LEGAL INTERNSHIP

MR PANGO & MS MBASANE

UFH LEGAL AID CLINIC
LECTURE FIVE

HOW TO DRAFT HEADS OF ARGUMENT

2
 HEADS OF ARGUMENTS

 If you want to conduct a successful litigation practice, the ability to write effective heads of

argument is an essential skill. You will be called upon to write heads of argument in all courts you

appear in, from the opposed motion court to trials, and appeals in the Supreme Court of Appeal.

3
 HEADS OF ARGUMENT ARE USEFUL FOR THE FOLLOWING:

 drafting heads of argument is the best way to prepare yourself for argument;

 drafting heads of argument focuses your mind on the strengths and weaknesses of your case;

 it assists during argument in court;

 it helps you to get the judge or magistrate to listen; and

 it acts as important reference points for the judge or magistrate when he/she is considering
judgment.

4
PRACTICAL TIPS ON DRAFTINGHEADSOFARGUMENT

Tip 1

 Before you put pen to paper, irrespective of what type of case you are dealing with, make certain that you

know your case concept or theory of the case.

 In plain language you must know what happened, according to your client’s version of the disputed facts.

 This means that before you embark on drafting heads of argument, you must have absolutely mastered the

facts of your case absolutely.

 It is important to remember that your purpose is to tell the judge or magistrate what happened and why your
client’s case must be accepted as more probable than the other party’s case and is thus persuasive.

5
CONTINUATION

 You will then need to write down what you see as your case concept. You are expected to write
down the material facts of your client’s version of what happened. Your case concept will provide
you with your central theme.

6
PRACTICAL SUGGESTION:

 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. Ask the question, what valid inferences can one draw from these facts? This is the logical
reasoning to apply when writing heads of argument.

 It is worth being reminded that writing heads of argument involves thinking, applying logic, and formulating
submissions that are supported by the evidence (the facts) and the applicable law. Accordingly, you should not
use a precedent for this.

7
CONTINUATION

Tip 2

 When you draft heads of argument use the “point first” writing technique. Always tell the judge or
magistrate what your point is, up front, before you expand and provide detailed submissions. This is
explained below in more detail.

8
 CONTINUATION

Tip 3

 Make use of the technique “write as you research”, or “write as you think”. It is not a good method to write heads from
“Introduction” to “Conclusion” in one go, as it is difficult.

 Therefore, you should try writing as you research the facts and the law. When you think of a point to make

in a submission, write it down. When you find relevant authority, do not merely note the reference or flag it

for later.

 Write down, in your own words, what you say is the point in the judgement and why it supports

your case. Save each paragraph as you can later copy and paste them into your first draft. This saves time

and it beats going back to reread the cases you flagged. Sometimes you cannot remember why you flagged

a case in the first place, which becomes a waste of time having to go back and reconsider it.

9
CONTINUATION

Tip 4

Judges and magistrates detest lengthy heads of argument. This is one of the reasons that courts now

impose page limitations. It is therefore not advisable to write lengthy heads of argument replete with copying

and pasting from evidence and authorities.

When drafting heads of argument it is advisable to:

• keep it clear;

• keep it short;

• keep it relevant; and

• keep it logical

10
 FORMULATING YOUR SUBMISSIONS

Argument or submissions require an application of logical thinking. For purposes of drafting, the basic
logic

to follow is set out below:

• Step 1 – Absorb all the facts of your case.

• Step 2 – Ask, what valid inferences can be drawn from these facts?

• Step 3 – Find the applicable law.

• Step 4 – Apply the law to the facts.

• Step 5 – Make submissions, why your client’s case should succeed, based on the facts and

the law.

11
THE FACTS

 You must be familiar with the facts of your case. You must know how to carry out a fact analysis on
your case.

 It will be extremely difficult to write effective heads of argument without a thorough knowledge of
the facts of your case.

12
THE LAW

 You are a legal practitioner, not an academic lawyer, so you research the law to find answers to a
problem (applied research). Therefore, you must, as far as possible, find the relevant law in
primary sources, that is in legislation and case law.

 In South Africa, we employ the common law system supported by the principle of binding
precedent. Thus, the most persuasive authority is to be found in the most recent decision of the
highest court.

 An important point to remember is when you find a decision you think is helpful, check the
annotations before you include it in your submissions. The annotations provide you with a history
of the case. In particular, you want to check if it was not set aside by a higher court or even the
same court or followed or not followed in other divisions

13
THE NEXT STEP

You now know the material facts of your case and you researched the law. This is the next step:

 Consider and decide precisely what issues the court will have to determine.

 Decide precisely what legal principle/s you consider may be applied to each issue.

 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.

 Apply the precise legal principles to the facts on each issue separately.

 Set out your view on the conclusion the court is likely to reach:

 on the facts; and

 on the legal issue

14