Legal writing and drafting is important because plain and understandable language is now a legal requirement thanks to sec 22 of the Consumer Protection Act 68 of 2008 that came into effect 17 years ago.  It will surely be of considerable use to record the advice of a retired judge of appeal LTC Harms and a prominent practising advocate Jeremy Gauntlett SC.  The former advised on the drafting of heads of argument on appeal whereas the latter discusses the way language needs to be written.  Excerpts are provided from two articles that appeared in the Advocate in December 2009 and are still of great value. The Advocate is the official journal of the General Council of the Bar of South Africa. The Advocate appears three times a year and its circulation includes all practising advocates, judges, and a large number of other lawyers, senior government officials, and politicians. It is also available on general subscription.


from Advocate December 2009

Heads of argument win cases on appeal; and lose them.  

“Heads of argument win cases on appeal; and lose them.   These truisms are not generally accepted.  Counsel believe that they win cases by the force of their personality and oratorical skills.  They forget that courts of appeal have the habit of reading the record and heads before a hearing.  In fact, the Constitutional Court rules state that counsel has to assume that they have been read.  Judges consequently tend to form prima facie views – sometimes fairly strong ones – about the strength and weaknesses of the case.  Rather mould the court’s views instead of attempting to change them.

. . . . .

The initial approach

Before you sit down to dictate, type or write, refresh your memory by reading the rules of court and the practice directions.  Then take time to think about the case and the point you wish to make, and ponder the value and purpose of some of the issues that have been raised.  Consider that the client is paying you to make value judgments and not to say what comes into your, the client’s or the attorney’s head.  Remember that one court has already heard it all and has expressed reservations that may have merit about some of these.  A case at the appeal stage is not the same as when the trial began or even ended.

Importantly, contemplate how to make the case easy for the court.  If you help the court the chances are that the court will come to your assistance – to the extent it can.  Think of the judgment that you would like to see: structure your heads so that they can form the basis of the judgment.  Remember that you have to deal with the issues.  Don’t skirt them or hide them in verbiage.  Brevity may take longer to achieve, but it makes one think, and it leads to easier understanding of the issues.

The purpose of heads of argument

The purpose of heads of argument is to convince the court of appeal that the court below has either erred or was correct.  This means that the judgment below has to be addressed.  Too often counsel simply ignore that judgment and reargue the case, quite regularly by recycling the heads used in the trial court.  This approach is not only disrespectful towards the court of first instance – it is also unhelpful and misses the point that appeals are not re-hearings.

The nature of heads of argument

The SCA rule requires the lodging of ‘main heads of argument’.  There is a clear distinction between ‘heads of argument’ and written argument – the rules do not require or permit the latter.  The operative words are ‘main’, ‘heads’ and ‘argument’:

  • ‘main’ refers to the most important part of the argument;
  • ‘heads’ means ‘points’, not a dissertation; and
  • ‘argument’ involves a process of reasoning that must be set out in the heads.

In addition, and to emphasise the point, the rule requires the heads of argument to be clear, succinct, and without unnecessary elaboration.

Some years ago two tax appeals were heard on the same day because they raised the same legal issue.  One appellant’s heads were in excess of 200 pages while that of Shaw QC, for the other appellant on the same point, was less than 20 pages.

. . . . .

Typing is another issue.  The rules require double spacing – not triple or quadruple.  The font size is also important.  Judges of appeal are usually of a certain age and abhor the idea of reading with magnifying glasses.  Footnotes in particular should have a readable font size.

The structure of the argument

Like anything else an argument must have a beginning, middle, and end.  And all this must be divided into consecutively numbered paragraphs.  Each paragraph must deal with a single idea but paragraphs that are too short or too long are irritating.  For numbering do not use, for example, ‘Part R par 21.1.1(a)’; instead use 1 through to 1701 and consider the use of bullet points within a paragraph.  They have the advantage of pinpointing an argument.  And they prevent you from reading your argument at the hearing.

To divide the different parts of the argument consider the use of headings of the kind used in this article and be kind to the court by providing a short table of contents.

An important matter concerns the naming of parties in the course of the argument.  ‘Appellant’ may mean the appellant in a lower appeal court or the one in the particular court.  And the term ‘respondent’ can also have different meanings in a case.  For instance, in a matter that began on notice of motion, and has gone through the full court and then arrives on appeal, it may have three meanings.  Rather use abbreviated forms of the real names of the parties, excluding their ID numbers.  Or use something like ‘the Bank’ or ‘the surety’.  But do not use self created or unfamiliar acronyms like TSFPOTC for The Society for the Protection of the Constitution; ‘Society’ would do.

The introduction

The introduction should preferably begin with a definition in one paragraph of the issue on appeal.  The definition should not be meaningless like ‘this is an appeal on sentence’; rather ‘this appeal raises the question whether a sentence of life imprisonment is appropriate in the special circumstances of the case (the age of the accused) in spite of the minimum sentences provisions.’

The next paragraph should deal with the court’s jurisdiction: is the matter appealable?  Has leave been granted?  Cite the statutory provision that deals with the issue and any particular case law.

The third paragraph should deal with the standard of review, meaning the basis on which the court may deal with the matter.  Is the matter discretionary (and if so, what type of discretion is involved)?  Is the matter factual and if so, how should the court approach the factual findings of the court below?  And so forth.  The advantage of this is that it concentrates the mind and the heads.  In many US appeal courts, this paragraph is obligatory.

. . . . .

The facts

The second part of the heads should deal with the material facts in chronological order.  The emphasis is on ‘material.’ It is not necessary to give dates if they are of no or little consequence.  Furthermore, omit unnecessary detail.  A court is seldom, if ever, interested in the make or colour of the car or its registration number or the time of the collision or the name of the street corner if the issue is simply whether the light was red or green.

The facts of the case are usually set out by the court of first instance.  Unless there are mistakes or omissions, why not simply refer to the judgment below?  And if the appellant has stated the facts, why does the respondent have to repeat them?

Record references for facts that are common cause should be given to enable the reader to contextualise them.  However, if the particular fact is not common cause or if you are uncertain that it is, the record reference is essential.  This must not appear in a footnote (many judges are allergic to footnotes, especially in heads) but does not require a separate line or unnecessary detail.  It usually suffices to conclude a statement of fact with ‘.  .  .  (Plea 1/35/5-7)’ or ‘.  .  .  (Ngubane 3/333/2-20)’ instead of ‘.  .  .  (the defendant’s plea at Record volume 1 page 35 lines 5 to 7)’ or the like.  By the way, do not omit the volume reference unless it is a one volume record (as if we could be so lucky).

The argument

The third part usually consists of argument, whether legal or factual.  It is not possible to be prescriptive about the form of argument but there are certain aspects that ought to be borne in mind.

The first concerns the sequence.  Not only must it be logical.  It must begin with the main argument.  Beware of alternatives.  They tend to weaken the more important points.

Then, as mentioned, meet the issues head-on.  If you do not, the court will make you do so.  Deal with the essence of the findings of the court below and deal with your opponent’s argument or expected argument.

Thirdly, the argument must be clear and succinct.  Do not clutter the argument with unnecessary references.  If the point is trite (e.g.  ‘the Plascon-Evans rule’), do not give a reference.  If it is not trite give one reference – usually the leading case but sometimes the latest.  A line of cases should only be quoted if the argument depends on the development of the law through them.  Again, avoid footnotes.  And give a common recognised citation, something the judge will probably have at hand.  Tell your junior to look up the neutral citation; it is of great help, especially with foreign cases.

The UK courts have a useful rule that requires that the heads must state, in respect of each authority cited, the proposition of law that the authority states; and if more than one authority is cited for a proposition the reason for citing the additional authorities.  Follow it.

The rules proscribe (not ‘prescribe’) the use of long extracts from the record or from authorities.  The eye tends to skip quotations.  Rather summarise the extract or use bullet points for the sentences which you wish to emphasise.

The conclusion

The final part of the heads should contain, in clear terms, the relief sought on appeal.  It is not good enough to ask that the appeal be upheld or dismissed with costs.  More is usually required.  If there is a possibility of lesser relief it should also be clearly drafted.  Set out the order that you want.

and then .  .  .

Heads, like good wine, have to mature.  Leave them for a few days, print them, and with a red pen revise them.  If time permits revise again.

. . . . .

With this knowledge consider or reconsider a core bundle.  You should preferably agree on one with your opponent after both sets of heads have been prepared.

Since you are in the process of buttering up the court, remember to prepare a separate volume of authorities of those that are not readily available.  And while you are busy prepare a photocopy or a printout from an electronic database of those provisions of any statute, regulation, rule, ordinance or by-law that are at issue.  Bind them separately with plastic comb binders and do not use the same colour binding as your opponent has used.  It helps if some pages are not bound upside down or in a wrong sequence.

If you also file a CD with your heads and authorities the court may simply copy and paste your argument and references into the judgment.


. . . . . .

Before the hearing ensure that there is no new law (especially case law) on the issue.  If there is, give the court due notice.  ‘Due’ in this context does not mean ‘at the hearing.’”

The way we write

“The point of departure must be the thought, not the word.  Too often lawyers let the word dictate the thought.  You near the end of a piece, and a comfortable archaism like ‘in the premises’, slips into mind, rather than ‘thus’.  Or you wish, in some vague way, to couple two things or to bring a wandering sentence to an end, so you end with a flourish – ‘thereanent’, or ‘hereinabove’.  Or you stack up your arguments like a building plan: paragraph

It is all too awful for words.

. . . . . .

How, then, to write?  George Orwell in his great essay, Politics and the English Language, offers these simple rules

  • Never use a metaphor, simile or other figure of speech which you are used to seeing in print.
  • Never use a long word where a short one will do.
  • If it is possible to cut a word out, always cut it out.
  • Never use the passive where you can use the active.
  • Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent.
  • Break any of these rules sooner than say anything outright barbarous.

. . . . . .

What is good legal writing?  It conveys the clear thought, or exposes its absence.  That thought chooses the words, not the words the thought.  The words are elegantly arranged in sentences with rhythm.  No more is said than is needed, and the whole arrests attention.

. . . . . .

In legal writing in South Africa, we have our own models of lucidity.  Thus Innes CJ in Blower v Van Noorden 1909 TS 890 at 905:

‘There come times in the growth of every living system of law when old practice and ancient formulae must be modified in order to keep in touch with the expansion of legal ideas, and to keep pace with the requirements of changing conditions.  And it is for the courts to decide when the modifications, which time has proved to be desirable, are of a nature to be effected by judicial decision, and when they are so important or so radical that they should be left to the legislature.’

. . . . .

Finally in his autobiography (edited by BA Tindall, also an AD judge) he expressed thus his profound and practical mistrust of granting officials poorly defined discretionary powers:

‘Officials, whose activities are, for the time being, practically unhampered, are vested with authority to an extent which is a searching test of character.  The conduct of the ordinary man, under ordinary circumstances, is largely determined by convention.  The atmosphere of his environment, the public opinion of the community, are restraining factors which operate automatically.  But when these restraints are removed, when the officer is a law unto himself, when publicity is darkened and criticism is silent, it is only a strong man who can preserve an equal mind and a balanced judgment.  And the administrators of the system are not universally the strongest men.’

There are many other examples.  A last one: Van den Heever JA’s splendid apophthegm that the concept of the bonus paterfamilias ‘is not that of the timorous faintheart …….on the contrary, he ventures out into the world, engages in affairs and takes reasonable chances’ (Herschel v Mrupe 1953 (3) SA 464 (A) at 490F).

These are voices reaching down the years.  What they teach is that when the blank page stares at you, think first the clear thought, and only then the word.  When all is done, reread critically, and think of the tired judge at whom it is aimed.  If all this seems hard, remember Robert Browning:

‘A man’s reach may exceed his grasp Or what’s heaven for’?”