In Conversation with Pabasa Pupil Colleagues on Legal Drafting and Other Titbits – 11 March 2021
Drafting pleadings and heads of argument is an Art. A Skill. As with any skill, it improves and is perfected with repetition and practice. The reason some practitioners are better at it than others is that they have had more practice time, and have been exposed to varied types of pleadings over many years. There are no short-cuts. You learn by doing it, not just by reading about how it is done.
Reading Chris Marnewick’s textbook will serve largely as an introduction to the vast and rich tapestry that is pleadings. It’s a good thing to do – as a starting point. You guys are privileged. We did not have a Chris Marnewick textbook when we did pupillage back in 1995. We had to learn by doing, and from precedents produced by our seniors in practice – and they were not all good. I discovered soon after starting in practice in 1997 that many of those precedents were in fact excipiable.
It has been suggested that pleadings and heads of argument account for 50% of counsel’s work, and that the other 50% is your performance while on your feet in court. I take a different view.
- In motion proceedings, cases are decided, for the most part, on written material: pleadings and heads of argument. Louis Harms (a former deputy president of the SCA who was a menace to many counsel appearing before him in the SCA) once wrote that it is best to have the judge on your side by the force of your pleadings and written argument, because once a judge has made up his or her mind after reading the pleadings and written submissions, it is almost impossible to change his or her mind after hearing oral argument. Having acted as a judge more than most, I can tell you this is true.
- Yes, judges try to convince themselves that these are prima facie But, in truth, they are not. They are largely cast in stone. So, if you want a better chance of a favourable outcome in an application, you’d best make sure that your pleadings and heads of argument are solid on substantive law and lucid in presentation. No judge wants to read a John Donne, or Homer’s The Iliad on a Sunday, while preparing for a hearing the following Tuesday. You want to be as clear in your language, as meticulous in your marshalling of the facts, and as clinical in your written legal argument as your Pabasa training has equipped you. Make the most of it. You are the lucky few.
- Anyway (I digress). The point is this: in motion proceedings, pleadings and written argument account for 90% of counsel’s work. By the time you stand up in court to argue, the judge already knows which way he or she will rule – at least 90% of the time. [Of course, this applies only to those judges who make a habit of reading the papers before hearing an opposed motion. Not all of them do, at least not as attentively as they should.] So, pay attention to your written work.
- Action proceedings (trials) are different. Although pleadings are important, I’d say they make up less than 50% of counsel’s work. Why? Because they can be amended at any stage before judgment.
[Example: I did a trial many years ago in Namibia. The bank had sued my businessman client for money it said was owing to it by my client during a stated period. It discovered bank statements. In cross examination, I took the bank’s witness to the bank statement, asked him whether there was any other bank statement on which the bank relies for its claim that has not been discovered. “No”, came the answer. Then I asked him to read the contents of the bank statement from the start date of the period the bank claimed my client owed it money to the end date. He did. The bank statement in fact showed that it was the bank that owed my client money, not the other way round. Counsel for the bank closed his case for the bank. We waited for the judgment which was reserved. Then, weeks later, an application came for amendment of the bank’s particulars of claim to say my client owed it money for a different period than the one previously pleaded. Naturally, I opposed the application. The judge granted it, and we had to start all over again, except I moved on and recommended a different counsel take over.] So, pleadings in trial proceedings tend to be a fluid affair.
Yes, there is the nuisance of having your particulars of claim or plea excepted in terms of rule 23. But that is only a dilatory thing. It slows down the pace with which you may want to reach finality of the litigation. And your client may be ordered to pay the costs in exception. But, in the final analysis, the outcome of the trial does not depend on your pleading being set aside on exception. The quality of the evidence presented by your witnesses, and how you marshal your witnesses, is what tends to win trials. Yes, some judges are forgetful, and may need help by way of closing argument to remind them of what the evidence was during a week-long trial (in some instances longer). Some judges may ask for written argument instead of setting a date for oral argument. But, by and large, witnesses win trials, not counsel. Your role as counsel is to ask them the right questions in a proper and acceptable way in order to elicit the right response and as few interventions from your opponent (or the judge) as possible. In order to do that successfully, you need to know the Law – both procedural law and substantive law. So, I’d say in trial proceedings, pleadings account for 40%, the performance of witnesses accounts for 50%, and written argument accounts for 10% – depending on your assessment of the judge’s senility. Of course, it’s not one size fits all. Use your own judgment. Each case is different.
Knowledge of the law is crucial to effective drafting. You can’t draft a founding affidavit in an application for an interim interdict if you don’t know what the requirements for an interim interdict are. You can’t draft an answering affidavit to such an application if you don’t know that either. You can’t draft particulars of claim in a condictio indebiti claim, or in a defamation claim, if you don’t know the essential averments to make in each such claim. Your particulars of claim are likely to be tossed out in an exception (rule 23) for failure to disclose a cause of action. Your application is likely to be thrown out, too, for failure to make a case for the relief sought. You have to know that rule 23 (or an exception procedure) does not apply in motion proceedings. There is a Full Bench decision of the Johannesburg High Court to this effect. So, you cannot except to a founding affidavit. You cannot except to a notice either, whether that is in trial proceedings or in motion proceedings. You can only except to a pleading. There is case law on this too. There are cases that explain what a “pleading” is. A “notice” is not a pleading. You’ve got to know this.
You’ve got to know in which circumstances a Rule 30 application (for irregular process) is permissible. You’ve got to know when it is tactically sound to pursue a Rule 30 application because sometimes, even though the procedure may be available to you (permissible), it may not be a tactically sound approach to take.
You need to know when to compel production of a document and when to let it go. Many litigants, particularly institutional litigants, are not shy to deny the existence of an “incriminating” document in a rule 53 review application, when everyone knows (or when it is clear from the facts that it does indeed exist). A fight about whether or not the document exists, and therefore must be produced, could drag you as far as the Constitutional Court, while your review application is pushed back. Your client may not have the time or money to be fighting interlocutory skirmishes about the production of documents. You’ve got to have the tactical sense to know whether your review can succeed without the document, or whether your client’s entire case hangs on the production of that document. That comes with experience. Knowing the law on these matters is crucial.
You’ve got to know which is the best or most efficacious process to follow in any given set of circumstances. Not every defamation case must be brought by way of summons in trial proceedings. There may be no material and bona fide disputes of fact but only disputes on the law of defamation. Not every review application needs to be brought under rule 53 (requesting a record, etc). Sometimes an application under rule 6 suffices. You’ve got to know when to file an answering affidavit and when to file only a notice raising only issues of law [in terms of Rule 6(5)(d)(iii)] and asking the court to determine the entire case based on the issues of law that you raise. You’ve got to know what the implications of that approach are. This is just some of the ammunition that counsel requires in order to prepare a case proficiently. Know the law. Know the various tools available to you. Apply those tools in appropriate circumstances. Speak to colleagues about your intended approach, if uncertain.
You’ve got to be on top of the rules of the court in which you practise, too. The various High Courts around the country have their own practice directives. There is a practice directive dealing with urgency in Gauteng. There are even 2 judgments (one by Justice Notshe and another by Justice Wepener) dealing specifically with urgency in the Johannesburg High Court. So, you can’t just waltz in there, waving an application that you say is urgent, without first familiarising yourself with the South Gauteng High Court practice directive on urgency. Know your rules. Know your court’s practice directives.
There is a difference between litigating in the High Court and litigating in appeal courts.
- In the High Court, the judge has something of the order of 10 to 15 opposed motion cases on his or her roll in a week, depending on seniority, experience, availability of other judges and how busy the court is. Sometimes more. Each of those cases covers a different aspect of the law: evictions, reviews, interdicts, RAF, declaratory orders, contractual disputes, liquidations, commercial disputes, etc. Yours is only one of those cases. You want yours to be among the first that the judge reads, and call it on the Tuesday, instead of being crowded out of the continuous motion roll. Presentation is crucial. Make your pleadings presentable and neat. Don’t be unnecessarily prolix. Try to be brief and to the point. Lengthy papers are often the last that a judge reads when there are other opposed motions competing for his or her attention that week. I know I avoid lengthy papers until the end when I act as a judge. Judges will likely delay that odyssey until they can no longer avoid your papers. You don’t want to be in that position, of a judge reading your papers grudgingly. You want him or her to look forward to reading your relatively concise masterpiece.
- As regards presentation: Index. Check. Pagination of pleadings. Check. Practice Note. Check. Table of Contents even in an affidavit. Check. Heads of argument, complete with table of contents and list of authorities. Check. Bundle of Authorities. Check. All neatly packaged in an easy-to-access bundle. If a High Court judge is confronted with a dog’s breakfast set of papers that start with a replying affidavit, followed by a Rule 35(12) notice, followed by an application to compel, followed by Heads in some unrelated interlocutory application, following by the founding affidavit, well, let’s just say your matter is unlikely to enjoy precedence over others when the judge reads papers in preparation for hearing opposed motions. It may even be struck off the roll and you will have to start again at the back of the queue in securing another set down date. As a junior, hold your instructing attorney by the hand. It’s their job to put papers together, but they won’t be standing before the judge explaining the dog’s breakfast. YOU will. You’re a greater asset to your instructing attorney (and therefore ultimately his or her client) when you make his or her job easier.
- Let me digress a little by talking about argument. In argument, you want to get to the point as quickly as the circumstances allow. Sometimes it helps to get to the point quickly. On other occasions, a case requires the setting of context before tackling the issues. You’ve got know which approach suits which case.
- Arguing a case without helpful notes may look impressive to onlookers. But always remember Winston Churchill’s aphorism: “He spoke without a note, and almost without a point”. Some judges switch off and let you wallow adrift at sea without a raft. That then shows in the judgment. Others will dutifully ask you to get to the point. Listen. Oblige them.
- This is particularly important in the appeal courts. You may think a point important. A bull point even. The High Court judge may not have shared your enthusiasm for the point. If you still believe in your point, get a second and third and fourth and fifth opinion from colleagues. That’s what they’re there for. To help you see different perspectives. If 2 or more colleagues take the view it’s a bum-point, let it go. Or at least simply mention it and not push it with the vigour it does not objectively deserve. Some judges will pick up the less than sanguine articulation of the point and understand that it may have been the client’s insistence but that you, as counsel, know better.
- Remember in the appeal court (whether it’s the Full Bench or the SCA or the Concourt) the judges have the benefit not only of the pleadings in the High Court but also of the High Court judges’ take on the points you raised there. You can be sure they have their minds made up about which points are important and which are forgettable. In oral argument, listen attentively for the clues, and follow where the clues lead. No point in obstinately flogging a dead horse. You, and your client, will come out the worse for wear.
- The record of pleadings in the SCA and the Concourt is pretty much the pleadings that served in the High Court. There will, of course, be your application for leave to appeal in the SCA (if it had been refused by the High Court judge) and one in the Concourt. Make sure there are no contradictions between the factual averments made in the High Court pleadings and those made in the SCA and/or the Concourt on the same issues.
- You may have the fortune of a junior brief to assist a senior colleague. This is where you want to be particularly on top of the record. When I was a junior many years ago in my second year at the Bar, I once asked my leader, “What exactly is my role here besides lowering, significantly, the average age of this legal team and adding a touch of colour to proceedings?” I was driven to ask because after the pleadings had closed and heads of argument filed, I seemed adrift and not needed. In court, as I had experienced in 2 previous junior briefs, I tended to just sit there until argument was over. The answer came, deadpan, “If I were to run into a bus, the responsibility to run this case falls on you”. And he was dead serious. From then on, as a junior in a junior brief, knowing the record became my obsession. Your senior is there to argue the law and marshal the facts. It is your job to find those facts in the record, whenever your senior (or the court) calls for a particular page in the record. Nothing is more rewarding, and personally satisfying as a junior, than your leader giving you a thumbs-up for finding, within seconds, a page in the record containing a fact about the existence of which the judge was sceptical. No fee amount can top that.
A word about heads of argument. Heads are supposed to be exactly that: heads. That means only the principal points of argument, not argument itself. There are, I think, 2 judgments of the SCA in the late 1990s about this, but no one seems to pay attention. I think Justice Louis Harms may also have written a piece on this. Yet some counsel produce tomes as heads, some even dividing heads into chapters. That’s not how it should be, but convention has trumped the rule nowadays.
In my view, “background facts” have no place in heads of argument. This is because these should already be in your affidavit. So why repeat them in what should be only heads of argument? I think judges have been too tolerant of this undesirable practice of lengthy heads that contain material that should not be there. The Concourt and the SCA have tried to regulate matters in this regard by limiting the number of pages for heads to 50 and 40 respectively. But in the High Court, as far as I know, it’s open season for tomes to be filed as heads. This encourages, impermissibly, cutting and pasting as some of these heads read like judgments.
So, what has that to do with you? Nothing, except to conscientize you about the world into which you’re getting yourself. Do try and be brief in your written argument. Judges appreciate brevity. Not ellipsis though. Be brief, yes, but not lazy. There’s a difference. It may help to have a section in your affidavit titled “The applicant’s/respondent’s case in summary”, where you summarise your client’s case upfront, so that you can simply cut and paste that section into your heads later on and just add references to authorities. It works for me and saves time, and therefore your client’s money.
How many of you remember the second rule of highly effective people: begin with the end in mind? Always begin with the judgment in mind. As you craft your pleadings and heads of argument, remember that a human being with a political and philosophical outlook, and who has his or her own prejudices, will be reading your pleadings and heads of argument and make a finding. As an advocate, it falls on you to find the right buttons to press so as to appeal to that human’s politics and philosophy and, dare I say, prejudices. That’s what advocacy is about. You will not always get it right. In fact, you will seldom get it right because you do not know the identity of the judge who will be hearing and deciding your case when you sit, for the first time, to draft pleadings and, ultimately, heads of argument.
You’re in luck, though, because the quality of advocacy does not depend on a score-card of cases won versus cases lost. It depends on your proficiency, integrity and professionalism. In my world – and I suspect in the world of many legal practice purists too – how you win or lose a case is an infinitely better reflection on one’s character as an advocate than winning at all costs.
I’ll take questions.
