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Drafting pleading procedure
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DRAFTING OF PLEADINGS“The more you practice, the luckier you get” – Gary Player
A General
A 1 The use of pleadings, notices and other related documents
The South African system of civil procedural law is based on the exchange of written
documents in compliance with the audi et alteram partem principle. This method promotes
effective litigation in that parties are notified of one another’s case and thus do not attend the
trial without prior knowledge of the case. This will help with saving time and reducing legal
costs.
In King v King 1971 (2) SA 630 (O) it was said that the function of pleadings is
(a) to inform the parties of what the issues are in order to enable them to prepare for trial;
(b) to inform the court of the issues so that it knows the extent (scope) of the dispute;
(c) to place the issues on record in case one of the parties later wishes to reopen the same
issues after they have been decided.
It is important that the issues be set out in the pleadings precisely and with sufficient
particularity to make it clear to somebody other than the litigants what the dispute is about.
Preciseness should not be equated with the furnishing of unnecessary detail. In principle
pleadings must be drafted in such a manner that they will be so precise and correct that
amendments are unnecessary. To this end 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. Satisfying these criteria will
greatly eliminate the need to amend pleadings in order to prevent embarrassment and
damages.
A2 General principles applicable to the drafting of legal documents
(a) Use of language and words
Although it is convenient to make use of precedents of legal documents, slavish adherence to
precedents may sometimes be detrimental. It is better to develop and improve the skill of
drafting legal documents through regular exercise and meticulous analysis of the facts and
required relief in each unique situation.
The law consists of various fields of specialisation which are often very technical in nature and
include sui generis legal terminology. Elaborate poetical attempts to formulate issues will not
suffice. You must consider each statement you make in a legal document. Ensure that you are
fully aware of why you are making the statement. In other words, what do you wish to
accomplish with a particular statement? The purpose and consequences of the statement must
be taken into consideration. When you eventually formulate the statement, the language
employed must be unambiguous, clear and concise.
(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. Ensure that
the heading indicates
(a) the specific court in which the case is to be adjudicated;
(b) the correct case number (if the wrong case number is used the document you file at court
will probably not be placed in the correct court file);
(c) the party or parties (the plaintiff and defendant or applicant and respondent, as the case
may be, must be clearly indicated);
, (d) the nature of the document (e.g. whether it is an Application for Summary Judgment or a
Plea).
(c) A practical approach to the drafting of legal documents
As we have 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 acquaint yourself with the
applicable law in order to make an informed decision regarding the existence of a cause of
action or defence, as the case may be. You can then set out the main points of the claim or
defence and ensure that you set out all the facta probanda necessary to support the claim or
defence.
Put simply, what you must do is set out in legal language the “story” of your client’s claim or
defence. As in any story an orderly chronological course of events is important. You must
therefore elaborate the main points sufficiently to provide a clear and concise explanation of
the material facts and in such a way as to justify the legal conclusion and desired relief. Guard
against mentioning unnecessary and immaterial facts in your pleadings. For instance, you are
not supposed to quote a section of an Act fully in your pleadings.
There are, however, pieces of legislation and rules of court that require that compliance with
legislative provisions be referred to in your pleadings. For example, MCR 4 states that a party
must refer to compliance with sections 129 and 130 of the National Credit Act 34 of 2005 and it
is normal practice to plead compliance with the relevant provisions of the Institution of Legal
Proceedings against Certain Organs of State Act 40 of 2002.
B The process in the High Court
B1 Framework of process in the High Court
Plaintiff issues a combined summons (step 1)
Ð
Sheriff serves the combined summons on the defendant (step 2)
Ð
The defendant serves notice of intention to defend (step 3)
Ð
The defendant delivers a plea (step 4) and a counterclaim (step 5)
Ð
The plaintiff delivers a replication (step 6) and a plea to counterclaim (step 7)
Close of pleadings
B2 Interim steps that the parties can consider during the pleading phase in the High
Court
(a) In respect of step 3
The plaintiff can consider Summary judgment
Provisional sentence
HCR 30
Default judgment if no notice of intention is received
The defendant can consider HCR 30
Exception
Notice to strike out
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