, Dedication
I dedicate the book to my wife, Ansie,
our sons, Jacques and Michel, and our
grandchildren, Layla, Aiden, Sienna and Lachlan, and to
the memory of my mother, who encouraged me to read
everything I could lay my hands on and
to teach others what I had learned.
Foreword to revised edition 2003
Although I know the difference between a rave review and a foreword, I simply cannot maintain the requisite
degree of dignified restraint here. This book could not have appeared at a better time; nor could its contents have
been more appropriate. This I discovered to my delight when I recently used it in preparing a lecture for candidates
for Bar pupillage. I was so impressed with the particular section I was studying that I started browsing further and
further afield, eventually reading the book from cover to cover.
It is trite that in our system of justice the quality of a court's jurisprudence is directly dependent upon the quality
of the practitioners who appear before it a Bench is as good as its Bar. This the South African Bar (in common with
its kindred bodies in England and other similar jurisdictions) has long since known. An increasingly structured
system of pupillage has been developed in this country over the past 30 years, concentrating more and more on
the ethics and skills of advocacy rather than on theoretical knowledge of the law. Latterly courses have been
offered to young advocates already in practice too. The underlying objective is to ensure that attorneys, litigants
and the courts can have confidence in the professional skills of members of the Bar.
That objective has been given special impetus over the last decade. The negotiated revolution of 1994 brought
about many changes in South Africa. The most important was the transfer of state power from parliament to the
Constitution. Adoption of the doctrine of separation of powers with a fully justiciable bill of rights clothed the courts
with greatly enhanced power and responsibility. At the same time the courts and their officebearers had to mutate
from an almost exclusively white male preserve to a true reflection of the society they serve. This transformation
has increased the need for tailormade training for all who play a part in the functioning of the courts.
Over many years I have had the privilege of sharing in professional training and can, I think, claim sufficient
expertise to express an admissible opinion on the merits or otherwise of forensic training material. Marnewick on
litigation skills (as I am sure it will soon come to be called familiarly) is a winner. Although the primary target group is
young advocates in private practice, everybody involved in litigation who studies what the author has so helpfully
systematised will enrich and polish their courtroom knowledge and skills. Here I have in mind not only seasoned
advocates, but prosecutors, attorneys and even judicial officers of all ranks.
I have been made to realise, with considerable embarrassment, just how illequipped I was for the advocate's
profession. I am even more embarrassed at being shown how inadequate my wellmeaning but disorganised efforts
at training have been. My copy of this book will become dogeared.
Johann Kriegler
Johannesburg
August 2003
Preface
I want to put as many new ideas into the law as I can, to show how
particular solutions involve general theory . . .
Oliver Wendell Holmes, Jr
United States Supreme Court Justice, 19021932
The world in which advocates ply their trade has changed considerably since the first edition of Litigation Skills for
South African Lawyers was published in 2002, necessitating a complete revision of the text in this edition. The most
important changes accommodated by this edition are:
? The Legal Practice Act 28 of 2014 (LPA) is now in force. It has reorganised the governance and control of the
legal profession by the government in a number of respects. The LPA makes provision for different categories
of advocates, including socalled 'trust account advocates', being advocates who practise without the
intervention of an attorney.
? A comprehensive code of ethics superseding the respective codes of ethics of the various Bars and Law
Societies has been promulgated under the LPA. A code of ethics for prosecutors is now in force and a code of
conduct for judges is also in place. The codes concerned are:
, The Code of Conduct for All Legal Practitioners, Candidate Legal Practitioners and Juristic Entities
published in terms of section 36(1) of the LPA (LPA Code of Conduct).
The Code of Conduct for Members of the National Prosecuting Authority under section 22(6) of the
National Prosecuting Authority Act 32 of 1998 (NPA Code of Conduct).
The Code of Judicial Conduct adopted in terms of section 12 of the Judicial Services Act 9 of 1994
(Judicial Code of Conduct).
? The Supreme Court Act 59 of 1959 has been repealed and replaced by the Superior Courts Act 10 of 2013.
? The test for leave to appeal has been changed it is now more stringent.
? Criminal practice and procedure may have been neglected somewhat in the previous editions and the
changes made for this edition reflect a fresh look at, in particular, ethics for prosecutors.
? Mediation has become an increasingly attractive alternative to litigation and a pilot programme introducing
courtsupervised mediation has been introduced in certain Magistrates' Courts. While that programme has
lapsed, it is anticipated that mediation will soon be provided as an additional service available to litigants, at
least in the Magistrates' Courts.
? Shortcomings in the LLB curriculum have been identified and at least one university (Unisa) has introduced a
new subject using the third edition of this book as the prescribed textbook. The book is also the prescribed
textbook for the Bar's pupillage programme and the training of attorneys and prosecutors.
? Research methodology has changed considerably with most legal materials necessary for a standard litigation
practice available in digital form, some by subscription and a good deal in open sources. Smart phones, the
internet and social media have become indispensible tools of the advocate's trade.
? There is a drive towards a 'paperless' or environmentally sustainable society with the result that briefs and
case materials are now also available in digital form. The storage of clients' files is likely to be digitised with
the result that bulky case files stored in boxes and expensive storage facilities may soon be things of the
past. I anticipate that filings at court and the service of documents and pleadings will soon be required to be
in digital form with a hard copy (paper) only required or accepted in exceptional circumstances in line with
the statement by the Minister of Justice that
'[w]e cannot, in this time and age, spend millions of rands, if not billions, to pay physical storage for records on
paper when . . . modern jurisdictions are digitising their records; buy paper books when court judgments and
publications can be accessed quickly and easily through technology, and send police and sheriffs to effect physical
delivery of court processes when such can be efficiently done through the use of information communication
technology'. (Legalbrief 4 July 2019)
Therefore, two main changes in this edition relate to the use of digital resources for legal research, and the place
and importance of ethics in the litigation process, in particular, ethics for prosecutors. The former has become
necessary due to the increasing availability and use of digital materials and the latter due to the neglect of the
subject in the previous editions of this book and the increasing number of serious breaches of ethics in trials of
national and even international interest, which reflects poorly on the image and reputation of the administration of
justice in South Africa. Legal research retains its place but the chapter is considerably expanded. Please note that
the references to paragraphs of the LPA Code of Conduct in the text are for illustrative purposes only. The full text
of the LPA Code of Conduct must be consulted.
In the Preface of the first edition of Litigation Skills for South African Lawyers I explained the purpose of the book
as follows:
'The book is not about the theoretical aspects of advocacy. It is about practical skills and tips for everyday use in
practice. Its aim is to teach the "how" rather than the "what". Conventional legal education teaches the law student what
the law is, the "this" and the "that", the substantive and procedural rules of the law. Universities teach textbook law.
Textbook knowledge tends to be superficial. It is acquired by studying. It is passive, existing in the mind. It is also
random in that it depends on some arbitrary syllabus, and in general, giving the student no clear reason why a particular
piece of knowledge is necessary. On the other hand, a skill, or "knowhow", is far more deepseated knowledge, and,
once acquired, tends to remain. It is acquired by "doing", by practising the technique of the skill over and over. It is also
active knowledge, demonstrated by action. With skills the emphasis is always on "doing". If you can't do it, you don't
have the skill; if you can do it, you have the skill. And the only way to demonstrate that you have mastered a particular
skill is to do it, like riding a bicycle!
When I started this book, it was intended for use as a litigation skills guide for the practical training of aspirant advocates
and attorneys at the law schools of the universities, the Practical Training Schools of the Association of Law Societies and
the Advocacy Programmes of the Bar. However, as the book developed during the research and writing processes, it
dawned upon me that junior practitioners also need a book that they can carry to court with them, to serve as a first or
basic guide for all the steps and procedures which constitute the litigation process. I know of no other book that covers
the whole process from beginning to end. I couldn't even find a book to help me with the chapter on appellate advocacy,
and as for fact analysis, the subject seems to have been largely ignored in South African legal education programmes.'
And that remains the purpose of this book: It is a skills and techniques manual, not a legal textbook. For this
reason, as I explained in that first Preface:
'Footnotes and references to cases, statutes, rules and textbooks are avoided as far as possible. Valuable time should
not be spent looking up the Rules of Court, or having to find principles, statutes and cases in the Law Reports.
Nevertheless, because the book is also intended to cover the syllabus for the Bar Examinations in Legal Writing, parts of
the syllabus for Civil Procedure and parts of the Attorney's Admission Examinations, reference is made to the High Court
Rules from time to time. The rules referred to in the text should be studied as part of the process of learning how to
, apply them. The reader will need to have access to the Uniform Rules of the High Court (referred to in the text as "the
rules"), a commentary on the rules, Amler's Precedents of Pleadings (LexisNexis latest edition)) and a good textbook on
the law of evidence.'
The complete lawyer* no matter what field of law they practise in must have:
? sound academic knowledge of the theory and content of the law
? the skills and techniques involved in the legal processes peculiar to his or her practice or occupation
? the values commonly known as the ethics of the legal profession.
* A word or two about terminology.
The title of the book is remaining Litigation Skills for South African Lawyers although the LPA and the LPA Code of
Conduct have introduced the term 'legal practitioner'. The OED defines 'lawyer' as 'one versed in law, a member of
the legal profession'. Well, that definition is so wide that it includes judges, magistrates, law lecturers and legal
advisors, among others. I have been a lawyer under many different appellations: prosecutor, magistrate, articled
clerk, attorney, pupil advocate, advocate, senior counsel, acting judge, arbitrator, solicitor and barrister (in New
Zealand), legal practitioner (in New South Wales), litigation skills instructor (New Zealand) and law lecturer (South
Africa). The skills and techniques covered in this book are practised not only by advocates and attorneys in private
practice the legal practitioners envisaged by the LPA and LPA Code of Conduct but by many other lawyers,
especially prosecutors, whether admitted as an advocate or not. So the book's original title stays.
The focus of the book is on 'litigation skills' and the new term legal practitioner will be used where
appropriate. Occasionally terms such as 'prosecutor', 'attorney', 'advocate', 'senior counsel', and yes, 'lawyer', will
likewise be employed where deemed necessary.
Ultimately the book is aimed at those lawyers who think of themselves as 'litigators' or 'advocates'; that is to say,
lawyers who represent a client for the purpose of assisting the client to resolve a dispute with another party by
means of a recognised form of dispute resolution. It is my sincere hope that this book will be of assistance to that
kind of lawyer.
Chris Marnewick SC
Auckland, New Zealand
September 2019
Precedents, examples and strategies
Litigation procedures
PRECEDENTS
Pleading or other document Chapter Page
Claims: Examples of the citation of plaintiffs and
1 5 96
defendants
2 Claims: Particulars of claim in a damages action 6 104
3 Claims: Declaration in a contractual claim 6 109
4 Claims: Counterclaim in a damages action 6 113
5 Claims: Third party particulars of claim for a contribution 6 118
6 Claims: Interpleader particulars of claim 6 122
7 Claims: Provisional sentence summons 6 126
8 Charge of theft 6 127
9 Plea: pleading an admission 7 135
10 Plea: pleading a denial 7 136
11 Plea: denying some allegations while admitting others 7 136
12 Plea: pleading a confession and avoidance 7 136
13 Plea: pleading that an allegation is not admitted 7 137
14 Plea: pleading the material facts of the defence 7 138
15 Plea: pleading an explanation or qualification 7 139
16 Plea: the prayer 7 140
17 Plea: an inelegant plea 7 141
18 Plea: a special plea 7 144
19 Plea explanation in a criminal case 7 146
20 Replication 8 149
21 Exception 9 155
22 Striking out order under rule 23(2) 9 161
