LEGAL DRAFTING LECTURE NOTES: DESCRIPTION OF THE PARTIES;

PARTICULARS OF CLAIM; PLEAS AND REQUEST FOR FURTHER

PARTICULARS: JV MASWANGANYI

DESCRIPTION OF THE PARTIES (CHAPTER THREE OF THE TEXTBOOK)

Rule 17 (4) (a) of the Uniform Rules of Court – The summons need to describe the
parties: It must state the surname and first names or initials of the defendant; his or
her gender; his or her occupation and employment address (if known to the plaintiff)
and his or her residence or place of business. If the defendant is sued in a
representative capacity, such capacity must be indicated. In the particulars of claim
this description will often be in the second paragraph.
Rule 17 (4) (b) - The summons need to describe the parties: It must state the
surname and first names of the plaintiff; in case of a natural person, his or her
gender; his or her occupation; his or her residence or place of business. If plaintiff
acts in a representative capacity, such capacity should be indicated (In the
particulars of claim this description will often be in the first paragraph.

A. Example of description of the parties in particulars of claim, where the

parties are natural persons:
1.
Plaintiff is Joe Makuwa, an adult male teacher resident at 141 Gundwani Street,
Bedfordview, Johannesburg.

2.
Defendant is Kate Khosa, an adult female nursing sister resident at 202 GUGU
street, Yeoville, Johannesburg.

Example B. Where the parties are companies:

1.
Plaintiff is JK Properties Limited, a company duly incorporated in terms of the
company laws of South Africa, whose registered business is at 112 Winnie Mandela
Street, Ganjaville, Pretoria.
2.
Defendant is BBK (Proprietary) Limited, a company duly incorporated in terms of the
company laws of South Africa, whose registered business is at 334 Queen Street,
Dipacheville, Johannesburg.
Example C. Where one of the parties is a partnership (note that although a
partnership is not a juristic person, for the purposes of legal proceedings both the
Uniform Rules of Court and the Magistrates Court Rules make provision for the
partnership to be cited in its own name. The same applies to other non-incorporated
associations):
1.
Plaintiff is Matimba and Partners, a partnership one of whose partners is Joe
Maluka, and which carries on business at 44 Marabastad Street, Pretoria.
2.
Defendant is Makwanga Trading, a partnership one of whose partners is Luka
Mawawa, and which carries on business at 66 Maboa Street, Pretoria.
Example D: Where the company is in liquidation (i.e. placed under a winding up
order):
1.
Plaintiff is Jammy Mswana, the liquidator of Jakky Limited, a company duly
incorporated in terms of the company laws of South Africa, whose registered
business is at 55 Wendywood, Sandton, Johannesburg.
2.
Defendant is ... (use same format as above, to the extent that it is applicable to the
specific facts).

Example E: Where parties are trustees:

1.
Plaintiffs are Jane Khumalo and Vusi Mawela, in the capacities as trustees of VB
Trust, whose address is at 233 Mawela Street, Sandton, Johannesburg.
2.
Defendant is Junior Khosa, in his capacity as the trustee of JK Trust, whose address
is at 244 Mgenge Street, Mabiza, Johannesburg.

SOME NOTES ON PARTICULARS OF CLAIM (CHAPTER 4)

The discussion on pleadings generally is also relevant here:

In particular, that pleadings:

- Should be numbered in paragraphs;

- That the numbering should be consecutive;
 - That each paragraph should separately state a distinct fact and
- That there should, in general be no pleading of the law or evidence but of facts and
conclusions of law. Knowledge of the law relating to specific claims therefore becomes
necessary, so that the facts are carefully framed to leading to the desired conclusions of law.
Particular causes of action may necessitate, and the rules sometimes require, a departure
from these principles. Where, for example, a party alleges that a written contract was
concluded, the copy of the contract must be attached (It should be noted that where a party
relies on a contract, it must state whether the contract was oral or in writing, It must also
state when, where and by whom it was concluded).
- The relief claimed should be stated. The relief must flow from or justified by the facts
pleaded in the particulars of claim (Van Blerk, p.27). It must be concise and clear (Van Blerk,
p.27)
- Because only material facts should be stated, this means that irrelevant and unnecessary
facts must be avoided. Only material facts necessary for a cause of action must be stated.
Irrelevant facts run the risk of being struck out for being vexatious. Where a cause of action
is not clear, the particulars of claim run the risk of being excepted to for not disclosing the
cause of action.
- As a general rule, plaintiff should plead facts or allegations in respect of which plaintiff bears
the onus of proof (Van Blerk, p.19).
- It is permissible to make alternative claims.

For precedents relating to particulars of claim, see further your textbook and other
relevant resources.

SOME FEW NOTES PLEAS, WHICH ARE DISCUSSED IN DETAIL IN CHAPTER FIVE OF THE TEXTBOOK

The other general requirements already discussed about pleadings are also relevant here.

In particular, that pleadings:

- Should be numbered in paragraphs;

- That the numbering should be consecutive;
- That each paragraph should separately state a distinct fact and
- That there should, in general be no pleading of the law or evidence but of facts and
conclusions of law.

A plea, as a response (defence) to the plaintiff’s particulars of claim or declaration, should in

particular:

(a) Admit the allegations.

(b) Deny the allegations.
(c) Confess (to) and avoid the allegations.
(d) State the material facts upon which the defendant’s defence is based.

The above elements are captured in rule 22 (2) of the Uniform Rules of Court.

Another important aspect relating to pleas is that any allegation or averments in the particulars of
claim that are neither admitted nor denied, they are treated as being admitted (rule 22 (3) of the
Uniform Rules of Court). Though it is possible to request amendment later, this will often be
accompanied by cost orders.
Where defendant has no knowledge of a particular allegation, the allegation could be attended to by
way of ‘non-admission’. This can be formulated closer to the following: ‘Defendant has knowledge of
the allegations contained herein and accordingly does not admit them’ (also see Van Blerk, p.16).

Where the court lacks jurisdiction or the claim has prescribed, amongst other reasons, defendant
may also raise a special plea.

It is also important to note that defendant must, just like the plaintiff in the particulars of claim,
include a relief claimed. In this case, this will be in the form of a ‘pray for the dismissal of the claim
with costs’.

For examples of a plea, plea look at your textbook or any other relevant book.

SOME NOTES ON FURTHER PARTICULARS (CHAPTER 11 (ELEVEN) OF THE TEXTBOOK)

There is no provision any more in the rules of courts for the requests for further particulars for the
purposes of pleading, or for any other purpose than for the purposes of preparations for trial. Such
particulars (requested for preparation for trial) must be ‘strictly necessary to enable him to prepare
for trial’ (rule 21 (2) of the Uniform Rules of Court). It was, before some major amendments to the
rules, previously possible to make request for particulars merely for the purposes of pleading. The
request must now be made after the close of pleadings, but only for the purposes of trial. Merely
going on a fishing expedition is therefore not permissible. Nor is it permissible to request further
particulars merely for the purposes of strengthening one’s case. Though there is no hard and fast
rule as to when further particulars may be requested, particulars regarding admission or denial may
not be requested (Van Blerk). In general the court has discretion as to when further particulars may
be requested.

The request for further particulars must be signed by both the attorney and the Advocate, and if the
attorney has the right of appearance, by the attorney alone.

Where a party requested to deliver further particulars fails to do so within the required period, or to
respond sufficiently to the request, the party may be ordered to do so. If it still fails, the requesting
party may apply for the matter to be dismissed or for the defence, where applicable, to be struck
out.

The court may, at the conclusion of the trial, mero motu (on its own) assess if the request of, or reply
to, further particulars was necessary, disallow costs or grant a cost order.

Further read rule 21 of the Uniform Rules of Court in this regard.

For precedent of requests for, or replies to, further particulars, see Van Blerk (Chapter Eleven) and
other relevant texts.