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Pleadings Drafting - Summary study book A Practical Guide to Drafting Pleadings of Shelley Dunstone
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, 1
INDEX: PLEADINGS:
ANNEXURE: PLEADINGS
A. INTRODUCTION TO THE DRAFTING OF PLEADINGS 5
CASE STUDY: FACTS 11
PART 1: THE PLEADING PHASE IN THE MAGISTRATE'S COURT
a) Framework 17
b) Interim steps that the parties can consider during the pleading stage in the
magistrates court 18
c) Theory - Motor Vehicle Accident 19
i) Cause of action 19
ii) Defense 20
d) Exchange of pleadings in defended motor vehicle collision until litis
contestatio 21
Example 1a Letter of demand 21
1b Summons commencing action (Ordinary) 22
2 Particulars of Claim 25
3 Notice of Intention to Defend 27
4 Request for Further Particulars ito Rule 16 of Act 32 of 1944 28
5 Application in terms of Rule 60(2) 30
6 Notice of Application in terms of Rule 60(3) 31
7 Notice of Bar 32
8 Plea 33
9 Plea to Counterclaim 36
10 Notice of Set Down for Trial 37
11 Notice in terms of Rule 23(1), (3) & (4) 38
12 Discovery Affidavit 40
13 Notice in terms of Rule 24(9)(a) and (b) 44
14 Request for Inspection of Object in terms of Rule 24(6) and (7) 46
15 Notice in terms of Rule 24(10) 47
16 Agreement Not to Appeal 49
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MAGISTRATES COURT PLEADING: DEVIATIONS 50
Scenario One: Defective Summons
Example 17 Summons Commencing Action 51
18 Particulars of Claim 55
Scenario One: Exception
Example 19 Notice in terms of Rule 17(5)(c) 57
20 Notice of Exception 59
Scenario One: Amendment
Example 21 Notice of Intended Amendment to Rule 55A 61
22 Application for Amendment to Rule 55A(4) 63
Scenario Two: Failure to enter an Appearance to Defend, Default Judgment
Example 23 Application for Default Judgment 64
24 Affidavit in support of Application for Default Judgment to Rule
12(4) 66
Scenario Three: Application for Summary Judgment and Opposing Affidavit
Example 25 Application for Summary Judgment 68
26 Supporting Affidavit 69
27 Opposing Affidavit 70
Scenario Four: Where Defendant requests copies of Accounts and Documents
Example 28 Notice to Rule 15(1) 72
29 Plaintiff's reply to Defendant's request to Rule 15(1) 73
Scenario Five: Where Plaintiff is a company, Defendant would be able to
request security for costs
Example 30 Request for Security for Costs to Rule 62(1) of Act 32 of 1944 74
31 Notice in terms of Rule 62(2) 75
Scenario Six: Where a party requests reason for the judgment and
decides to appeal
Example 32 Request for Reasons for judgment to Rule 51 76
Scenario Seven: Notice of Appeal 77
Example 33 Notice of Appeal
PART II: THE ACTION PROCEDURE IN THE HIGH COURT
a) Framework 80
b) Interim steps that the parties can consider during the pleading phase
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in the High Court 81
(1) DAMAGES ACTION IN THE HIGH COURT
Example 34 Notice of Motion (Appointment of curator ad litem) 83
35 Draft Order 85
36 Founding Affidavit 88
37 Letter of Consent 91
38 Notice of Set Down 92
39 Combined Summons 93
40 Return of Service 98
41 Appearance to Defend 99
42 Notice ito Rule 36(4) 100
43 Notice of Offer of Settlement ito Rule 34(1) & (5) 101
44 Reply to Notice ito Rule 36(4) 102
45 Defendant’s Plea 104
46 Notice of Application for a Trial Date 107
47 Notice of Set Down 108
48 Notice to Rule 35(1) 109
49 Notice to Rule 35(10) 110
50 Notice to Rule 35(8) 111
51 Notice to Rule 36(9)(a) 112
52 Notice to Rule 36(10) 113
53 Notice to Rule 36(9)(b) 114
54 Subpoena 115
55 Notice to Rule 36(1) & (2) 116
56 Notice to Rule 36(9)(a) and 36(9)(b) 118
(2) THE DIVORCE ACTION
Theory: The Divorce Action 120
Example 57 Combined Summons 121
58 Deed of Settlement 124
59 Notice to Rule 35(1), (8) and (10) 126
60 Notice to Rule 37(1)(a) 127
61 Notice to Rule 43 129
62 Affidavit 130
63 Defendant’s Plea 133
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PART III : PROVISIONAL SENTENCE
Theory: Provisional Sentence: Cheque 135
Example 64 Summons 136
PART IV : AGENT’S COMMISSION
Theory: Agent’s Commission 140
Example 65 Particulars of Claim 141
PART V : INTERDICTS AND SPOLIATION
Theory: Interdicts and Spoliation 144
Example 66 Founding Affidavit 146
PART VI : SEQUESTRATION AND REHABILITATION APPLICATIONS
Theory: Voluntary Surrender 148
Example 67 Application Voluntary Surrender 148
Theory: Compulsory Sequestration 152
Example 68 Application Compulsory Sequestration 152
Theory: Rehabilitation 156
Example 69 Application Rehabilitation 156
PART VII : ENTRY AND WITHDRAWAL AS ATTORNEY OF RECORD
Example 70 Notice of Entry as Attorney of Record 162
PART VIII : SPECIAL PLEA
Example 71 Defendant’s Special Plea 164
PART IX : NATIONAL CREDIT ACT 34 OF 2005
Theory: Debt recovery 166
Example 72 Section 129 notice 168
Example 73 Particulars of claim 169
ANNEXURE “A” 177
New High Court Name
ANNEXURE “B” 179
Magistrate’s Court Application
ANNEXURE “C” 187
High Court Application
ANNEXURE “D” 204
Causes of Action
ANNEXURE “E” 213
Legal Research Sources
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A. INTRODUCTION TO THE DRAFTING OF PLEADINGS
“The more you practice, the luckier you get.”
(Gary Player)
1. The use of pleadings, notices and other related documents
The South African System of Civil Procedural Law is based on the principle of
exchange of written documents in compliance with the audi et alteram partem
principle. This litigation technique promotes effective litigation as parties are notified
of each other’s case. An orderly litigation process saves time and reduces legal costs
as a party does not attend the trial without prior knowledge of the case.
In King v King 1971 (2) SA 630 (O) it is said that the function of pleadings is:
a) To inform the parties what the issues are in order to prepare for the trial.
b) To inform the court of the issues in order to know the extent (scope) of the
dispute.
c) To place the issues on record in case one of the parties wishes to reopen the
same issues after it had already been decided.
It is important that the issues are set out in the pleadings precisely and with sufficient
particularity so that it will also be clear to somebody other than the litigants what the
dispute is about. Preciseness should however not be equated with furnishing of
unnecessary detail. In principle the pleadings must be drafted in such a manner that it
will be so precise and correct that amendments are unnecessary. In order to attain this
goal the golden rule in the drafting of legal documents is: Consult properly, obtain all
the facts, ensure that you know precisely what your mandate is and know the
substantive law applicable to the specific circumstances. In so doing the necessity to
amend in order to prevent embarrassment and damages is greatly eliminated.
2. General Principles Applicable to the Drafting of Legal Documents
a) Use of language and words
Although it is convenient to merely make use of precedents of legal
documents, slavish application of precedents may sometimes be detrimental.
It is better to develop and improve the skill of drafting of legal documents by
regular exercise and meticulous analysis of the facts and required relief in each
unique situation. The law consists of various fields of speciality which are
often very technical in nature and include sui generis legal terminology.
Elaborate poetical attempts to formulate issues will not suffice. You must
give prior consideration to each statement that you make in a legal document:
you must thus take care that you are fully aware of why you are making the
statement in other words – what do you wish to attain thereby? The purpose
and consequences of the statement must thus be taken into consideration.
When you eventually formulate the statement, the language employed must be
unambiguous, clear and concise.
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b) The Heading
The importance of the heading of a pleading must never be underestimated.
The drafting of the heading represents the initial phase in the drafting of
pleadings and notices. You must take care that the heading indicates the
following:
i) In which specific court the case is adjudicated.
ii) The case number (a wrong case number can have the chaotic
consequence that the document which you file at court is not placed on
the correct court file).
iii) The party or parties (it must be indicated who is plaintiff and defendant
or applicant and respondent respectively).
iv) The type of document must be identified (e.g. Application for
Summary Judgment or Plea).
c) A practical approach to the drafting of the contents of legal documents
As already indicated the golden rule for the proper drafting of pleadings is
that you must consult properly and acquaint yourself with the facts. You must
also take care to acquaint yourself with the applicable law in order to make an
informed decision regarding the existence of a cause of action or defense as
the case may be. You can then set out the main points of the claim or defense
and ensure that you set out all the facta probanda necessary to support the
claim or defense.
What you must thus do, put simply, is to set out in legal language the “story”
of your client’s claim or defense. As with any story it is important to have an
orderly chronological course. You must thus elaborate the main points that
you have identified to such an extent that it will amount to a clear and concise
explanation of the material fact and that it will justify the legal conclusion and
desired relief. You must guard against mentioning unnecessary and
immaterial facts in your pleadings. You are for instance, not supposed to
quote a section of an Act fully in your pleading. You may however refer to a
relevant section, e.g. section 11 of the Credit Agreement Act 75 of 1980.
3. The Action Procedure: Principles with regard to the drafting of specific
pleadings
a) The Summons
The general rule is that the plaintiff ought to include in the particulars of claim
only those particulars in respect whereof he or she bears the onus (eg. if the
plaintiff sues as a result of assault, he need not also allege the lack of grounds
of justification).
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b) The Plea
In the plea you must indicate which of the allegations contained in the
plaintiff’s particulars of claim or declaration you:
- admit;
- deny;
- Confess and avoid.
You must indicate which facts are not admitted and to which extent
and
You must clearly and concisely mention all material facts whereupon the
defense is based.
The following important rules must be borne in mind when you draft a plea:
i) Deal in paragraphs with each allegation that the plaintiff makes in his
particulars of claim. Decide whether you must admit or deny such
allegation or confess and avoid. If you fail to deal with an allegation,
that allegation is deemed to be admitted. You must for example state:
ad paragraph one of plaintiff’s particulars of claim: defendant
admits the contents of this paragraph.
ii) Never admit an allegation unless you are sure that it is in accordance
with your instructions.
iii) It is possible to include a so-called “non-admission” in a plea.
Examples of a non-admission are:
aa) “Defendant has no knowledge of the allegations contained in
this paragraph cannot admit orderly same and puts plaintiff to
the proof thereof”.
or
bb) “Defendant has no knowledge of the allegations contained
herein and thus denies same”.
iv) You must take care that you are acquainted with the substantive law
applicable to the specific case when you draft a plea as certain
defenses must be pleaded specifically eg. a lack of authority. In such a
case a mere denial will be insufficient.
v) You must set out the material facts of your defense clearly and
concisely.
vi) You must include a prayer in the plea wherein you request that the
plaintiff’s claim be dismissed with costs (or alternatively reduced e.g.
in accordance with the Appropriation of Damages Act).
c) The Replication/Reply
It is not necessary to deliver a replication/reply as in case of failure to deliver
same it is deemed that the plaintiff in any event denies the allegations in the
defendant’s plea. Depending on the facts of the specific matter, it may be
necessary for the plaintiff in specific situations to reply to allegations
contained in the defendant's plea e.g. Where the defendant pleads lack of
authority and the plaintiff wishes to raise a special plea.
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You must bear in mind that the replication/reply may not introduce a new
cause of action and may not deviate from the original particulars of claim or
declaration.
In drafting the reply it is important to use paragraphs when dealing with the
allegations in the defendant’s plea which the plaintiff wishes to reply to.
d) Counterclaim
The counterclaim is in principle a claim and the drafting of the counterclaim
ought to comply with the same requirements as those that are important when
drafting particulars of claim.
The concepts “plaintiff in reconvention” and “defendant in reconvention”
often creates confusion. It is therefore purposive to avoid such confusion by
indicating at the commencement of the counterclaim:
“Brevitas causa/for purposes of convenience, the parties are referred to as in
convention.”
Such allegation then has the effect that you refer to the plaintiff throughout the
pleadings as plaintiff and to the defendant as defendant for purposes of
convenience although it is clear to the parties and the court that the plaintiff
and defendant has claims against each other.
Where the plea and counterclaim arise from the same set of facts, it is also
possible, for purposes of convenience, to make use of cross-reference.
e) Exceptions
The extent of the detail that you must mention in the notice of exception will
depend on the document that you are excepting against.
You must bear the following in mind:
i) You are bound to the grounds of exception mentioned in your notice of
exception. It is therefore advisable to make the basis of your exception
as wide as possible to ensure that you cover all possible grounds of
exception. Guard against making the grounds so wide that they
become vague.
ii) You must take care to clearly mention the legal relief you desire.
4. The Application Procedure: Rules applicable to Applications
a) General
You must take care to use the correct form of the notice of motion. When an
application is of such a nature that the respondent must get prior notice of the
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application you must not incorrectly use the ex parte form of the notice of
motion.
You must thus correctly indicate the type of notice of motion that you are
using and take care to indicate the relevant information, as mentioned in (b)
herein.
You must also bear the following in mind:
i) Are you requesting interim or final relief? You must thus ascertain
which role the eventual prospects of success will play in order to
decide to which extent you must address that aspect.
ii) Do you refer to documents? If so, it must be attached to the affidavit.
iii) Do you refer to facts that do not fall within your personal knowledge?
If so, you must take care to obtain supporting affidavits by those
persons in whose knowledge such matters do fall.
b) i) Ex parte application: Notice of motion
You must indicate the following:
- Heading
- Notice to the Registrar/Clerk of Court that a specific application will
be made in a specific day and time to a specific court.
- Indication of the legal relief that will be requested.
- Reference to the attached supporting affidavit.
- Request for enrolment.
ii) Application with prior notice
- Heading
- Notice to Registrar/Clerk of Court and respondent that a specific
application will be made on a specific day and time to a specific court
- Reference to attached supporting affidavit
- Request for enrolment
- Time within which respondent must oppose
- Applicant and respondent’s addresses for purpose of service
- Consequences of failure to oppose
iii) Interim applications
- Heading
- Notice to Registrar/Clerk of Court and respondent that specific
application will be made to court on specific day and time
- Indication of the desired legal relief
- Reference to attached supporting affidavit (if applicable)
- Request for enrolment
c) Affidavits in support of applications
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