from your research into the facts and the law.

[Page 201]

It is recommended that you begin with the facts. You will be looking at the rough draft, in particular File three and
File four. Now begin the process of arranging these facts according to the issues and how they support your version
of what happened. Do not quote or repeat long excerpts from the evidence. State the facts you rely on and give a
reference to the evidence so the judge knows where to locate the evidence. Note that in a trial or application the
judge carries out a fact­finding function; it is your function to persuade the judge to make the findings of fact you
want or which prove your case.

You are reminded that, for a judge to make a finding of fact, there must be proof to the satisfaction of the court.

First identify the material facts you have to prove in order to succeed. Then identify the evidence required to provide
proof of those facts.

There must be a process of reasoning; here consider:

? Why is this fact relevant, and to what issue?

? How does it assist the judge to resolve the dispute in your favour?

? What finding of fact can the court make?

? Why should the judge accept this fact as true?

? What finding of fact can the judge make if this fact is accepted?
? How do these facts provide proof to the satisfaction of the court in respect of a factual issue?

We remind you that any version of the facts which is implausible or not
likely to have happened or is against the probabilities bearing in mind
the circumstances of the case, will not be persuasive and you will lose
® the case. A version cannot be true if it is improbable or not likely to have
happened. When carrying out a fact­finding function, judges always test
the probabilities of each party's version.

Deal with the inference of fact you want the court to make.

It is recommended that you attach a chronology document to your

heads which set out all the material facts in a sequence. Judges find this
® to be helpful; note that chronology documents are a requirement in the
SCA, Constitutional Court and in some of our High Courts.

The witnesses

When you address the court on findings of fact, it is essential to refer to the witnesses. Here set out the following:

? Identify only witnesses whose evidence is relevant, and on the probabilities supports your client's version of
the facts.

? Take each witness and show why the evidence is credible and/or reliable.

? Be able to show that in all the circumstances of the case, your witness's version is the most probable and
therefore most persuasive. Who do you believe?

? With reference to the totality of the evidence, show that you were able to provide proof to the satisfaction of
the court of all the factual elements that you had to prove in discharging your onus.

? Remember to show that all the undisputed facts support your version of the disputed facts.

[Page 202]

The law

Go to your draft and the paragraphs you copied from File five. Your immediate task is to put these cases into context
with reference to the facts of your case.

Begin by finding the legal principles that apply to your facts. You have to state that principle with reference to your
facts. (This explains why you cannot support a legal submission with cases that can be distinguished on the facts.)

You begin by establishing the legal requirements of your claim. Then find the facts, in your version, that support
each of those legal requirements.

The legal submissions you make must be relevant to an issue before the
® court and must be supported by the facts of your case.

When you refer to a case, state the proposition of law in the judgment. Do so in your own words. Avoid copying and
pasting from the law report. Then identify the parts of the judgment that support this proposition of law.

Copying and pasting from authorities is forbidden in the SCA and

Constitutional Court. Make the point in your own words and give a
® reference to the case. If you must quote, then it must be a classic
statement (you cannot be expected to put this in your own words) and
keep it short.

A useful technique to follow is:

? Work out the legal principle you want to use.

? State the principle in a user­friendly, easy­to­understand manner.

? You do this by breaking the principle, or ratio, into short statements (two lines maximum) of law.

? Number it.

For example:
'In Smith v Jones 2010 (1) SA 235 (SCA) the court found as follows:
(a) In an enrichment action the elements of the cause of action are:

(i) ...

(ii) . . .
 (iii) . . .
(iv) . . .

(b) In order to succeed the plaintiff must allege and prove there was impoverishment;

(c) Plaintiff must quantify the extent of the impoverishment and the quantum of Defendant's enrichment . . .
(d) Defendant must fail as it failed to allege and prove two of the above elements . . .'

At this stage you should consider whether you have dealt with the following:

? Did you state the elements of your cause of action or defence?

? Did you deal with the burden of proof?

? Did you deal with the credibility of the witnesses?

? Did you apply the law in relation to your facts?

[Page 203]

Your strengths

Present the strengths of your case. Do not concentrate only on the other side's weaknesses. Adopt a positive
approach and concentrate on evidence produced at the trial which persuasively demonstrates that your side must
prevail. Do not create the impression that you are emphasising your opponent's weaknesses because you have
little to say about your own case.

Argument is a time to assist the judge to solve problems, not to ignore them. It is time to face the judge's concerns
and discuss them candidly.

Force your opponent to deal with their weaknesses. Pose rhetorical questions challenging your opponent to
explain. You want the other side to argue their weaknesses. Assist the judge to come to a conclusion. A judge is
likely to accept a conclusion if he came to it himself. Do not attempt to tell the judge what to do. You assist by showing
the way.

Refute your opponent's case

You would have identified the strengths of your opponent's case. It is a good strategy to refute them in persuading
the judge to accept your case as true.

Where you present argument first, it is advisable to anticipate your

® opponent's argument and refute it.

First look at the facts of your opponent's case. You are expected to deal with the version of his witnesses and show
why it is improbable and why the court should disbelieve them. You can achieve this by taking each relevant
witness and applying the following technique:

Undermine credibility by

? showing material contradictions in the evidence;

? showing that the contradictions are unexplained;

? showing poor performance under cross­examination;

? showing poor demeanour in the witness box (witness was evasive; did not answer questions and became
irrelevant etc.);

? showing that there was little or no opportunity to observe (it was dark, it happened too quickly) and give a
reliable account to the judge;

? bringing out any bias;

? showing a motive to lie;

? showing lack of corroboration;

? showing contradiction by other witnesses and/or external facts not in dispute;

? showing the version is not supported by admitted documents;

? showing the version differs from or contradicts the pleaded version;

? showing, where you can, that the witness changed his or her version;

? showing the version is not probable when tested against the undisputed facts;

? showing the version is not supported by the undisputed facts.

Here it is worth pointing out that often, in a trial, witnesses on both sides are equally impressive and it may be
difficult to undermine credibility based on the above method. What do you do? You have to show that in all the
circumstances of the case, your version is the more probable and therefore must be accepted and your opponent's
version must be rejected.

[Page 204]

On the facts you must show that the reasonable conclusions of fact your opponent wants to rely on are not
sustained by the evidence presented in court. The court must accept your version of what actually happened.

Show on the basis of the undisputed facts why your version is the more likely and therefore more acceptable.
However, be warned, avoid spending too much time on the undisputed facts. You still have to persuade the judge
to accept your version of the disputed facts.

The three factual issues: A test

After you have dealt with the witnesses, you should deal with the following:

? If the judge is focused on the credibility of the witnesses, the issue becomes: Who do you believe? You are
expected to show why the judge must accept as true, your witnesses' version.

? Where the judge is focused on inferences to be drawn from the evidence presented, the issue becomes: What
do the facts mean?

? If the judge is focused on the burden of proof; the issue becomes: What has been proved?

Check it using this checklist:

­ Who do you believe?

­ What do the facts mean?

­ What has been proved?

When you deal with these three issues, you assist the judge in making
® a finding of fact. You have to persuade the judge to accept your version
of what actually happened and not that of your opponent.

On the law

To begin with you must refer to the analysis of the case law you have already conducted. It is important to
persuade the judge that your application of the law is correct and that your opponent is misdirected or outright
wrong. Deal with your opponent's cases as follows:

Take the most important cases relied on by your opponent and do the following:

? Check the annotations to see if the case was set aside by a higher court; check where the case was not
followed; check where the case was applied with approval and where the case was discussed.

? Find the legal principle according to your own reading of the judgment. Now ask if the other side's
interpretation is correct and sustainable; note that lawyers are notorious for reading a judgment in a way
that suits their own cases (they are often wrong).

? Look at the facts of the judgment and ask the crucial question: can this judgment be distinguished on the
facts?

? If it can be, then point out that it is of no use to the judge or that it is not a binding decision.

? If the case cannot be distinguished on the facts, apply your mind to how the judgment supports your case;
you do this by identifying the legal principle and showing that it is supported by the facts of your case.

The next step is to remind the judge why the cases you rely on are the most persuasive. Here, do not present the
argument all over again; you cross reference your legal analysis above.

[Page 205]

Another effective method is to:

? state the elements or requirements of your opponent's cause of action or defence;

? state these requirements in individually numbered paragraphs;

? show that, on the evidence, the other side's case is lacking in respect of one or more of these requirements
and that therefore your opponent must fail.

A timely reminder

It is worth reminding you to practise the art of 'context before detail' or 'point first writing'. Remember that you must
first make the point you want to make; then provide the details. Tell the judge upfront where you intend to go;
then take the judge through the details.
For example:
'Plaintiff submits that defendant failed to discharge the burden of proving that Plaintiff signed the deed of
suretyship. This is supported as follows:
(a) ...

(b) ...

(c) . . .'

In respect of each point check the following:

? Did you carry out an analysis of the facts, including the evidence and why the judge must accept your version
as true?

? Did you tell the judge why each of your witnesses' versions are the most probable?

? Did you tell the judge what inferences of fact you want the court to draw from the proved facts?

? Did you present argument?

? Did you demonstrate your ability to come to reasoned conclusions?

? Did you remember to avoid repeating the evidence and copying and pasting from authorities? Present your
facts in a chronological sequence and prepare a chronology document to attach to your heads.

Test each of your witnesses as follows:

? Is the evidence relevant?

? Is the evidence admissible in its form?

? Is the version probable in relation to the circumstances of the case?

Refute your opponent's case:

? On the facts.

? On the law.

Deal with the remedy you want the court to award. Did you assist the judge in crafting an appropriate court order?

Check and recheck your work. Did you set out the facts accurately?

Are you convinced by this? Hand it to a colleague to read and provide

® comment.

7.6.6 What the heads should look like

Here is a reminder of what your heads should look like; consider the headings used below and you have a useful
template.

[Page 206]

1. Introduction

This is a brief statement of the nature of the case.

2. Factual background

A short statement of what led to the dispute, giving the background. Here present
only undisputed facts. Where you refer to a disputed fact, then say so.

3. The issues
Here set out precisely and briefly what the issues are for determination.

4. A roadmap

State the structure of the heads and where each material aspect is dealt with
(draft this paragraph last with reference to your first draft; then insert it here).

5. How the court should decide

Here refer to each issue and tell the court how you want the issue to be decided.
6. The main points

Here set out, in short separate numbered paragraphs, the main points you will
rely on. You are required to state the points; do not present argument.

7. The argument point by point

Here divide your numbered paragraphs according to each main point stated in 6.
above. You can even use each point to provide a heading or sub­heading. Now
take each point and justify your submissions with reference to the facts and the
law. Reference the evidence and make submissions of fact. Assist the judge to
 make a finding of fact that favours your version of what actually happened. Also
refer to the supporting legal authorities.
8. Refute your opponent

Here you refute your opponent's case with reference to the evidence and the law.

9. Conclusion
The result that you want.

10. The remedy

Here assist the judge with an appropriate remedy. Sometimes, all you want is for
your opponent's case to be 'dismissed with costs'.

11. Costs
Where you have to deal with a possible punitive order as to costs, this is where
you do so. Any cost order outside of the usual order must be specifically
requested, and there has to be proper motivation for the desired order.

Tell a story,
Keep it simple,
Show the way,
Assist, and
Remember irresistibility.

Iain Morley QC

7.6.7 Speaking as a judge

Having served as a judge of appeal, I wish to give you some perspectives from a judge's point of view. This will
assist you to draft effective heads of argument.

We have already mentioned that judges do not like lengthy heads of argument. In fact, they hate long documents,
period. Making a short sharp point is what the judge wants;

[Page 207]

lengthy discussions that appear to be going nowhere must be avoided. Hence, we have page limitations in our
highest courts.

When lawyers take a matter on appeal, they are likely to find many reasons why the court a quo erred; some trivial
while others will have more substance. Just delete the trivial and concentrate on the issue(s) that will be
determinative of the matter.

® Judge to lawyer: I do not see the point; will you please get to it!!

Plan your submissions with care and with the objective of persuading the judge. Work out your best arguments and
submissions, remember the technique and write them down. Then select your strongest argument. When you write,
never drown out your best argument or submission in a pool of poor ones. The judge might miss it, mainly because
the judge became bored trying to find it.

Make your best point first and make it stand alone. It must stand out. The judge must not have to search for it; it
must grab his or her attention immediately.

When on appeal (even on motion or on trial) plan your attack. You must know exactly what your line of attack or
defence is. When you write heads, it is very effective to base your line of attack on one key point. A point that will
be resolutive of the whole case and which means the judge does not have to deal with all the other issues raised
(judges just love this approach). However, this is not always possible and you will have to make submissions on
more than one key point. In this event always start with your strongest line of attack. Then deal with the other
points which must be linked to each other and demonstrate logical thinking. It must not look like you merely and
abruptly jumped from one point to the next. Do not present a judge with a tangled set of points; judges will not
untangle it for you.

Your heads must be simple, logical, accurate, sincere and appealing to the court's sense of equity. [See Jean
Appleman 'Written Argument on Appeal' Notre Dame Law Review]. Each point must be shown to have some
relationship with those before and after so that your heads flow smoothly. Deal with each new point in a separate
paragraph but provide a link between them. The judge must not puzzle over 'where on earth does this fit in?' As
Appleman points out:
'Within each point, the argument should flow logically and smoothly along with as few repetitions as possible. The
argument should move in a straight line toward its destination with no detours to confuse the traveller.'

Each point you make must have a conclusion; the judge must not be left
® to think, so what?

The first point to be argued must be your strongest point, preferably the point which will dispose of the whole
matter. However, this point must be a point that will be readily acceptable to the judge. Do not start with a point
the judge will find difficult to accept ­ for example, a point which will require the judge to set a dangerous precedent
or one which requires him or her to set aside an established decision of the court. The point we make is, if you still
do not get it, make it easy for the judge to decide. Making the poor judge work hard is not persuasive.

Although this is written argument, you must accept that you can still
make an impression on the judge. You can still benefit from the
® advantages of a good first impression. That is why you have to start
with your best point ­ make it short, sharp and easy to follow. Never
start with your weak point.

[Page 208]

When your writing is concise and easy to read, the judge will retain the train of thought from beginning to end of
each section of your heads. Spare a thought for the overworked judge who just spent last week in the opposed
motion court and now has to read court records and your heads of argument.

Finally, you have a duty to the court and to the law to provide excellent heads of argument. The overworked judge,
sitting in a court with no air­conditioning, will appreciate the assistance of good sets of heads of argument. Indeed,
it is you who will be assisting in shaping the law. Just do not be the one who famously made bad law.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 8 Opinion writing

8
Opinion writing

'Good advice is always certain to be ignored, but that's no reason not to give it.'

Agatha Christie

TABLE OF CONTENTS
8.1 Introduction
8.2 The disciplines
8.3 Getting started
8.4 What to do
8.5 The first skill: Writing well
8.6 Drafting principles
8.7 Drafting an opinion
8.8 The basic layout
8.9 The facts
8.10 The law
8.11 Composing the opinion
8.12 Some sensible advice

[Page 209]

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 8 Opinion writing/
8.1 Introduction

8.1 Introduction

The purpose of this chapter is to enable you to draft a basic legal opinion.

Opinion writing is very much part of a lawyer's work and at some time in your career you will be called upon to
present a legal opinion; this might even become part of your daily work as a lawyer. This manual will help you
acquire the basic skills you will need to get you started. With experience you will acquire further skill sets that will
enable you to carry out more complex instructions from clients.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 8 Opinion writing/
8.2 The disciplines
8.2 The disciplines

Writing an opinion requires thorough preparation. This involves the two disciplines of fact analysis or fact
management and legal research. We assist you with dealing with both these disciplines so that you do so efficiently
and in a cost­effective manner. In your practice, time does matter. The amount of time you spend will determine
your fee and, most importantly, a fee your client can live with. Note that currently, and certainly in the future, your
clients may not accept the billable hours model and will most likely instruct you on an agreed fee basis. This can be
tricky as you cannot spend more time than you can bill for.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 8 Opinion writing/
8.3 Getting started

8.3 Getting started

One of the most difficult things about writing opinions is starting. Often persons experience the problem of having
done all the research, then sitting and staring at a blank screen, not knowing how or where to start.

The problem stems from one's desire to write the opinion from
'Introduction' to 'Conclusion' in one go.
®
This is wrong; do not even attempt to do this.

The next problem, confined only to practitioners, is the time you spend on legal research. To put it plainly, how much
time can you spend bearing in mind the fee you agreed to charge?

A shared experience among practitioners is that, in anything you draft, it becomes easy once you have your first
rough draft. It is then obvious that what you want is to complete your first rough draft of an opinion in the shortest
possible time. This is a question of efficiency.

[Page 210]

What follows is a method or technique you can use to address these difficulties, so that you become more efficient
and can charge a reasonable fee without running at a loss because you spent too much time on the opinion. This is
a step­by­step approach where we show you what to do and how to do it. It is practical advice and we know from
experience that it actually works.

The steps set out below are intended to show you method only. The details of each step are dealt with in the
paragraphs that follow. We think it is important to begin with the method first; then you can study the details of
how to carry out each step.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 8 Opinion writing/
8.4 What to do

8.4 What to do

There are ten steps.

At the outset you must understand that the method involves writing as you proceed from one step to the other.

® We repeat, writing is all about thinking and applying logic.

This method will force you to think as you write.

Step one

? You always begin with the mandate. What is the issue or question client wants you to address or answer?

? Now write this down and save it in a file. Call this File one.

Step two

? Obtain all the relevant facts.

? Write down a list of your client's material facts. Save it in File two.

? Review the facts as you have noted them; then ask what inferences and conclusions of fact can be made?
What other issues do the facts bring out? Write this down and save it as File three.
? Where necessary, make findings of fact and save this in the same file. In most of your matters you will not be
called upon to make a finding of fact where there is likely to be disputes of fact; but it can happen.

Step three

? Consider what you wrote in Files one, two and three and contextualise the matter in terms of the applicable
law. What area of law is this? Is it contract or delict; is it insurance, banking or tax? Now write a short note of
what you think is the applicable area of the law.

? Begin with a textbook. Familiarise yourself with the applicable legal principles. Write this down and save it as
File four.

? Now ask the question; how does this narrow down the scope of my research? Exactly what principles of law
are applicable bearing in mind the facts of your case. Write this down and save it as File five.

Step four

? Now look for supporting authority. For each legal principle, based on your facts, look for a decision of the
highest court. In respect of each legal point, you only require one case, the most recent decision of the highest
court.

? When you find a case and you think it is relevant, DO NOT merely copy or download it and save. DO NOT copy
and paste quotations from the decision. That is a [Page 211] waste of time as you will have to read it again
later. Instead, write a short paragraph stating, in your own words, why this case is relevant and exactly what
the point of the judgment is. If you have difficulty in doing this, then you did not understand the judgment: go
back and read. Makes you think. Save this in a file: File six.

? Repeat this method for every case you find. Have a separate file for each case. You may have many files: Files
six to twelve. For each case, remember to record, after your paragraph, the full reference, including the page
number and paragraph you found to be particularly useful.

? Where relevant, read the applicable legislation. Identify the sections that are relevant to the facts of your
case. Now write a note where you state the section and, in your own words, say why it is applicable to your
facts. Save this as File thirteen. DO NOT copy and paste the sections.

Step five

? Having concluded the legal research, now review the law and ask: How can I narrow the scope even further.
What is the main point? There may be only one point in it. Identify the point and write it down. Save it in File
fourteen.

Step six

? Now review the facts and the law as you noted it in your fourteen files.

? At this stage you are ready to formulate your prima facie or preliminary view, what you believe might be the
answer to the question. Write this down and save it as File fifteen.

Step seven

? Think about what advice you want to give and/or recommendations you would like to make, bearing in mind
your prima facie view. Write this down and save it as File sixteen.

Step eight

? Open a new file: here copy and paste each of the sixteen files you saved.

? Right there, you will be looking at your first rough draft. You can save this as File seventeen.

Step nine

? Take a break. Leave it alone for a day, if you have the luxury of time. Do other work.

? Then go back and read the rough draft.

? The process of refining it towards a final document commences.

Step ten

? Open another file, File eighteen. Write down your conclusion and any practical advice you have for the client.

? This file will become your two­page summary which you will deliver as a separate document.

Now read on as we will take you through methods to help you in each of the ten steps.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 8 Opinion writing/
8.5 The first skill: Writing well
8.5 The first skill: Writing well

The most important basic skill required is the ability to write well. You must be able to express yourself in such a
manner that your reader understands the point easily. In other words, we do not want you to write like a lawyer.
Do not produce documents that [Page 212] are complex and overrun with jargon that only the legal fraternity
understands. We repeat, avoid using long sentences, big words and legal jargon. What is required today is plain
language drafting which results in documents that are user friendly and serve the purpose for which they were
produced. This is true for written legal opinions.

You are reminded to go back to the Introduction and refresh your mind on the benefits and techniques in plain
language writing.

8.5.1 Order and logic

? Organise your text in a logical sequence, with informative headings, and with a table of contents for long
documents.

? Make the document attractive and designed for easy reading. Let me expand on some of these plain
language requirements. You will notice that much of this is designed to address our bad writing habits as
lawyers. Talking about bad habits, here are some resolutions passed by the Legal Writing Institute (USA):

­ The way lawyers write has been a source of complaint about lawyers for more than four centuries;

­ The language used by lawyers should agree with the common speech, unless there are reasons for a
difference;

­ Legalese is unnecessary and no more precise than plain language;

­ Plain language is an important part of good legal writing;

­ Plain language means language that is clearly and readily understandable to the intended readers.

? Plain language is directed at the convenience and ease of reference for the reader, so that the reader:

­ Never needs to go back to the beginning of a sentence and reread it to understand it;

­ Never needs to stop and examine the sentence in order to understand its structure;

­ Can always see how the next sentence follows on from the one before;

­ Finds no words they do not understand;

­ Grasps what you have said in one reading.

? The reader understands at the same speed as they read.

? When it comes to writing opinions, in fact anything you write as a lawyer, the following is important:
'Good writing has total clarity. The meaning springs instantly from the words, which do not need to be pondered,
reread or analysed. If you ever feel that a sentence you are writing is not expressing the idea behind it clearly,
stop, and start writing it again.

An opinion may try to explain a complex situation so that it can be understood. If it cannot be understood by those
reading it, or if it is open to different interpretations, not only is it poorly written, but it has failed to serve the very
purpose for which it was written.

Clarity of expression can never be achieved without clarity of thought behind it. In other words, if you are not
clear in your mind about what you think or what you want to say, you haven't the slightest chance of being clearer
in writing.

Everything you write must be planned and thought through.

[Page 213]
Thereafter clarity will best be achieved through a logical structure, precision, conciseness, completeness, style and
appearance.'

[Nigel Duncan and Allison Wolfgarten Opinion Writing and Case Preparation 4th edn, Oxford University Press, 2016,
chapter 17.]

We deal with this below.

At university, you learned legal principles. Now you have to apply those principles to the benefit of your client. You
will now have to face real people with real problems. The quality of your opinion will depend on its substantive
content; namely:

? The facts

? The supporting evidence

? The logic
? The legal principles

The substance of the message and the style of presentation together determine its persuasiveness. The two go
hand in hand.

It is therefore essential that lawyers master the art, technique and skill
® of persuasive legal writing.

8.5.2 Consider these techniques

Let us take you to some writing methods that will assist you to write effectively. We realise that some of this is
repeated from the Introduction, but this is a manual about drafting and so no harm done by repeating some
concepts.

8.5.3 Know your audience

The first rule of legal writing is to know your audience. To whom are you communicating your thoughts? Are you
directing your document to a judge or magistrate? Is it for the High Court or Constitutional Court, lay client or CEO
of a multinational? How you write must be determined by the targeted audience. Your writing must make sense to
your targeted reader. Once you know your audience you can set the style and tone of your writing.

8.5.4 Context before detail

Always tell the reader what to expect. Put context before detail. Tell the reader what your case is about and set out
your most important points up front. You do this by framing the material issues at the outset. The idea is to first
state the context before you start with the details. You do not want your reader to start guessing, become
confused or decide to make up his or her own mind. There is no benefit in stating the details of your case if the
reader knows nothing about your case. Give your reader a 'roadmap' or 'heads­up'.

Again, we stress, as a lawyer, get into the habit of using the point first
® writing method.

8.5.5 Frame the issues ­ be brief

Framing the main issues is vital. This is what happens in opinions, pleadings, and heads of argument. It is important
to state what the issues or disputes are and what conclusions you will come to. This must be done briefly as the
details will follow in the main body of your opinion.

[Page 214]

8.5.6 Stating the facts

Once you have framed the issues, your task now is to state the facts. The facts must be stated concisely and in a
chronological sequence. The reader must be able to see your point easily. The idea is not to make your reader do
the work. You have to do the work in drafting your document.

® Good writing makes the reader's job easier; bad writing makes it hard.

The facts must be stated in a structured and logical way. You need a narrative that tells a story, a version that is
likely to have happened.

8.5.7 Use headings

You will typically have to separate your facts into paragraphs, each paragraph dealing with a separate fact set or
allegation. Similarly, you will separate your legal submissions and arguments into paragraphs. Use headings at the
start of these paragraphs. This is a signpost that tells the reader what to expect, for example, 'my mandate',
'factual background', 'applicable case law' etc.

8.5.8 Write short paragraphs

It is convenient and user­friendly to use paragraphs. You may even break up a paragraph into sub­paragraphs.
Your paragraphs should contain separate fact sets or submissions, and each new paragraph must build on the
previous paragraphs. This technique makes it easier for the reader to digest what you are saying. The proper
numbering of the paragraphs and sub­paragraphs make referring to the text much easier.

8.5.9 Form and format

Make your document user­friendly. Make it look good. Make it easy on the eye and easy to read. Use the right font,
spacing, paragraphing and headings. I suggest you use font size of not less than 10 and not greater than 12
points. Use double spacing.

8.5.10 Keep it short

Lengthy documents are not persuasive. More pages do not mean greater quality. The thicker the document the less
persuasive it becomes: ask any judge. Keep your writing relevant, concise and to the point. For example, in your
opinion avoid repetition and the inclusion of factual detail and documents not necessary to deal with the question.
Note that no one wants to read a long opinion. It is, in fact, more difficult to write a short opinion than a long one.

8.5.11 Footnotes

It is not persuasive if your reader has to repeatedly break away to look at a footnote. This is particularly the case
where your client is a lay person. If a point is important enough to be included in your opinion, why relegate it to a
footnote? If it is not that important, then why include it at all? Use footnotes only for the purpose of giving
references to authorities. You will notice, this book has no footnotes.

8.5.12 Quotations

Avoid quoting copiously from authorities. This is not persuasive. Readers hate it and end up not reading it. It is
better to make the point briefly and give the reference. If you must quote, make it short and relevant. Do not be
tempted to copy and paste; [Page 215] lazy lawyers do this. I must also add that you must avoid copying and
pasting from precedents. This is a well­established lawyers' disease. Try not to become infected. Besides, your
client is not really interested in quotations from cases and textbooks.

8.5.13 User friendly

For a user­friendly approach, consider this:

? Brevity

? Layout

? Document structure and paragraph/clause order

? Headings

? Tables and graphs

When you present your opinion, your client must find it pleasing to the
® eye and must be encouraged to read it.

We deal with presentation below.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 8 Opinion writing/
8.6 Drafting principles

8.6 Drafting principles

I want you to use the following drafting techniques: it will show in the quality of your opinion. We have already
mentioned some of these in chapter 1. We see no harm in repeating them here:

? Use clear and precise language

? Use plain English words

? Avoid unnecessary words

? Avoid inappropriate words

? Avoid synonym strings and doubling. Lawyers are notorious for doing this (agreed and declared; covenants,
conditions and agreements; do and perform; goods and chattels; fit and proper; null and void; sell and assign
etc.)

? Use verbs not nouns

? Draft in the present tense

? Avoid the word 'shall': use must or will

? Use an active over a passive voice

? Use appropriate punctuation

? Use short sentences and simple sentence structure

? Use paragraphs and sub­paragraphs

? Use headings

? Always define a term and use it throughout the document

? Observe a strict time sequence. It is easier to follow where facts are set out in chronological sequence

? Avoid lengthy quotations; make the point in your own words

? Do not be tempted by copy and paste technology; it will only improve the length of your document (not the
quality) and render it ineffective for purpose

? Above all, keep it short. Lengthy documents are not persuasive. Be as brief as the circumstances permit

? A longwinded document is bound to lose the attention of the reader

[Page 216]

? Brevity improves the clarity of the message you want to convey

? A well­drafted legal opinion covers all relevant possibilities but it should not go further

? Apply your mind to cosmetic matters: A well­drafted document should incorporate the thoughtful use of:

­ White space

­ Paragraphing

­ Readable typeface

­ Bold or italics for emphasis instead of capitals

Do not present your client with a document that is terrifying.

®
They will not read it.

This will improve your technique.

? Each paragraph must deal with one main point only.

? Every sentence in that paragraph should relate to that point.

? All information (or facts) relating to that point should be harnessed to that particular paragraph.

? Paragraphs should neither be too short nor too long.

? A series of staccato, one­ or two­sentence paragraphs makes for a disjointed document and will dissipate the
main idea.

? An easy­to­read document should flow logically from one paragraph to the next.

? Sentences within a paragraph should be ordered, meaning that they should deal with the subject logically,
with a clear line of reasoning flowing from the first sentence to the concluding one.

? The first sentence of the paragraph should introduce the subject of that paragraph. The rest of the paragraph
should flow naturally and logically, from sentence to sentence, idea to idea, until you have covered the
subject completely.

Your job is to give the clearest possible explanation of complex legal

® questions and answers.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 8 Opinion writing/
8.7 Drafting an opinion

8.7 Drafting an opinion

What follows are the basic techniques to be used in writing opinions. You now know how to use the Ten Steps
described above. You also know about applying logic and producing an easy­to­read, user­friendly document. We
now deal with the researching and writing process in more detail. This will help you write as you observe the Ten
Steps.

8.7.1 Definition

Legal opinion may be defined as follows:

? 'Written statement by a court, judicial officer, or legal expert as to the legality (or illegality) of an action,
condition, or intent.' This will include questions of interpretation and compliance.

? 'Written statement by a lawyer of what he or she believes the legal position to be governing a matter
referred to him or her by a client. It is a document by which a lawyer communicates legal advice to a client.'

[Page 217]
8.7.2 Types of opinions

You will encounter the following types of opinions:

? A formal written opinion

? An oral opinion

? An informal oral opinion given in consultation

? A memorandum (this is meant to be less formal)

? An urgent opinion.

A word of warning

You will often be approached to give an urgent opinion due to certain urgent
circumstances. The opinion is usually given orally, in consultation or in a
memorandum that is delivered within hours of receiving instructions. Where you
are called upon to give an urgent opinion, make certain you provide for a
disclaimer. Your opinion was based on the available facts and little or no time
provided for proper research. Where you give an oral opinion, it is a good
practice to follow this up with a written memo or opinion.

Never disregard the law. Do not be tempted to tell the client what they want to hear when in fact the law does not
support their position. A false impression of a successful outcome, when the law says otherwise, is negligent
advice, and you are not of any assistance to your paying client.

8.7.3 Why an opinion?

The purpose of an opinion is to provide advice to a client. It is also important to understand your role as a lawyer.
You are to present an opinion that is dispassionate and objective. It is not your role to present an opinion that will
please the client or advocate an outcome desired by your client. If, on the facts presented to you, your conclusion is
that the course of action desired by the client is not permitted in law, then say so.

Bear in mind that your role is to answer the question and give good
® practical advice.

8.7.4 What is required

When you write an opinion, you are expected to do two things:

? You have to solve the problem; and

? You have to communicate the solution clearly.

How do you do this?

? By giving client advice, together with the reasoning behind it.

? Your advice, and reasoning, must be expressed in a straightforward and digestible manner.

? Attempt to give the clearest possible explanation. Your lay client must understand this.

? If you cannot explain something in simple language, it is probably because you do not understand it.

[William Rose]

[Page 218]

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 8 Opinion writing/
8.8 The basic layout

8.8 The basic layout

Generally, when writing opinions, the FIRAC method became commonly used.

® FIRAC stands for Facts, Issue, Rule, Argument and Conclusion.

? Facts: What happened, the surrounding circumstances, the evidence [what, where, when, why, and how].

? Issue: Here you are expected to identify each issue raised by the facts. What is the legal question to be
addressed?
? Rule: Identify the legal rule that governs that issue:

­ List the elements of each rule

­ List any relevant exceptions to the rule

­ List any relevant case names and statutes if applicable.

? Argument: Justify your views with reference to the facts and the law.

? Conclusion: Directly answer the question you were required to deal with. Make recommendations.

We refer to each of these stages below. Please note that the FIRAC method is not to be followed slavishly. You can
develop your own style, provided that you are able to answer the question, show your reasoning and come up with
good practical advice.

When writing your opinion, the FIRAC method is merely a useful guide.

8.8.1 Four parts

There will be four main parts to your opinion; they are as follows:

? First part: The first rule is, always commence the opinion by setting out the facts as you have been instructed
of them or as, from those instructions, you have assumed them to be. You are not to undertake any legal
research until you are familiar with all the relevant facts.

? Second part: Here set out the questions that your client has posed for you or which you see as arising and
which you propose to answer.

? Third part: Here set out the reasoned answers to those questions.

? Fourth part: Here you provide a summary statement of your conclusions or, where a series of discrete
questions has been asked of you, precise answers to the particular questions asked. Here you are also
required, in most of your work, to provide suggestions or solutions on the way forward for the client.

A recommended layout will be dealt with below.

8.8.2 Research technique and analysis

This can be a time­consuming step in writing an opinion. If this is not carried out efficiently, the whole exercise may
turn out to be a loss in terms of hours spent and fees that can be charged.

8.8.3 The correct approach

Before you start, it is worth mentioning that you are now in practice; you are not at university. There is a difference
between academic research and research for a client's opinion.

[Page 219]

Academic research is when you research the law. The object is to find the law and know the law. In practice your
research is directed to finding answers to a problem. This is applied research. The law is a means to an end.

The reality is:

? You are dealing with a real situation;

? Your client has a problem;

? The facts are more important than the law;

? The law is a means to an end;

? You have to answer the question.

8.8.4 Checklist

Before you commence with legal research, bear the following questions in mind:

? What is this case about?

? Which facts are relevant?

? What does client want?

? What am I being asked to do?

8.8.5 Three steps for research

There are three basic steps in carrying out essential research:

? First, you must obtain and carry out an analysis of fact. Knowing the facts that gave rise to the issue or
question will help you understand the problem and place it within the correct legal context.

? Secondly, you must understand the question or issue.

? Thirdly, you must carry out an analysis of the law. You must commence with an analysis of the facts. For the
moment, leave the law alone. If you are misdirected as to the facts, a similar misdirection will inevitably follow
in the law.

® Just remember: get the facts first.

8.8.6 What is practical legal research?

This is what a practitioner does:

? A practitioner may start the research with a recent textbook, but will eventually base the advice to client on
primary sources, case law and statutes, unless there is no primary source that answers the question.

? Your research will have a very narrow focus: a practitioner will search only for the law which is needed to
answer the specific questions which have to be answered in order to deal with the client's requirements.

? A practitioner's research must be quick and efficient (time is money) but it must also be accurate.

8.8.7 Legal analysis

Here you contextualise the question you have to answer:

Begin with a preliminary identification of legal issues in the matter. Here you begin to apply your knowledge of legal
principles to the facts in order to identify:

? Possible legal issues in the case

? Key areas of law relevant to the facts

? Specific points of law.

[Page 220]

Consider the following questions:

? What essential areas of the law are important to this case?

? What legal issues emerge from the facts of this case?

? What does the client want as a solution to the legal problem?

8.8.8 Legal issues

First you have to analyse the client's problem and produce a list of legal issues that emerge.

Write this down using numbered paragraphs.

Then list these issues in order of importance.

You will research them in that order.

It is important to do this because you might find that it is not necessary to deal with all the listed issues once you
have dealt with the most important ones.

Remember File one.

8.8.9 Contextualise or categorise the legal issues

The next step is to categorise the legal issues: Is it contract, delict, tax, corporate, insurance, banking etc.?

You establish the principal area of the law; this will narrow your search.

Decide which aspects of the issue are substantive or procedural in nature.

8.8.10 Stay focused

As a rule, you must stay focused on the legal issues, problems and questions you have to answer. Avoid exploring
interesting areas of the law at the expense of the main issues. Keep focused on whether or not you are answering
the question. This will save time.

8.8.11 When to stop

With electronic research tools you can easily retrieve too much information. It is important to know when to stop.
You have to keep your research strictly relevant. Carry out in­depth research only on specific issues and not on
wide ranging issues. Stop when you believe that you can answer the question. Remember that your client is not
interested in the details of the law. The client wants an answer and a recommendation.

Information overload will result in a lengthy opinion. This is not what

® your client wants.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 8 Opinion writing/
8.9 The facts

8.9 The facts

As a practitioner you will be responsible for obtaining a mandate. Your client is not expected to come to you with a
well­formulated question or questions. He or she is more likely to bring a document and explain the problem in a
consultation. You will have to work out what the question or issue is. It is crucial for you to understand the issues,
thereby avoiding the risk of misdirection.

What you will have to consider is:

What legal issues emerge from the material facts?

[Page 221]

How do you go about doing this?

? The first step is for you to sit back and listen (this is an essential skill; if you cannot do this, then learn how to
do so). Let client tell you what happened.

? Then carry out a review of the documents available.

? Make a note of the material facts (File two).

? Deal with the facts sequentially.

? Ask non­leading questions to bring out more facts.

? Request documents that you believe might exist but are not immediately available.

? Consider the legal principles involved. (I recommend that you ask about the nature of the problem before the
consultation. This allows you to read up the law before the consultation).

? After listening to the client, establish what the client's needs or motives are.

? Now summarise the material facts to the client and establish whether you have correctly recorded and
understood them.

? Then establish the issues in consultation with the client. Establish that you have understood the issues and
accurately recorded them.

? Follow up the consultation with a written recordal or memorandum of what was discussed. In this document,
set out the questions you are required to answer. Ensure that your understanding of the problem is the same
as that of your client. A word of warning: Be alive to the fact that clients may sometimes give you facts that
they believe will result in a positive outcome. They may conceal facts or provide outright untruths.

® You must find out what happened.

'Man prefers to believe what he prefers to be true'

®
Francis Bacon

For purposes of the consultation remember the following:

? First make the client comfortable (manage anxiety);

? Then LISTEN (objectivity is key);

? Be interested in what your client says;

? Let the client do the talking;

? Do not be tempted to show off your own knowledge of the subject;

? Do not ask leading questions;

? You must understand what the problem is (always check if this is also the client's understanding of the
 problem). If you confuse this, you are on your way to committing expensive and time­wasting misdirection.

? Consult in a board room or interviewing room that has been cleared of any distractions. Switch off telephones
and other unnecessary electronic devices.

8.9.1 Fact analysis

The first step is to gather all the known facts and available documents.

'The golden rule is: use the law to help you form an opinion on the facts,
® not the facts as an excuse to form an opinion on the law.'

[Page 222]

What do you do with the facts? As an initial step you must do the following in making findings of fact:

? Make a list of the material facts, write this down and save it (File two);

? Discard facts not relevant to the question;

? Arrange all the facts in a chronological sequence;

? Arrange all the documents in a chronological sequence;

? Make a note of facts that are common cause and not in dispute;

? Make a note of disputes of fact (this might even be the question to answer).

A useful technique in fact analyses is the following:

? Only consider facts that are relevant to the issues;

? Ask whether the client can provide proof of the relevant facts;

? Only accept the client's version of any dispute of fact if the version is probable. If you do not accept the
client's version, it simply means that a judge will also reject it as improbable;

? Make a note of the undisputed facts, then test if your client's version of the disputed facts is probable in the
light of the undisputed facts (never rely on a set of facts that are improbable; your opinion will then be
worthless).

? If you have to make findings of fact, ensure that the finding of fact you make:

­ Is probable in relation to the circumstances of the case;

­ Can be supported by credible evidence;

­ It can pass the test of: Is that likely to have happened?

8.9.2 Be systematic

What is the process in researching and writing an opinion? There are seven stages and we recommend that you
allow this to guide you:

® At each stage, to write as you go.

Write short chapters and save them in a file. Follow the ten­step method detailed at the beginning of this chapter.

? Stage one: What is required of you?

It is crucial for you to understand your instructions and what exactly your client requires of you. What are the
basic facts and what does your client actually want to know? If this is not clear to you, call for further
instructions.

? Stage two: What is the question?

If you are to be focussed on giving good advice, then you must understand exactly what the issue(s) or
question(s) are. Your job is to tell the client what he or she wants to know. Your client wants an answer and
wants to know what to do. Your client does not want to know the law. Your client wants a result.

? Stage three: Absorb the facts

You must master the relevant facts of the case. You must have a thorough understanding of the material facts
of your matter. We recommend you carry out a fact analysis as recommended above.

[Page 223]

A good method is to actually write down, in a sequence and using

® numbered paragraphs, all the material facts included in your
instructions.
 Now consider what you wrote and ask two questions:

? Is this sufficient for me to understand the question?

? Are there any gaps in my instructions?

You may have to call for further instructions. Do not commence work where there are substantial gaps in the
fact set. Clear this up first.

? Stage four: The legal framework

By analysing the facts and understanding the question/issue you will already find yourself being pointed
towards a certain area of the law. You will then look for law to help you answer the question.

The legal research you carry out must be done with your facts in mind. You cannot possibly carry out research
without knowing the question you have to answer.

Now look at what the law tells you. The law will give you the material elements. Thereafter go to the list of
material facts as you wrote it and see whether your facts can satisfy these legal requirements. You are in the
process of constructing a legal framework that will ultimately assist you to answer the question.

The best place to find the law is in the most recent judgment of the
® highest court.

? Stage five: Review the case as a whole

Step back and consider what you have. Look at the facts and the law and look at where each question is
going. This will get your process of reasoning going. You start to apply the law to the facts.

? Stage six: Answer the question

This is not an academic exercise; you have a client who is expecting an answer. You must answer all the
questions. Even where the answer is not clear, you exercise your judgment to form an opinion based on the
facts and the law.

As we explained above, break up the problem into separate questions. Answer every question and this will
lead you to an opinion on the issues in question. It is often not so simple that you can immediately and easily
solve the problem and give an answer.

? Stage seven: The advice

You do not merely formulate your opinion; you are expected to give your client advice. You must recommend
what your client should do.

® Give your client what they want: good practical advice.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 8 Opinion writing/
8.10 The law

8.10 The law

Only after you are satisfied that you know the facts, consider the law. Depending on the question, the law may be
found in:

? Textbooks

? Journals

? Academic writing

[Page 224]

? Articles in newsletters and professional magazines and bulletins

? Statutes including regulations and directives

? The Law reports

? Foreign law reports.

8.10.1 Textbooks

Consult the leading textbooks, commentaries or reports in the area. A good textbook or commentary should provide
you with a lucid summary of the relevant legal principles, identify issues that are uncertain or controversial (which
will often be precisely the issues you are being asked to consider!), and provide you with references to other
primary or secondary sources through the footnotes.

Unless you are conducting historical research or there are special reasons for doing so, do not consult old editions
of textbooks ­ always use the most up­to­date material available.

The law is stated as at the date of publication of the textbook or commentary, and you cannot simply rely on
textbook authors to have found and discussed all of the relevant sources for you. You also have to check and
update your list of sources gleaned from textbook footnotes.

For example, check the annotations for every case/judgment you have
® referenced.

Textbooks and other academic writing will give you a good background and references to primary sources
(legislation and case law). Ultimately you are to look for the law in the most recent judgments of the highest court,
especially in a country like ours where we have a system of common law and the application of stare decisis (binding
precedent).

When you read a judgment, read the whole judgment, bearing in mind the peculiar facts of the case. (Always check
if the judgment can be distinguished on the facts.) Now ask the question: Does the case squarely relate to the
issue you are considering? If the case is applied to the facts in the problem before you, what would be the result
and why?

8.10.2 What is the ratio of a case?

The ratio can be found only in any decision and reasoning on a pure point of law, and no case is binding to the extent
that it decides a question of fact. Few cases are decided purely on a question of law, and the same can be said
about only a question of fact. You can expect to find points of mixed law and fact.

What you look for is the reasoning that has led to the conclusion. That is the ratio. However, judges rarely ever set
out the ratio expressly. The ratio has to be dug out from the dicta and reasoning in the judgment. Some of this will
be ratio, some will be obiter.

The ratio of a case is what a later court decides it to be.

The more you get into the habit of reading judgments, the better you will get at putting your finger on the ratio.

8.10.3 Annotations

When you find a case that is helpful make certain that you check the annotations. This will tell you if the case was
approved and applied in other related cases. It will also tell you if the case was not followed or even set aside by a
higher court. You run a risk if you rely on a judgment without checking the annotations.

[Page 225]

Annotations also assist you to find the law, from primary sources, in quick time. Annotations are available in
hardcopy (the noter­up), and LexisNexis and Juta's electronic law reports provide annotations. The quickest way to
find appropriate judgments is via electronic law reports. It is essential for all practitioners to know how to use
annotations. If you do not yet know how to, please learn; you will drastically reduce research time.

8.10.4 Have a plan

Be methodical ­ plan your research before you start. A 'hit and miss', random approach to legal research wastes
time and is unlikely to produce impressive results. Here is a recommended approach:

? What do you need to know? Make a note of this.

? What is your question? Have a clear understanding of the issues.

? Do you have a general understanding of the topic yet? Did you read the basic textbook and are you familiar
with applicable legislation?

? What sources may assist you to answer the question?

? Keep a reference for each source and the page number at which you found the information; maintain a
research trail: this will save you time later.

? Be prepared to write as you research. Create a file and save this in your preferred order. What this means is
that, as you research, you do not merely flag the reference. Instead open a file in your computer and write a
short note or discussion about the point you want to make. This can, later, be conveniently copied and pasted
into your first draft of the opinion. (File six to twelve)

? Do not indulge in copying and pasting from various sources. This is not effective research. Instead read and
understand the point then make a note, in your own words, as to what the point is and how it will assist you
to answer the question. Then make a note of the reference.

? Keep meticulous, accurate and full notes as you go. Make sure that you note down all the relevant citation
details ­ you do not want to have to come back and find everything again just to complete your footnotes or
 other referencing.

8.10.5 More method

Here are some practical suggestions:

? Gather the facts and identify those facts that are most relevant;

? Analyse the legal issues involved and identify the legal questions that need answering;

? Research the legal issues;

? Analyse the facts and the law;

? Come to a preliminary conclusion.

Collecting photocopies or passively reading large amounts of text does not amount to research. It amounts to
grazing; you are not a cow. You need actively to analyse and record your views on the materials as you go. Think
critically about what you are reading. Be alert for inconsistencies and ambiguities. As you read and analyse each
new piece of information, ask yourself:

? How does this fit into what I have already found?

? What does it add to my existing knowledge?

[Page 226]

? Does it reveal new issues to be examined?

? How does it help me answer the question I have been set?

? Where is it likely to fit into my answer?

® This is active reading: you are now applying your mind.

I strongly recommend that, while researching the law and having asked the above questions, you immediately write
a short paragraph about it and save this on your computer. This will reduce time when you write the opinion; you
might conveniently copy and paste from your saved notes instead of formulating the argument afresh. Also, this
way you will be compelled to write while carrying out research and forced to apply your mind. Back to the Ten Steps.

Unless you know a lot about the subject already, it makes sense to start with the relevant secondary sources
(textbooks and journal articles), and then move on to primary sources once you have narrowed down the field of
enquiry. With legislation, always check if the copy you have is up to date. Make a note of amendments, recent
regulations and Notices. If you make a mistake here it can spell disaster.

The conclusions of fact you rely on must be supported by the evidence

before you.
®
The conclusions of law you come to must be supported by your findings
of fact.

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 8 Opinion writing/
8.11 Composing the opinion

8.11 Composing the opinion

8.11.1 First part: Factual

? The first rule is to commence the opinion by setting out the facts as you have been instructed of them or as,
from those instructions, you have assumed them to be.

? Highlight and separate out the material facts that you think will be relevant to the legal issues. If you do not
do so, you may overlook an important fact, or focus your research on a less relevant set of facts. Separating
out the relevant facts helps to ensure that your research and analysis is more structured, streamlined and
efficient.

? Analyse the facts meticulously and objectively. Do not generate any extra facts, or re­interpret or 'shoe­horn'
the facts into your particular view of the case. Your job is to set out the facts as objectively, accurately and
dispassionately as possible.

? Remember that a chronological statement of the facts is what you want. It will assist you where the issue
might involve statutory time limits and other time bars.

? In a commercial case, always sequence the documents and supporting evidence or facts before you review
them.
? If you believe that you have not been given sufficient facts to answer the questions that are crucial to a
central legal issue, identify the additional information you require and how it would affect your legal opinion.
You may have to take further instructions.

? Avoid the temptation to merely copy and paste your instructions or facts as you received them. Set out the
facts in your own words after you have crystallised the material facts relevant to the question. Remember that
the client is already familiar with the facts. Your purpose in setting out the facts first is that it reassures the
client that your opinion is based on a set of facts relevant to his or her problem. It [Page 227] also tells the
reader that the opinion is based on this set of facts and no other facts.

? Stating the facts is an important part of the exercise. A full recitation of the facts will instil confidence in the
client that you have understood the problem. But do not get carried away with an unnecessarily lengthy
narrative so that your opinion looks like '99% recitation of facts and 1% advice' [William Rose].

? When you set out the facts in your opinion, it must not look as though you have merely repeated your
instructions. The facts must be stated in such a manner that they bring out the problem and will assist in
understanding your analysis and reasoning. The facts must be set out in a logical sequence and one event
must flow seamlessly into the next.

Consider this checklist:

? Do you have a full understanding of the factual material available to you?

? What is the weight and value of your client's material facts?

? How relevant is a particular fact?

? Are there gaps in the facts or version?

Only after you have mastered the facts will you be in a position to apply
your mind to the required legal research.
®
Only after you have become familiar with the facts and the law will you
be in a position to apply your mind to structuring your opinion.

8.11.2 Second part: Issues or questions

? The second part of an opinion is to set out the questions that the client has posed for you, or which you see
as arising, and which you propose to answer.

? The question must be stated simply and without ambiguity. The reader must understand the issue or question
before reading on. There may be more than one legal problem or issue. You must state all of them with equal
clarity. You expect your client to read and understand this.

? An effective method involves stating the issue(s) in the form of a question. This helps the client to understand
the issues and it helps you to answer the questions. It is also a good technique to use these questions as
sub­headings in your opinion.

? Depending on the level of your existing knowledge and the questions, you may already be able to identify the
main issues and prioritise them on a preliminary basis, based on how significantly they affect the answer to
the question. Be careful, however, not to treat this preliminary analysis as set in stone ­ you should always
reassess your preliminary view of the issues once you have completed more research and had more time to
apply your mind. Lawyers are notorious for changing their minds.

8.11.3 Third part: Advice on the law

? There are as many ways of approaching the writing of an opinion as there are of problems to be solved. In
theory the proper way is to start with the cases and work through to reach a deduction as to the principle of
law that covers the situation. Quite often, however, one forms a value judgement about what the conclusion
ought to be from first principles and moral feelings and then searches for the authorities to support this
conclusion.

[Page 228]

? When advising on fact or law, do not be too positive. Where the law is in a state of flux or doubtful, always
draw attention to this explaining why one cannot be more positive.

? In this part you will justify your conclusions with reference to the facts and the law. You must address the
application of the relevant law to the material facts of your client's case. Your process of reasoned conclusion
must be evident here.

? State the law as clearly and simply as possible without falling into the trap of oversimplifying. The rule is for
you to provide as much detail as you consider reasonably necessary for the client to follow your reasoned
arguments. Now you know why you cannot copy and paste from judgments.

? Remember to include references to authority within your text; avoid referencing in footnotes or endnotes.
Readers hate it.
8.11.4 Fourth part: Conclusion

? Always end your opinion with a conclusion that directly addresses the question you were asked to answer.
The conclusion must draw together and summarise the essential results of your arguments and analysis in
the body of your opinion.

? The conclusion therefore provides the ultimate answer to the question and resolution of the problem. It
should neither include a paraphrase of your introduction, nor introduce wholly new material.

? Try not to 'sit on the fence' in your conclusion. If you have thoroughly and critically analysed the issues, you
should be able to reach a clear and considered conclusion, even if there is no simple 'right' or 'wrong' answer.
In some cases, you will be expected to make recommendations as to how the client should deal with the
problem. Clients appreciate this and will often ask for such recommendations.

? Finally, where your opinion, out of necessity, became lengthy, prepare 'an executive summary' (or 'summary')
being a two­page summary containing:

­ the question;

­ a point form reference to the relevant law;

­ the answer to the question; and

­ recommendations on the way forward.

? The summary should do two things:

­ Give a short summary of your overall conclusion without the client having to read the full legal analysis;
and

­ Give a preview of the final answer. This will assist the client in understanding your detailed analysis.

Where do you place it?

Firstly, this paragraph or two­pager is written last. But, once you have written it, copy and paste it at the beginning
of your opinion, right after the paragraph where you set out the question. Where you wrote a two­page summary,
in a complex and lengthy opinion, bind this separately and present it as a stand­alone document with your opinion.
Put it on top when you deliver.

A layout

In order to assist you, the following general layout can be used. Note the comments in each paragraph and a
reference to the draft files you saved in steps one to ten above. A time saving technique is to use the headings
below and copy and paste the files as we numbered them. You will have your first draft:

[Page 229]

1. Introduction

Keep this short. Not more than 10 lines. It requires something as simple as this:

'I am required to give an opinion about the interpretation of clause 8 of a

service level agreement entered into between client and a provider called
ACME Consultants (Pty) Ltd.'

2. The mandate/question/issue

Clearly define your mandate. State exactly what the question or issue is. This
cannot be ambiguous, and both you and your client must understand the question in
exactly the same way. (File one)

3. Conclusion

Although this appears here, right at the beginning, you actually write it last. You
write it in paragraph 9, then you copy and paste it here. This is the current
preferred method. Remember most of your clients are not really interested in the
law, they want an answer. Give it to them immediately. It also places your opinion
within a context before you write the details.

4. Recommendations

Having just answered the question, now give practical advice. How do you
recommend your client proceeds? What must your client do? What are the available
options?

5. Material facts

Here set out the material facts of the case. You must have confirmed these facts
with the client. This is a most important part of your opinion as the rest of your
work will be firmly anchored in these facts. Keep it strictly relevant. State the facts
in a chronological sequence. (File two and File three)

6. Finding of fact
With most opinions, there will not be a dispute of fact, nor will you be required to
 make findings of fact. But, from time to time a dispute of fact emerges, and you will
be required to make a finding of fact. Sometimes this is what the opinion might be
about. If you are not required to carry out a fact­finding function, this paragraph is
not necessary. (File three)

7. The legal framework

Contextualise the matter in terms of the applicable law. Then state the law with
reference to the latest decision of the highest court. Concentrate on the case law
that assists you to answer the question. If the opinion involves legislation, this is
where you deal with it. (Files six to twelve and Files thirteen to fourteen)

8. Discussion

Here you set out your reasoning. You apply the law to the facts of the matter. You
justify your conclusions with reference to the facts and the law. (Files fourteen
and fifteen)
9. Conclusion

This is where you answer the question or questions. (Files fifteen and eighteen)

10. Recommendations
Now give practical advice. (Files sixteen and eighteen)

Your advice or recommendations must be expressed in a straightforward manner

that your client can easily comprehend. Your client simply wants to know what to do
next.

[Page 230]

11. Summary
Only when you deal with a complex matter or answer a number of distinct questions
do you write a summary of your findings. Provide a short summary; main points
only of paragraphs 7 and 8. Include the contents of paragraphs 9 and 10. This is a
separate stand­alone document meant to accompany your opinion.

8.11.5 Final part: Revision

? Having concluded your opinion, it is time to revise it. Do not skip this step. I have known practitioners who
completely changed their opinion after revising their work. There may be a realisation that you are possibly
wrong.

? A good technique is to give yourself a break from your work. If time allows, leave it alone for a day or two.
Then go back to it and read.

As part of the revision:

? Check that you have carried out your client's mandate.

? Did you answer the question?

? Check for accuracy.

? Check your references.

? Is the layout user­friendly; is it easy to read?

? Are you persuaded by your conclusions?

? Do the facts support your conclusions?

? Does the law support your conclusions?

? How about debating your conclusion with someone who proposes an opposite view (plays devil's advocate)?

Nigel Duncan and Allison Wolfgarten make an important observation about 'making choices'; I think it makes a fitting
conclusion to this chapter.
'When you have your final version in front of you; apply your mind to the following:
(a) Whatever you wrote should be there because you intend it to be;

(b) Nothing should have crept in by error;

(c) Nothing got left out by oversight;

(d) The whole opinion must be structured in a way that you have decided works best;

(e) Unlike speaking, when you write you can go back and review what you have written and improve it.

(f) You can only write well by making choices.

(g) Never, if you can avoid it, simply write down the first thing that comes into your head without examining it
critically and deciding that it is just right.

(h) Think every point through asking yourself: "Have I done the right thing?"
 (i) At every stage you have a choice: to leave what you have written or to improve upon it. Make that choice.'

William Rose had this to say about the objectives of the task of writing an opinion:
'These are, I suggest, to give the client advice, together with the basic reasoning behind it. Such advice should be
put forward in a manner which is as straightforward and digestible as possible.'

[Page 231]

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ 8 Opinion writing/
8.12 Some sensible advice

8.12 Some sensible advice

? It is simply not possible to be a successful lawyer in the absence of good, indeed excellent, literacy skills. You
cannot write anything, let alone opinions, without sound literacy skills.

? You cannot attend a course to improve these skills; they are acquired through proper application and a desire
for excellence.

? If you worry that your literary and analytical skills are not up to par, never fear. They can be developed with
time and consistent practice. Like a muscle, the more you use it, the stronger it gets. One way to start is to
read more books. This may sound a little too simple of a solution but it really works. How does it work? Well, it
helps when you read as actively as possible. Instead of passively skimming over paragraphs and grazing the
pages, try to look at both sides of the story. For example, if you are reading a novel, try to see the plot from
the perspective of the hero, the villain and other supporting characters. Be more critical, be more curious. The
increased stimulation causes your brain to think in new ways. Thinking differently helps to expand your mind,
which is critical.

? Those of you who are serious about a career in the legal profession, commit yourself to reading one book a
month. This will naturally progress to one book per week. You must read at least one credible newspaper per
day. Above all, remain curious about everything around you. Never stop asking: Why?

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Further reading

Further reading

Peter Butt and Richard Castle Modern Legal Drafting: A Guide to Using Clearer Language 2nd edn (Melbourne:
Cambridge University Press, 2006).

Consolidated Practice Directives Manual (Durban: LexisNexis, 2008­ ).

Nigel Duncan and Allison Wolfgarten (eds) Opinion Writing and Case Preparation 4th edn (Oxford: Oxford University
Press, 2016).

David Emmet (ed.) Drafting 18th edn (Oxford: Oxford University Press, 2016).

Rachael Field, James Duffy and Anna Huggins Lawyering and Positive Professional Identities (Chatswood: LexisNexis,
2014).

Tom Goldstein and Jethro Lieberman The Lawyer's Guide to Writing Well 2nd edn (Berkeley, Los Angeles and London:
University of California Press, 2002).

Ismail Hussain, Ettienne Barnard and Brendan Hughes Case Management in Our Courts: A New Direction LEAD Guide
(Law Society of South Africa).

Daniel Kahneman Thinking Fast and Slow (London: Penguin Books, 2011).

CG Marnewick Litigation Skills for South African Lawyers 3rd edn (Durban: LexisNexis, 2012).

Thomas Mauet and Les McCrimmon Fundamentals of Trial Technique 3rd Australian edn (Sydney: Thomson Reuters,
2011).

Iain Morley The Devil's Advocate 3rd edn (London: Sweet and Maxwell, 2013).

Dave Powell and Emma Teare Writing for Law (Basingstoke: Palgrave Macmillan, 2010).

William Rose Pleading Without Tears: A Guide to Legal Drafting under the Civil Procedure Rules 7th edn (Oxford: Oxford
University Press, 2007).
Richard Scragg (ed.) Legal Writing: A Complete Guide for a Career in Law (Wellington: LexisNexis, 2015).

DE van Loggerenberg (ed.) Erasmus Superior Court Practice 2nd edn (Cape Town: Juta, 2015­ ).

Lisa Webley Legal Writing 2nd edn (London: Routledge­Cavendish, 2010).

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ A

abbreviations 6
abuse of process 132

accuracy 67
acronyms 6
active reading 225­226

active voice 8­9

admitted facts 21, 129

adversarial system 24, 39

advice/advise 7­8

affidavits see motion proceedings

alphabet letters 15
alternative causes of action 47, 53
cold storage room 119­123
concurrence of actions 47
high speed printer 87­96
medical negligence/personal injury 97­111, 111­119

analytical thinking see logical thinking

and 16

annexures 135
annotations 224­225
answering affidavit 173­176

Anton Piller application 144, 159­164

apostrophe 14­15

appeal
heads of argument 185, 191­193

applying the law to the facts 33

attachment of truck 157­159

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ B

bare denials 127, 131

borrow 10
brackets 14
brainstorming 4, 5

breach of contract see contractual dispute

but16

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ C

case concept 20­21, 177­178

case studies
Anton Piller application 159­164
attachment of truck 157­159
cold storage room 119­123
duress 136­137
golf interdict 152­157
high speed printer 87­96, 138­142
material non­disclosure/misrepresentation 123­126
medical negligence/personal injury 97­111, 111­119
motor vehicle collision 79­86
review application 164­176
causation
contract 72
delict 77
cause of action see also alternative causes of action
definition 25
contract 69­70
delict 73­74
working out what cause to plead 45­46, 56­59
cerebral palsy 97­111

chronological sequencing 26­27, 48, 51, 65, 90­91, 100, 145

chronology documents 27­29, 48, 145, 201

closing statement 5
cold storage room 119­123
collective nouns 10

colon 14
combined summons 111­119

comma 15­16
common cause 22

company
deregistration 62
description in pleadings 62
singular form 10
conclusion 5

concord 9­10
concurrence of actions see alternative causes of action
conditional tense 11­12

condonation of late notice 110

confession and avoidance 130

consider the reader 4, 6

constitutional cause of action 105­106, 118

Constitutional Court
written argument 183­184

context before detail 147, 178, 180, 205, 213

continuous tenses 12­13

contraction 14
contractual dispute see also alternative causes of action
contract inferred from previous dealings 71
high speed printer 87­96, 138­142
particulars of claim 55, 69­72
written contract 71, 92
contributory negligence 74

cooking analogy 3, 4, 5
could 11­12

counterclaim 135
critical thinking
concept 34
importance 34­35
qualities required 35
 Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ D

defence
definition 129
drafting see plea

delictual claim see also alternative causes of action

medical negligence/personal injury 97­111, 111­119
motor vehicle collision 72, 73, 75­76, 79­86
particulars of claim 55, 72­79

description of parties 62
device/devise 7­8
direct quotation 16

disability 97­111, 117

disputed facts 22

draft orders 144­145

duress 136­137
duty of care 73, 76, 94, 95, 104­106, 122­123

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ E

either ... or 10

evasive denials 131

evidence
facts distinguished 54, 55
inclusion in pleadings 55
ex parte applications 157
exclamation mark 16

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ F

facts of the case

admitted facts 21, 129
case concept 20­21
common cause 22
disputed facts 22
evidence distinguished 54, 55
facts in issue 22
importance of good fact management 19, 25­26
material facts 52, 53­54, 62, 65, 66­67
obtaining and analysing 19­20, 44
Plascon test 23
poor on fact 46­47
think and act sequentially 26­27, 48, 51, 65, 90­91, 100, 145
three pillars of litigation 24­25
undisputed facts 22­23, 149

FIRAC method 218

font 63

footnotes 182, 214

founding affidavit
affidavit as a whole 147­148
check list 148
context before detail 147
drafting process 148
formatting 146
impact/topic sentence 151
length 149
 logic 149­150
persuasiveness 146
purpose 146
roadmap 151
structure/layout 147­148, 149, 150
suggested content 151
undisputed facts 149

full and sufficient facts 67

full stop 14

future medical expenses 117­118

future tense 11­13

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ G

golf interdict 152­157

good writing 6, 211­215

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ H

heads of argument
on appeal 185, 191­193
check lists 198, 204
conciseness 178
Constitutional Court 183­184
context before detail 178, 180, 205
deciding the issues 179, 199­200
desired outcome 200
drafting process 189­190, 194­205
factual background 199
footnotes 182
formatting 181, 197­198
framing the issues 180­181
headings 181
introduction 199
judge's point of view 206­209
legal principles applicable to case 202
length 181­182, 186­188
main heads of argument 186­188
main points 200
meaning of argument 186, 200­201
motion court 185
proof to the satisfaction of the court 201
purpose 183
quotations 182, 187
refuting opponent's case 203­205
roadmap 195
rough draft 195­198
rules and directives 182­183
seven­step method 179
short paragraphs 181
state the facts 181
strength of own case 203
structure/layout 198­200, 205­206
submissions of fact 193
submissions of law 193­194
Supreme Court of Appeal 184­185, 191­193
theory of the case 177­178
on trial 185­186, 190­191
what not to do 198
when required 183
witnesses 201, 203
write as you research 178
writing techniques 180­182

high speed printer 87­96, 138­142

hospitalisation and medical treatment 116­117
hyphen 14

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ I

I 9, 10­11

identity number 63, 74

implied subject 11

in lieu of 7
interdict see motion proceedings

interlocutory or incidental application 144

introduction 5
IRAC triad 33­34

its/it's 15

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ J

joinder of defendant 125

jurisdiction 62, 70, 75

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ L

laparoscopy 111­119
law reports 56, 58

legal issue 32
legal research and analysis 218­219, 223­226

lend 10

length of sentences 13

letter of demand 38

letter writing 37­39

licence/license 7­8

line spacing 63
locus standi 62, 70, 75

logical thinking 4­5, 31

IRAC triad 33­34
six­step approach 31­33

long form 144

loss of amenities of life etc 77, 110, 117, 118

loss of earnings 110, 118

loss of profit 78, 96

loss of property 78

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ M

M
material facts 52, 53­54, 62, 65, 66­67, 130, 220­221, 226­227

material non­disclosure/misrepresentation 123­126

me10­11

medical negligence 97­111, 111­119

money 15
motion proceedings
answering affidavit 173­176
case studies 152­176
draft orders 144­145
ex parte applications 157
formatting 146
founding affidavit 145­151
heads of argument 185
interlocutory or incidental application 144
notice of motion 143­145
Plascon test 23, 145
replying affidavit 176
rules and directives 143
substantive application 144
taking instructions 145­146
two­part notice of motion 144­145
urgent applications 158­159
motor vehicle collision
particulars of claim 72, 73, 75­76, 79­86
pleading non­admission 130

myself 11

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ N

names
apostrophes 15
parties in pleadings 62

negligence see delictual claim

neither ... nor 10

non­admission 130

none 10

notice of motion 143­145

numbered paragraphs 63, 64, 65

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ O

objective of legal document 3

opinion writing
advice on the law 227­228
check list 219
conclusion 228
context before detail 213
disciplines involved 209
drafting principles 215­216
drafting process 222­223
executive summary 228
fact analysis 221­222
FIRAC method 218
footnotes 214
formatting 214
four parts 218, 226­228
framing the issues 213
getting started 209­210
headings 214
issue or question 227
know your audience 213
 legal research and analysis 218­220, 223­226
length 214
material facts 220­221, 226­227
meaning of opinion 216
order and logic 212­213
paragraphs 214
purpose 217, 230
quotations 214­215
revision of the opinion 230
structure/layout 218­220, 228­230
ten steps 210­211
types of opinions 217
urgent opinion, disclaimer 217
user­friendliness 215
what is required 217
writing well 211­215
Oxford comma 16

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ P

pain and suffering 77, 110, 117, 118

parentheses 14

particulars of claim see also alternative causes of action; cause of action;

contractual dispute; delictual claim; quantum

accuracy 67
basic drafting technique 43
basic structure 60, 62­63
case studies 79­126
check lists 48, 59, 60­61, 64
complex particulars 65­66
concurrence of actions 47
description of parties 62
detail to be included 54
evidence, inclusion of 55
factual background/brief introduction 54
first draft 47­48
formatting 63­64, 64­65
importance of good drafting skills 41­42
law, references to 55­56
locus standi 62, 70, 75
material facts 52, 53­54, 62, 65, 66­67
obtaining the facts 44
persuasiveness 43­44, 66
precedents 42, 48­51, 72
proof analysis 45
purpose 51­52, 59­60
rules and directives 42, 52, 53, 55
step­by­step drafting process 56­59, 61­62, 68
vagueness 67
what not to plead 63

passive voice 8­9

past, present, future 5

past tense 11­13

perfect tenses 12

personal injury 97­111, 111­119

persuasiveness 20­21, 43­44, 66, 146, 178­179

planning 3, 5­6

Plascon test 23, 145

plea 127
abuse of process 132
admission of facts 129
annexures 135
answer the point 130­131
bare denials 127, 131
case studies 136­142
check list 128
confession and avoidance 130
 counterclaim 135
denial of facts 129
drafting suggestions 132­133
evasive denials 131
explanations to client 131
formatting 135
initial steps 128, 129
material facts relied on 130
no new options 130
non­admission 130
plain language 134
purpose 129­130
rules and directives 129
special plea 134­135, 137
stand­alone paragraph 133­134
taking instructions 132
technical points 128­129
tender of payment 135
test the client's version 132
useful words and phrases 135

plural verbs 9­10

point first writing 147, 178, 180, 205, 213

poor on fact 46­47

possession 14­15

practice/practise 7­8
practice directives 42, 143

precedents
reasons for not using 42, 48­49, 72
use of 49­50
where to find 51
prescription 110, 137

present tense 11­13

pronouns 10­11
proof/prove 8

proof analysis 45

punctuation 13­16
purpose of pleadings 51­52, 59­60

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ Q

quantum 67­68
cold storage room 122
contractual dispute 72
delictual claim 77­78
high speed printer 91, 96
material non­disclosure/misrepresentation 126
medical negligence/personal injury 109­110, 117­118
motor vehicle collision 86

question mark 14

quotation marks 14
quotations 182, 187, 214­215

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ R

ratio 224
reading books 17­18, 231

recipe analogy 3, 4, 5

reflexive pronouns 11
repetition 7
replication 140­142

replying affidavit 176

reputational damage 95
research see legal research and analysis

review application 164­176

rule nisi 144, 156­157

rules of court 42, 52, 53, 55, 129, 143

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ S

search and seizure application 144, 159­164

self/selves 11
semi­colon 16

sentence length 13

seven­step method 179

short form 144

singular verbs 9­10

SMS speak 6
'so what?' 4

special plea 134­135, 137

spelling 7­8
square brackets 14
step­by­step drafting process 56­59, 61­62, 68

substantive application 144

Supreme Court of Appeal
heads of argument 184­185, 191­193

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ T

tactical denial 129

taking instructions 19, 43, 132, 145­146, 174

technical points 128­129

ten commandments 16
tender of payment 135

tender process
review application 164­176
textbooks 224
their/there 8

theory of the case 20, 177­178

three pillars of litigation 24­25

time 15
trial
heads of argument 185­186, 190­191
two­part notice of motion 144­145

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ U
 U

undertaking as to damages 161

undisputed facts 22­23, 149

unlawful arrest and detention 74

unloading rate 6

urgent applications 158­159

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ V

vagueness 67

verb tenses 11­13

vicarious liability 85, 94­95

vocabulary 6­7

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ W

'what really happened?' 20

where/were 8

witnesses
heads of argument 201
undermining credibility 203

word choices 6­7

would 11­12
writing letters 37­39

written argument
Constitutional Court 183­184

Legal Skills and Practice Management/ Practical Drafting Skills for Law Professionals/ Index/ Y

you 10