LECTURE NOTES: GENERAL APPROACH TO LEGAL DRAFTING AND THE

REQUIREMENTS OF PLEADINGS IN GENERAL: JV MASWANGANYI

KEY THINGS TO NOTE AROUND DRAFTING

Clarity, accuracy, conciseness and precision: Just like law in general
requirements requires clarity, accuracy, conciseness and precision, these qualities
are also important in drafting, so that the drafter does not convey what he or she
does not mean, or convey something contrary to the instructions of the client. Where
there is ambiguity in, for example, the particulars of claim, this may lead to the other
party raising exception on the ground that the pleadings are vague and
embarrassing. Where the material raised are irrelevant, this may lead to the other
party applying for the irrelevant material to be struck out (removed). All this will be at
the cost of the client the drafter is representing.
The importance of language: artistic and careful use of language remains critical.
Meticulousness rather than sluggishness in drafting is equally important. For
example, an omission of certain material facts or allegations founding the cause of
action could lead to the particulars of claim being excepted to for not raising any
cause of action, which should be the basis of the claim. So may the omission of
certain facts lead to unnecessary requests for further particulars, after the close of
pleadings, for the purposes of assisting the other party to prepare for trial. An
omission of key signatures required for specific types of pleadings, e.g. the
signatures of attorney and advocate, or attorney alone in case the attorney has the
right of appearance in the superior courts may, where these are necessary, lead to
the process being challenged on the grounds of being an irregular step.

Planning: the structure, sequence and content (see Van Blerk, p.3). Logic then
becomes paramount.
Creativity: The need to creatively adapt, rather than follow, precedents slavishly.
There is therefore no single way of drafting pleadings. Precedents however remain
valuable for the learning of style and formulation in specific types of pleadings.
Precedents may In particular the formulation of key allegations; causes of action and
other necessary elements of specific types of pleadings. They can further assist in
sequentially arranging the content (see Van Blerk, p.3). They can also save time and
be confidence booster (Van Blerk)
Taking this route will ensure that key requirements of specific types of claims are not
omitted, which may have costly results for the parties for whom the documents are
drafted, results which may not be easily cured at a later stage (and if cured through
amendments, the amendments may attract cost orders).
Disadvantages however exist in the use of precedents. They may kill creativity if not
used where relevant (Van Blerk, p.3).
Key process to follow, and what to consider in drafting:
- Knowledge of the facts to which the pleadings related (and this should be a
result of thorough consultation with the client). Separate relevant from
irrelevant facts (Van Blerk, p.4).
- Mastery of the law that relates to the case.
- Identify the causes of action and defences
- Roughly decide on the sequence of the paragraphs
- Number the paragraphs (Van Blerk, p.3)
- Decide on the right content to go into paragraphs
- Only material elements should be in the rough document
- Rework on the document. Further polish it.
A few issues around the law dealing with leadings in general should be noted:
- Only facts, rather than evidence, should be pleaded. Distinction: facts, in
one’s view, could be said to be allegations about what happened, while
evidence are proofs (proving what happened). Exceptions exist to the rule that
only facts should be pleaded.
- Exceptions to the rule that evidence or proofs should not be pleaded: where a
party alleges that a contract was concluded in writing, a copy thereof should
be attached.
- Only conclusions of law, rather than legal arguments, should be pleaded.
- Must be paragraphed.
- Each paragraph must state distinct fact.
- Relief claimed should be stated.
- A response to an allegation should not be evasive, but must be of substance.