Clinical Law 3rd Ed PDF

Clinical Law in South Africa
Third Edition
With an introduction by Professor David McQuoid-Mason

Third Edition
Edited by
Shaheda Hassim Mahomed
Contributing Authors
Jobst Bodenstein
BA (Stell) LLB (UKZN, Pietermaritzburg) LLM (UKZN, Durban), Attorney of the High Court of South
Africa, Associate Professor, Rhodes University Law Clinic
Amanda Elizebeth Boniface
BA; LLB; LLM (cum laude) and LLD (UP) Certificate in Divorce and Family Mediation
Advocate of the High Court of South Africa, Senior Lecturer, University of Johannesburg
Daven Dass
LLB and LLM (Wits), Lecturer, Wits School of Law, Attorney of the High Court of South Africa
Director, University of the Witwatersrand Law Clinic
Willem de Klerk
BComm (Potch) LLB (RAU) LLM (Wits), Attorney of the High Court of South Africa
Former Director of the University of the Witwatersrand Law Clinic
Lourens Botha Grové
BComm LLB and LLM (UP), MCIArb, Certificate in Advanced Labour Law (UP), Advanced Certificate
in Alternative Dispute Resolution (UP). Attorney of the High Court of South Africa
Principal Attorney at the University of Pretoria Law Clinic
Franciscus Haupt
BA (Hons) (Pretoria) LLB (Unisa), Attorney of the High Court of South Africa
Director of the University of Pretoria Law Clinic
Anton Kok
BComm (Law) LLB LLM LLD (Pretoria), Attorney of the High Court of South Africa
Associate Professor and Deputy Dean, University of Pretoria
Shaheda Hassim Mahomed
BA LLB LLM PhD (Wits), Attorney of the High Court of South Africa
Adjunct Professor, University of the Witwatersrand,
Former Director of the University of the Witwatersrand Law Clinic
David McQuoid-Mason
BCom LLB (Natal) LLM (London) PhD (Natal) Fellow of the University of Natal
Professor of Procedural and Clinical Law, Howard College School of Law, University of Natal
Munirah Osman-Hyder
BA LLB (Durban-Westville) LLM (UKZN), Attorney of the High Court of South Africa
Law Lecturer, University of KwaZulu-Natal, Former Director, University of KwaZulu-Natal Law Clinic
Dakalo Singo
LLB (Unisa) LLM (Wits), Attorney of the High Court of South Africa
Supervising Attorney at the University of the Witwatersrand Law Clinic
Patrick Stilwell
BA LLB (Natal), Attorney of the High Court of South Africa
Former Director of the University of Natal (Pietermaritzburg) Law Clinic
Marc Welgemoed
BJuris, LLB (cum laude)(UPE) LLM (cum laude)(NMMU), Acting Director of NMMU Law Clinic,
Attorney, lecturer and clinical legal education facilitator at NMMU Law Clinic
Danny Wimpey
BProc LLB (Wits), Diploma in Money Laundering Control (UJ) cum laude, Attorney of the High Court of
South Africa, Former Supervising Attorney at the University of Johannesburg Law Clinic
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First Edition 2004, Reprinted 2005

Second Edition 2006, Reprinted 2008
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Preface
Law clinics first emerged in South African universities in the 1970s. Initially they
were nothing more than advice centres run by students with no formal connection
to a law faculty. In time, faculty administrators came to recognise that student
participation in law clinics was fulfilling a valuable role, not only because the
students’ efforts contributed to university community service obligations, but also,
and importantly, because the experience provided the opportunity for students to
develop essential lawyering skills. Such recognition resulted in the gradual accept-
ance of clinical work as a credit bearing course for a law degree.
All South African universities now offer a course in clinical law. Such courses
are mainly called “clinical law” or “clinical legal education”. The term “clinical law”
can be confusing. It is not a separate branch of law in the way that subjects like
contract, delict or family law are. It is rather descriptive of a method of teaching
law. The clinical method entails bringing students into contact with live clients with
real problems. This presents the opportunity for students to learn important skills
such as interviewing, problem analysis, writing and reasoning. Having to deal with
the problems of a live client also compels students to engage their minds in
solving legal problems and integrating theoretical knowledge with hard facts. It is
also widely accepted that the clinical experience conscientises students, making
them sensitive to the needs and problems of poor people and mindful of the fact
that all lawyers should uphold values of morality, justice and human rights.
A module in clinical law is typically made up of a number of components. These
include lectures, tutorials and active involvement in clinic sessions. Topics cov-
ered in lectures would include interviewing, file management, problem analysis,
research and opinion writing, drafting legal documents and trial advocacy. Although
real competence in most of these fields will only be achieved by practice and
experience, those subjects do have a theoretical base consisting of a body of
knowledge built up from research and acquired through the accumulated wisdom
of seasoned practitioners. The theory can be taught in a lecture context or ana-
lysed and reflected upon in tutorials.
The subject matter of this book is the theoretical component of the various legal
skills which the course aims to impart. The contributing authors are all attorneys
or advocates and, in most instances, teachers of legal skills. The content of the
v
book covers the topics included in the curricula of clinical law modules at most (if
not all) South African universities. It therefore promises to be the standard text-
book in the field. But its readership will hopefully not be confined to university law
students. Young (or less experienced) practitioners will also benefit from reading
it and using it as a regular source of reference!
In this book, we have also attempted to emphasise an important theme, namely
the values of those choosing to practice law in South Africa. Students completing
clinical courses in South Africa are exposed, often for the first and the last time, to
the plight of the poor and the role of lawyers in facilitating social justice. This
exposure is often seen as an opportunity to effect a shift in the mindset of young
lawyers, rendering them more responsive to the needs of the society in which we
live. We hope that this book will assist in that process.
The book was first published in 2004 and later updated in 2006. This is the
third, updated edition. Our aim for this edition was to refine the text by incorporat-
ing changes in law as well as changes arising from the Legal Practice Act. The
book includes one new chapter, an introduction by Professor David McQuoid-
Mason. The remaining chapters have been updated.
I wish to thank all the authors for their valuable contributions and agreeing to be
part of this project. We would also like to express a special thanks to Cara Furniss
and Shirley Gilmore for their assistance with updating the electronic databases in
chapter eight. Finally, I wish to thank our publishers, LexisNexis, for their support
and guidance in producing this edition.
January 2016
vi
Contents
Page
CHAPTER 1: INTRODUCTION ................................................................... 1

1.1 Introduction ......................................................................................... 1
1.2 Rationale for clinical teaching methods .............................................. 2
1.3 Types of clinical law programmes ....................................................... 3
1.4 Clinical law in South Africa – a personal odyssey............................... 3
1.5 Community service in clinical law programmes and social justice ...... 6
1.6 Conclusions ........................................................................................ 8
CHAPTER 2: THE LEGAL PROFESSION IN SOUTH AFRICA ................. 9

2.1 Introduction ......................................................................................... 9
2.2 The term ‘legal profession’ .................................................................. 9
2.3 History of the legal profession............................................................. 10
2.4 The attorneys’ profession.................................................................... 14
2.5 The advocates’ profession .................................................................. 17
2.6 Transformation challenges.................................................................. 19
2.7 Transforming the legal profession....................................................... 24
2.8 Career options .................................................................................... 28
2.9 Conclusion .......................................................................................... 32
CHAPTER 3: PROFESSIONAL AND ETHICAL CONDUCT ...................... 33

3.1 Introduction ......................................................................................... 33
3.2 Important terms and concepts ............................................................ 34
3.3 Sources ............................................................................................... 36
3.4 Relationship with the State ................................................................. 38
3.5 Relationship with the court .................................................................. 40
3.6 Relationship with clients...................................................................... 43
3.7 Relationship with the opposition and other practitioners .................... 51
3.8 Relationship between attorneys and advocates ................................. 52
3.9 Duties towards the poor: Access to justice ......................................... 55
3.10 Some rules of etiquette ....................................................................... 57
3.11 Conclusion .......................................................................................... 59
vii
Page
CHAPTER 4: CONSULTATION SKILLS .................................................... 61
4.1 Introduction ......................................................................................... 61
4.2 Aims of consultation ............................................................................ 61
4.3 Preparing for the consultation ............................................................. 62
4.4 Stages in the consultation ................................................................... 63
4.5 After the consultation .......................................................................... 71
4.6 Utilising checklists or client instruction sheets .................................... 72
4.7 Assessing consultation skills............................................................... 77
CHAPTER 5: FILE AND CASE MANAGEMENT ........................................ 79

5.1 Introduction ......................................................................................... 79
5.2 File management systems .................................................................. 80
5.3 Opening case files .............................................................................. 84
5.4 Typical file structure ............................................................................ 86
5.5 Case management.............................................................................. 88
5.6 Closing files......................................................................................... 90
5.7 Conclusion .......................................................................................... 90
CHAPTER 6: NUMERACY SKILLS ............................................................ 91

6.1 Introduction ......................................................................................... 91
6.2 Using your calculator .......................................................................... 92
6.3 Basic numerical writing and reading ................................................... 93
6.4 Addition ............................................................................................... 94
6.5 Subtraction .......................................................................................... 94
6.6 Multiplication ....................................................................................... 95
6.7 Division ............................................................................................... 95
6.8 Averages ............................................................................................. 95
6.9 Exponents ........................................................................................... 96
6.10 Fractions ............................................................................................. 96
6.11 Reading decimal fractions................................................................... 99
6.12 Percentages ........................................................................................ 99
6.13 Conversions ........................................................................................ 100
6.14 Interest ................................................................................................ 101
6.15 Ratios and rates .................................................................................. 105
6.16 Apportionment of damages ................................................................. 106
6.17 Calculating Value Added Tax.............................................................. 107
6.18 Combining calculations ....................................................................... 107
6.19 Conclusion .......................................................................................... 110
CHAPTER 7: PRACTICE MANAGEMENT ................................................. 111

7.1 Introduction ......................................................................................... 111
7.2 Definition of ‘practice management’ .................................................... 111
7.3 Legal practice and professional ethics ................................................ 114
7.4 Client care and marketing ................................................................... 115
7.5 Financial management........................................................................ 117
viii
Contents
Page
7.6 Trust account management ................................................................ 124
7.7 Risk management ............................................................................... 128
7.8 Personal management ........................................................................ 131
7.9 Miscellaneous statutory provisions ..................................................... 133
7.10 Starting out.......................................................................................... 135
7.11 The business plan ............................................................................... 136
7.12 Conclusion .......................................................................................... 137
CHAPTER 8: LEGAL RESEARCH AND WRITING OPINIONS ................. 139
8.1 Introduction ......................................................................................... 139
8.2 Legal research in a law clinic .............................................................. 139
8.3 Suggested research method ............................................................... 140
8.4 Drafting an opinion .............................................................................. 160
8.5 Conclusion .......................................................................................... 166
CHAPTER 9: DRAFTING LETTERS........................................................... 169
9.1 Introduction ......................................................................................... 169
9.2 Format................................................................................................. 170
9.3 Body of the letter ................................................................................. 177
9.4 Some specific letters ........................................................................... 181
9.5 Methods of delivery ............................................................................. 186
9.6 Conclusion .......................................................................................... 188
CHAPTER 10: DRAFTING PLEADINGS, NOTICES AND
APPLICATIONS .................................................................. 189
10.1 Introduction ......................................................................................... 189
10.2 Preparing to draft ................................................................................ 190
10.3 Essential preliminary considerations................................................... 195
10.4 Drafting pleadings ............................................................................... 200
10.5 Drafting notices ................................................................................... 212
10.6 Drafting applications ........................................................................... 212
10.7 Drafting other court documents........................................................... 218
10.8 Conclusion .......................................................................................... 219
CHAPTER 11: DRAFTING WILLS .............................................................. 221
11.1 Introduction ......................................................................................... 221
11.2 Client communication and professionalism......................................... 221
11.3 General approach to drafting .............................................................. 227
11.4 Prior considerations ............................................................................ 228
11.5 Interviewing checklist .......................................................................... 240
11.6 Contents and order of a will ................................................................ 242
11.7 Formalities .......................................................................................... 247
11.8 Conclusion .......................................................................................... 250
CHAPTER 12: DRAFTING CONTRACTS .................................................. 253
12.1 Introduction ......................................................................................... 253
ix
Page
12.2 The law ............................................................................................... 254

12.3 The art of drafting................................................................................ 257
12.4 Examples ............................................................................................ 261
CHAPTER 13: TRIAL ADVOCACY ............................................................ 267
13.1 Introduction ......................................................................................... 267
13.2 The opening address .......................................................................... 269
13.3 Examination in chief ............................................................................ 270
13.4 Cross-examination .............................................................................. 274
13.5 Limitations on cross-examination........................................................ 278
13.6 Technique in cross-examination ......................................................... 281
13.7 Re-examination ................................................................................... 286
13.8 The closing address ............................................................................ 286
CHAPTER 14: ALTERNATIVE DISPUTE RESOLUTION .......................... 289

14.1 Introduction ......................................................................................... 289
14.2 Types of dispute resolution processes................................................ 290
14.3 Negotiation .......................................................................................... 291
14.4 Mediation ............................................................................................ 296
14.5 Arbitration............................................................................................ 300
14.6 Conclusion .......................................................................................... 303
Bibliography .................................................................................................. 305
Index ............................................................................................................. 315
x
Introduction to
clinical law
By David McQuoid-Mason
1.1 Introduction
I like to define clinical law as a method of teaching practical legal skills to law
students using interactive, reflective learning methods in a social justice environ-
ment.1 Such a methodology may include classroom and service components or a
classroom-only component that uses simulations to provide students with experi-
ence in dealing with clients. Students are confronted with real-life situations and
play the role of legal practitioners to solve legal problems. They do this by inter-
acting with clients or each other to identify and resolve legal issues and are
subjected to critical review by their teachers or peers. Clinical legal education
enables law students to play an active role in the learning process and to see how
the law operates in real-life situations.2
The genesis of modern law clinics in the United States during the 1960s,3 and
the South African clinical movement in the 1970s,4 were both closely linked to
access to justice. Indeed the element of social justice education tends to distin-
guish clinical law courses from ordinary practical legal training courses. In the
early years, some of the more progressive South African law clinics had a strong
social justice bias, which was reflected in them being termed ‘legal aid clinics’
rather than ‘law clinics’, while in those at more conservative law schools – where
they were also called ‘legal aid clinics’ – the emphasis tended to be on legal skills.
For the progressive clinics, the need to deal with the deprivations of apartheid
sometimes superseded the educational focus of the clinics – particularly when the
State-funded legal aid system was doing very little to assist the victims of apart-
heid. However, some focused on the educational aspects from the beginning by
including service in the clinic as part of existing law courses such as the practical
________________________
1 Cf McQuoid-Mason and Palmer (2013) African Law Clinicians Manual at 1.

2 Brayne, Duncan and Grimes (1998) Clinical Legal Education: Active Learning in the Law
School at 1.
3 Franklin ‘The clinical movement in American legal education’ (1986) 1 Natal University Law
and Society Review 66.
4 McQuoid-Mason (1982) An Outline of Legal Aid in South Africa at 139–163.
1
legal training course at the University of the Witwatersrand5 and the professional
training course at the University of Natal, Durban (now the University of KwaZulu-
Natal).6
1.2 Rationale for clinical teaching methods

Clinical teaching methods are student-centred, interactive and reflective – unlike
the traditional lecture approach. Studies by educational psychologists summa-
rised in the so-called ‘learning pyramid’7 have shown that lectures are the least
effective way of teaching students, and that the rate of retention increases as
more student-centred interactive teaching methods are used. For instance, if
lectures are used, students remember 5% of what they heard. If students read for
themselves, they remember 10% of what they read. If audio-visual methods are
used (for example, an overhead projector or printed PowerPoint presentations)
students remember 20% of what they are exposed to. If students discuss issues
in small groups, they will remember 50% of the subject matter. If they are shown
a demonstration and then required to practice it, they will remember 75% of it.
Where, as happens in Street law clinical programmes, law students teach other
people, they will remember 90% of what they hear.8 Law graduates who have
become law teachers can attest to this.
Clinical law programmes use a wide variety of teaching and learning methods
including:
l brainstorming;
l ranking exercises;
l small group discussions;
l case studies;
l role-plays;
l question and answer techniques;
l simulations;
l debates;
l games;
l hypothetical problems;
l moots;
l mock trials;
l open-ended stimulus;
________________________
5 (1974) ‘A review of South African legal education’ in Faculty of Law, University of Natal,
Durban (1974) Legal Aid in South Africa 139 148.
6 McQuoid-Mason (1982) An Outline of Legal Aid at 154.
7 See National Training Laboratories, Bethel, Maine ‘Learning Pyramid’. The origins of the
‘learning pyramid’ are somewhat controversial, and there is confusion about who the origi-
nal author was: see http://lowery.tamu.edu/Teaming/Morgan1/sld023htm; www.acu.edu/cte/
activelcaring/whyuseal2.htm and www.accd.edu/spc/iic/master/active.htm.
8 Ibid.
2
Introduction to clinical law
l opinion polls;
l participant presentations;
l taking a stand;
l thinking on your feet (using the PRES formula);
l problem solving (using the FIRAC formula);
l values clarification;
l the fishbowl technique;
l the jigsaw technique;
l the “each one teach one” method;
l visual aids;
l the use of experts; and
l field trips.9
1.3 Types of clinical law programmes

Clinical law courses with community service components can establish a wide
variety of clinics such as general or specialist live client clinics on and off the
campus, mobile live client clinics, externship clinics, street law-type clinics,10
community-based clinics, alternative law group clinics, law student clinic camps,
and alternative dispute resolution clinics.11 The main types of clinics in South
Africa today are general and specialist live client clinics situated on and off the
campus or externship clinics and Street law-type clinics. The emphasis in this
book is presently on live client clinics, although as new forms of clinics emerge –
including Street law-type clinics that have been established since 198612 – it is
hoped that they will be included in future editions.
1.4 Clinical law in South Africa – a personal odyssey

In 1972, as a young law teacher, I was asked to act as Conference Secretary for an
international Legal Aid Conference that the Faculty of Law at the then University
________________________
9 For a step-by-step guide to using these methods, see generally, McQuoid-Mason ‘General
Introduction to Street Law in South Africa’ in McQuoid-Mason (ed) with Coetzee, Lotz, Forere
and Bernard (2015 3rd ed) Street Law: Practical Law for South Africans – Educator’s Man-
ual at 7–27.
10 McQuoid-Mason ‘Law clinics at African universities: An overview of the service delivery
component with passing references to experiences in South and South-East Asia’ (2008)
Journal for Juridical Science Special Issue: 1 3–8. See also Tibbitts (2001) Manual on
Street Law-Type Teaching Clinics at Law Faculties at 8.
11 McQuoid-Mason ‘Law clinics at African universities’ (2000) 18–20.
12 Cf McQuoid-Mason ‘Teaching Social Justice to Law Students through Community Service:
The South African Experience’ in Iya, Rembe and Baloro (eds) (2000) Transforming South
African Universities: Capacity Building for Historically Black Universities at 89–103. See al-
so McQuoid-Mason ‘Incorporating Justice and Ethical Issues into First Year Undergraduate
Law Courses: A South African Experience’ (2002) 1 Journal of Commonwealth Law and
Legal Education 107–125.
3
of Natal (now the University of KwaZulu-Natal) was organising for July 1973, with
funds provided by the Ford Foundation. The Conference was boycotted by the
then apartheid Department of Justice and the Legal Aid Board.13 The Board had
been established after the government banned the Defence and Aid Fund from
defending anti-apartheid political opponents.14 The Conference exposed many of
us to law clinics and their development in the United States and the embryonic
clinics emerging in South Africa for the first time,15 and became the catalyst for
the clinical law movement in South Africa and Zimbabwe.16
1.4.1 Live client clinics
At the time of the Conference, there were only two live client law clinics in South
Africa, one at the University of Cape Town operated by law students,17 and the
other in Hoek Street, Johannesburg, staffed by University of the Witwatersrand
students under the supervision of the Legal Resources Centre.18 In August 1973,
I established the third legal aid clinic in the country at the then University of Natal,
Durban, in my office.19 Within a few short years, a number of other law clinics
were established in South Africa and one in Zimbabwe.20 I subsequently edited
the papers and transcriptions of the Conference, and the proceedings were
published as a book by the Faculty of Law, University of Natal, Durban, as Legal
Aid in South Africa.21
In 1975, I followed up the Legal Aid Conference by using some of the funds left
over from the Ford grant to employ a law graduate from Leeds University, Patrick
Ellum, to research some of the recommendations from the Legal Aid Conference,
July 1973–June 1975.22 One of Ellum’s most important contributions was to sug-
gest and draft student practice rules for South Africa.23 In 1981, I published a
monograph on legal aid titled An Outline of Legal Aid in South Africa.24 The book
included statistical information about the numbers of unrepresented accused,25
________________________
13 Mathews ‘Preface’ in (1974) Faculty of Law op cit vii. The then Legal Aid Board had only
been functioning since 1971.
14 Cook ‘A History of Legal Aid in South Africa’ in (1974) Faculty of Law op cit 28 32–33.
15 For a summary of the recommendations of the Legal Aid Conference see McQuoid-Mason
‘Access to Justice and the role of law schools in developing countries: some lessons from
South Africa: pre-1970 until 1990: Part 1’ (2004) 29(3) JJS 28 34.
16 See generally, McQuoid-Mason (1982) Outline of Legal Aid at 139.
17 Gross ‘Legal Aid in South Africa’ in (1974) Faculty of Law op cit 38 44–45.
18 Kahn (1974) at 147–148; contra Dugard ‘A Review of South African Legal Education’ in
(1974) Faculty of Law op cit 160 164–167.
19 McQuoid-Mason ‘Challenges in increasing access to justice in the next decade’ in Carnelley
and Hoctor (eds) (2011) Law, Order and Liberty: Essays in Honour of Tony Mathews at 169.
20 Ellum (1975) Legal Aid Developments in South Africa: July 1973–June 1975 at 39, states
that by 1975 five other law clinics had been established in Southern Africa, at the University
of Natal (Pietermaritzburg), Port Elizabeth (now Nelson Mandela Metropolitan University),
Stellenbosch, the Western Cape and Zimbabwe.
21 (1974) Faculty of Law, University of Natal, Durban Legal Aid in South Africa.
22 Ellum (1975).
23 Ellum (1975) at 64–65.
24 McQuoid-Mason (1982).
25 McQuoid-Mason (1982) at 98–100.
4
the developments concerning law clinics in South Africa,26 and a number of

recommendations based on the proceedings of the 1973 Legal Aid Conference,27
including the introduction of student practice rules based on Ellum’s sugges-
tions.28
In 1983, as Deputy Dean of the Faculty of Law, I organised a conference on
Legal Aid and Law Clinics in South Africa to review developments 10 years after
the 1973 Legal Aid Conference. The proceedings of the Conference were subse-
quently published as Legal Aid and Law Clinics in South Africa.29
1.4.2 Street law-type clinics

In 1985, I invited Ed O’Brien, the co-founder of street law in the United States, to
South Africa – on the day the apartheid government declared a State of Emer-
gency. Street law had originated at the Georgetown University Law Centre in
Washington DC in 1972, where law students were sent out to the inner city
schools where many young people in the black ghetto areas felt oppressed by the
legal system. Notwithstanding the South African State of Emergency, we ran a
very successful workshop for a non-racial group of school teachers and learners
from so-called black, Indian, white and coloured schools at which we elicited
suggestions for a street law curriculum. Ed O’Brien and I then approached the
then President of the Association of Law Societies, Graham Cox, for funding of a
street law schools pilot project at the University of Natal, Durban, during 1986.30
Cox persuaded the Association of Law Societies to fund the project for a period of
six months.31 The project was so successful that it was converted into a full-time
programme at the University of Natal, Durban in 1987. Shortly thereafter, similar
programmes were established at the Universities of Pretoria and the Witwaters-
rand. While donor funding was available, the programme spread to 17 of the 21
law schools in South Africa. The programmes operated in high schools, prisons
and community organisations across the country. Subsequently, with a drastic
reduction in donor funding, the street law programmes ceased to be funded by
the national office, and are now separately funded at some universities.32
1.4.3 The growing acceptance of clinical law programmes

As the clinics grew in stature and acceptance by the provincial Law Societies,
their educational potential began to be appreciated by the legal profession. On
3 September 1986, I addressed representatives of the university law faculties and
the Attorneys Fidelity Guarantee Fund at the then Randse Afrikaanse Universiteit
________________________

29 McQuoid-Mason (ed) (1985) Legal Aid and Law Clinics in South Africa.
30 Golub ‘Non-lawyers as Legal Resources for their Communities’ in McClymont and Golub
(eds) (2000) Many Roads to Justice at 297–299.
31 McQuoid-Mason and Palmer (2013) at 28–29. The schools were segregated at the time and
the pilot project operated at two African, two Indian and one white school.
32 Ibid.
5
(now the University of Johannesburg) on the organisation, administration and

funding of legal aid clinics in South Africa. The address ended with a plea to the
Attorneys Fidelity Fund that:
The sponsorship of full-time legal aid supervisors by the Attorneys Fidelity Fund would
accord with the provisions of the governing legislation in that it enhances the legal edu-
cation of aspiring attorneys and provides for improved legal services to the community in
33
general.
Subsequently, the Attorneys Fidelity Fund agreed to give each university law
clinic affiliated to the Association of University Legal Aid Institutions, (now the
South African Law Clinic Association), the sum of R55 000 towards the appoint-
ment of full-time legal aid clinic directors with effect from 1 January 1988.34 This
decision reinforced the decision by the Attorneys Fidelity Fund to also assist the
newly-established Street law programmes – once the then Minister of Justice had
been satisfied by an opinion from a Senior Counsel that the Street law pro-
gramme would likewise improve the legal services received by the public, by
enhancing the legal education of law students aspiring to become lawyers.
1.5 Community service in clinical law programmes and social

justice35
In South Africa, the most common university clinical law programmes with com-
munity service components are live client clinics and Street law-type clinics.
1.5.1 Live client clinics

Student activities in a live client clinic expose them on a regular basis to social
justice issues in the country. Clinical work enables them to obtain a realistic
insight into whether the government is able to deliver on the ambitious list of
socio-economic rights enshrined in the Constitution.36 Social justice, in the sense
of acknowledging the importance of certain aspects of a welfare state and the
need to give preferential treatment to disadvantaged members of society, has
been given recognition in the South African Constitution.37 Law clinics which deal
primarily with disadvantaged citizens become an important agent of reality for
measuring the success or otherwise of the social and economic promises en-
shrined in the Constitution.
By working in a law clinic, law students obtain first-hand knowledge of how or-
dinary people experience social justice in a democratic South Africa. They also
have an opportunity to experience the difficulties involved in using legal rules to
make social justice attainable to the person on the street. Sometimes they have
________________________
33 McQuoid-Mason ‘The Organisation, Administration and Funding of Legal Aid Clinics in

South Africa’ (1986) 1(2) Natal University Law and Society Review 189 197.
34 Supra.
35 This section is based on McQuoid-Mason (2000) in Transforming South African Universities
at 89–103.
36 Ss 26 (housing), 27 (health care, food, water and social security), 28 (children) and 29
(education) of the Constitution of the Republic of South Africa, 1996.
37 S 9(2) of the Constitution.
6
the good fortune to successfully assist clients in enforcing the rights to which they
are entitled. Thus there are two important aspects of student work in live client
law clinics:
l the opportunity to help disadvantaged and indigent members of society to
obtain what is due to them in terms of the law; and
l the theoretical and practical exposure they receive to the social justice issues
of the day – something that is not possible in a regular black letter law course.
To effectively expose law students to real-life social justice issues, there is a need
for properly integrated clinical law programmes which give academic recognition
for the community service role played by law students. Such programmes can
provide a valuable learning experience for law students before they enter the
legal profession or serve in some other branch of the legal profession.
1.5.2 Street law-type clinical programmes

Street law is a programme designed to enable law students and others to make
people aware of their legal rights and where to obtain assistance. Street law
explains to men and women ‘on the street’ how the law affects them in their daily
lives. Street law helps people to understand how the law works and how it can
protect them.38 It also explains what the law expects people to do in certain situa-
tions, what kinds of legal problems they should watch out for, and how they can
resolve such problems.39 By enabling law students to go out to schools and
communities to teach them about the law, the Street law programme gives stu-
dents an insight into the legal needs and aspirations of ordinary people.
Street law students, like legal aid clinic students, obtain valuable insights into
social justice issues in the communities they serve. Much of their teaching is
experiential, with the result that they draw on the experiences and needs of the
communities when deciding which areas of the law to teach. They are trained to
use a wide variety of interactive teaching and learning methods.40 Many of the
lessons in the Street law texts are based on the social realities of the time and
students are taught not to teach the law in a vacuum. They must be sensitive to
the social justice demands of the communities concerned and relate these, where
appropriate, to the provisions of the legal system and the new Constitution.
Law students benefit greatly from the experience of teaching communities
about the law in its social context. They are also enriched when learning how
some communities have managed to solve social justice issues and empower
themselves without resorting to the law. These are lessons which cannot be
learned in a conventional substantive law school course. Students do not merely
________________________
38 McQuoid-Mason ‘Introduction to South African law and the legal system’ in McQuoid-Mason
(ed) with Coetzee, Lotz, Forere and Bernard (2015 3rd ed) Street Law: Practical Law for
South Africans – Learner’s Manual at 5.
39 McQuoid-Mason ‘Reducing Violence in South Africa through “Street Law” Education of
Citizens’ in Kirchhoff, Kosovski and Schneider (eds) (1994) International Debates of Victim-
ology at 347–348.
40 McQuoid-Mason et al (2015) Street Law: Practical Law for South Africans – Educator’s
Manual at 7–27.
7
learn about the law as it is reflected in textbooks and law reports but gain first-
hand knowledge of how the law and legal institutions are working on the ground.
In other words, they learn about how the law affects the person on the street and
not the person in the textbook. This is a valuable lesson in legal realism, because
the two are often poles apart – particularly the law as it is applied to disadvan-
taged members of society. The latter is the acid test of social justice in any country.
1.6 Conclusions
In the light of the above, the following conclusions can be drawn regarding clinical
law programmes:
l Clinical law is a method of teaching law students legal skills in an experiential
and reflective manner, using interactive teaching methods.
l Such methods can be used in both the classroom and service components of
clinical law courses.
l Community service in clinical law programmes provides an excellent mecha-
nism for the teaching of social justice.
l Social justice is best taught through a combination of academic theory and
community experience, not from textbooks alone.
l Textbooks are important for setting out the theoretical framework for the con-
cept of social justice, but it can only be made meaningful if it is considered
within the context of the real world.
l In developing countries like South Africa, law students should be encouraged
to participate in community service and given academic credit for their efforts.
l A properly-integrated academic and community service programme can pro-
vide clinical law students with a wonderful opportunity to contextualise the
concept of social justice in the light of our Constitution, while at the same time
rendering a valuable service to poor and marginalised members of society.
8
The legal profession
in South Africa
By Munirah Osman-Hyder
2.1 Introduction
It is vital to know and understand the legal profession when embarking on a
career in law. Clinical law students, as final-year law students, are at the doorstep
of the legal profession and must have sufficient information to allow them to make
informed choices. The aim of this chapter is to provide sufficient information to the
law student to map a career path in law by discussing the various aspects of and
the important institutions in the legal profession.
The legal profession has undergone many changes since the previous edition
of this book. This chapter therefore, deals with the history of the legal profession,
the legal profession in South Africa prior to 2014, the transformational challenges
and the changes brought about by the enactment of the Legal Practice Act.1
There is also a brief synopsis of the various institutions that are possible career
options for law graduates.
2.2 The term ‘legal profession’

Before defining the term ‘legal profession’, the term ‘profession’ needs to be
explained. A common understanding of the term ‘profession’ is ‘a line of work;
vocation or occupation that requires extensive education or specialised training’.2
Hoffman3 states that:
. . . a profession is a career (occupation) which complies with the following six require-
ments:
l an intellectual basis;
l a private practice;
l an advisory function;
l a tradition of service;
l a representative body; and
l a code of conduct.
________________________
1 Act 28 of 2014.
2 Thesaurus: English (UK).
3 Hoffman (2005) Legal Education & Development Practice Manual: Professional Conduct
at 8.
9
In the context of the South African legal profession, five important characteristics
have been identified:
l a profession has a central organisation (which is) formally recognised to repre-
sent it;
l its primary function is to give advice or service in a specialised field;
l admission is restricted to a certain standard of education;
l it is afforded a certain measure of self-regulation and can, as a result, require
its members to observe much higher standards than could be successfully
imposed by outside sources;
l a professional person’s first and foremost responsibility is to his/her client.4
A prospective practitioner should have certain personal attributes in order to
succeed in a legal career. These are integrity, objectivity, dignity, power of judg-
ment, knowledge and technical skill, capacity for hard work, respect for the legal
order and a sense of equity and fairness.5 The candidate must also be able to
handle stress, have exceptional communication skills, and must be willing to
serve people. One should therefore not choose to become a legal practitioner if
the only motivation is to earn as much money as possible!
In order to understand the role and functions of practitioners and to appreciate
the future development of the profession, it is important look at the history and
origins of the legal profession.
2.3 History of the legal profession

2.3.1 Early developments
Distinct legal systems emerged relatively early in history, but legal professions of
size and importance are relatively modern. There is not the slightest trace in
ancient times of a distinct legal profession in the modern sense. The earliest
known legal specialist was the judge, but he/she was only a part-time specialist.
The chief, prince, or king of small societies discharged the judicial function as part
of the general role of political leader. As their power spread, political leaders
delegated this function, though not to legal specialists; in the secular stages of the
early systems, legal duties were typically
taken over by royal officials. In the wake of ‘The word “advocate” is
powerful religious or quasi-religious move- derived from the Latin
ments, priests or wise men often judged or
advised the judges, a situation that persisted
advocatus, and means the
in Muslim countries and in China until the 20th person called to the side
century AD.6 of another to render
In the times of Roman law, a petitioner had to him/her assistance.’
appear in person to prosecute or defend his/her
________________________
4 Hoffman (2005) at 9.
5 Du Plessis (1982) Die Professionele Gedrag van die Juris at 12–33.
6 http://www.britannica.com/eb/article-65816.
10
The legal profession in South Africa
suit. As time progressed, petitioners had the option of being represented by what
was known as a procurator. Anyone could appear on behalf of a litigant as a procu-
rator and no specialised legal knowledge was required.7 An advocate, on the other
hand, had to have special qualifications. ‘The word “advocate” is derived from the
Latin advocatus, and means the person called to the side of another to render
him/her assistance.’8 Over time, the meaning became specialised and the term
was used to refer to ‘a person who undertook to assist litigants in court by speak-
ing on their behalf’.9 The advocate drew pleadings for clients, advised them on
their rights, and presented oral arguments on their client’s behalf. A procurator
was simply an agent and could not act as an advocate.
In Roman law, the progmaticus also came into existence. This was a person
skilled in law who furnished matter on which the advocates’ arguments were
based. Their functions could be compared to that of the present-day attorney, and
not to that of the procurator. In 1450, the Court of Holland decreed that petitioners
had to be represented by procureurs. These had to be learned men in law. Vari-
ous regulations governed their qualifications, duties and education.10 The pro-
cureur assisted the advocate who also had to be formally qualified. In early
Roman-Dutch-law times, legal representation was not recognised at first. However,
‘taalmennen’, teachers, interpreters of languages, or ‘woordhouders’ (keepers of
words) were assigned to petitioners to speak on their behalf.11
After the revival of learning in the 12th century, in particular the revived study of
Roman law at Bologna, the influence of the late Roman professional system was
greatly strengthened. From then on, every country in continental Europe acquired,
by various stages and with numerous local variations, a legal profession in which
four main constituents could be observed:12
l procurators attended to the formal and especially the documentary steps in
litigation;
l advocates, who usually were university graduates in Romanist learning, gave
direct advice to clients and to procurators and presented oral arguments in
court;
l notaries acquired importance among a miscellany of legal scribes because, in
addition to being drafting experts, they also provided officially recognised doc-
ument authentication and archives; and
l university teachers of law took over the main task of explaining and of adapt-
ing the mixture of Roman law and Germanic custom that produced the modern
laws of the major European countries and continued to dominate in the schol-
arly interpretation of the law even after the 19th century codifications.
________________________
7 Randell and Bax (1983 3rd ed) The South African Attorneys Handbook at 1–2.
8 Joubert (1999 2nd ed) The Law of South Africa at 249.
9 Supra at 250.
10 Randell and Bax at 2.
11 Supra.
11
The relative importance of these classes varied enormously from place to place
and from century to century. At times, the teaching doctors almost supplanted the
advocates; in some courts the procurators swallowed up the advocates, and in others
the converse occurred; only the notaries managed to survive with little change.13
2.3.2 The English legal profession

The English legal profession bore a resemblance to the European, but there were
four significant differences between England and the Continent:14
l No distinct class of university teachers and commentators on the national law
developed in England. Development of the law took place primarily through
precedent based on the reported judgments of the courts rather than through
legislation.
l The continental monarchies developed a system of career judicial office, in
which the young university licentiate went straight into government service,
whereas in England, the appointment of judges from the ranks of senior practi-
tioners remained the settled practice.
l The division between barristers and solicitors ultimately became much more
rigid in England than the division between the advocate and procurator in Eu-
rope. Consequently, Europe never adopted an equivalent of the English prac-
tice requiring a barrister to be employed by a solicitor; both the procurator and
the advocate were separately and directly employed by the client.
l England never developed the profession of notary, meaning that the whole
burden of transactional work fell on solicitors, with legal advice being available
from the bar.
The main patterns both of law and legal practice were exported by the continental
European powers and England to their overseas colonies and possessions, whilst
most of the non-colonial countries of the rest of the world imitated one system or
the other. Thus the Romano-Germanic practices (frequently called civil law)
became the norm for Scandinavia, Scotland, Latin America, and most of the
Muslim countries of the Middle East, for French-speaking areas and Portuguese
and Spanish Africa, and for Japan, Thailand, and the former French parts of
South East Asia. They have also influenced practice in what became the socialist
countries of Eastern Europe. The English system provided the model for English-
speaking North America, for most former English colonies in Africa, including
South Africa, for most of the Indian subcontinent, and for Malaysia, Australia, and
New Zealand. The original model has undergone considerable modification by
both the countries of export and the countries of reception. In particular, the
specialisation of procurator-advocate and solicitor-barrister has tended to be
replaced by a fused profession of legal practitioners qualified to perform both
functions and usually doing so. Such a fusion occurred gradually in Germany
between the 16th and 18th centuries. It has taken place more recently in France
except before the courts of appeal and, while the division still formally exists in Italy,
________________________
12
it is no longer of practical importance. In Latin America the fused profession is

common. Notaries as a separate specialised branch of the profession exist,
however, in most civil-law countries.15
2.3.3 The South African legal profession – pre 2014

In South Africa from 1652 to 1795, advocates, attorneys and notaries constituted
legal practitioners. Attorneys did not have to be profession- In 1939,
ally qualified until 1803.16 It was not until 1877 that attorneys
had to complete a five-year articles of clerkship and pass a the divided
practical examination. The Cape, Natal, Transvaal and profession
Orange Free State had various rules governing the admis- was confirmed
sion and practice of legal practitioners which differed from by the
province to province. For some years, advocates could also South African
practice as attorneys and notaries. In 1939, the divided
profession was confirmed by the South African Parliament. 17 Parliament.
South Africa thus inherited what is referred to as the ‘divided profession’,
whereby the profession is split into two branches: advocates and attorneys. There
are several differences between these two branches:18
l The advocate is generally the specialist in forensic skills and in giving advice in
legal matters, whereas the attorney has more general skills and, in addition, is
often qualified in conveyancing and notarial practice;
l Previously, advocates had the exclusive right of audience in the higher courts,
but since 1995 certain attorneys19 also have this right. Generally, litigation in
the higher courts is conducted by advocates briefed by attorneys;
l The advocates’ profession is a referral profession, whereas attorneys accept
work directly from the public;
l Only attorneys are entitled to do certain work for remuneration, for example to
initiate litigation in the courts, draft certain documents and render certain ser-
vices;
l The attorneys’ branch is to a much greater extent governed by statute, for
example practical training, admission and removal from the roll and the control
of trust monies;
l The academic qualifications and the practical training required for admission
as an advocate differ from that of an attorney; and
l In some respects, the ethical rules of the two branches differ.
Although the divided profession was entrenched in the South African legal sys-
tem, it has evolved since the enactment of the Legal Practice Act 28 of 2014
(LPA) which reviews this system and introduces a unified profession. This is more
________________________
16 Randell and Bax at 3.
17 Supra at 5.
18 Joubert at 249.
19 S 4(1) of the Right of Appearance in Courts Act 62 of 1995.
13
fully discussed in the paragraphs 2.6 and 2.7 below, which deal with challenges
facing the legal profession and the LPA. Paragraphs 2.4 and 2.5 discuss the
professions of attorney and advocate in the era prior to the enactment of the LPA.
2.4 The attorneys’ profession

2.4.1 Nature of work performed
An attorney deals with legal matters in both the Magistrates’ Court and in the High
Court. An attorney typically consults with clients; draws up legal documents; and
appears in court. Attorneys handle a large variety of matters including civil and
criminal litigation; business transactions; property transactions; estate planning
and taxations. Most attorneys are general practitioners but specialisation has
become increasingly common.
Previously, only advocates had the right to appear in the High Court. However,
since 1995, attorneys may also appear in the High Court in terms of the Right of
Appearance in Courts Act.20 In terms of this Act, attorneys may apply to court to
be granted a right of appearance in the High Court. Those attorneys holding an
LLB degree or its equivalent or having three years practical experience may apply
to appear in the higher courts, including the Supreme Court of Appeal and the
Constitutional Court.21 In many cases, however, attorneys still brief advocates to
appear in the High Court on their behalf.
After the successful completion of advanced examinations, an attorney can
also be admitted as a notary or a conveyancer.22 A conveyancer prepares docu-
ments for the transfer of immovable property and other related matters. A notary
draws up and registers certain specialised con-
The attorney must be able tracts, such as antenuptial contracts. The majority
to understand the needs of the work performed by attorneys involves
administrative skills as well as interpersonal
of the client and must act (people) skills. The attorney must be able to
on his/her instruction. understand the needs of clients and must act on
their instruction. An attorney must also manage
his/her case files, office, and finances efficiently.
2.4.2 Admission requirements
The requirements for admission as an attorney were set out in section 15 of the
Attorneys Act.23 Joubert24 summarises these as follows:
Unless cause to the contrary to its satisfaction is shown, the court shall on application in
accordance with this Act, admit and enroll any person as an attorney if:
25
(a) he, in the discretion of the court, is a fit and proper person to be so admitted and enrolled;
and
________________________
20 62 of 1995.
21 Joubert at 271.
22 Supra at 297.
23 53 of 1979.
24 Joubert at 320.
25 See para 3.2.3 for a discussion of the meaning of ‘fit and proper’.
14
(b) it is satisfied that he has satisfied the following requirements or, where applicable, has
been exempted there from in terms of the provisions of this Act, namely that he:
(i) is 21 years of age or older;
(ii) is a South African citizen or has been lawfully admitted to the Republic for perma-
nent residence therein and is ordinarily resident in the Republic; or is a citizen of a
state the territory of which formerly formed part of the Republic, and belongs to
such category of persons, and complies with such conditions, as may be deter-
mined by the Minister, after consultation with the presidents of the various socie-
ties, by notice in the Gazette;
(iii) has satisfied all the requirements for the degree referred to in section 2(1), or for
the degrees referred to in section 2(1)(aA), after pursuing for that degree or
degrees a course of study referred to in section 2(1)(a) or (aA) as the case may
be; or has satisfied all the requirements for a degree or degrees referred to in sec-
tion 2(1)(aB) in respect of which a certification in accordance with that paragraph
has been done; or has previously been admitted as an advocate.
(iv) has passed the practical examinations;
(v) during his term of service under articles or contract of service, or after the expiry of
his articles or contract of service; or after he has been exempted in terms of this
Act from service under articles of clerkship, has attended a training course
approved by the society of the province in which he completed his service under
articles or contract of service, or, in the case of section 2A(c), has attended a train-
ing course approved by the society of the province in which the candidate attorney
intends to practise, and has completed such training course to the satisfaction of
that society: Provided that this subparagraph shall not apply to a person who
attended a training course referred to in section 2(1A)(a) or 2A(a)(i) and who has
completed such course to the satisfaction of the society concerned.
It must be noted that any person admitted as an advocate could not register for
articles or enter into a contract of service, unless he/she had applied to have
his/her name removed from the roll of advocates. The attorneys’ admission exam-
inations covered the practice and procedure in the High Court and Magistrates’
Court as well as the practice, functions, practical bookkeeping and duties of an
attorney. Before being allowed to sit for such an examination, candidates had to
have served under articles or a contract of service; or had to be serving under
articles or a contract of service for at least six months; or had to be exempt from
serving articles; or had to have attended a training course which was approved by
the law society for a minimum period of four months.26
2.4.3 Professional Association

The Law Society of South Africa (LSSA) was the umbrella body of the attorneys’
profession in South Africa. The LSSA aims to promote the common interests of its
members, having regard at all times to the broader interests of the public whom
the profession serves.27 There are currently four provincial law societies. These
are the:
l Cape Law Society, which covers the areas of the Northern, Eastern and West-
ern Cape as well as the former Transkei and Ciskei;
________________________
26 Ss 12 and 14 of Act 53 of 1979.

27 http://www.lssa.org.za/.
15
l Free State Law Society, which covers the province of the Free State;
l Law Society of the Northern Provinces, which covers Gauteng, Mpumalanga
and the North West Province; and
l KwaZulu-Natal Law Society, which covers the area of KwaZulu-Natal.28
The objectives of the four Law Societies29 were: to maintain the status and dignity
of the profession; to maintain the integrity of practitioners; to control the profes-
sional conduct of practitioners; to maintain and improve the standards of profes-
sional conduct and the qualifications of practitioners; to promote improvements in
law; and to represent the interests of the profession.
Therefore, every practitioner had to be a
Every practitioner member of the society of the province in
had to be a member of the which he/she practised. Every Law Society
has a council, consisting of practising attor-
society of the province in neys, which meets once a month to consider
which he/she practised. disciplinary and professional matters.30 The
council appoints committees to assist in the
completion of its duties.31 Provision was also made for the establishment of
attorneys’ associations in defined areas as set out in the rules of each law society.
These associations provided feedback to the law society concerning the activities
conducted at grassroots level.32
The Law Society of South Africa (LSSA) represented the entire attorney profes-
sion in South Africa and consisted of the abovementioned Law Societies, as well
as the Black Lawyers Association (BLA) and the National Association of Demo-
cratic Lawyers (NADEL).33 The BLA and NADEL were included to ensure repre-
sentivity on the council. Historically, the provincial societies were not
representative of the demographics of the provinces they were deemed to repre-
sent. Prior to 1994, some practitioners operated alongside the profession and did
not participate fully in the structures due to political allegiances at the time. Others
experienced difficulties in accessing the profession.34 The LPA established the
Legal Practice Council (LPC), which will be discussed in paragraph 2.7.
2.4.4 The Attorneys’ Fidelity Fund

The Attorneys’ Fidelity Fund (AFF) is intrinsically linked to the LSSA. The Attor-
neys, Notaries and Conveyancers Fidelity Guarantee Fund was established under
section 8 of Attorneys’ Admission Amendment and Legal Practitioners’ Fidelity
________________________
28 Hoffman (2005) at 18.

29 S 58 of Act 53 of 1970.
30 Hoffman (2005) at 19.
31 S 67 of Act 53 of 1979.
32 Hoffman (2005) at 19.
33 Supra at 20.
34 See para 2.7 for a more detailed account of transformation challenges in the legal profession.
16
Fund Act 19 of 1941, and its continued existence – as the Attorneys’ Fidelity Fund
– is provided for by section 25 of the Attorneys Act 53 of 1979 (‘the Act’).35
The Attorneys’ Fidelity Fund (‘the Fund’) is a statutory body established and
regulated by the provisions of the Attorneys Act. Its principle objective is to protect
the public against loss as a result of the theft of trust funds by practitioners. The
protection provided by the Fund encourages the public to use services provided
by legal practitioners with confidence. The
The Fund derives its Fund also performs a number of other activi-
ties, such as providing funding for university
income principally from law clinics, subsidising the monthly attorneys’
interest earned on journal, De Rebus, and providing study grants
practitioners’ trust accounts. for law students.
The Fund derives its income principally
from interest earned on practitioners’ trust accounts, which enables the Fund to
offer valuable financial support to the profession.36 It values the active involvement
of all practitioners in the maintenance of a sound Fund.37 The Fund vests in and is
administered by a Board of Control, which holds the Fund in trust for the purposes
defined in the Act. The Board consists of representatives of the four current
statutory law societies in South Africa, the BLA and NADEL. Section 53 of the
LPA retains the fund, which now exists under the name Legal Practitioners’
Fidelity Fund.
2.5 The advocates’ profession

2.5.1 Nature of work performed
Advocates may appear in all the courts in South Africa. These include the Consti-
tutional Court, the Supreme Court of Appeal, provincial divisions of the High
Courts, the Labour and Labour Appeal Courts, the Land Claims Court, the Tax
Courts and the Magistrates' Courts. Advocates appear in trials and applications in
the High Courts and other superior courts situated in the nine provinces in South
Africa, and also appear in appeals from any of these courts. In addition, advo-
cates appear in arbitrations which include commercial, building, engineering and
employment arbitrations. Advocates are also instructed to provide written or oral
opinions on matters involving Southern African Law. Where advocates are en-
gaged in South African courts, they are instructed by attorneys.38
As stated earlier, the profession of advocate (prior to 2014) was a referral pro-
fession.39 This meant that an advocate could not see clients directly or ‘off the
streets’, without being briefed by an attorney. According to In re Rome,40 the
advocate is ‘the specialist in giving expert advice on legal matters’. The De
________________________
35 http://www.fidfund.co.za/pages/nature_text.htm.
36 See para 7.6 for more details on trust accounts and the interest earned on trust funds.
37 http://www.fidfund.co.za/pages/nature_text.htm.
38 http://www.sabar.co.za/advocates.html.
39 Joubert at 249.
40 1991 (3) SA 291 (A) 306B.
17
Freitas case41 stated that the attorney ‘takes care of matters such as the investi-
gation of the facts, the issuing and service of process, the discovery and inspec-
tion of documents, the procuring of evidence and the attendance of witnesses, the
execution of judgements and the like’. Similarly, the Rösemann case42 stated:
there is certain work which is properly within the exclusive ambit of the functions of the
attorney . . . such work is . . . done best . . . by the attorney . . . and not by counsel . . .
the advocate’s profession is a referral profession. Signing and issuing summonses and
notices of motion in the Magistrates’ Court and furnishing an address for the service of
43
process is work normally performed by an attorney.
According to Joubert, an advocate is someone with legal knowledge, forensic skills,
professional ethics and good courtroom etiquette, all blended in total union in
furtherance of the administration of justice.44
2.5.2 Admission requirements

The admission of advocates was governed by section 3 of the Admission of
Advocates Act.45 The admission requirements for an advocate were as follows:
l an applicant must be over the age of 21 years;46
l the applicant must satisfy the court that he/she is a fit and proper person to be
admitted to practice and authorised to be enrolled as an advocate;
l the applicant has to show that he/she is duly qualified in that he/she has
successfully completed an LLB degree;47
l the applicant must be a South African citizen or must be lawfully admitted to
permanently reside in the Republic;48 and
l if the applicant has previously been admitted to practise as an attorney, he/she
must first have his/her name removed from the roll of attorneys.49
The application for admission is brought by way of an ex parte application and
once admitted, he/she is then placed on the roll of advocates.50
2.5.3 Professional association

The advocates’ profession in South Africa was organised into societies of prac-
tising advocates called bars. The various bars were federated in the General
Council of the Bar of South Africa. Once an advocate had been admitted, it was
customary to join one of the bars. A bar is a representative body of advocates, its
main purpose being the maintenance of professional standards amongst its
________________________
41 2001 (3) SA 750 (SCA) 757C–D.

42 2002 (1) SA 235 (C) 244J.
43 Supra at 247J.
44 Joubert at 249.
45 74 of 1964.
46 S 3(1)(a) of Act 74 of 1964.
47 S 3(1)(b). See also s 3(2)(a)–(e).
48 S 3(1)(c).
49 S 3(1)(d).
50 Joubert at 255.
18
members. Thus certain rules of conduct and ethics must be complied with. The
bar also had disciplinary powers.51 In order to be admitted to the bar, the candi-
date had to have completed pupilage (a form of apprenticeship), and had to pass
the National Bar Examination of the General Council of the Bar.
Unlike attorneys, advocates were
Unlike attorneys, advocates were not statutorily compelled to be mem-
not statutorily compelled to be bers of a professional association of
the organised profession. Therefore, a
members of the organised number of practising advocates were
profession. not members of the bar. They did not
have to adhere to the rule that advo-
cates occupy chambers together. Many actually practiced from their homes.52 The
Independent Association of Advocates was formed in 1994 to cater for the needs
of those who are not members of any of the other bars. The LPA currently
demands that all legal practitioners be registered members of the LPC.
2.6 Transformation challenges

2.6.1 Background
South Africa embraced a constitutional democracy in 1994. It is quite apparent
that with the adoption of the Constitution,53 all South Africa’s problems were not
immediately resolved. In fact, the nation had to embark on the next phase of the
journey – the phase of implementing the constitutional objectives. This phase is
also commonly referred to as the transformation stage. Hence our nation
embarked on a transformation journey to address the imbalances inherited from
our past apartheid system.
In order to achieve the objectives of the
The legal profession also
Constitution, many pieces of legislation had to review its structure
had to be scrapped or amended. In addi- and operations to bring it in
tion, new laws were promulgated to further line with the spirit and purport
the objectives of the Constitution. Similarly, of the Constitution.
the legal profession also had to review its
structure and operations to bring it in line with the spirit and purport of the Consti-
tution.
Thus in 1994, the Department of Justice, in its policy document, Justice Vision
2000, recognised that the legal profession had to be transformed in order to be
able to respond properly to the needs of all people in South Africa. It identified two
main challenges: namely, the need to make the legal profession representative of
________________________
51 See Joubert at 251–255 for an in depth discussion of this aspect.

52 Joubert at 253.
53 The Constitution of the Republic of South Africa, 1996 (the Constitution).
19
the diversity of South African Society, and the need to make the legal profession
more accessible to the public.54
In amplification of the first challenge, the document identifies the following prob-
lems and anomalies:
l The legal profession does not represent the diversity of South African society.
The number of black lawyers in private practice and in the public service sec-
tor is comparatively low, as is the number of women. Black people and women
are almost entirely absent from the ranks of senior partners in large firms of
attorneys and senior counsel at the bar. They were, accordingly, also largely
absent from the controlling bodies of the bar councils and law societies until
recently, when steps were taken to make these bodies more representative.
l The distribution of practising lawyers who deliver legal services to the public is
skewed. Most lawyers practice in cities and they service corporations and rela-
tively wealthy people. Rural attorneys tend to be white, male and Afrikaans-
speaking. They generally provide legal services to the white farmers and local
businesses. There are very few lawyers who service the areas in which most
black people live – the townships and rural settlements. The few that exist
generally have poor resources.
l Disadvantaged law graduates experience difficulty in entering the legal profes-
sion and establishing themselves as successful legal practitioners.
l The broad middle class of South African society, although not indigent, is not
able to afford the fees which practising lawyers charge.
l Practicing lawyers are not sufficiently involved in providing legal-aid services to
indigent persons.
l Paralegal practitioners are not recognised or regulated by statute, despite the
fact that they have been rendering legal services to communities for many
years.
l Prosecutors, particularly those serving in the lower courts, are not recognised
as comprising a fully-fledged branch of the practising legal profession.
l Lawyers employed by commercial corporations, governmental agencies and
non-governmental organisations are not recognised or regulated by statute as
members of the practising legal profession.
l There is a lack of equality within the legal profession with regard to qualifica-
tion requirements for admission to legal practice, which leads to the undesir-
able perception that some lawyers have a higher status than others.
l There are anomalous differences in the way in which the various branches of
the profession are regulated.
The priority challenges concerned issues of gender imbalance, transformation of
the judiciary and access to justice. Each of these is discussed below.
________________________
54 See Policy Unit, Department of Justice and Constitutional Development ‘Discussion paper
on the transformation of the legal profession’ (Sept 1999) available at http://www.polity.
org.za/html/govdocs/discuss/legaltransform.html?rebookmark=1.
20
2.6.2 Gender imbalance

Perhaps one of the most difficult issues
Black women are the most regarding transformation is getting the
under-represented group in gender balance right. According to a sur-
the legal profession. vey conducted a few years ago, women
make up almost half of the number of law
students and candidate attorneys. However, only 19% of practising attorneys in
South Africa are women. Women are under-represented in the legal profession
when compared to places such as New Zealand and England, where 32% and
34%, respectively, of legal practitioners are women. Black women are the most
under represented group in the legal profession. The number of women practising
at the Bar in 1998 was much lower than that of their male counterparts and only
2% of senior advocates were women.55 Whittle summarises this issue as follows:
Women entering the profession still face . . . “hidden barriers” and the profession must
analyse and alter cultural and sexist values that may lead to such barriers. It must also
be stressed that affirmative action does not only include race but also gender. However,
this fact should not be tokenised or presented as a window dressing. The domestic
responsibilities of women as well as traditional customary roles must be considered.
Consequently, the South African Women Lawyers Association (SAWLA) was
established to be the united voice of women lawyers in South Africa. SAWLA has
to grapple with some critical issues. Whittle56 adds that:
In particular, it must develop strategies to assist women legal practitioners – and particu-
larly black women legal practitioners – to gain access to work so that their practices are
sustainable. The public sector has far outstripped the private sector as regards transfor-
mation, and its slow pace in the legal profession has seen many able women attorneys
and advocates leave private practice to work in parastatals and government departments
because access to more lucrative traditionally male-dominated fields of practice – both at
the Bar and at attorneys’ firms – is still difficult for women legal practitioners.
In September 2014, President Jacob Zuma received a report on the transfor-
mation of the judiciary from the Commission for Gender Equality (CGE). It identi-
fied the lack of certainty about the Judicial Service Commission’s (JSC)
procedures and criteria for making appointments as one of the critical barriers
underlying the slow gender transformation. Other barriers included the lack of a
clear process in the selection of acting judges, inaccessibility of venues selected
by the JSC, the lack of female leadership at institutions such as the Law Society
of South Africa (LSSA) and patriarchy and sexism, which continue to persist in
requiring women to prove themselves in the male dominated legal profession.
In their report, the Commission recommended that the JSC, in partnership and
consultation with the Department of Justice and Correctional Services, the CGE
and the Portfolio Committee on Justice and Correctional Services, should jointly
convene a national symposium or summit to engage key stakeholders on gender
transformation in the judiciary.
________________________
55 Whittle ‘Women in the profession’ 1999 (Mar) De Rebus 10.

56 Whittle ‘Women Lawyers – An opportunity to find a united voice’ 2006 (Jun) De Rebus 2.
21
The report also recommended that different bars and law societies should
develop gender equality codes to ensure that gender equality will prevail in all the
activities of their organisations and that the private sector and the state should
ensure that they give legal work to both women and men, with particular refer-
ence to black female lawyers.
It was further recommended that the Department of Justice and Correctional
Services should draft a law that will deal with gender transformation in the judici-
ary, in compliance with the Constitution, and that President Zuma should reject
recommendations for judicial appointments that do not address the gender and
racial equity imperatives that are enshrined in the Constitution.57
2.6.3 The judiciary

The judiciary also faces transformation
challenges. The slow pace of transfor- The slow pace of
mation of the judiciary has been criti- transformation of the
cised in the media on many occasions. judiciary has been criticised
The ruling African National Congress
(ANC) has on occasion openly attacked
in the media on many occasions.
some white judges, warning of ‘popular
antagonism’ towards the judiciary and the courts if they did not change their mind-
set.58 Some political groupings have reacted strongly to what they perceive to be
a transformation process that effectively excludes appointment on merit. The
concern was raised that a perception is being created that ‘. . . no white male
judge will be accepted for appointment to the Bench in the near future . . . no
matter how sterling his career and political credentials’.59
The transformation of the judiciary, however, is not only about demographic
change. Budlender60 states that transformation in the judiciary indeed means that
the judiciary must become more representative of the nation it serves, but also
that underlying attitudes must change, meaning that the judiciary must embrace
and enforce the principles of a fundamentally new legal order and be responsive
to the goals of the democratically elected government.
In response to criticism leveled at the judiciary, Judge Arthur Chaskalson, then
the President of the Constitutional Court and Chief Justice, stated the following:
There can be no doubt that the Constitution requires the transformation of the judiciary.
This issue has been debated for many years. The need for transformation, and for more
progress to be made in this regard is accepted and supported by the great majority of the
________________________
57 See article entitled ‘Government to process report on judiciary transformation’ in

http://www.sanews.gov.za/south-africa/govt-process-report-judiciary-transformation.
58 See article entitled ‘ANC threatens Judges’ published in the Sunday Times, available at
http://www.sundaytimes.co.za/PrintMail/.
59 Tony Leon, then leader of the official opposition, in a speech delivered at New York Univer-
sity Law School during 2004. Extracts from the speech are available at
http://www.news24.com/ News24/South_Africa/Politics/.
60 Budlender ‘Transforming the Judiciary: The politics of the judiciary in democratic South
Africa’ 2005 122 The South African Law Journal 715 716.
22
judiciary and the legal professions. Every effort is made by the leadership of the judiciary
61
and the professions to pursue this goal, and to make the justice system more accessible.
2.6.4 Training and mentoring

Certain sectors of legal work are still
Certain sectors of legal work dominated by large firms, with practi-
are still dominated by large firms, tioners drawn mainly from white males.
with practitioners drawn Some of the factors contributing to this
continuing state of affairs are the poor
mainly from the white male educational foundation of many practi-
population group. tioners from disadvantaged backgrounds
and the lack of proper training. In order
to address this problem, mentoring relationships should be formalised and more
resources should be devoted to the training of previously disadvantaged candi-
dates in order for them to compete more effectively within the firm. The assign-
ment of work at large law firms should also be reviewed to ensure that everyone
gets a fair share of the work. Some mentoring initiatives have been established, for
example a scheme by the Johannesburg Bar which encourages senior advocates
to invite female and black advocates to work with them.62
2.6.5 Access to justice

With regard to the challenge of making the legal profession more accessible to
the public, legal practitioners have an important role to play in facilitating access
to legal services. Law clinics and advice centres, as well as the Legal Aid Board,
play an important role in this regard. Government needs to allocate resources to
such organisations to enhance legal service delivery to the poor and marginalised
people of South Africa. In addition, legal practitioners at private law firms can
make a contribution by either accepting Legal Aid Board matters, or by acting pro
bono for the various legal clinics or advice centres. The importance of contributing
in this way cannot be over-emphasised.
Pro bono originates from the term pro bono publico. The direct meaning is ‘for
the public good’ and, in context, it means doing legal work for free.63 Legal practi-
tioners in private practice can develop co-operation schemes with law clinics to
increase access to justice. In 2002, the Minister
of Justice warned that as long as legal practi- There is a need to promote
tioners voluntarily undertake pro bono work, it a pro bono culture in
would be unnecessary for him to be prescriptive
64
in this regard. It was also accepted that there South Africa.
is a need to promote a pro bono culture in South
________________________
61 Press statement dated 12 January 2005, circulated electronically by the South African
Human Rights Commission.
62 Van der Merwe ‘Nadel calls for boycott of bar structures’ 2000 (Jan) De Rebus 15.
63 Hoffman (1997) Lewis and Kyrou’s Handy Hints on Legal Practice at 111.
64 Whittle ‘Pro bono – appealing to the profession’s social conscience’ 2002 (Jun) De Rebus 13.
23
Africa, as obtaining the services of a legal practitioner is beyond the means of the
majority of South Africans.65 However, this alone is not going to solve the problem
of access to justice.
2.7 Transforming the legal profession

2.7.1 The Legal Practice Bill
In November 1999, the National Forum on Legal Practice took place in Pretoria,
culminating in the drafting of the Legal Practice Bill. At the Forum, consensus was
reached on the following:
l all legal practitioners and paralegal practitioners should be regulated in terms
of one statute;
l there should be one statutory regulatory body;
l the freedom on the part of legal and paralegal practitioners to practise as
members of voluntary professional associations would be respected;
l all legal practitioners would be required to complete one year of post-graduate
practical vocational training in order to qualify for registration and admission to
practice and a range of practical training options will be provided (the draft
provides for this to be done by regulation);
l formal admission exams should be replaced by a more flexible form of evalua-
tion of the skills acquired during the course of practical vocational training; and
l any legal practitioner who receives, holds or handles funds belonging to a
client or member of the public (including a deposit taken on account of fees
and disbursements in respect of services to be rendered) must operate a trust
account and be in possession of a Fidelity Fund certificate.
The main issues identified in the discussion paper66 were: (a) the requirements for
admission to the profession; (b) the uniform regulation of the profession; (c) a
representative legal profession; and (d) improving the public’s access to legal
services. The Legal Practice Bill67 therefore provides for the establishment of: a
South African Legal Practice Council; standard requirements for the registration
and enrolment of all legal practitioners; admission of persons as legal practition-
ers in the courts; the registration of paralegal practitioners; and matters connected
therewith.68
There were two unique features introduced by the Bill, which were the source of
much debate. These are the unification of the profession and the inclusion of
paralegals as legal practitioners.
________________________
65 Whittle ‘Pro bono – appealing to the profession’s social conscience’ 2002 (Jun) De Rebus 13.
66 See Policy Unit, Department of Justice and Constitutional Development ‘Discussion paper
on the transformation of the legal profession’ (Sept 1999) available at http://www.polity.
org.za/html/govdocs/discuss/legaltransform.html?rebookmark=1.
67 http://www.info.gov.za/bills/2000/draftlpb.htm.
68 Introduction to the Legal Practice Bill – see http://www.info.gov.za/bills/2000/draftlpb.htm.
24
As discussed earlier, South Africa had a divided profession consisting of advo-

cates and attorneys. The Bill calls for a unification of these two branches. Both
branches are up in arms about the impact of this proposal. Advocates are of the
view that a unified profession will regulate them statutorily as opposed to being
free to associate with a bar or not. Attorneys are of the view that advocates will be
able to see clients directly in competition with attorneys. In addition, advocates
are not keen on having to set up and manage trust accounts.
The inclusion of paralegals has also raised much concern for the current organ-
ised profession. The concern stems from the lack of formal qualification and
regulation of the paralegal sector. Paralegals argued that they form a necessary
component in addressing the need to extend legal services to poor and rural
communities. They called for limited rights of appearances in certain fora.69
2.7.2 The Legal Practice Act 28 of 2014

Fifteen years after the National Forum on Legal Practice, the Legal Practice Act
(LPA) was signed into law on the 22 September 2014. Section 3 of the LPA sets
out the purpose of the LPA. In keeping with the priority challenges, the relevant
objectives are summarised as follows:
l to provide a legislative framework for the transformation and restructuring of
the legal profession that is in keeping with the values underpinning the Consti-
tution;
l to broaden access to justice by the implementation of various mechanisms
namely –
• a mechanism to determine fees chargeable by legal practitioners for ser-
vices rendered that are within the reach of the citizenry;
• measures to provide for the rendering of community service by candidate
legal practitioners and practicing legal practitioners; and
• measures that provide equal opportunities for all aspirant legal practitioners
in order to have a legal profession that broadly reflects the demographics of
the Republic; and
l to create a single unified statutory body to regulate the affairs of all legal
practitioners and all candidate legal practitioners;
Some of the more important changes brought about by the LPA are: restructuring
the legal profession, introducing community service, creating a single unified
statutory body, and establishing of the Office of the Legal Services Ombud. Each
of these will now be discussed in turn.
2.7.2.1 Restructuring of the legal profession

As discussed before, South Africa inherited and implemented the divided profes-
sion – legal practitioners chose to practice either as advocates or attorneys. The
LPA does not abolish the divided profession completely, but it has introduced
some aspects which seek to fuse the divided profession.
________________________
69 Eg in maintenance enquiries, CCMA hearings and domestic violence applications.
25
Firstly, in section 1, the introduction of new terminology is set out. Although the
terms ‘advocates’ and ‘pupil’, and ‘attorneys’ and ‘candidate attorneys’ have been
retained and defined, the new terms introduced are ‘legal practitioners’ and ‘can-
didate legal practitioners’. Chapter 3 of the LPA deals with the regulation of legal
practitioners and candidate legal practitioners. This is intended to narrow the gap
created by the divided profession and at the very least to remove the ideological
barriers that support a divided profession. Aspects like admission and enrolment;
right of appearance; qualifications and practical vocational training; community
service; enrolment with the council and many other related issues are dealt with
as parts of the unified profession of legal practitioners.
Secondly, the LPA sets out standard and unified admission and enrolment
requirements in section 24(2), as follows:
The High Court must admit to practise and authorise to be enrolled as a legal practitioner,
conveyancer or notary or any person who, upon application, satisfies the court that he or
she—
(a) is duly qualified as set out in section 26;
(b) is a—
(i) South African citizen; or
(ii) permanent resident in the Republic;
(c) is a fit and proper person to be so admitted; and
(d) has served a copy of the application on the Council, containing the
information as determined in the rules within the time period determined in
the rules.
In addition, section 25 sets out the right of appearance of legal practitioners and
candidate legal practitioners. Whether practising as an advocate or an attorney, a
legal practitioner has the right to appear in any court in the Republic of South
Africa before any board, tribunal or similar institution. However an attorney wish-
ing to appear in the High Court, Supreme Court of Appeal or the Constitutional
Court must have obtained the necessary certificate of appearance. Further,
section 27 places the obligation on the Legal Practice Council to determine the
minimum conditions and procedures for the registration and administration of
practical vocational training as well as determining the assessment thereof.
Thirdly, according to section 30, all legal practitioners will have to enrol with the
Legal Practice Council, which is the unified statutory body governing and regulat-
ing the legal profession.
Section 34 indicates that the divided profession is not completely abolished as
it sets out forms of legal practice as well as what services attorneys and advo-
cates can render respectively.
2.7.2.2 Community service

Measures to provide for the rendering of community service by practicing legal
practitioners and candidate legal practitioners have been enacted to meet the
objective of broadening access to justice. Section 29 deals with community ser-
vice. The requirements and date of implementation were not confirmed at the time
of writing.
26
2.7.2.3 Legal Practice Council

The LPA seeks to create a single unified statutory body to regulate the affairs of
all legal practitioners and all candidate legal practitioners in pursuit of the goal of
an accountable, efficient and independent legal profession.70 Chapter 2 of the
LPA creates the Legal Practice Council and covers various aspects – establish-
ment of the Council; the objects of the Council; the powers and functions of the
Council; the composition of the Council; the membership of the Council; the
chairperson and deputy chairperson of the Council; the term of office of members
of the Council; the termination of office; the removal from office; vacancies in the
Council and the filling thereof; and the dissolution of the Council. Previously,
advocates were not compelled by statute to be members of the professional
association. This has now changed.
Section 7 deals with the composition of the Council. it will consist of the following:
l ten practising attorneys and six practising advocates elected in accordance
with the procedure prescribed by the Minister;
l two teachers of law;
l three fit and proper persons designated by the Minister;
l one person designated by Legal Aid South Africa; and
l one person designated by the Board, who need not necessarily be a legal
practitioner.
The National Forum on the Legal Profession (National Forum) has been estab-
lished in terms of section 96 of the LPA to set up structures such as the South
African Legal Practice Council (LPC), as well as Provincial Councils in terms of
sections 4 and 23 of the LPA respectively.
The National Forum has been given a period of 24 months (2 years) to execute
certain tasks allocated to it to facilitate establishment of those structures above.
This is contained in the terms of reference of the National Forum in section 97 of
the LPA. The 24 months’ period commenced on 1 February 2015 and is expected
to run until 31 January 2017. In other words, before 1 February 2017, the National
Forum must have, inter alia, made recommendations to the Minister of Justice
and Correctional Services on its tasks as contained in section 97(1)(a). The
National Forum must also have published a code of conduct and must have made
rules as provided for in section 109(2) of the LPA.
Given the provisions of section 120(3), the LPC as well as the Provincial Coun-
cils are supposed to be fully operational on 1 February 2018.
As for the regulations in terms of the LPA, the Rules and Code of Conduct
Committee has been established as one of the working committees of the Nation-
al Forum and will look at rules and regulations as well as publish a code of con-
duct for the legal profession. Rules must be finalised and published in the
Government Gazette by the National Forum before 1 February 2017. Regulations
will be gazetted by the Minister after receiving recommendations from the National
Forum as per section 97(1)(a) of the LPA.
________________________
70 S 3(c) of the Legal Practice Act 28 of 2014.
27
2.7.2.4 Legal Services Ombud

Chapter 5 of the LPA establishes the office of the legal services Ombud and
details various aspects of the office – the objects of the Ombud; the appointment
and independence of the Ombud; the powers and functions of the Ombud; the
term of office of the Ombud; the acting Ombud and the filling of vacancies; staff,
finances and the accountability of the Office of Ombud; and the annual report.
The objects of the Ombud are to:
l protect and promote the public interest in relation to the rendering of legal
services;
l ensure the fair, efficient and effective investigation of complaints of alleged
misconduct against legal practitioners;
l promote high standards of integrity in the legal profession; and
l promote the independence of the legal profession.
The LPA, while retaining some of the aspects of the previous era, introduces
some important changes in the legal profession in South Africa. It will be a while
before the impact thereof (positive or negative) can be assessed.
2.8 Career options

Obtaining a legal degree does not confine
Obtaining a legal degree you to pursuing a career either as an attor-
does not confine you to ney or an advocate. There are many varied
pursuing a career either as career options available to the law gradu-
an attorney or an advocate. ate. Some of these options are listed below,
with a brief description of what each entails.
2.8.1 Attorney in private practice

A newly-admitted attorney may become a professional assistant within a firm of
attorneys. Promotion includes the possibility of becoming a junior or salaried
partner and later a senior or equity-sharing partner in the firm. Alternatively, the
newly-admitted attorney could opt to start his/her own firm. Attorneys may also
become highly specialised in a particular area of law and focus on particular types
of cases only.
In terms of the LPA, attorneys may:
l take instructions directly from the public;
l take on any kind of legal work; and
l practice for their own account, or be part of a commercial juristic entity; serve
at a law clinic, the Legal Aid Board Justice Centre, the State Attorneys offices
or the South African Human Rights Commission.
2.8.2 Advocate in private practice

Legal practitioners may choose to practice as advocates.
In terms of the LPA, advocates may:
l take instructions directly from the public or be briefed by an attorney or the
Legal Aid Board Justice Centre;
28
l only render those services that they are limited to by the LPA, whether it be
criminal or civil matters;
l practice for their own account but cannot enter into partnerships; and
l serve at a law clinic, the Legal Aid Board Justice Centre and the State Advo-
cates offices.
2.8.3 Public interest lawyer

The concept ‘public interest law’ can be described as using the law to protect and
advance the rights or concerns of persons and communities, which has an impact
on the broader public. Often, these persons or communities are unable, for one
reason or another, to enforce their rights, usually due to a lack of resources.
Consequently, a feature of any public interest law institution will be to provide
access to justice for disadvantaged and indigent communities. It will include
protecting and enforcing the rights of marginalised groups, for example women
and children, the landless and the homeless groups, and the many persons living
with HIV and AIDS. In short, a synonym for public interest law could be social
justice and advocates for social justice would be engaged in advancing and
serving the interests of their communities positively. Therefore, public interest
lawyers are also referred to as social justice advocates or human rights lawyers.
In South Africa, there are many public interest law centres that provide opportuni-
ties to pursue a career in public interest law, for example:
l University Law Clinics are centres for the practical legal education of students
in the faculty of law at a university in the Republic and a law centre controlled
by, or which is, a non-profit organisation, which provides legal services to the
public free of charge.71 McQuoid-Mason72 offers a more detailed definition,
describing law clinics as ‘offices staffed by law students under the supervision
of qualified lawyers which provide free legal services to indigent members of
the community’ where they deal with ‘live clients with real life legal problems’.
McQuoid-Mason argues that the term ‘law clinic’ in the United States may
include clinics that restrict their activities to simulated legal practice and do not
deal with live clients. In compari-
son, law clinics in a developing Work in a law clinic ‘sensitises
country such as South Africa, with
vast economic and social differ-
students to both the theory and
ences and where the majority of the practice of social justice’.
the population does not have
access to proper legal services, play an important role in providing access to
justice. In this process, students are provided with a valuable window into the
world of poverty and the real-life problems of underprivileged members of
society. In the context of the South African Constitution which enshrines a num-
ber of social and economic rights, McQuoid-Mason argues that work in a
________________________
71 Defined as such in Act 53 of 1979.

72 McQuoid-Mason ‘Teaching social justice to law students through community service: The
South African Experience’ in Iya (ed) (2000) Transforming South African Universities at 90.
29
law clinic ‘sensitises students to both the theory and the practice of social
justice’.
l Legal Aid Board Justice Centres are spread throughout South Africa and
employ attorneys and candidate attorneys to provide legal representation to
the indigent. The Legal Aid Board seeks a just South Africa, in which all the
rights enshrined in our Constitution are respected, protected and defended to
ensure justice for all, and aims to become a leading provider of legal services,
ensuring quality access to justice for the poor and vulnerable in an independ-
ent manner. At the Centres there is a specific focus on criminal practice. The
representation of juvenile accused is an important aspect of the work of the
Justice Centres. The Legal Aid Board has identified women’s and children’s
rights (as well as land issues) as deserving of special attention in the provision
of its legal services. They also fund candidate attorneys in rural law firms and
law clinics.73
l The Legal Resources Centre is an independent, client-based, non-profit public
interest law centre which uses law as an instrument of justice. It works for the
development of a fully democratic society based on the principle of substantive
equality, by providing legal services for the vulnerable and marginalised,
including the poor, homeless, and landless people and communities of South
Africa who suffer discrimination by reason of race, class, gender, disability or
by reason of social, economic, and historical circumstances.74
l Lawyers for Human Rights is a non-governmental organisation that strives to
promote, uphold and strengthen human rights. The organisation has had a
proud history since its inception in 1979 of fighting oppression and the abuse
of human rights in South Africa.75
2.8.4 Public prosecutor

Public prosecutors conduct prosecutions in criminal proceedings in the Magis-
trates’ Court. They act on behalf of the State. A public prosecutor decides wheth-
er a charge should be held against a person and the public prosecutor must
present evidence to the court to prove the crime. Previously, the BIuris degree
was considered to be the sufficient qualification. However, at the present time, all
prosecutors must complete an LLB degree. A public prosecutor may be promoted
to a senior public prosecutor and ultimately to State advocate. There are also
opportunities to move into different positions at the various structures of the
National Prosecuting Authority.76
2.8.5 State advocate

State advocates appear in the High Court on behalf of the State in criminal trials.
The work they conduct is similar to that of a public prosecutor. State advocates
________________________
73 http://www.legal-aid.co.za.
74 http://www.lrc.org.za/About/About-detail.asp?ID=1.
75 http://www.lhr.org.za/home/page0.php.
76 http://www.npa.gov.za/default_06.htm.
30
prepare criminal court cases and furnish legal opinions. A State advocate must
have an LLB degree, be admitted as an advocate; and must attend training at the
Department of Justice. Promotion possibilities include senior State advocate.
State advocates are not obliged to become members of the bar since it is not
mandatory to do so.
2.8.6 State attorney

The State attorney’s function is similar to that of a private attorney, except that the
office of the State attorney acts on behalf of the various government departments.
Its main function is to protect the interests of the State in civil cases. The convey-
ancers of the State attorney prepare deeds of transfer when the State buys or
sells land. Promotion possibilities include assistant State attorney; senior assis-
tant State attorney; deputy State attorney; and State attorney.
2.8.7 Judicial officers

Judicial officers are comprised of magistrates and Post-1994, all legal
judges. Magistrates preside in the Magistrates’
Courts and judges in the High Courts. Magistrates practitioners (attorneys
also perform various administrative functions, such and advocates), as well
as acting as a marriage officer. Magistrates may as legal academics, are
be promoted to senior magistrate, chief magistrate,
and finally regional court president. Judges are eligible to be appointed
normally appointed in the various local divisions, as judges.
Supreme Court of Appeal or the Constitutional
Court. Traditionally, judges were appointed from the ranks of advocates only.
Post-1994, all legal practitioners (attorneys and advocates), as well as legal
academics, are eligible to be appointed as judges. Judges are appointed by the
Judicial Services Commission.77
2.8.8 Master of the High Court

The Master serves the public in respect of the administration of deceased estates;
liquidations and insolvent estates; the registration of trusts; the appointment of
tutors and curators; and administration of the Guardian’s Fund (for minors and
mentally challenged persons). The Master has wide interaction with members of
the public and legal practitioners. The Master’s Office has five main divisions, all
striving to protect the financial interests of persons whose assets or interests are,
for various reasons, being managed by others.78
2.8.9 Justice College

Lecturers at the Justice College present lectures and seminars. They also provide
practical training which takes place in court, at the deeds office, or the Master’s
Office. A lecturer at the Justice College must usually first have worked as a
________________________
77 http://www.sabar.co.za/legal_career.html.
78 http://www.doj.gov.za/master/m_main.htm.
31
magistrate, State advocate or prosecutor, or at the Master’s or Deeds Registra-

tion Offices. A lecturer can be promoted to deputy director; director; and ultimately
chief director.
2.8.10 Office of the Family Advocate
The Family Advocate is a legal officer employed by the Department of Justice and
acts as the legal representative of children of divorcing spouses. The services of
the Family Advocate are rendered to the public free of charge. The Family Advo-
cate assists divorcing spouses to reach agreement on custody, access and guard-
ianship of their children. If the parties are unable to reach an agreement, the Family
Advocate evaluates the parties’ circumstances in light of the best interests of the
child and makes a recommendation to the court with regard to custody, access or
guardianship.79
2.8.11 State law advisor
State law advisors are legal researchers who provide legal advice to the State
and draft and revise legislation. The Department requires candidates to hold an
LLB degree and to complete certain examinations. On-the-job training is also
provided. A State law advisor may be promoted to deputy chief State law advisor,
and ultimately chief State law advisor.
2.8.12 Corporate legal advisors
Corporate legal advisors are often qualified attorneys or advocates, or persons
who have completed a law degree. They work as legal advisors to large corpora-
tions, companies, and other organisations. It must be noted that a legal practi-
tioner cannot be employed as a legal advisor while still being registered on the roll
of practising attorneys or advocates.
2.8.13 Legal academics
Law graduates can also opt to pursue a career in academia. Law lecturers at the
various university law schools and faculties are teachers and researchers of the
law. Lecturers must organise a teaching schedule; prepare and present lectures;
prepare and mark tests, assignments and examinations; conduct research and
publish legal articles; and contribute to legal textbooks. Many lecturers have
experience as practising attorneys or advocates. A lecturer can be promoted to
senior lecturer, professor, head of the law school, or the dean of the law faculty.
Clinicians, who are attorneys employed at law clinics, serve as law lecturers in
addition to providing legal services to the public.
2.9 Conclusion
Currently, law graduates may still decide whether to practice as attorneys or
advocates. It is not important what you decide to practice as – what is important is
that whatever you do, you do so with proper knowledge and skills, and by adher-
ing to the professional ethics and constitutional values.
________________________
79 http://www.doj.gov.za/2004dojsite/famadv/f_main.htm.
32
Professional and
ethical conduct
By Willem de Klerk
3.1 Introduction
One of the characteristics of any profession is the
One of the characteristics presence of an enforceable code of conduct.1 The
of any profession is legal profession in particular has been said to be a
necessary instrument of order and civilisation; and
the presence of an that those who choose to practice law are expected
enforceable to fulfil the duties and observe the restraints which
code of conduct. the mores of the community impose on them.2
The founding values of professional conduct in
the legal profession, such as the duty to act with honour and fairness, stem from
Roman-Dutch tradition. These principles were developed and extended over time
through legislation, rules of professional societies and application by the courts.
Professional bodies like the Law Society of South Africa and General Council of
the Bar constitute a framework within which these rules are applied and enforced.
The courts act as upper custodians of the integrity of the profession and are
particularly astute to condemn deviation of professional standards.3
The structure of the legal profession is however in the process of undergoing
substantial changes. The details of these changes are dealt with elsewhere in this
book, but for the purposes of this chapter it is important to know that the future
restructuring of the profession may impact on at least some of the existing rules of
professional and ethical conduct. For example, once the Legal Practice Act4
comes into operation fully and advocates are able to accept instructions directly
from the public,5 the traditional divide between these two branches of the profes-
sion, and the rules regulating that division, will become somewhat blurred. In the
main however the principles discussed in this chapter are not expected to undergo
fundamental revision. Those principles that are particularly likely to undergo
________________________
1 Du Plessis (1982) Die Professionele Gedrag van die Juris at 2.

2 Lewis (1982) Legal Ethics – A Guide to Professional Conduct for South African Attorneys at 2.
3 Holmes v Law Society of the Cape of Good Hope and Another 2006 (2) SA 139 (C) 32.
4 Act 28 of 2014.
5 Subject to certain requirements relating to trust funds.
33
important changes under the new regime will be discussed in the course of this
chapter.
3.2 Important terms and concepts

3.2.1 Rules of professional ethics
The rules of professional ethics are drawn from various sources and collectively
regulate the conduct of legal practitioners. Failure to act in accordance with these
rules is sanctioned through disciplinary steps that may include suspension or
removal from the roll of practitioners.
3.2.2 Legal practitioner

In the context of this chapter, the term ‘legal practitioner’ is generally used to refer
to both attorneys and advocates. The term has become commonplace as the
traditional divide between attorneys and advocates is gradually eroded. Attorneys
have acquired the right to appear in the High Courts, equal to that of advocates,
and are able to draft High Court pleadings, previously reserved for advocates.
The term ‘legal practitioner’ has also been adopted in the Legal Practice Act in
referring to both attorneys and advocates. As a result of these developments,
more and more of the rules of professional conduct apply equally to both branch-
es of the profession. Where a distinction between the two branches of the profes-
sion is necessary in the context of this chapter, such distinction will be made.
3.2.3 Fit and proper person

In order to be admitted (or re-admitted) as a
In order to be admitted legal practitioner, an applicant must satisfy the
as a legal practitioner, court that he/she is a fit and proper person.6
This is usually done by way of affidavit, at-
an applicant must satisfy taching letters of reference confirming that, in
the court that he/she is a the opinion of the referees, the applicant is fit
fit and proper person. and proper for admission to the profession.
The expression ‘fit and proper’ has, however,
not been clearly defined. It has been held to
mean that the person should be of such character that he/she is worthy to be in
the ranks of an honourable profession7 and should possess unquestionable
honesty, integrity and reliability.8
In the matter of Ex Parte Gunguluza9 the court stressed that a person cheating
during his admission exams is not a fit and proper person for admission to the
legal profession.
________________________
6 S 15(1)(a) of Act 53 of 1979; s 3(1)(a) of Act 74 of 1964; s 24(2)(c) of Act 24 of 2014.

7 Ex parte Moseneke 1979 (4) SA 884 (T).
8 Kaplan v Incorporated Law Society, Transvaal 1981 (2) SA 762 (T); S v Mkize; S v Mosia;
S v Jones; S v Le Roux 1988 (2) SA 868 (A).
9 1971 (4) SA 212 NPD.
34
Professional and ethical conduct
A criminal conviction, per se, will not necessarily render a person unfit for prac-
tice, depending on the nature of the offence and the circumstances under which it
was committed. However, a stated intention to continue defying any of the laws of
the Republic will generally render the applicant unfit for practice.10 A plea that the
applicant was wrongly convicted, coupled with an alternative plea that he/she was
reformed, is irreconcilable and has failed for this reason.11
A legal practitioner may be suspended from practice or removed from the roll of
practitioners if the court is satisfied that he/she is no longer a fit and proper person
to practice as such.12 In exercising its discretion, the court will conduct a three-
stage inquiry, namely:13 (1) whether the offending conduct has, as a matter of
fact, been established; (2) whether such conduct, as a value judgment, renders
the applicant unfit for practice; and (3) if so, whether, in all circumstances, the
person should be removed from the roll of practitioners or merely be suspended.
3.2.4 Misconduct
Professional misconduct generally refers to unprofessional, dishonourable, or
unworthy conduct by a legal practitioner that warrants disciplinary action. Miscon-
duct may take the form of a contravention of the statutory provisions governing
the profession,14 a contravention of the rules made by professional bodies,15 or
any conduct, even in a private capacity,16 that the court finds to be improper. Any
such conduct may lead to disciplinary action by the relevant professional body or
the High Court.
Lewis17 draws a distinction between statutory
misconduct and unprescribed misconduct, the A practitioner should avoid
latter being a contravention of the mores of the all conduct which, if
community rather than a breach of a ‘rule’ in known, could damage
the profession. In this respect, Lewis formu-
lated his own ‘golden rule’, namely that a his/her reputation ‘as an
practitioner should avoid all conduct which, if honourable lawyer or an
known, could damage his reputation ‘as an honourable citizen’.
honourable lawyer or an honourable citizen’.18
________________________
10 Prince v President of the Law Society of the Cape of Good Hope and Others 2000 (7)
BCLR 823 (SCA).
11 Ex parte Ngwenya: In re Ngwenya v Society of Advocates, Pretoria, and Another 2006 (2)
SA 88 (T).
12 S 22(1)(d) of Act 53 of 1979; s 7(1)(d) of Act 74 of 1964.
13 See Jasat v Natal Law Society 2000 (3) SA 44 (SCA); Law Society of the Cape of Good
Hope v Budricks 2003 (2) SA 11 (SCA); Law Society, Northern Provinces v Mogami and
Others 2010 (1) SA 186 SCA.
14 Currently, the Attorneys Act and the Admission of Advocates Act. In time, the Legal Practice
Act will replace these statutes.
15 The South African Legal Practice Council, once established, will also assume the role of deter-
mining standards of professional and ethical conduct. See s 5(g) of the Legal Practice Act.
16 See eg Prokureursorde van Transvaal v Kleinhans 1995 (1) SA 839 (T), where an attorney was
struck from the roll for, amongst others, being drunk in public, being an admitted alcoholic, hav-
ing been declared insolvent and having been convicted of malicious damage to property.
17 See generally, Lewis (1982).
18 Supra at 7–8.
35
One common example of misconduct relates to touting.19 In Law Society of

Cape of Good Hope v Berrange,20 an attorney was suspended for a period of two
years for having entered into an arrangement with estate agents whereby con-
veyancing work was referred to the attorney against payment of reward. This, the
court found, was akin to touting for business and is considered a serious transgres-
sion. In addition to being suspended, the attorney was ordered to pay the costs of
the application on a punitive scale.
3.2.5 Professional negligence

Legal practitioners are expected to possess special knowledge, skill and learning,
and must measure up to the standard of competence of a reasonable man pro-
fessing such knowledge and skill.21 Where a legal practitioner falls short of that
standard, and in doing so causes damage to the client, civil liability may be
incurred based on professional negligence.
Professional negligence must be distinguished Misconduct gives
from misconduct. Misconduct gives rise to disci-
plinary steps against the practitioner concerned, rise to disciplinary steps
whereas professional negligence results in civil against the practitioner
liability towards the client. Professional negli- concerned, whereas
gence may, in some instances, overlap with mis-
conduct. For example, a legal practitioner who professional negligence
negligently allows a client’s claim to prescribe will results in civil liability
incur contractual and/or delictual liability. The towards the client.
practitioner concerned will also be subjected to
disciplinary steps if, in allowing the claim to prescribe, he/she acted with impropriety
or with reckless disregard for the client’s interests.22
3.3 Sources
The rules of professional conduct in the legal profession are derived from a num-
ber of sources. These sources are briefly discussed below.
3.3.1 Legislation
The most important statutes regulating conduct within the legal profession are the
Attorneys Act 53 of 1979 and the Admission of Advocates Act 74 of 1964. These
will in time be replaced by the Legal Practice Act 28 of 2014. Other relevant
statutes include the State Attorney Act 56 of 1957; the Recognition of Foreign
Legal Qualifications and Practice Act 114 of 1993; the Right of Appearance in
Courts Act 62 of 1995; the Contingency Fees Act 66 of 1997; and the Reinstate-
ment of Enrolment of Certain Deceased Legal Practitioners Act 32 of 2002. The
________________________
19 See, eg, Sibiya v Director-General: Home Affairs and Others, and 55 related cases 2009 (5)
SA 145 (KZP); Botha and Others v Law Society, Northern Provinces 2009 (3) SA 329 (SCA).
20 2005 (5) SA 160 (C).
21 Van Dijkhorst and Mellet ‘Legal Practitioners’ 1999 vol 14 LAWSA 407.
22 Lewis at 78 et seq.
36
Supreme Court Act 59 of 1959 and Magistrates’ Court Act 32 of 1944 also bear
reference.
3.3.2 Rules, regulations, practice directions

These include the various rules of court, rules and regulations issued by profes-
sional bodies, and practice directions issued from time to time by various courts,
typically containing ‘house-keeping’ rules in respect of administration, process
and practice in the respective courts.
3.3.3 Court decisions

There is an abundance of reported judgments dealing with aspects such as
negligence and misconduct by legal practitioners, requirements for admission,
and sanctions imposed for misconduct.
3.3.4 The common law

Roman-Dutch principles relating to the conduct of legal practitioners are an
important source of legal ethics. Since the adoption of the Constitution,23 some
common-law traditions have, however, been challenged on the basis of their
constitutionality. The referral rule in its present state, which provides that advocates
may only accept work from attorneys, was for example (unsuccessfully) challenged
on several occasions.24 Undue criticism of the court, manifested in the crime of
scandalising the court, has been tempered in view of the constitutional right to free-
dom of expression.25
3.3.5 Academic writings

Probably the most comprehensive publication on legal ethics in the South African
context is Legal Ethics by Lewis, published in 1982, now unfortunately out of
print.26 Others include Die Professionele Gedrag van die Juris by Du Plessis;27
Lawyers’ Professional Liability by Midgley;28 the chapter on legal practitioners in
The Law of South Africa, volume 14;29 Lewis and Kyrou’s Handy Hints on Legal
Practice;30 and numerous articles in legal journals.
3.3.6 Foreign influences

Some foreign influences are found in the form of the codes of conduct of the
International Bar Association; the American Bar Association; the Canadian Bar
________________________
23 The Constitution of the Republic of South Africa, 1996 (the Constitution).

24 De Freitas v Society of Advocates of Natal 2001 (3) SA 750 (SCA); Van Der Spuy v General
Council of the Bar of South Africa 2002 (5) SA 392 (CC). See also Noordien v Cape Bar
Council and Others (WCC) unreported case no 9864/2013, decided on 13/01/2015).
25 See para 3.5.2 below for a discussion on contempt of court.
26 See Lewis (1982).
27 See Du Plessis (1982).
28 See Midgley (1992).
29 See Van Dijkhorst and Mellet.
30 Hoffmann (ed) (1997) Lewis and Kyrou’s Handy Hints on Legal Practice.
37
Association; and the English Law Society. English case law is also traditionally
considered as persuasive authority in South African jurisprudence around profes-
sional conduct.
3.4 Relationship with the State

3.4.1 Respect for the legal order
Legal practitioners have a positive duty to uphold the law and to further the
administration of justice. Upon admission to the profession, both attorneys and
advocates take an oath which includes
affirmation of faithfulness to the Republic The basic principle is that you
of South Africa. Legal practitioners are cannot offend against the very
therefore expected to show respect for the thing you swore to uphold.
legal order. The basic principle is that you
cannot offend against the very thing you swore to uphold.
In the case of Prince,31 the Supreme Court of Appeal was asked to set aside a
decision by the Law Society of the Cape of Good Hope to refuse the applicant
admission to the profession. Prince had two previous convictions for the posses-
sion of marijuana at the time he applied for admission. Upon being asked to
explain these convictions, he made it clear that he intended to continue using
marijuana in pursuit of his religious convictions as a Rastafarian. As a result, the
law society declared Prince unfit for practice. In rejecting Prince’s appeal, the
court held that:
any person who wishes to be a member of the attorney’s profession and takes the (pre-
scribed) oath . . . also swears . . . loyalty to the laws of the Republic . . . If the appellant
declares that he will defy any of the laws of the Republic, it is difficult to see how he can
be considered to be a fit and proper person as is envisaged by the Attorneys Act. His
conduct seems . . . to amount to a repudiation of the oath . . . of allegiance even before
32
he takes it.
3.4.2 Political dissent

The duty to show respect for the legal order
The duty to show respect assumes a very different dimension when the
for the legal order legal order itself is immoral and unjust. In South
assumes a very different Africa, this dilemma was highlighted through the
experiences of legal practitioners like Mahatma
dimension when the legal Gandhi, Nelson Mandela and Bram Fischer. All
order itself is immoral of these men were ultimately forced to give up
and unjust.
________________________
31 Prince v President of the Law Society of the Cape of Good Hope and Others 2000 (7)
BCLR 823 (SCA).
32 The Prince case at 827F–H. Prince later applied to the Constitutional Court for a ruling that
the laws criminalising the possession and use of marijuana be declared unconstitutional, as
(so he reasoned) they infringe on his constitutional right to freedom of religion. The Consti-
tutional Court rejected this application. See Prince v President, Law Society of the Cape of
Good Hope 2002 (2) SA 794 (CC).
38
the practice of law as a result of their opposition to the State.33

In the case of Fischer,34 the Society of Advocates brought an application against
Bram Fischer, at the time practicing as senior counsel at the Johannesburg Bar,
for his removal from the roll of advocates following his failure to stand trial on
charges relating to communism. The court held that it is the duty of an advocate
and an attorney to further the administration of justice in accordance with the laws
of the country and not to frustrate it, and that it would be inconsistent to allow an
advocate to remain on the roll ‘when he is defying these laws and instigates
others to defy [them]’.35 Fischer’s case raises difficult questions regarding the duty
of legal practitioners to be faithful to the State in the context of immoral laws.36 In
2003, Fischer was posthumously reinstated as a member of the bar.37
3.4.3 Criminal conduct

Unlawful and criminal conduct has resulted in the suspension and removal of
many legal practitioners. Examples of such conduct include the contravention of
the Insolvency Act and statutory perjury;38 defeating the ends of justice;39 unlawful
dealing in diamonds;40 corruption and obstructing the course of justice;41 theft of
trust funds;42 and malicious damage to property.43
3.4.4 Assisting clients in breaking the law

If clients seek advice on breaking the law, they should be informed about the
possible consequences of acting unlawfully and be advised against such action.
Facilitating or assisting a client to break the law would clearly constitute unprofes-
sional conduct. Advising a client to act opportunistically, for example taking
________________________
33 Le Roux ‘Conscience against the law: Mahatma Gandhi, Nelson Mandela and Bram Fischer
as practicing lawyers during the struggle’ 2001 1 Codicillus 20.
34 Society of Advocates (Witwatersrand Division) v Fischer 1966 (1) SA 133 (T).
35 Supra at 137F.
36 See Ellmann ‘To Live Outside The Law You Must Be Honest: Bram Fischer and the mean-
ing of integrity’ 2001 South African Journal for Human Rights 17 451. For other reported
judgments on the sanction for political disaffection see Natal Law Society v Maqubela 1986
(3) SA 489 (N); Natal Law Society v N 1985 (4) SA 115 (N); Incorporated Law Society of
Natal v Hassim (also known as Essack) 1978 (2) SA 285 (N); Incorporated Law Society,
Transvaal v Mandela 1954 (3) SA 102 (T).
37 This was done in terms of the Reinstatement of Enrolment of Certain Deceased Legal
Practitioners Act 32 of 2002, enacted with the aim of restoring deceased advocates or
attorneys to the roll, who were struck off for political reasons during apartheid.
38 Reyneke v Wetsgenootskap van die Kaap die Goeie Hoop 1994 (1) SA 359 (A).
39 Mafara v Law Society of Zimbabwe 1988 (3) SA 247 (ZS).
40 Vereniging van Advokate van Suid-Afrika (Witwatersrandse Afdeling) v Theunissen 1979 (2)
SA 218 (T).
41 Incorporated Law Society v Behrman 1957 (3) SA 221 (T).
42 Law Society of the Transvaal v Chetty 1981 (1) SA 848 (T); Incorporated Law Society v Le
Roux 1973 (2) SA 413 (T); Incorporated Law Society of the Transvaal v Goldberg 1964 (4)
SA 301 (T); Incorporated Law Society of the Transvaal v Behrman 1977 (1) SA 904 (T);
Prokureursorde van Transvaal v Landsaat 1993 (4) SA 807 (T).
43 Prokureursorde van Transvaal v Kleinhans 1995 (1) SA 839 (T).
39
advantage of a loophole in the law, would, however, not necessarily be improper.

Practitioners have a duty to serve their clients’ best interests and should not
hesitate to do so, provided it does not involve illegality.44
3.5 Relationship with the court

3.5.1 Relationship of trust
The proper administration of justice depends to a large extent on a relationship of
trust between the court and legal practitioners. Courts must have complete confi-
dence in the honour and good faith of legal practitioners.
In Ex parte Swain,45 the applicant applied to be re-admitted as an advocate,
having previously been struck off the roll. After hearing oral evidence presented
by the applicant, the court rejected the application. The court concluded that the
applicant had demonstrated an inability or reluctance to tell the truth even when
giving evidence under oath. The court held that ‘it is of vital importance that when
the Court seeks an assurance from an advocate that a certain set of facts exists
the Court will be able to rely implicitly on any assurance that may be given . . .
The proper administration of justice could not easily survive if the professions
were not scrupulous of the truth in their dealings with . . . the Court’.46
3.5.2 Contempt of court

Legal practitioners must show the necessary respect to the court and court offi-
cials. Failure to do so may constitute unprofessional conduct and contempt of
court.47 Contempt may take place in facie curiae (in the face of the court) or ex
facie curiae (outside the court). Showing disrespect to the court or a presiding
officer, disturbing court proceedings, defying court rulings or failing to appear in court
when required, will usually constitute contemptuous and unprofessional conduct.
A particular form of contempt is known as ‘scandalising the court’. Statements
or documents which tend to prejudice or interfere with the administration of jus-
tice, is regarded as a crime and offenders were traditionally tried in a summary
manner. The application of this offence gained infamy in the various prosecutions
of the late Professor Barend van Niekerk in the early 1970s, one of which resulted
from the publication of academic research indicating that there was a racial bias
against blacks in the imposition of the death penalty.48
In 2000, the Constitutional Court was asked to consider the constitutionality of
the offence of scandalising the court, including the way in which offenders were
tried. In S v Mamabolo,49 the court accepted the constitutional validity of the
________________________
44 For a discussion on taking advantage of loopholes in the law, see Lewis at 251–256.
45 1973 (2) SA 427 (N).
46 The Swain case at 434H. See also Thulo v Road Accident Fund 2011 (5) SA 446 (GSJ)
where it is stated that ‘an attorney’s word is his or her bond’ (at par 45).
47 R v Silber 1952 (2) SA 475 (A); S v Nel 1991 (1) SA 730 (A).
48 For a discussion on this point, see Davis, Marcus and Klaaren ‘The Administration of
Justice’ 2001 Annual Survey of South African Law 890–892.
49 S v Mamabolo (E-TV Intervening) 2001 (3) SA 409 (CC).
40
offence in principle, but held that it should be measured against the right of free-
dom of expression. The court emphasised that free and frank debate about judi-
cial proceedings is a necessary check on the judiciary. It concluded that the
offence should only be prosecuted in clear cases where the offending conduct
really was likely to damage the administration of justice. The court also held that
summary contempt proceedings are inherently inappropriate and that offenders
should be prosecuted through the ordinary
mechanisms where possible. The court held that fair and
The Mamabolo judgment has brought reasonable criticism, made bona
about an important shift in the approach to
contempt proceedings. In the later case of fide and in the public interest,
50
S v Moila, the court held that fair and deserves constitutional
reasonable criticism, made bona fide and protection.
in the public interest, deserves constitu-
tional protection. On the facts in this particular case, however, the court had no
hesitation in striking down the accused’s claim to a right to freedom of expression
and found him guilty of the offence.51
3.5.3 Duty of disclosure

Misleading the court is viewed in a very serious
Legal practitioners are light. Misleading includes: making false state-
expected to disclose all ments to the court;52 failing to direct the court’s
relevant information to attention to relevant authority;53 and non-dis-
closure of material facts.54 Legal practitioners
the court, even if such are expected to disclose all relevant information
information may be to the court, even if such information may be
detrimental to their detrimental to their client’s case. This duty is
client’s case. particularly important in motion proceedings and
ex parte applications, where the court relies
heavily on the oral submissions made by the legal representatives, in order for the
court to give judgment directly after hearing the application.55
In Society of Advocates v Merret,56 an attorney was struck off the roll following
a deliberate misstatement made to the judge during a divorce hearing. The attor-
ney in question gave false assurance to the court that the opposing attorney was
aware that the divorce action was proceeding on an unopposed basis on that day.
________________________
50 2006 (1) SA 330 (T).

51 The accused in this matter (an academic) made public statements to the effect that certain
judges of a particular division of the High Court are biased, racist, incompetent, guilty of
intimidation and collusion, and lack integrity and impartiality.
52 Jasat v Natal Law Society 2000 (3) SA 44 (SCA); Society of Advocates of Natal and Another
v Merret 1997 (4) 374 (N).
53 Ex parte Hay Management Consultants (Pty) Ltd 2000 (3) SA 501 (W).
54 Pienaar v Pienaar en Andere 2000 (1) SA 231 (O); Ex parte Swain 1973 (2) SA 427 (N).
55 Cloete and Van der Berg ‘Regspraktisyns se plig teenoor hof en verantwoordelikheid
teenoor medepraktisyns’ 2001 Obiter 1 236.
56 1997 (4) SA 374 (N).
41
The court held that his conduct amounted to the deliberate misleading of the court
and consequently that he is not a fit and proper person to remain on the roll of
attorneys.
3.5.4 Defending the guilty

It is often asked whether practitioners may defend a client whom they know to be
guilty, without acting unethically. If a client confesses that he/she committed the
offence with which he/she is charged, but requests you enter a plea of not guilty,
it would not be unethical to do so. In criminal proceedings, the State bears the
onus of proving the guilt of the accused beyond reasonable doubt, and there is no
duty on practitioners to assist the State in this regard. Having said this, a practi-
tioner burdened with knowledge of his/her client’s guilt does have certain
restrictions as to the manner in which the case is conducted. For example, you
may not present to the court a version which you know to be false, or allow your
client to do so. The principle remains that you may not assist your client in mis-
leading the court. At best, you may test the strength of the State’s evidence by
cross-examining witnesses on, for example, the accuracy of their observations or
ability to identify the accused. Remember that you always have to act in the best
interests of your client. If at any time you feel that your knowledge of your client’s
guilt may cause you to feel prejudiced towards your client, or places you in
an unbearable position, you should decline to take on the case or immediately
withdraw.
3.5.5 Abusing the Rules of Court

Legal practitioners must ensure that the Rules of Court serve their true purpose.
Manipulation and abuse of the courts’ procedures will be met with an appropriate
cost order and referral to professional bodies for disciplinary action. This is a
positive duty and practitioners must also prevent their clients abusing the
process.57
In the case of Khunou,58 an attorney of record refused to furnish the opposing
side with copies of discovered documents, as envisaged by High Court Rule 35.
The attorney insisted that the opposing side make longhand copies of all discov-
ered documents. In an application to compel the delivery of such documents, the
court held that the rules of civil procedure exist in order for the courts to try dis-
putes between parties and to ensure that justice is done. It further held that High
Court Rule 35 contemplates the parties making and exchanging copies of all
discovered documents. The court punished the attorney in question with an order
of costs de bonis propriis.59
________________________
57 Brenner’s Service Station and Garage (Pty) Ltd v Milne and Another 1983 (4) SA 233 (W).
58 Khunou and Others v M Fihrer and Son (Pty) Ltd and Others 1982 (3) SA 353 (W).
59 This is a punitive cost order made against a legal practitioner personally, as opposed to the
usual cost orders which are made against the litigating parties. See para 7.5.5 for more
details on the various cost orders.
42
3.6 Relationship with clients

3.6.1 General approach
The duties of practitioners, particularly attorneys, towards their clients are best
formulated by Van Zyl in the following extract, often quoted by the courts:60
This duty . . . is not a servile thing; (the attorney) is not bound to do whatever his client
wishes him to do. However much an act or transaction may be to the advantage, profit or
interests of a client, if it is tainted with fraud or is mean, or is in any way dishonourable,
the attorney should be no party to it, nor in any way encourage or countenance it . . . The
law exacts from an attorney uberrima fides – that is, the highest possible degree of good
faith. He must manifest in all business matters an inflexible regard for truth. There must
be meticulous accountancy, a minute high sense of honour and incorrigible integrity. He
must serve his client faithfully and diligently and must not be guilty of unnecessary delay.
He must not act in a case which he knows from the beginning to be unjust and unfounded.
He must abandon it at once if it appears to him to be such during its progress. He must
in no way betray his client to the other side, either by secret correspondence or commu-
nication, or in any manner whatsoever. He must duly and faithfully keep the secrets of
his clients and on no account disclose them without the client’s consent . . . He must,
when reasonable and necessary, communicate with his client on all matters concerning
the case; . . . and assist the client . . . in devising what, in any honourable way, can tend
to the advantage and defence of the rights of his client. He must, once he has under-
taken the client’s case, not abandon it without good and lawful reason or excuse.
3.6.2 Accepting instructions

Before accepting instructions, legal practitioners should consider a few important
factors, such as whether there exist potential conflict of interests, whether the
client’s instructions involve illegality or impropriety, and whether one possesses
the necessary skill to execute the mandate. It must be borne in mind that, from
the moment an instruction is accepted, a relationship arises which imposes cer-
tain rights and duties.
Another aspect to be considered is whether practitioners have sufficient time at
their disposal to attend to clients’ instructions efficiently and within a reasonable
time. This applies equally to those in private practice as those employed to render
legal services to the poor, for example law clinicians and practitioners employed
at the Legal Aid Board. The application of this principle is illustrated in the judg-
ment in The Legal Aid Board v Pretorius and Another61 where an advocate ap-
pointed by the Legal Aid Board applied to withdraw from representing certain
clients in what was dubbed the ‘Boeremag trial’. The advocate, a salaried em-
ployee of the Legal Aid Board, contended that his representation of five different
accused in that particular matter, presented such a heavy a workload that he was
unable to provide effective legal representation to all his clients. The Legal Aid
________________________
60 Van Zyl (1921) The Theory of Judicial Practice of South Africa as quoted in Khunou and
Others v M Fihrer and Son (Pty) Ltd and Others 1982 (3) SA 353 (W) 504A–G and Barlow
Rand Ltd t/a Barlow Noordelike Masjinerie Maatskappy v Lebos and Another 1985 (4) SA
341 (T).
61 Judgment by Navsa JA with Harms JA, Streicher JA, Brand JA and Van Heerden JA
concurring, Supreme Court of Appeal case 332/2005 (unreported), judgment delivered on
31 May 2006.
43
Board, however, refused to entertain the advocate’s complaints and tried to force
him to continue with his representation of all five of his clients. The trial judge
eventually intervened and ordered the Legal Aid Board to appoint alternative legal
representation for two of the accused. On appeal, the court stressed that the
constitutional right to counsel ‘must be real and not illusory and an accused
person has the right to a proper, effective and competent defence’.62 This judg-
ment sends an important message, particularly to salaried practitioners working
with the poor, that the quality of legal representation cannot and should not be
compromised due to heavy workloads.
3.6.3 The mandate
The services that legal practitioners render to their clients are mainly those which
an agent renders to his/her principal. As such, the principles of the law of agency
apply to the relationship between a
practitioner and the client.63 Legal practi- Legal practitioners may not act
tioners may not act in any matter unless in any matter unless they have
they have clear instructions to that clear instructions to that effect.
effect. The mandate need not be in
writing, may be general or specific, or may be implied by circumstances or by law.
Practitioners must at all times act according to their clients’ instructions. Within the
parameters of the mandate, practitioners may, however, exercise their professional
judgment. A client cannot generally prescribe the manner in which the services are
to be rendered.64 Acting contrary to the scope of the mandate, thereby causing
harm to the client, will usually result in civil liability for damages.
3.6.4 Settlements
The duty to adhere to the mandate is nowhere as acute as in settlement negotia-
tions. Legal practitioners are often, to the exclusion of the client, in control of the
process. All settlement proposals received must be presented to the client, even if
the practitioner considers the proposal to be inadequate.65
Practitioners may not compromise a client’s claim without instructions to that
effect. Situations may, however, arise where practitioners are under the impres-
sion that they are mandated to settle on certain terms, only for the client to deny
such authority later. Practitioners should guard against this eventuality by confirm-
ing instructions in writing or making the client
The effect of a settlement sign a statement clearly defining the parameters
must be fully explained to of the authority to settle. The effect of a settle-
ment must be fully explained to clients in order
clients in order to obtain to obtain informed consent. Should a client
informed consent. make unreasonable demands, the practitioner
is entitled to withdraw from the matter.
________________________
62 The Legal Aid Board v Pretorius and Another Supreme Court of Appeal case 332/2005
(unreported) 41.
63 Goodriche and Son v Auto Protection Insurance Co Ltd (In Liquidation) 1967 (2) SA 501 (W).
64 Supra at 504E–F.
65 Goldschmidt and Another v Folb and Another 1974 (3) SA 778 (T).
44
Interestingly, the Supreme Court of Appeal recently confirmed that attorneys are
entitled to assume that their counterparts are authorised to make important deci-
sions in the course of litigation. Where it later appears that the attorney was not
expressly authorised to settle the matter, the client may be estopped from raising
this as a basis to withdraw from the settlement.66
3.6.5 Conflict of interest

Lewis adopted the following definition of a conflicting interest, originally contained
in the 1974 Canadian Code of Professional Conduct:67
A conflicting interest is one which would be likely to affect adversely the judgment of the
lawyer on behalf of or his loyalty to a client or prospective client or which the lawyer
might be prompted to prefer to the interests of the client or prospective client.
Conflicts could arise at any time and in any matter. Some conflicts are easily
recognisable , for example, being asked to act for
both a plaintiff and a defendant in the same case. It is the duty of legal
Other potential conflict situations are less obvi- practitioners to learn to
ous. It is the duty of legal practitioners to learn to recognise potential
recognise potential conflicts and to deal with them
appropriately. What follows are some examples
conflicts and to deal
of conflicts of interests and the possible conse- with them appropriately.
quences of failing to deal with them appropriately:
l Conflicting versions (1): In criminal matters where a legal practitioner acts
for two clients with conflicting versions, a conflict will inevitably arise. In S v
Jacobs68 the court held that it is improper for an attorney to continue acting
once such a conflict becomes apparent. The attorney in that case should im-
mediately have withdrawn from the case. Furthermore, as the attorney was
privy to information obtained from both clients during consultation, his contin-
ued representation of either became impossible.
l Conflicting versions (2): In S v Hollenbach,69 an attorney appeared for two
accused in the same matter. Later, one accused pleaded guilty while the other
maintained his innocence. As a result, the trials were separated. The attorney
continued to act for both accused at their separate hearings. In the course of
so doing, the attorney placed conflicting versions before the respective courts.
The court held that the attorney acted unprofessionally in continuing to repre-
sent both clients where a clear conflict of interests had arisen.
l Acting for both parties to a transaction: In the case of Ebersohn,70 an attorney
acted for both the seller and the purchaser of certain immovable property. The
purchaser later defaulted in not paying the balance of the purchase price due
to the seller. The attorney, whilst still acting for both parties, made various
________________________
66 MEC for Economic Affairs, Environment and Tourism v Eastern Cape v Kuienga and
Another 2010 (4) SA 122 (SCA).
67 Lewis at 49.
68 1970 (3) SA 493 (E).
69 1971 (4) SA 636 (NC).
70 Ebersohn v Prokureursorde, Transvaal 1996 (1) SA 661 (T).
45
attempts to obtain payment from the purchaser. His efforts eventually culmi-
nated in legal action being instituted against the purchaser. The court held that
the attorney should have realised that a conflict of interests had arisen which
rendered his continued representation of either of the parties untenable. In this
instance, the attorney should immediately have advised both his clients to
seek independent advice. His failure to do so was held to constitute unprofes-
sional and dishonourable conduct.
l Acting against former clients: Whilst practitioners are duty-bound to do the
best for their clients, they may not use or disclose confidential information
obtained from former clients in subsequent proceedings against such clients.
Such knowledge, even if seemingly unrelated to subsequent proceedings, may
well place practitioners in a dilemma vis-à-vis their current clients.
l Road Accident Fund claims: Conflicts of interests often arise in motor vehicle
accident claims where the same practitioner is requested to act for both the
driver and the injured passengers. Likewise, it is unwise both for employee
and employer, or both insured and insurer.71
l Secret commissions: Conflicts of interest may also arise where practitioners
receive secret commissions, profits or benefits in the course of acting for
clients, without disclosing this and obtaining the clients’ consent.72
l Being a witness in your own case: Practitioners should avoid acting in matters
where it is likely that they may be called upon to participate as witnesses.73
3.6.6 Confidentiality and privilege

The duty to preserve the confidentiality of all communications between legal
practitioners and their clients stems from an implied term of the contract between
the parties. The justification for this duty lies in the view that, unless granted an
absolute assurance of confidentiality, clients will be reluctant to disclose all mate-
rial facts to their legal representatives.
Confidentiality extends to all oral and documen-
Confidentiality extends tary information in respect of clients’ affairs. This
to all oral and duty survives the termination of the mandate and
documentary even the death of the client.74 The right to have
information such communications protected belongs to clients
and only they may waive this right. A breach of
in respect of clients’ this duty by a practitioner may result in legal
affairs. action for damages or the granting of an interdict
against further disclosure. Practitioners must
therefore at all times preserve the confidentiality of their clients’ affairs. Clients’
________________________
71 Hoffmann (ed) (1997) at 45–47.

72 Robinson v Randfontein Estate GMC Ltd 1921 AD 168 177. See also r 87 of the Rules of
the Law Society of the Northern Provinces.
73 Lewis at 156. See also Elgin Engineering Co (Pty) Ltd v Hillview Motor Transport 1961 (4)
SA 450 (NPD); Wronsky en ’n Ander v Prokureur-Generaal 1971 (3) SA 292 (SWA).
74 Lewis at 291.
46
matters should never be discussed in a way which may reveal their identity and
files containing clients’ documents must be kept safe.
In addition to the contractual duty of confidentiality, there also exists the doctrine
of legal professional privilege. In terms of this doctrine, certain communications
between legal practitioners and their clients may not be used in evidence. Legal
professional privilege applies to all communications between practitioners and their
clients; whether written or oral; that are intended to be confidential; and brought into
existence for the purpose of giving and receiving legal advice or for existing or
contemplated litigation. Legal professional privilege does not, however, apply to
communications which are not otherwise privileged; communications not intended
to be confidential; communications made for the purpose of facilitating a crime; the
name of the client; or facts learnt through the legal practitioner’s own means.
The above serves as a very short summary of the principles applicable to the
doctrine of legal professional privilege.75 The application of this doctrine, especially
in relation to communications made with the intention of facilitating a crime, is
illustrated by the judgment in Waste Products v Wilkes.76 In this case, the plaintiff
applied for an interdict against the defendants restraining them from using certain
technical processes unlawfully copied from the plaintiff. In the course of the trial, a
tape recording of a telephone conversation between the defendant and his legal
representative was sought to be admitted into evidence. This tape recording
revealed that the defendant, in discussion with his legal representative, intended
to fabricate evidence in order to mislead the court. The court held that, notwith-
standing the fact that the tape recording was unlawfully made, it was admissible
into evidence and that any legal professional privilege claimed by the defendant is
forfeited as a result of the criminal intention behind the communication.
3.6.7 Liability for negligence
The contractual relationship between legal practitioners and their clients imposes
a duty on practitioners to act with reasonable skill and care in the conduct of
clients’ affairs. Failure to exercise the standard of care normally expected of a
legal practitioner constitutes a breach of the contract, entitling the client to claim
contractual damages. In appropriate circumstances, damages are also recover-
able ex delictu on the basis that practitioners are obliged to exercise due and
reasonable care in the conduct of their clients’ matters. The test in this regard is
whether the average legal practitioner in similar circumstances would have acted
differently.77
Allowing a matter to prescribe clearly constitutes
Allowing a matter actionable negligence. In Slomowitz v Kok,78 the
to prescribe clearly court held that a careful attorney would appreciate
constitutes actionable the risk in delaying service of process to a late stage.
negligence. The attorney in this instance was held liable for
________________________
75 For a more comprehensive summary, see Hoffmann (ed) (1997) at ch 5.

76 Waste Products Utilisation (Pty) Ltd v Wilkes and Another 2003 (2) SA 515 (W).
77 LAWSA vol 14 451 and the authorities discussed therein.
78 1983 (1) SA 130 (A).
47
damages following the prescription of a client’s claim. In Manase v Minister of

Safety and Security and Another,79 the conduct of an attorney in allowing a
client’s claim to prescribe was described as grossly negligent. In Mazibuko v
Singer,80 the attorney failed to serve summons in a motor vehicle accident (MVA)
case timeously and was held liable for damages based on breach of contract.
Liability may also result from incorrect advice given to a client. In Bouwer v
Harding,81 an attorney advised a client on the sale of a farm. On the advice of the
attorney, the sale was structured in a particular way that, according to the attor-
ney, would provide certain tax benefits to the client. It later transpired that the
advice was incorrect, causing the client to suffer damages. The court held that the
attorney in question failed to discharge the duties incumbent upon him by virtue of
acceptance of the client’s instructions to act on his behalf. Judgment was given
against the attorney based on breach of contract.
Third parties (or non-clients) may in appropriate circumstances also hold a
practitioner liable for damages suffered as a result of negligent conduct. In Preto-
rius v McCallum82 an attorney was held liable to the beneficiaries under a will that
was declared invalid due to the attorney’s failure to execute the will properly.
Although the beneficiaries were not party to the contract between the attorney
and the deceased, the court decided that public policy required the attorney to be
held liable.83 This judgment must, however, be balanced against the later one by
the Supreme Court of Appeal in Road Accident Fund v Shabangu and Another.84
Here, the attorney was found to be blameless in an instance where the client
misrepresented her identity to both the attorney and the Road Accident Fund. The
court in the latter decision stressed that wrongfulness in each case will depend on
the prevailing legal policy.85
3.6.8 Duty in respect of trust funds
Duties in respect of trust funds are varied and extensive. Currently, these duties
apply solely to attorneys, as advocates are not allowed to open trust accounts or
deal with trust funds. The Legal Practice Act, once fully operational,86 will however
afford advocates the option to open and maintain trust accounts. Advocates who
choose to do so will be entitled to accept instructions directly from a member of
the public, without the presence of an attorney.87
For present purposes however, trust funds are regulated by the Attorneys Act,
which provides for: the opening of separate trust accounts;88 the types of trust
________________________
79 2003 (1) SA 567 (CkHC).

80 1978 (1) SA 839 (W).
81 1997 (4) SA 1023 (SE).
82 2002 (2) SA 423 (C).
83 For a discussion of this decision, see Van der Schyff ‘Die prokureur, sy regsplig en die
teleurgestelde bevoordeelde – ’n nuwe benadering’ 2002 Stell LR 3 454.
84 2004 (1) SA 265 (SCA).
85 The Shabangu case at 274I–275E.
86 The transitional phase of implementing the Act is expected to be completed by Septem-
ber 2017.
87 See s 34(2)(b) of the Legal Practice Act.
88 S 78(1).
48
accounts to be kept;89 the interest payable on trust balances;90 inspection of

records by the law society;91 theft of trust monies;92 the role of the Fidelity Fund;
and other matters. The rules of the various provincial law societies make further
provision for the investment of trust funds.93 It goes without saying that theft of
trust funds is a criminal offence and many attorneys have suffered imprisonment
as a result.
The provisions regarding trust funds are of the utmost importance and all attor-
neys (and prospective advocates who intend maintaining a trust account in future)
must familiarise themselves with these provisions. The following are only a few
examples of conduct in respect of trust funds:94
l Keeping records: Attorneys must keep proper books of account and they must
take out trust balances four times per year. They must also preserve records
relating to trust accounts for a period of five years. Failure to comply with these
provisions will constitute serious misconduct. The added failure to respond to
queries raised by the law society was held to amount to an unwillingness to
carry out professional duties.95
l Investing trust funds: Attorneys owe a duty of care to clients when monies are
placed with them for investment. Although this duty arises from the contractual
relationship between the parties, a breach of this duty will entitle the client to
proceed with an action in delict against the attorney. In Rampal v Brett, Wills
and Partners,96 the client acted upon the advice of the attorney in investing
certain funds. It later transpired that the security against which the investment
was made was inadequate, and that the attorney should have foreseen this.
This was held to be a breach of the attorney’s duty of care towards the client,
and he was consequently held liable for damages.
l Advising clients of options: In Smith v Price,97 an attorney was held liable for
failing to properly advise a client to invest trust monies in an interest-bearing
account pending the transfer of a property into the name of the client.
l Acting recklessly: In Law Society, Transvaal v Matthews,98 the attorney failed
to keep proper books of account; failed to keep trust monies separate;
________________________
89 S 78(2), (2)(a) and (2A) of the Legal Practice Act.

90 S 78(3).
91 S 70 of Act 53 of 1979 compels a practitioner to produce for inspection any book, docu-
ment, record or thing which relates to his or her practice, when so requested by the law
society. In Law Society, Northern Provinces (incorporated as the Law Society of the Trans-
vaal) v Maseka and Another 2005 (6) SA 372 (Bophutatswana High Court), the court held
that the exercise of such right by the law society is not an administrative action and that the
practitioner concerned is not entitled to a hearing before deciding to inspect his or her
books.
92 S 49 of the Attorneys Act.
93 Eg r 77 of the Rules of the Law Society of the Northern Provinces.
94 See para 7.6 below for a more detailed discussion of the types of trust accounts and their
management.
95 Law Society, Cape v Visser 1965 (1) SA 523 (C).
96 1981 (4) SA 360 (D).
97 1988 (1) SA 53 (W).
98 1989 (4) SA 389 (T).
49
misappropriated trust funds; and failed to obtain his clients’ consent to invest
funds on their behalf. The court held that the attorney had descended ‘to the
level of a disreputable money dealer’ and he had cast aside the privileges and
duties of an officer of the court. He was consequently struck off the roll of
attorneys.
l Ignorance of accounting duties: In Holmes v Law Society of the Cape of Good
Hope99 the court criticised an attorney’s ‘woeful ignorance’ of the accounting
duties expected of her and held that her mishandling and misappropriation of
trust funds cast the ‘gravest doubts’ upon her fitness to continue to practice.
The court struck the attorney’s name from the roll and ordered her to pay costs
on an attorney-and-client scale.100
3.6.9 Miscellaneous matters relating to clients

l Dealing with more than one party: When dealing with more than one party,
practitioners must be clear on whose behalf they are acting, and for whom they
do not act. Practitioners must ensure that ‘non-clients’ understand their position
and do not have incorrect expectations that their interests will be protected.
l Dealing with clients directly: Practitioners should be wary of accepting instruc-
tions from anyone but the client. Instructions from family members, friends or
persons who purport to act on the client’s behalf should be treated with cau-
tion. Confirmation of instructions should be obtained from clients personally,
before any steps are taken.
l Responding to letters: In the case of Bothma,101 an attorney was removed
from the roll on account of a persistent failure to reply to letters. The court held
that such conduct shows an unwillingness to carry out professional duties and
to practice as are expected of an attorney.
l Records on appeal: Legal practitioners (attorneys and advocates equally) are
under a duty to ensure that records on appeal are complete. In South African
Broadcasting Corporation v Corrective Action Holdings,102 the court struck the
appeal and cross-appeal off the roll and disallowed the costs of both counsel
and the attorneys, due to the presentation of an incomplete record.
l Heads of argument: In S v Ntuli,103 the court dealt with the minimum required
of counsel to prepare and present an argument on behalf of a client. In this
case, the legal representative filed heads of argument in a criminal appeal that
were wholly inadequate. The court argued that heads of argument serve a crit-
ical purpose and warned that unless counsel properly represents his or her
client, the right to a fair trial may be negated. Marcus AJ held that where
________________________
99 2006 (2) SA 139 (C).

100 See also Law Society of the Cape of Good Hope v Budricks 2003 (2) SA 11 (SCA) where it
was held that the proper sanction for the use of trust money without authorisation is striking off.
101 Incorporated Law Society, Transvaal v Bothma 1962 (4) SA 177 (T).
102 SABC v Corrective Action Holdings (Pty) Ltd t/a Mass Media Marketing 1999 (3) SA 601 (W).
103 2003 (4) SA 258 (W).
50
inadequate heads are filed, the court may refer the matter to professional bod-
ies for disciplinary action.
l Withdrawing: In S v Ndima,104 it was held that if an attorney wants to withdraw
from a case, he/she must do so at an appropriate stage. The client must be
informed timeously of the decision to withdraw so that he/she can make alter-
native arrangements.
3.7 Relationship with the opposition and other practitioners

3.7.1 General
A practitioner’s general duty of fairness also extends to colleagues in the legal
profession. Co-operation and courtesy is part of the traditions of the legal profes-
sion.105 Lord Denning explained this tradition as follows:106
The barrister must not only treat the judge with courtesy – that
goes without saying – but he must also treat his opponent with Many cases have
courtesy and the witnesses too. Good policy itself commends been won by
this. Many cases have been won by courtesy and lost by rude-
ness. It is also good manners . . . This tradition of courtesy is, courtesy and lost
however, not one that can be enforced by the court itself. It is by rudeness.
enforced by the simple fact that anyone who offends against it
forfeits the goodwill of his fellows . . .
In Ex Parte Swain107 the court held that the same duty of honesty and trust which
a practitioner owes the court applies between advocates and between advocates
and attorneys.
3.7.2 The unrepresented party

A legal practitioner has a duty to act fairly
A legal practitioner has a towards an unrepresented party. In Leite v
duty to act fairly towards Leandy,108 it was held that where an attorney
an unrepresented party. draws a contract between the client and an
unrepresented party, the attorney has a duty to
fully explain the import and consequences of
the agreement to such party to enable him/her to reach an informed decision.
This duty does not, however, encompass the obligation to advise the unrepre-
sented party whether or not to agree to a particular provision in the contract.
Essentially, the judgment means that legal practitioners may not exploit the lack of
understanding by unrepresented parties for the benefit of their clients.
________________________
104 1977 (3) SA 1095 (N).

105 Lewis at 159.
106 Denning ‘The Traditions of the Bar’ 1955 SALJ 43 53.
107 1973 (2) SA 427 (N).
108 1992 (2) SA 309 (D).
51
3.7.3 A duty of care

In Barlow Rand v Lebos,109 the court considered whether a duty of care is owed
towards opponents, in the course of litigation on behalf of clients. In this case, the
attorney acting for a partnership failed to disclose to the plaintiff or its attorney
that his clients were unrehabilitated insolvents who were trading without the
consent of their trustee. In spite of his knowledge, the attorney continued to
defend the action instituted by the plaintiff. The plaintiff alleged that the failure to
disclose this fact caused his clients to incur unnecessary legal fees. The court
held that an attorney has a duty of care towards his opponent, but that this duty is
not easily defined. The exact content of the duty, or even its mere existence,
would depend on the facts of each case.110
3.7.4 Position of trust
In Fine v Society of Advocates of South Africa,111 an advocate sent a letter on
behalf of a lessee to a lessor, stating that his client had lodged sufficient funds
with him to cover the first six months’ rental. At the time, the advocate knew this
was false. The court found that the lessor was induced to accept the assurance
based on the fact that the appellant was a practicing advocate. The court held
that he was not fit and proper to practice as an advocate and confirmed the
decision to strike his name off the roll.
3.8 Relationship between attorneys and advocates
3.8.1 Introduction
The divided bar system is a legacy of Roman-Dutch practice, introduced in South
Africa via the English legal system.112 In terms of this system, legal practitioners
are divided into attorneys and advocates, both serving the administration of
justice but each performing separate functions.113 It appears that the divided bar
will survive the imminent restructuring of the legal profession. In terms of the
Legal Practice Act, attorneys and advocates will continue to be recognised as
distinct branches of the profession,114 although advocates will be granted the
option of taking instructions directly from the public provided that they open and
maintain trust accounts.115 The rules discussed below are those that currently
apply in the relationship between attorneys and advocates. The Legal Practice
Council will in time develop new rules, but the essence of the existing rules will
probably continue to apply under the new regime.
________________________
109 Barlow Rand Limited t/a Barlow Noordelike Masjinerie Maatskappy v Lebos and Another
1985 (4) SA 341 (T).
110 In this matter, the claim was rejected as the duty of care was not properly pleaded.
111 1983 (4) SA 488 (A).
112 LAWSA vol 14 274.
113 See the chapter on the legal profession in South Africa above for a more detailed discus-
sion on the history of the divided bar in South Africa.
114 Albeit that they will both be regulated by a single regulatory body, ie the yet to be estab-
lished Legal Practice Council.
115 See s 34(2)(b) of the Legal Practice Act. See also s 34(2)(c) for further exceptions to the
existing rule relating to the taking of instruction by advocates from Justice Centres.
52
3.8.2 Exclusivity of work

Certain work is properly within the exclusive
Certain work is properly ambit of the functions of the attorney. Such
within the exclusive ambit work is usually done best, and most cost-
of the functions of the effectively, by the attorney or his clerk. For
example, the attorney takes care of matters
attorney. such as factual investigation; the issuing and
service of process; the discovery and inspec-
tion of documents; the procuring of evidence; the attendance of witnesses; the
execution of judgments; and the like. The advocate, on the other hand, generally
prepares pleadings and presents clients’ cases to the court. It is said that in this
way, the role of each compliments that of the other, to the ultimate benefit of the
client.116
In the case of Rösemann,117 an attorney’s brief to an advocate required the
advocate to perform essentially the functions of the attorney by, for example,
signing and issuing summonses in the Magistrates’ Court and furnishing an
address for service of process. The court held that it is improper for an attorney to
pass these functions over to the advocate and it is likewise improper for an advo-
cate to accept such a brief. The court pointed out that it is not improper to seek
counsel’s advice on any issue normally dealt with by the attorney, unlike the
situation where an attorney instructs an advocate to perform these functions
without any further active participation by the attorney.
3.8.3 The referral rule

The referral rule provides that advocates may not accept instructions from clients
without the intervention of an attorney. A contravention of this rule will be unpro-
fessional and actionable.118
The referral rule was challenged on several occasions, but the Supreme Court
of Appeal finally upheld its validity. In the case of De Freitas v Society of Advo-
cates of Natal,119 the court held that the rule promotes specialisation and the
independence of advocates and therefore that the rule should be maintained as
being in the public interest. The court also raised the concern that, should the rule
be abolished, there will be no statutory protection of trust funds entrusted to
advocates. Importantly, the court held that the referral rule stems from the com-
mon law and therefore all advocates, whether or not they belong to the bar, are
subject to the rule.
________________________
116 Gani ‘Aspects of practice’ 2004 (Apr) Advocate 40.

117 General Council of the Bar of South Africa v Rösemann 2002 (1) SA 235 (C) and the
authorities cited therein.
118 See eg General Council of the Bar of South Africa v Matthys 2002 (5) SA 1 (E) where an
advocate was struck from the roll for accepting a brief without the intervention of an attorney.
119 2001 (3) SA 750 (SCA). See also Noordien v Cape Bar Council and Others (WCC) unre-
ported case no 9864/2013, judgment delivered on 13 January 2015.
53
The Legal Practice Act makes provision that, subject to some exceptions, ad-
vocates may only accept instructions from attorneys.120 One of these exceptions
is where the advocate is in possession of a Fidelity Fund certificate, meaning that
he or she must have and maintain a trust account in accordance with the applica-
ble statutory prescripts.121 In this event, the intervention by an attorney would not
be necessary and the advocate may accept instructions directly from the public.
In the main however, the referral rule will continue to apply after the Act comes
into force. These developments further evidence the predicted ‘waves of change
currently pushing up against the seawall separating the attorney’s and advocate’s
profession’.122
3.8.4 Briefing
Advocates must be briefed timeously and in a clear and ordered manner. Handing
an entire file to counsel with a covering letter can never serve as a proper brief.
Briefs must be carefully formulated and be
clear on exactly what is required. All relevant Briefs must be carefully
material must be included in the brief. Trial formulated and be clear on
dates, urgency or the deadline by when the exactly what is required.
brief must be returned should be indicated.
The attorney must always make sure counsel is available before sending off a
brief. In deciding on who to brief, the attorney must exercise his discretion, bear-
ing in mind the complexity of the case and the level of expertise required.123
3.8.5 Control over the case

The attorney must never relinquish control over the case in favour of the advo-
cate. The attorney remains in overall charge of the litigation process and must
direct the advocate to serve in the client’s best interests. The attorney’s role is not
a passive one. He must maintain his grip on the case, attend all consultations and
advise the client properly having regard to counsel’s opinion. The advocate,
however, has control over the manner in which the instructions are carried out
and the actual conduct of the matter in court.
3.8.6 Liability for fees

The attorney is customarily liable for payment of counsel’s fees. For this reason,
attorneys must ensure that they hold sufficient trust funds from the client before
instructing counsel. In terms of the bar rules, advocate’s fees must be paid within
a stipulated period of time, failing which the instructing attorney may be blacklisted.
It is advisable that fees, and the payment thereof, are discussed and agreed with
the advocate and the client prior to the briefing. Once the Legal Practice Act
becomes fully operational, the duties of attorneys to inform their clients of the
________________________
120 S 34(2)(a) of the Legal Practice Act.

121 S 34(2)(b).
122 Davis, Marcus and Klaaren at 1004.
123 Hoffmann (ed) (1997) at ch 15.
54
likelihood that an advocate would have to be engaged, the nature of the work that
would be required and the expected fees would become much more regulated.124
3.9 Duties towards the poor: Access to justice

Legal practitioners have a duty towards those members of the community who
are unable to afford the cost of legal repre-
sentation. It is wrong that litigation should It is wrong that litigation
125
be a ‘luxury afforded by the rich’. Under should be a ‘luxury
the South African Constitution, the State afforded by the rich’.
bears a duty to provide free legal represen-
126
tation under certain circumstances. This duty is, however, limited and the
demand for free legal services extends far beyond the State’s constitutional
obligations. It is therefore not only the State that should be held accountable to
the poor, but all the actors in the legal profession, including practitioners, law
students and universities.127
3.9.1 Legal aid work

The State aims to fulfill its constitutional duties through the Legal Aid Board,
which provides legal representation at public expense where substantial injustice
would otherwise result. The Board has over time moved away from the previously
employed judicare model (whereby legal practitioners in private practice are
briefed on a legal aid tariff), to a Justice Centre model (whereby salaried practi-
tioners are employed to render services on a full-time basis). The judicare model
is nevertheless still used and much of the success of the Board continues to
hinge on the willingness of private practitioners to undertake legal aid work on the
applicable tariffs.
In Mackay v Legal Aid Board,128 an attorney accepted an instruction from the
Legal Aid Board to represent an accused person in criminal proceedings. The
attorney subsequently refused to bring a bail application on behalf of the accused
unless a further fee is paid to him directly by the accused. The court rejected the
practitioner’s justification that the legal aid fee payable in opposed bail applica-
tions is inadequate. The court held that legal aid work should be done in the same
spirit as work undertaken pro bono, pro Deo, or in forma pauperis – namely, with
a sense of self-sacrifice, and not primarily with a view to financial gain.
The judgment in the Mackay matter confirms the notion that legal aid is there
for the client and not for the benefit of legal practitioners.
________________________
124 See s 35(7) of the Legal Practice Act.

125 Justice H De Villiers, as quoted by Abramowitz in ‘Legal Aid in South Africa’ (1960) SALJ 351.
126 Ss 28(1)(h), 34, and 35(2)(c) and (3)(g) of the Constitution.
127 Brickhill ‘The right to a fair civil trial: The duties of lawyers and law students to act pro
bono’ 2005 2 SAJHR 293 321.
128 2003 (1) SA 271 (SE).
55
3.9.2 Pro bono work

Experience shows that even in the
Experience shows that even in the richest nations, a State-funded legal
richest nations, a State-funded legal aid system can never be enough.
aid system can never be enough. The inevitable gaps must be filled by
voluntary pro bono work performed
by legal practitioners.129 This is not a new notion. In 1959, Justice H de Villiers
stated that lawyers should, as long as the distribution was fair, willingly bear the
burden of carrying cases for which people could not afford to pay.130
In the past, there were no structured pro bono programmes, and legal practi-
tioners who were inclined to do so, assisted those without means on an individual
and ad hoc basis. In 2002, Lawyers for Human Rights called for a structured pro
bono programme in South Africa.131 Subsequently, some provincial law societies
adopted resolutions committing their members to doing pro bono work.132 In the
Cape Province, a rule was adopted by the Law Society which makes it compulsory
for all its members to do 24 hours pro bono work per annum.133 The Law Society
of the Northern Provinces later followed suit. Some of the larger law firms in urban
areas have moved towards an in-house pro bono department134 and there are
more and more initiatives aimed at assisting the poor with legal problems.
Pro bono is a wide concept and does not have to involve litigation only. It may
also include the giving of advice, the provision of training, service in the Small
Claims Court, the secondment of professional staff to assist in law clinics, and
much more.135
It seems inevitable that further structured pro bono initiatives will become the
norm in South Africa in time to come. Legal practitioners should view this as a
necessary and positive step. Making
justice accessible to all is ultimately in
everyone’s interests. Pro bono work
Pro bono work could yet prove to
could yet prove to be an investment, be an investment, rather than a
rather than a burden to the legal profes- burden to the legal profession.
sion.
________________________
129 See ‘Editor’s Notes’ 2001 (Apr) De Rebus 2.

130 Abramowitz ‘Legal Aid in South Africa’ (1960) SALJ 351 352.
131 Held in Kempton Park Gauteng, during May 2002; see ‘News’ 2002 (Jun) De Rebus 13.
132 Eg the Law Society of the Free State. See ‘A year in the life of the attorney’s profession’
2003 (Dec) De Rebus 7.
133 R 21 of the Rules of the Law Society of the Cape of Good Hope, effective from
31 October 2003.
134 Webber Wentzel was one of the first to go this route. See ‘From constitutional cases to
defeating poverty: WWB’s public interest law initiatives’ 2006 (Mar) De Rebus 21.
135 For a discussion on the meaning of pro bono, see De Klerk ‘The meaning – and myth – of
pro bono’ 2006 (Apr) De Rebus 13.
56
3.10 Some rules of etiquette

Lewis refers to legal etiquette as ‘the table manners of the profession’.136 There
are many recognised customs of the profession. They are often peculiar and may
be intimidating to the young practitioner. Getting to know these customs will no
doubt make your life as a practitioner easier, but never allow your ignorance of
these customs to detract from your primary duty, namely serving your clients’ best
interests. Common courtesy goes a long way in establishing and maintaining good
relationships with your colleagues in the profession. Taking unfair advantage of
the time limits prescribed by court rules may cause unnecessary friction; for exam-
ple, before serving a notice of bar, it is considered to be courteous to warn the
opposing side of your intention to do so, should their client’s plea not be delivered.
3.10.1 Seniority
Within a firm of attorneys, seniority is often determined by criteria other than age.
Age is, however, the determining criteria between attorneys of different firms.137
Seniority in the attorney’s profession plays a role in, for example, the venue of
conferences between practitioners where etiquette demands that the junior attor-
ney travels to the offices of the more senior attorney.
Seniority in the advocate’s profession plays a more visible role. Here, a formal
distinction is made between senior counsel and junior counsel. The status of
senior counsel (SC) is granted by the President of the Republic, previously by the
Queen (hence QC), to advocates whose wide experience, extensive practice and
unblemished character justify the granting of silk. They are called seniors, silks or
leaders, and wear silky gowns. All counsel who are not senior counsel are junior
counsel. The seniority of junior counsel is determined by the date of admission.
Seniority determines who leads when more than one counsel is employed; and it
also determines the seating arrangements in court.138
3.10.2 Forms of address

In the High Court, the accepted form of address is ‘My Lord’ or ‘My Lady’; or ‘your
Lordship’ or ‘your Ladyship’. In the Magistrates’ Court, the presiding officer is ad-
dressed as ‘your Worship’. In the Family Courts, the form of address is ‘your
Honour’. In the Labour Court and Land Claims Court, the presiding officer is
addressed simply as ‘Judge’ or ‘Judge President’ in appropriate circumstances.
The Supreme Court of Appeal and Constitutional Court have their own rules in
this regard. Before appearing in any court, make sure you know what the appro-
priate form of address is.
3.10.3 Robing
There is a long history of robing in the legal profession. From early times, robes
of office in judicial process bestowed authority and status on judges and legal
________________________
136 Lewis at 312.

137 Supra at 313.
138 LAWSA vol 14 259.
57
practitioners. In the tradition of the English legal profession, the wearing of wigs
by judges, particularly in criminal trials, has also been said to bestow an effective
level of anonymity to those dispensing justice. Legal practitioners in South Africa
are still required to wear robes in court. There are slight differences between the
robes of attorneys and those of advocates, but moves are underway to standard-
ise the robes for all legal practitioners. Although times are changing and many
may see the robing requirements in the legal profession as archaic and irrelevant,
the legal profession remains largely conservative and tradition-bound, and these
traditions are unlikely to change overnight.139
Robing should take place outside the courtroom and never in court once in ses-
sion. Advocates only appear robed before the High Court. Tradition further requires
that practitioners wear dark suits and white shirts under their gowns. Clients and
witnesses appearing in court are likewise expected to dress appropriately.
3.10.4 Behaviour in court

Before the commencement of a hearing, practitioners must introduce themselves
to the presiding officer in chambers. Never be late
Never be late for court. for court. If the legal representative is absent when
his/her matter is called, the client’s claim may be
dismissed or judgment may be given against the client. It is traditional to bow
upon entering and leaving the court whilst in session. Once in court, always stand
when addressing or being addressed by the court. Respond appropriately to
comments or directions issued from the bench. Only one person should address
the court at any given time. If an opponent raises an objection, he/she is given the
opportunity of motivating the objection and then the first party has an opportunity
to respond. Once their matter has been heard, practitioners should wait until the
court adjourns before taking their leave. If the court is not immediately adjourned,
it is customary to wait until the next matter is called and only then to request to be
excused.
Courts have inherent powers to maintain dignity and order in proceedings.
Practitioners must at all times show respect for the court and must encourage
their clients to do likewise.140 In a separate judgment in Shoprite Checkers (Pty)
Ltd v Bumpers Schwarmas CC,141 Marais JA rebuked a presiding judge for failing
to manage inappropriate language used by witnesses in court. Marais JA held
that although freedom of expression is an important right, it ‘does not extend to
the use of obscene language in courts of law’.142
________________________
139 For a discussion of the history of robing in the profession and the rationale of its continued
use, see Labuschagne and De Kock ‘Rites, die togadiskoers en rationale regspleging: ’n
Regsantropologiese evaluasie’ 2002 SA Public Law 17 85.
140 For a more detailed discussion on courtroom etiquette, see Hoffmann (ed) (1997) at ch 27.
141 2003 (5) SA 354 (SCA).
142 Supra at 19.
58
3.11 Conclusion
It is evident that there are many rules governing conduct within the legal profes-
sion. These rules aim to maintain dignity and equity in a profession often criticised
for its lack of values. The notoriously
These rules aim to maintain dignity bad reputation of ‘lawyers’ is not en-
and equity in a profession often tirely undeserved. Legal practitioners
criticised for its lack of values. are bestowed with much power by
virtue of their professional position and
many practitioners have succumbed to the temptations of the power they yield.
Sadly, most of the victims of unscrupulous practitioners are the uneducated and
the poor, who either lack the understanding or resources to bring their legal repre-
sentatives to book. More often than not, such clients are left with a deep mistrust
not only of ‘lawyers’, but of the legal system as a whole.
One of the aims of the Legal Practice Act is to develop and maintain appropri-
ate professional and ethical norms and standards for the rendering of legal ser-
vices. Once established, the Legal Practice Council will be tasked to develop
these norms and standards. On the whole, practitioners will do well in striving to
develop and maintain the eight qualities of the ‘ideal jurist’ as formulated by Du
Plessis. These are: integrity; objectivity; dignity; power of judgment; knowledge
and technical skill; a capacity for hard work; respect for the legal order; and a
sense of equity.143
________________________
143 Du Plessis at 12–33.
59
Consultation
skills
By Franciscus Haupt
4.1 Introduction
One of the most basic skills required by any legal practitioner is how to conduct a
proper consultation. Consulting with a ‘real’ client for the first time is likely to be an
intimidating experience, particularly if you have had no training in interviewing
techniques. This chapter will assist you in effectively preparing and conducting
consultations with clients in a legal practice. It deals with the various stages of a
typical consultation, from the ‘meet and greet’ stage to the stage where you take
instructions from the client. The chapter also provides useful checklists when
consulting with clients on specific areas of law and concludes with a checklist to
use in assessing your own consultation skills.
4.2 Aims of consultation

Broadly speaking, the primary objectives of the consultation1 are to establish a
relationship; obtain the necessary facts; advise the client; and obtain instructions.
More specifically, the consultation aims to:
l explore with the client the reasons for seeking legal advice and assistance;
l identify the legal problems that present themselves;
l provide an analysis of options and to counsel the client in the decision-making
process;
l allow the client to make an informed decision at the appropriate stage;
l ensure that the legal practitioner and the client are both aware of the conse-
quences of any decision made, for example in terms of costs, the plan of
action, time scale and further decisions; and
________________________
1 The terms ‘consultation’ and ‘taking of instructions’ are commonly used in South Africa,
whilst ‘interviewing’ and ‘counselling’ are most often used in clinical legal literature in the
United States.
61
l achieve all of the above in a manner which allows the client maximum power
to make decisions and to ensure that the practitioner behaves in a professional
and ethical manner.2
4.3 Preparing for the consultation

It is of the utmost importance that
you prepare thoroughly for the Always bear in mind that proper
first and every subsequent con- preparation prevents poor performance.
sultation with the client. Always
bear in mind that proper preparation prevents poor performance.
When a client contacts you to make an appointment for an initial interview, you
should try to ascertain the identity of the client, for example his/her name, title,
occupation, age or any other relevant information, as well as the general nature of
the client’s problem. With this information at hand, you could brush up on the
relevant law before the initial consultation. Clients should also be asked to bring
all relevant documentation, for example ante-nuptial contracts and marriage
certificates, to the initial consultation. Better still would be if the client is in a
position to have copies of relevant documents delivered or faxed to your offices
prior to the consultation. By obtaining as much information as possible prior to the
consultation, you can prepare properly. Ensure that relevant forms or documents,
such as CCMA forms in labour matters, statistical forms and forms required by
the office of the family advocate in divorce cases where the parties have minor
children are available.
When planning the initial consultation, also consider seating arrangements (if
you know beforehand how many people will accompany the client, you can
arrange sufficient chairs); tidying your office (especially the desk!); the need for
somebody to act as ‘interpreter’ (often the case when practicing in a multi-cultural
and multi-lingual society such as ours); preventing disruptions such as telephone
calls (avoid taking calls during the consultation and, in the odd case where this is
unavoidable, explain to the client and take the call elsewhere so as not to jeop-
ardise attorney-client confidentiality); the provision of refreshments, and your
personal attire (make sure you know the clinic’s dress code and adhere to it); as
well as the time available for the interview. The advantages of proper preparation
are numerous. It promotes a confident practitioner, resulting in a confident client.
It leads to a purposeful and complete interview. It ensures that the practitioner is
acquainted with the relevant legal principles, enabling him/her to give good ad-
vice, which in turn enables the client give proper and complete instructions. Prepa-
ration also creates the impression of efficiency and sound organisation.3
In a typical law clinic environment, applicants for legal aid often arrive without a
prior appointment, making pre-consultation preparation impossible. Depending on
how busy the clinic is, the time available for each consultation may also be
________________________
2 Brayne and Grimes (1994) Professional Skills for Lawyers, a Student’s Guide at 92.
3 Campher (2002) ‘Taking of Instructions’ in in Van den Heever (ed) Practical Legal Training
Notes (Law Society of South Africa) at 4.
62
Consultation skills
limited. Under such circumstances, the task of the practitioner is much more
difficult. It remains important, however, to give proper attention to each client. Rather
schedule a follow-up appointment after having made an initial assessment of the
client’s problem in order to prepare properly and to give the client your full atten-
tion.
4.4 Stages in the consultation

A proper consultation should follow a definite but adaptable structure, enabling
the practitioner to control and direct the interview in an efficient manner so as to
best serve the client. The model suggested in this chapter entails a five-stage
process but should not be seen as an ideal or set model.4 Consultations should
be adapted according to your individual style, the style of your client and the
relevant circumstances. The five stages of the consultation process are: the ‘meet
and greet’ and introduction or housekeeping stage; the listening stage; the ques-
tioning stage; the advising stage; and the taking of instructions stage. Each of
these stages is now discussed in more depth.
4.4.1 The introductory or ‘meet and greet’ stage

Bear in mind that most people who seek legal advice or assistance do not really
want to be in the position that they are in. They could experience (and express!)
emotions such as frustration, anger, anxiety or a combination of these. In a law
clinic, clients are mostly poor, unemployed and uneducated. These marginalised
members of society may not be accustomed to consulting with a legal practitioner
and may, as a result, feel intimidated and insecure. The first objective should be
to put the client at ease by creating an atmosphere of mutual respect and to build
rapport between the client and yourself.
From the very first contact, a relationship forms. This relationship will continue to
grow throughout the course of legal representation. If the initial contact is poor, it
will be difficult to build the complex professional relationship needed in many legal
cases. Therefore, it is in the initial contact that you should begin to establish a
good rapport with the client. The relationship that you should strive to achieve is
one of personal regard, genuineness and respect. You should show care and
respect to the client as a person. This enables the client to respect you as a
competent professional.5
You should always be punctual. Avoid making clients wait. Everyone has expe-
rienced the frustration of waiting for a consultation with a medical practitioner after
arriving early or on time. If you are running late, as is sometimes unavoidable, you
should approach the client, apologise and explain the reason for the delay.
________________________
4 See eg Hyams, Campbell and Evans (1998) Practical Legal Skills at 23, where a three-
stage process is suggested; see Brayne and Grimes (1994) Professional Skills for Legal
practitioners, a Student’s Guide at 131–145 where an eleven-stage process is described.
5 Mahern Professional Skills Courses: Interviewing Counselling, Negotiation http://www.pili.org/
2005r/content/view/162/26/.
63
You should meet clients in the waiting room or reception area and accompany
them to your office or the consulting room. This serves a dual purpose: first, it
shows the clients respect in that they are not being ushered in to meet the practi-
tioner while the latter awaits them like royalty. The second purpose is more prac-
tical: it enables you to ‘break the ice’ with clients by chatting about trivial matters.
It also enables introductions to take place in a less formal environment.6
When introducing yourself, you should give clients your full name rather than
introducing yourself as ‘Mr Smith’ or ‘Ms Mbuyisa’. If you wish a client to call you
by your first name, you should make your intention known. Clients should be
addressed formally, for example as ‘Ms’ or ‘Mr’, until they invite you to call them
by their first names. Always be friendly and courteous. The legal profession
undoubtedly imposes mental and emotional strains on those who practice it. Do
not allow these strains to influence your behaviour towards the client.
Before commencing with the substance of the interview, it may be best to pre-
sent the client with a brief introduction of who you are; information on the firm or
clinic; the process the interview will follow; and the legal fees payable. Often, the
matter of fees proves to be a client’s main concern. It may help the communica-
tion process if this matter is dealt with early on in the interview. The following is an
example of how to open a consultation:
I’d like to start this interview by explaining how I usually go about doing things with a new
client. What I usually find useful, is to ask you to give me the reason why you have come
to see me, in your own words, so that I can get an idea of the problem. I don’t want to
spend too much time on that, but I’d like to start by just listening and not interrupting.
Then, what I’d like to do is to ask a few very short questions to clarify any things that I
may have misunderstood. After that, I’ll need to start taking down some notes, and to ask
you specific questions in more detail. Towards the end of the interview, I hope that I’ll be
able to offer some advice and suggest some course of action. I often find that after the
initial interview, we have to agree on what further information I should need; who is going to
do what; and when we need to meet again. Well Mr Grave, I’ve spoken long enough. Is
there anything at all about what I’ve said that confuses you? (Pause) Well, can we start?
7
The first thing is, would you like to tell me why you have come here today to see me?
At law clinics, some particular matters may
At law clinics, some require attention at this stage. Although the
particular matters may services provided by law clinics are generally
require attention free of charge, clients may nevertheless be
at this stage. expected to contribute towards disburse-
ments. If so, this should be explained. This is
also the appropriate time to assist clients in completing the application forms for
legal aid. You should take time to explain legal aid, the means test, the indemnity
form, and cost implications to the client. The client should sign the application
form once he/she is clear on the contents. Where language presents a problem,
you should not proceed without the aid of an interpreter.
________________________
6 Hyams, Campbell and Evans (1998) Practical Legal Skills at 21–22.

7 Brayne and Grimes (1994) Professional Skills for Lawyers: a Student’s Guide at 94.
64
Consultation skills
4.4.2 The listening stage

The second and perhaps most important stage of the consultation simply requires
the practitioner to listen to the client. Listening is not as easy as it sounds. In fact,
one of the major barriers in the communication process is the failure of the parties
to listen to one another. Contrary to widespread belief, waiting for a client to stop
talking is not the same as listening to what a client has to say.8 Active listening is
a communication skill used by practitioners to help the client to deliver clear facts
and instructions.
It is said that active listening onItfour is said that active listening takes place
levels: the head, the heart, the sto-
takes place on four levels: mach and the feet.9 Listening ‘with the
the head, the heart, head’ means absorbing facts and other forms
the stomach and the feet. of information. Listening ‘with the heart’
means understanding emotions. Conflict is
often associated with strong feelings, such as anger, fear, frustration, and disap-
pointment. Strong feelings often block the way to rational discussions and there-
fore have to be identified and dealt with before moving on to substantive issues.
Listening ‘with the stomach’ means being aware of basic human needs, and
listening ‘with the feet’ means identifying intention or will. Here, one identifies in
which direction the person is moving and how strong their commitment is.
During the client’s narrative, you should encourage the client by using active
listening techniques such as:
l Silence: Although it may sound strange to think of silence as an active
response, it has proved to be most effective. If the client says something
important and you remain silent, it conveys the message: ‘I don’t want to inter-
rupt. I am listening. What you have to say is important. I am giving you a
chance to continue’. This is a positive and active silence. You should however,
avoid creating the impression that you are not listening or that your thoughts
are elsewhere.
l Restraining yourself from interrupting: It is quite natural that, because of your
legal education and experience, you want to cut through unimportant details
and get to the heart of the matter as soon as possible. You should however,
try to avoid interrupting your client as it could prove to be counterproductive.
Consider the following example:
Interviewer (after having dealt with the preliminaries of the interview): So how can I help
you today?
Client: Well I was driving back from work early the other day – so I could pick up my son
from school. I was just turning into Helga Street, when I saw a truck coming towards me.
I wasn’t really thinking, so . . .
Interviewer (interrupting): Helga Street, is that in Carlton?
Client: Yeh – anyway, I saw the truck coming . . .
________________________
8 Crouch ‘Barriers to Understanding in the Legal Situation’ 1979 Law Institute Journal 505.
9 Centre for Conflict Resolution (2001) Communication in Conflict Resolution Manual at 24.
65
Interviewer (taking out a pen and paper): Look, can you draw me a diagram of where
your car was and where the truck was coming from? Draw in all the other traffic too
please, and write down the names of the roads.
Client: Well ok, but I don’t see how that will help much.
Interviewer: Trust me, I’ve done a million of these – it’s essential that I get a diagram.
(The client then spends five minutes drawing a diagram.)
In the above scenario, the solicitor was (much) later surprised to learn that the issue the
client had come in to discuss, was an argument he’d with the truck driver once he got
inside the school, relating to one of them bullying the other’s child. It was not a car acci-
dent, as the solicitor had assumed. Valuable time was lost . . . Early diagnosis and inter-
10
ruptions resulted in a frustrating interview for both client and interviewer.
l Using appropriate body language: Appropriate eye contact, nodding of the
head, facial expressions, gestures, body positioning and tone of voice may all
be used in such a way that the message ‘I am eager to hear and I understand
you’ comes across effectively and meaningfully.
l Encouraging elaboration or response: This may range from a simple ‘mmm’
(meaning: ‘yes, go on’) or ‘I see . . .’ (meaning: ‘I understand’) to ‘I’d like to
hear about . . .’ or ‘What happened then . . . ?’.
l Restating: This technique involves the use of the client’s own words in
response to the practitioner. It may be an exact restatement or summary.
Restating words is a good way to let the client know that you are listening. Try
to emphasise the important parts by asking the client to restate certain facts.
Restating gives the client a chance to hear his/her own words. A ‘playback’ of
something that one regards to be of great importance often prompts the client
to elaborate.
l Paraphrasing: This involves restating the client’s exact words. Correctly used,
it could indeed prove to be a powerful tool in communicating your understand-
ing of the problem. Paraphrasing could also move the consultation to a deeper
level, bring out more reflective responses, slow down the interview, launder
‘vicious’ or emotional statements whilst retaining the basic points, and assist in
reality testing.11 Paraphrasing tends to alter the practitioner’s natural tendency
to listen only for points that match his/her own preconceived ideas. It gives the
client the chance to clarify facts if he/she has been misunderstood. When
paraphrasing, one should avoid mere parroting, judging or evaluating.
l Taking notes: Comprehensive and accurate notes may prove to be essential
during the consultation. However, a detailed recording of facts utilised too
early in the consultation may impede the flow of communication. It is therefore
suggested that notes should be taken during the next stage of the consulta-
tion, which is the questioning stage. At this point, you should restrict your
notes to important basic facts, such as names, times, dates and places.
Should you wish to record the interview and if this is allowed in terms of the
internal rules of the clinic obtain the client’s permission first.
________________________
10 Hyams, Campbell and Evans (1998) Practical Legal Skills at 24.

11 Centre for Conflict Resolution (2001) Communication in Conflict Resolution Manual at 26.
66
Consultation skills
l Showing empathy: Competent interviewing, which involves active listening,

shows empathy for the client’s feelings. Empathy is not the same as sympathy.
Empathy indicates that the practitioner acknowledges the distress or other
emotional state of the client. You should always try to focus on the client,
rather than on yourself, by using phrases such as ‘You felt . . .’. Avoid saying ‘I
know exactly how you feel. I’ve been in similar situations . . .’.
4.4.3 The questioning stage

After listening to the client’s narrative in its entirety, the practitioner should see the
bigger picture. At this stage, you should start to ask questions, listen and evaluate
responses, and ask appropriate follow-up questions. Be aware that the manner in
which a question is phrased can significantly influence the response. Various
types of questions may be used. Each form of question has its own particular
strengths and is appropriate in different circumstances.
l Open questions: Open questions cannot be answered with a simple yes or no.
These questions are likely to elicit more information about the client’s problem
and expectations. Open questions allow clients to explain situations from their
perspectives, rather than simply responding to the questions put to them. It
gives clients the opportunity to express what is important to them. It also
allows for a more interactive process that will result in the delivery of more
accurate information. However, open questions also extend the length of the
interview. It may also elicit irrelevant information and is therefore usually not
appropriate when you require specific information on a particular issue.12 Open
questions could be phrased as follows: ‘Why did you do it?’; ‘How did you
interpret this?’; ‘What were you doing?’; ‘Describe the . . . ?’; and ‘Please tell
me more?’
It is often taxing to sit through a long-winded explanation that may include
legally irrelevant details. You should be patient, but feel free to guide the client.
This may be done by occasionally offering a question or a summary of your
understanding. This helps to keep the conversation focused and also reflects
the interviewer’s active listening skills.
l Closed questions: Closed questions restrict the range of responses to either a
yes or a no. Closed questions permit you to obtain much information in a short
period of time. This manner of questioning is especially beneficial if one is
completing a checklist. However, closed questions restrict the flow of infor-
mation as the ‘why’ questions are not dealt with.13 For example: ‘When did you
start working at the company?’; ‘Who was your immediate supervisor?’ and
‘Did you call him on that day?’
Many writers suggest the use of the ‘T-funnel’ technique.14 At the start of any
particular line of enquiry, the questions are broad (this constitutes the top of
________________________
12 Craig ‘Effective Interviewing Skills for Auditors’ 1991 vol 1 Journal of Accounting 121.
13 Supra at 122.
14 The ‘funnel sequence’ of questioning was first described by Kahn and Cannell (1975) The
Dynamics of Interviewing: Theory, Technique and Cases.
67
the funnel), but as one becomes familiar with the information the client is con-
veying, one narrows down the focus with progressively narrower questions.
After one issue has been exhausted, the next issue should be tackled using
the funnel technique from the beginning again.
l Biased or loaded questions: Biased or loaded questions should be avoided.
The bias of a question affects the validity of the response. The interviewer’s
objective is to obtain valid and relevant evidentiary matter. Biased questions
produce neither valid nor relevant information.15 For example: ‘The company’s
rules regarding absenteeism are well-known, wouldn’t you say?’
l Reflective questions: Reflective questions are aimed at establishing whether the
interviewer has accurately understood what the client is saying, with regard to
the facts and feelings underlying the situation. For example: ‘Correct me if I’m
wrong, but I got the impression you were extremely angry when you realised
that the landlord had no intention of having the leaking roof fixed . . . Am I
right?’
l Process controlling questions: Questions can also be used to move the con-
sultation along in cases where the interviewer needs to take control of the pro-
cess. For example: ‘Shall we move on to consider . . .?’ and ‘What happened
the next time you met Mr X . . .?’
l The persuasive question: There is never a good reason for trying to persuade
the client to answer a question in a particular way. You might get the answer
you want, but if it does not accord with what the client actually recalls or wants,
you will be left with a confused client and a poorly prepared case. There is an
inherent danger in trying to get the ‘right’ answer in that it could easily lead to
you only seeking information that matches your preconceived ideas. Always
keep an open mind and look for information relevant to your theory of what
happened, but try to disprove or prove it constantly.16 For example: ‘Don’t you
think it is more likely that you did use your indicators before you turned? After
all, that is what they taught you in driving school.’
Occasionally, a client’s responses to questions are inadequate, evasive or not
appropriately responsive to the practitioner’s questions. In such instances, you
may choose to rephrase or ask the question again at a later stage. If the client is
still giving inadequate responses, you need to assess the cause. For example,
the client may not have understood the question, lost focus in answering, had a
memory lapse or has problems articulating. It may also be that the client is con-
sciously trying to conceal or fabricate information. When dealing with this scenario,
you should use a more probing technique, but avoid acting hostile towards the
client.17 You may also find it helpful to involve a colleague in the consultation.
By listening to the client using active and passive techniques and asking rele-
vant open and closed questions, you should succeed in obtaining all the relevant
________________________
15 Craig (1991) at 122.

16 Brayne and Grimes (1994) Professional Skills for Lawyers: a Student’s Guide at 139.
68
Consultation skills
details of the client’s problem. By summarising, paraphrasing and ‘playing back’

to the client, you will ensure that your understanding of the facts corresponds with
that of the client. Despite your best attempts, you may, however, still find gaps in
the facts. In such circumstances, you should explain to the client that you are
unable to give proper advice until you have a complete understanding of the facts,
much like a doctor who would not give advice regarding a broken bone until the
x-rays have been studied.18
Similar to establishing the facts, the relevant law needs to be researched in
most instances before the client is advised. As practitioners become more experi-
enced and as their expertise develops, they may find it possible to give final and
conclusive advice at the initial consultation. More often, practitioners will at this
stage only be able to give an outline of advice and the options open to clients. In
this event, clients must understand that the advice given is only preliminary and
that a more detailed analysis will only be given at a later stage.19
4.4.4 The advising stage

Of all the skills legal practitioners must possess, the ability to advise clients
properly may be the most critical. In order to advise
clients about their legal problems, you must be In order to advise
knowledgeable about substantive and procedural clients about their
law. You must also be able to engage in strategic legal problems, you
planning, have well-developed interpersonal skills must be knowledgeable
and be able to predict, with some degree of certainty,
the likelihood of certain results flowing from a
about substantive and
particular act or failure to act. You must effectively procedural law.
communicate to the client the many nuances of
your craft in understandable and non-technical language. As a practitioner, you
must have a breadth of vision that enables you to present to clients a wide range
of alternatives and options to consider and weigh. Your vision must be deep and
wide. This means that you must be able to assist clients in examining the underly-
ing reasons for their goals and contemplated actions.20
The legal practitioner’s duty to clients seeking advice is to give a competent
opinion, based on sufficient knowledge of the relevant facts, adequate considera-
tion of the applicable law and by drawing upon the practitioner’s own experience
and expertise. The advice must be open and undisguised, clearly disclosing what the
practitioner honestly thinks about the merits and probable results.21 It is good
practice to point out to clients that although the legal services you render come
free of charge, unreasonable or unrealistic demands or claims may result in an
adverse costs order being granted against the client.
________________________

19 Supra.
20 Dinerstein ‘A Client Centered Counselling: Reappraisal and Refinement’ 1990 Arizona Law
Review 501.
21 American Bar Association Code of Professional Conduct ch 3 at 7.
69
If it becomes apparent that the client has misunderstood or misconceived what

is really involved, the practitioner should inform the client of the true position and
advise him/her about the real issues or questions.22
You should clearly indicate the facts, circumstances and assumptions upon
which you base your opinion, particularly where the circumstances do not justify
an exhaustive factual investigation resulting in extra expenses to the client. This
having been said, the legal practitioner should investigate each matter in sufficient
detail before expressing an opinion, rather than giving non-specific advice with
many qualifications.
You should never overstate the merits of the
You should never client’s case in an attempt to reassure the client.
overstate the merits Sooner or later reality will catch up with both you
of the client’s case in and your client. This could leave the client unhappy
an attempt to reassure with your performance and with the legal system. On
the other hand, avoid understating a client’s pro-
the client. spects in an attempt to avoid later disappointment
on the part of the client. A client who has had the
merits of his/her case understated may decide to settle for a lesser amount than
he/she would have been awarded had the client been accurately advised.23
4.4.5 The taking of instructions stage

Your role as a legal practitioner is not to tell clients what to do, but rather to help
clients decide on the appropriate strategy. Thus, clients must be allowed to partic-
ipate in the process. The following strategy in obtaining instructions may be
useful.24
l when exploring the available options, lay out each option separately and dis-
cuss the consequences of taking that option before moving on to the next option;
l ensure that clients have the opportunity to ask questions about your explana-
tion before moving on to the next option;
l consider drawing up a list or presenting a grid of options and consequences
for your clients as the discussion progresses. This would enable them to
remember what you have said;
l insist that clients do not make a decision until you have laid out all the options.
l do not omit possible negative consequences, such as increased costs or court
delays, for fear of clients’ reactions. Clients should be fully appraised of all the
potential repercussions of making a particular decision;
l if there is bad news to convey, for example if all the possible options are
negative, you should be brutally honest with the client. Sometimes practition-
ers must be harbingers of bad news; and
________________________
22 American Bar Association Code of Professional Conduct ch 3 at 7.

23 Mahern Professional Skills Courses: Interviewing Counselling, Negotiation http://www.pili.org/2005r/
content/view/162/26/.
24 As suggested by Hyams, Campbell and Evans (1998) Practical Legal Skills at 51.
70
Consultation skills
l if a client insists that you make a decision about which course to take, you
should politely but firmly refuse. Ultimately, it is the client’s problem, and it is
therefore in his/her best interests to participate in the process of dealing with it.
Not only is it the client’s right to make a decision relating to his/her own prob-
lem, but the client will more than likely be able to live with the consequences of
that decision. The client will also be less likely to blame you or your firm or clinic
for any negative consequences. You should give an opinion as to what you
think is best, but the client must understand that your opinion is subject to the
client’s priorities.
As in medicine, legal practitioners must obtain their clients’ ‘informed consent’. A
patient has the right to make medical decisions based on the diagnosis, prognosis
and available options. Similarly, the clients of legal practitioners have the right to
make informed decisions about the litigation strategy. This means involving clients
in the decision-making process.25
4.5 After the consultation

Once the practitioner and the client have
devised a strategy, it is essential that the
It is essential that the client
client has a clear understanding of the has a clear understanding of
procedure that will follow. At the earliest the procedure that will follow.
possible opportunity, you should provide
your client with a letter summarising the decisions made together and the agreed
strategy to be adopted. You should set out the procedure to be followed on a
step-by-step basis. If appropriate, you should point out how the strategy may be
affected by the reaction of other parties, for example if an offer is rejected. For
this eventuality, you should, in consultation with your client, have devised a ‘Plan
B’, which should also be confirmed in writing.26
During the course of legal representation, the practitioner’s strategy may
change. New, previously unconsidered facts may come to light that may affect the
outcome of the case. Clients should understand that as the case progresses, the
predicted outcome might change.27 It is a dynamic process.
In many situations, it is appropriate to give clients tasks that will assist in the
practitioner’s strategy, for example obtaining quotations or contacting possible
witnesses. Some clients may want to hand
complete control of the matter over to the practi- Explain to your clients
tioner. You should avoid acting under such circum- that together you are
stances. Rather emphasise to clients that the different players on
resolution of their matters require a co-operative the same team.
approach and that they are equalpartners in the
________________________
25 Vilardo ‘Communicating with Clients’ 2001 27 Litigation at 45.

26 Hyams, Campbell and Evans (1998) Practical Legal Skills at 51. Letter-writing skills are
discussed further in ch 9.
71
process.28 Explain to your clients that together you are different players on the
same team.29
It is also important that clients know what to expect. Practitioners and clients
often fail to communicate on this point, and each gets increasingly annoyed
waiting for the other to do something! The practitioner’s last comments to the
client, as part of his/her interview or letter of advice, should set out the actions to
follow. If you are waiting for your client to provide you with quotations for damages
in anticipation of writing the initial letter of demand, you should point out that you
are unable to proceed until the necessary documents have been provided to you.
Likewise, if you have received instructions from the client to make an offer of
settlement, you should ensure that the client understands that he/she will not hear
from you until the other side responds to that offer.30
Throughout the course of representation, a legal practitioner should continue to
interact with the client. It is frequently the practitioner who must identify issues
which require consultation with the client, but clients should, however, not be
allowed to become overly dependent on the practitioner. Similarly, as a practitioner,
you should not take too much control in the relationship. Clients who are kept
informed and who participate in decision-making throughout the representation
are the clients who are the most satisfied with the relationship.31
Advising clients on the law and assisting them to make decisions that may have
serious consequences are some of the most demanding tasks undertaken by
legal practitioners.32 It also brings with it the risk of liability for damages suffered
as a result of incorrect advice is given.33
4.6 Utilising checklists or client instruction sheets
Some useful checklists are provided below, dealing with delictual claims and
divorce matters. A word of caution: these checklists are for guidance purposes
only and should never be followed in a mechanical way. They are merely intend-
ed to prevent you from overlooking important details; to assist in providing a
logical sequence; and to avoid ‘getting stuck’ during the interview. Properly used,
they could assure the client that you are well-prepared and organised. In addition,
be aware also that clients’ problems often cover a large range of issues, not
always catered for in a single checklist. Following a checklist slavishly may be-
come a barrier to communication. A checklist does not replace a proper consulta-
tion or necessarily canvass all the relevant issues. Clients may also feel that they
are being treated as just another statistic on a pre-printed form.34
________________________
28 Hyams, Campbell and Evans (1998) at 56.

29 Vilardo ‘Communicating with Clients’ 2001 27 Litigation 45.
32 Hyams, Campbell and Evans (1998) at 64.
33 On practitioners’ liability for professional negligence, see para 3.6.7 above. See also
para 7.7 below where suggestions to minimise risk in legal practice are discussed.
34 Brayne and Grimes (1994) Professional Skills for Lawyers, a Student’s Guide at 148;
Hyams, Campbell and Evans (1998) at 33–34.
72
Consultation skills
4.6.1 Checklist: delictual claims35

l On what date and at what time did the wrongful act occur?
l Who caused the harm?
l Was such person an employee or agent of another person/body/corporation/
government/organisation, acting in the course and scope of his/her employ-
ment or mandate? (This would be considered for establishing vicarious liability.)
l Where did the wrongful act occur?
l Provide full details of the wrongful act.
These particulars should account for the greater portion of the statement. If, for
example, the wrongful act is an assault, provide full details as to:
• the manner in which the client was assaulted, on what part of the body, and
the weapon used;
• the number of people involved in the assault, their detailed descriptions, and
the manner in which each of them assaulted the client;
• the number of blows that were inflicted, and the period of time over which
the assault continued, and generally, a full narrative of the events.
If, for example, the wrongful act is negligent driving, giving rise to a motor
collision, provide full details of the accident, such as:
• full particulars of the owners and/or drivers of the vehicles concerned;
• the directions in which the vehicles were travelling and their estimated
speeds;
• whether any rules of the road were disobeyed;
• in what respects the drivers were negligent;
• the weather and traffic conditions;
• the events occurring immediately after the accident, with particular refer-
ence to statements made by the drivers and the passengers;
• a full narrative of how the collision occurred; and
• a sketch plan of the accident.
If the client was examined by a medical practitioner after the incident giving
rise to the claim, ask the client to obtain a J88 form from that practitioner, or
obtain a power of attorney authorising you to obtain the relevant form.
l Was the wrongful act committed intentionally or negligently? Provide particu-
lars to support the contention.
l Provide full particulars of any person who witnessed the wrongful act. Obtain
statements from the witnesses.
l Was the wrongful act reported to the police? If so:
• at which police station;
• who is the investigating officer;
________________________
35 Acknowledgement to the University of the Witwatersrand Law Clinic.
73
• has any person been charged criminally;

• what is the charge;
• has any person appeared in court? If so, provide full particulars of such
person and satisfy when and in which court such person appeared;
• if the matter is still proceeding, to what date has it been remanded; and
• if the matter has been finalised, what was the outcome?
Damage to property
If the client’s property was damaged as a result of the wrongful act:
l Describe fully the property damaged.
l Provide full particulars, and where available, include photographs, of the
damage.
l Provide full particulars of the cost of repair and provide supporting documenta-
tion such as quotations or assessors’ reports .
l What was the market value of the property immediately prior to the wrongful
act? Provide supporting documentation.
l What was the market value of the property immediately after the wrongful act?
Provide supporting documentation.
l Provide the registration, make and model of the car. Proof of ownership is
required.
l Obtain particulars of any applicable insurance
Note that, in all motor collision cases, a copy of the police accident report and
sketch plan is essential.
Bodily injuries
l Provide full particulars of any bodily injuries suffered by the client.
l Has the client suffered permanent physical disability?
l Where did the client receive treatment as an in-patient and an out-patient?
l Which medical practitioners treated the client? What is client’s hospital num-
ber? Ensure that he signs a medical consent form.
l For what period did the client receive treatment?
l What are the client’s medical expenses to date?
l Has the client been unable to work as a consequence of the injuries? If so, get
the details.
l Provide full particulars of the client’s likely future loss of earnings?
l Provide full particulars of the client’s state of health before and after the acci-
dent.
l Earnings of the client before and after the accident:
• occupation immediately before the accident;
• details of the employer;
• total earnings in the 12 months preceding the accident;
74
Consultation skills
• monthly earnings at the time of the accident;

• if applicable, attach a copy of income and expenditure accounts and income
tax assessments for the last three years;
• if an employee, attach a letter from the employer which confirms monthly
income and which indicates future expected earnings;
• name of pension fund;
• date of joining the pension fund; and
• expected retirement age.
l Other information:
• establish if a claim based on injury on duty has been lodged;
• establish whether particulars of compensation have already been received
(for example through the Occupational Health and Safety Act; and
• attach a copy of other actuarial report(s), if available.
4.6.2 Checklist: divorce matters36

The following information must be obtained:
l Plaintiff’s full name(s) and surname.
l Defendant’s full name(s) and surname.
l Wife’s maiden name and/or previous name(s).
l Identity number of the plaintiff.
l Identity number of the defendant.
l Residential and postal address of the plaintiff.
l Residential and postal address of the defendant.
l Work address of the plaintiff.
l Work address of the defendant.
l Occupation of the plaintiff.
l Occupation of the defendant.
l Date of the marriage.
l Place where they were married.
l How the parties are married:
• in community of property;
• out of community of property:
– with accrual; or
– without accrual.
l How long have the parties resided within the jurisdictional area of the relevant
Division of the High Court, or alternatively the Regional Civil Court?
________________________
36 Acknowledgement to University of Pretoria Law Clinic.
75
l The number of children born from/adopted into the marriage.

l The names, ages and gender of all minor/dependent children born out of the
marriage or adopted.
l Who will have custody of the children? Where will the children’s primary resi-
dence be in future? Furnish reasons.
l How much maintenance is needed per child? Set out expenditure.
l If the party (defendant) from whom maintenance is claimed is unemployed,
how will he/she be able to afford to pay the maintenance claimed?
l Have any arrangements been made regarding contact, as in access to the
children? If the right to contact is to be limited, provide the reasons for this.
l How will the children be cared for if the person wanting custody and providing
primary residency over them works?
l Who is responsible for the medical, dental and scholastic expenses of the
children?
l The reasons for wanting the divorce.
l If any party left the communal home.
l What attempts have been made to save the marriage?
l Have any arrangements been made regarding the division of the movable and
immovable property in the communal estate?
l Who is to pay the outstanding debt of the communal estate?
l Forfeiture (marriage in community of property or forfeiture of share in accrual
in marriages out of community of property with inclusion of the accrual sys-
tem). Supply reasons.
l Does the plaintiff want maintenance for him/herself, and/or is the defendant
prepared to pay maintenance to the plaintiff?
l Does the plaintiff/defendant want to share in the pension or policy interest of
the defendant/plaintiff?
l Does the plaintiff have the original marriage certificate in his/her possession? If
not, arrange for a new marriage certificate.
l If children are involved, complete ‘Annexure A’ and let the plaintiff sign it in the
presence of a commissioner of oaths. Explain to the client where to find a
commissioner of oaths or accompany the client to a commissioner of oaths.
l Marriage out of community of property: Did the husband/wife contribute to the
growth of the estate of the other party during the marriage in the case of mar-
riages entered into prior to the introduction of the accrual system, that is, in
terms of section 7(3) of the Divorce Act?
l Costs: In a divorce action, the court shall not be bound to make an order for
costs in favour of the successful party. However, the court may, having regard
to the means of the parties and their conduct insofar as it may be relevant,
make such order as it considers just. The court may also order that the costs
of the proceedings be apportioned between the parties.
76
Consultation skills
l Instructions to the client:

• Fill in ‘Annexure A’ and sign it at the police station, in the presence of a
commissioner of oaths.
• Obtain original copy of the ante-nuptial contract or obtain a copy from the
Deeds Office.
• Obtain the original marriage certificate or a copy thereof as well as the
original birth certificates of minor children or copies of such birth certificates
from the Department of Home Affairs.
• Draw up a complete list of all assets and liabilities and of income and
expenses of oneself, one’s children (if applicable) and the other party.
• Get full particulars of the applicable pension fund(s) and/or preservation
fund(s) in cases where the parties are married in community of property or
out of community of property with inclusion of the accrual system.
4.7 Assessing consultation skills

The student in the law clinic must be able to show that he/she has competently
prepared for the interview; regarded the relevant information available before the
interview; conducted the interview using appropriate communication techniques;
obtained all the necessary information in a timely, effective and efficient way; ensured
that the both the student and client left the interview with a common understanding of
the instructions, if any, as well as any future action the clinic or client is to take; and
recorded the interview in a manner that satisfies the requirements of law and
practice.37 The following interviewing checklist may be a useful tool for students
assessing their own consultation skills or that of their peers.
4.7.1 Interviewing checklist 38

Attitude towards the client
How well did I:
l introduce myself to the client?
l make the client feel at ease?
l listen attentively?
l notice any problems of understanding?
l give opportunities to ask questions?
l explain clearly?
l allow the client to make decisions?
________________________
37 University of Pretoria Law Clinic (2006) Practical Law Study Guide at 3.

38 Brayne, Duncan and Grimes (1998) Clinical Legal Education: Active Learning in your Law
School at 76–79.
77
Evidence of preparation
How well did I:
l demonstrate that I had prepared a structure for the interview?
l understand any documents produced?
l show appropriate familiarity with law/procedure?
Obtaining information
How well did I:
l allow the client to explain the problem in his/her own way?
l ask questions at the appropriate time which were:
• open?
• focused?
l accurately obtain available details of:
• the factual situation?
• the client’s main concerns and wishes?
l obtain/ask for relevant documents?
l identify where further information was needed and how to obtain it?
l use time efficiently?
Advising the client

How well did I:
l explain legal terms and procedures (where necessary)?
l avoid giving premature or wrong advice?
l summarise the main points?
l explain the next steps to be taken by the clinic and/or the client?
Documenting the interview

How well did I:
l summarise factual issues?
l identify legal issues?
l summarise accurately the advice given and instructions received?
l clearly identify the next steps for the adviser and client (including dates)?
78
File and case
management
By Franciscus Haupt, Amanda Boniface &
Lourens Botha Grove
5.1 Introduction
Record-keeping and file management are some of the most important tasks in
any office. Legal practitioners generally, but attorneys in particular, work with
huge volumes of documents relating to hundreds of different cases. Proper file
administration is an inherent part of an attorney’s
Proper file work and, if neglected, may have disastrous conse-
administration quences. If proper records are not kept or filed in a
is an inherent part of manner that facilitates their retrieval when needed,
the aim of creating such records is defeated. Filing
an attorney’s work. has been described as ‘the systematic way of
storing or keeping papers and documents so that
they may be found when wanted’.1 File management creates ‘procedures for the
opening, storage, closing, archiving and retrieval of files’.2
The management of files is, however, only one aspect of legal practice. Another
is the management of caseloads. Practitioners deal with many cases simultane-
ously and it is important to create systems to ensure that each file receives the
attention it deserves. The proper management of caseloads helps to prevent the
prescription of claims3 and assists legal practitioners to steer clear of liability for
professional negligence.4
This chapter deals with the various file management systems found in most law
firms and law clinics. It explains how case files are opened and what records are
typically contained in an attorney’s file. It also deals with some of the management
________________________
1 Wilken and Van der Westhuizen (2002) ‘Practice Notes on Practice Administration’ in Van
den Heever (ed) Practical Legal Training Notes (Law Society of South Africa) at 9.
2 Spangenberg (2002) Practical Legal Training Manual: Business Management at 5.4.1.3.
3 Supra at 6.2.1. For further information regarding prescription, see Loubser (1996) Extinctive
prescription; Saner (2002) Prescription in South African law.
4 Proper file and case management is only part of managing risks in legal practice. See
para 3.6.7 above for more information on professional negligence. See para 7.7 below deal-
ing with risk management in a law practice.
79
tools used by legal practitioners to manage their caseloads. The principles of file
and case management discussed in this chapter generally apply to most private
law firms and law clinics, but you should bear in mind that each law firm or clinic
may have its own particular systems in place.
The discussions here are mostly based on paper-based records, although elec-
tronic data-keeping is becoming increasingly common. At present, though, it is
still not possible to completely do away with paper-based records; there is a body
of rules that underpin the continued use of paper-based records, for instance,
pleadings must be served in a very particular way, usually being hard copies
delivered by hand.5 Original pleadings are kept in court files. Original documents
are still seen as the best evidentiary matter and computer-generated copies often
require additional proof as to their authenticity.
With few exceptions like those mentioned above, it does not matter much
whether records are kept electronically or in a paper-based system – the needs
and obligations of the practitioner and what is required of the record-keeping
system as discussed below remains the same. One of the great advantages of an
electronic file system is of course that the electronic files can be made accessible
from various locations without the need to physically move files around. In prac-
tices that use mixed systems, most electronic files would still have a physical file
which will contain original documents and the like, and these physical files need
to be stored like any other paper-based file. In any event, whether one runs a
purely paper-based system, a purely electronic system or a mixed system, the
points discussed below remain relevant.
A cautionary note about electronic systems: these systems can be very con-
venient and may automate many routine tasks. Such automation carries many of
the same risks as the use of pro forma pleadings or precedents. Remember that
you are ultimately responsible for managing your files and cases – including any
errors or assumptions an electronic system may make.
5.2 File management systems

5.2.1 General requirements
The requirements of a good filing system include the following:
l files should be stored in a safe, dustproof place;
l files should be easy to find;
l the filing system must suit the needs of the practice;
l the filing system must be able to adapt to change;
l closed files must be kept in an archive; and
________________________
5 There is however a gradual acceptance of and move towards electronic media and proce-
dures, both in legislation (see eg, the Electronic Communications and Transactions Act 25
of 2002) and in the courts. See, eg, the case discussion in Grové & Papadopoulus, ‘You
Have Been Served . . . On Facebook!’ Journal of Contemporary Roman-Dutch Law (2013)
vol. 76 424–426.
80
File and case management
l the filing system must not take up too much floor space.6
Files should be stored in a place that is easily accessible, but simultaneously safe
from access by unauthorised persons. For a paper-based system or component
of a system, it is usually not a good idea to store files in the practitioner’s office,
as staff may (for example) interrupt an interview with a client in order to retrieve
files. A better idea is to keep filing cabinets in a designated filing room, or, if
space does not permit, in the secretary’s office. That way, the secretary or filing
clerk will have control over the removal of files and the handling of incoming mail
and other documents.
5.2.2 Types of filing systems
Whatever filing system is used in the office, it must make provision for: the open-
ing of files; the storage of files; the diarising of files; the regulation of the flow of
files in the office; and the closing of files. Files should be stored chronologically in
filing cabinets, preferably in hanging files with index tabs. It is important to store
case files in the correct place in the filing cabinet, as misfiled case files waste time
and cause much frustration in the office. Different types of filing systems include
the following:
l Alphabetical: Some law firms use an alphabetical index and filing system. Files
are indexed and stored in alphabetical order, according to the client’s sur-
name. The advantage of this system is that a client’s file should be relatively
easy to locate, as the only information required for this purpose is the client’s
surname. Confusion may, however, result if more than one client has the same
surname. This can, to a certain extent, be solved by using a client’s initials in
addition to the surname. For example, the reference number could look simply
like this: ‘Ndaba’ or ‘Ndaba S’, or even ‘Ndaba S/06’ where the latter part
indicates the year in which the file was opened.
l Numerical: A numerical system can also be used. Here, each file is allocated a
number. This number is then listed next to the client’s name in a file register. It
is supplied to the client and used as the reference number in all correspond-
ence and pleadings. The advantage of a numerical indexing system is that it
may be more exact than using only the client’s surname. The disadvantage of
this system is that clients may forget their file numbers or incoming corre-
spondence may omit the reference number, making it more onerous to locate
the relevant file. For example, the reference number could simply be ‘005673’,
meaning that this is the 5673rd case file opened. Again, a further refinement
would be to add the year in which the file was opened, for example ‘005673/06’,
meaning that this is the 5673rd case file opened in 2006. In any event, such a
system would normally require some form of index book or list that would allow
one to find a case number from a client’s surname.
l Combination or alpha-numeric: One solution to the problems that may be
experienced with solely a numerical or solely an alphabetical system is to
combine the two systems, for example ‘Ndaba/005673/06’. A system of
________________________
6 Wilken and Van der Westhuizen (2002) at 10.
81
cross-referencing could be used, where the file reference number is also listed
next to the client’s surname in an alphabetical file register.7 A further refine-
ment would be to add a reference to the practitioner dealing with the matter,
for example ‘Ndaba/005673/06/FH’. Here, the latter part of the reference indi-
cates the initials of the practitioner dealing with the matter. It may even
include a reference to the practitioner’s candidate attorney, for example
‘Ndaba/005673/06/FH/PJ’. On correspondence or pleadings, some firms
refine the file reference number even further by adding the initials of the secre-
tary who typed the document, for example ‘Ndaba/005673/06/FH/PJ/wb’.
l Other methods of filing: Other methods include alphabetical filing according
to the subject matter of the file, for example ‘Contract/Ndaba/06’ or
‘Divorce/Ndaba/06’. Some firms may prefer to file according to the type of mat-
ter, for example ‘Crim/Ndaba/06’ indicating a criminal matter, or
‘MC/Ndaba/06’ indicating a Magistrate’s Court matter. In addition, colour cod-
ing may be used, where different colours refer to different types of matters,
making the location of types of files easier.8
l Electronic filing systems: Computer-based systems are no longer just used for
diarising of files or keeping copies of documents, and systems that assist with
filing and keeping accounting records are available.9 Research is also often
conducted online. These systems can be useful for accessing documents
quickly and have advantages such as having a smaller environmental foot-
print. The use of computer-based systems is also advantageous for law firms
that have clients across the world, as ‘the growing use of technology has
shrunk geographic distances’.10 Many legal practitioners now make use of
computer-based filing systems.11 Such systems have unique file numbers,
generally known as the ‘primary key’, associated with each file in a database.
While the powerful indexing and searching functions found in most electronic
systems allow one to assign even random numbers to each file (as long as the
number is unique), it is still much better to index files using a system such as
those above which is not dependent on electronic searching functions. This is
of course particularly true in the case of mixed systems, where there are still
paper-based files associated with electronic files.
In order to safeguard their records, lawyers can also make use of a cloud-based
system. When using a computer-based system it is essential to have IT backup
and support to assist in case of any difficulties in being able to access or run the
system. Whatever system is used, the Law Society of South Africa Guidelines on
the Use of Internet-Based Technologies in Legal Practice12 must be followed by
attorneys. The guidelines stipulate that when using internet-based technologies,
________________________
8 Wilken and Van der Westhuizen (2002) at 11–12.
9 See, eg, www.tech4law.co.za and www.itweb.co.za for Legal Suite software.
10 Groot ‘New trends facing lawyers’ (2014) De Rebus 109.
11 Supra.
12 LSSA E-Law Committee (2015) (LSSA 2015).
82
lawyers must exercise due diligence before using a service provider for storing or
processing confidential information, when this occurs offsite.13 Additionally, a
written agreement must be in place that stipulates that the service provider must
‘establish and maintain measures that ensure the security of any personal infor-
mation stored by the service provider as well as the protection and integrity of any
confidential or privileged client information’.14
The use of a cloud-computing system ‘does not violate any ethical duty. . . pro-
vided that reasonable care is taken effectively to minimize any risks pertaining to
the confidentiality and security of client information and client files’.15 It is im-
portant that any lawyer who does not have a reasonable understanding of the
technology should seek the assistance of someone who is proficient in the use of
technology.16 The Law Society provides guidelines that contain five key points for
consideration when deciding to use a service provider to store or host electronic
information.17 One of these is to take ‘reasonable steps to protect against inad-
vertent disclosure and to perform due diligence on potential service providers to
ensure against inadvertent disclosure’.18 Lawyers are also advised to try to host
the service with a South African company, as to avoid ‘the reach of any extra
territorial data seizures’.19 If the service provider is not a South African company,
the lawyer is advised to be aware of any applicable foreign law that relates to the
use or storage of the information.20 Additionally, lawyers need to be aware of any
SARS rulings that affect the storage of accounting records.21 Lastly, the Law
Society stresses that lawyers must ‘actively verify the cloud vendor’s security
standard, prior to hosting with such service providers’ and this must comply with
the Law Society’s regulatory processes.22 The use of technology in the form of
computer-based software or cloud hosting systems clearly has many advantages
for lawyers but lawyers must still ensure that their client’s information is protected.
________________________
13 LSSA (2015) 4. There is a duty on the lawyer to understand and guard against risks by
remaining aware of where the data is stored; to have a reasonable understanding of the use
of technology and to seek assistance from others who have the necessary proficiency; to
understand any advances in technology that affect the performance of the lawyer’s duties to
their client; to ensure that the service provider and technology that he/she uses supports
the lawyer’s obligations; to have an agreement in place to ensure the protection of personal
information and to provide appropriate information security: LSSA (2015) 5–6.
14 LSSA (2015) 4.
15 LSSA (2015) 5.
16 LSSA (2015) 7.
17 LSSA (2015) 8.
18 Supra.
19 LSSA (2015) 9. It should be noted, however, that many cloud-based systems span several
territories and data might actually be split up and stored on devices in several different terri-
tories. The mere fact that one uses a South African company does not guarantee that the
data is actually stored in South Africa and that one would fully avoid ‘the reach of any extra
territorial data seizures’. It is advisable to obtain expert advice.
20 LSSA (2015) 9.
21 LSSA (2015) 10.
22 LSSA (2015) 11.
83
5.2.3 Evaluating a filing system

The following questions should be considered when evaluating a filing system:
l Is the system logical? Logic speeds learning. This enables staff members not to
rely on memory alone. The method behind the system should be clear and
reasonable.
l Is the system practical? Does it do what you want it to do? Avoid academic
and overly complex classifications. The system should be designed to use
common terms known to all users of the system.
l Is the system simple? Here, ‘simple’ means easy to learn. The system should
be as straight-forward as possible, with little or no room for interpretation.
l Is the system functional? Does it relate to the function of the records it
addresses? Classification terms should reflect the function of the records re-
gardless of their operational location.
l Is the system retention-conscious? The filing system should be linked to the
records retention schedule in a way that allows one to move records to inac-
tive storage and to remove files with expired retention periods. These activities
should be done according to the firm or the clinic’s approved records retention
schedule. However, the efficiency and practicality of a filing system should not
be sacrificed for retention considerations.
l Is the system flexible? You should be able to expand it when necessary.
Additional or different classifications might be needed in the future, or your
practice may experience unforeseen growth or change. The filing system
should be able to accommodate growth and change.
l Is the system standardised? Filing system terms should be standard terms.
Using different terms to describe the same record or subject may cause confu-
sion. You should also have a written set of rules for all staff to follow. This
should prevent files being lost or misfiled, or the unintentional duplication of
records and filing locations.
l Does the system properly secure confidential and privileged information? The
system must not only make information accessible to those that need it and
have a legitimate right to access the information, but must also prevent those
without a legitimate right to access the information from doing so. This requires
extra attention in the case of electronic files, particularly in cases where the
files are hosted on a system that is cloud-based, connected to the internet or
otherwise accessible remotely.
5.3 Opening case files

5.3.1 Introduction
Any legal practice should have a clear protocol dealing with the opening of new
files. At law clinics, for example, the director or supervising attorney usually has to
approve the opening of each new file and certain specific forms have to be com-
pleted. At some law firms, a standard fee agreement may have to be signed by
84
the client, or the acceptance of certain clients may

have to be cleared with the senior partners lest it . . . for as long as a file
present a conflict of interests for the firm. The rules is not recorded on the
of the relevant institution must be ascertained and system, it does not,
followed at all times. What is important is that all files
must be opened and recorded in a proper manner, for all practical
for as long as a file is not recorded on the system, it purposes, exist.
does not, for all practical purposes, exist. Incoming
mail will not find its way into the file and clients calling your office may be frustrated
due to your inability to find the file. The following guidelines will assist you in creat-
ing, or understanding, basic file-keeping systems. In the case of electronic files,
the different sections would often be presented by different pages, tabs or other
data field groups.
5.3.2 Client particulars form or instruction sheet

When opening a new file, it is important to obtain all relevant details, including the
client’s full names and identity number (its useful to make a copy of the client’s
identity document for the file); residential and work addresses; home and work
and cell phone numbers; fax number; e-mail address; occupation; addresses of
family members or friends; the name of the opposing attorney; and the type of
case (subject matter). Your firm/law clinic may have tailor-made forms to record
all this information. In addition, the client’s mandate to the practitioner must be
recorded on the file, even if only briefly.23 At law clinics, some particular forms
must usually be completed, including an application form for legal aid, an indem-
nity form and a means test in order to determine whether the client qualifies for
assistance by the clinic.24 These forms can be filled in by hand, typed or recorded
electronically on a computer-based or electronic system. It is common practice for
practitioners in private practice to take a trust deposit upon acceptance of an
instruction, as cover for fees and disbursements.25 Law clinics may also take
deposits, but only as cover for disbursements. When opening a new file, the policy
of the firm/law clinic in this regard must be adhered to.
5.3.3 Front cover of file

The front cover of a file is used to record important information relating to
the matter, such as the name and surname of the client, the type of matter and
the practitioner dealing with it. Some firms also include the client’s contact details
on the front cover. The front cover of the file will also have a space for the file
________________________
23 Recording your mandate is most important and it is advisable to confirm the mandate in
writing to the client at the earliest opportunity. See para 3.6.3 above, where the importance
of adhering to the mandate is discussed.
24 Oregon State University Oregon State University: Archives and Record Management
Handbook http://osulibrary.oregonstate.edu/archives.htm.
25 See paras 7.5.7 et seq for a detailed discussion on trust monies and the taking of trust
deposits.
85
reference number, which must be added as soon as the reference number has
been allocated. All this information must be printed or written in a bold, legible
style. Typically, the file cover is also used to mark diarised dates (see below for a
discussion on diarising).
5.3.4 File registers
As soon as a new file is opened, it must be
As soon as a new file is recorded in a file register and a file number
opened, it must be recorded must be allocated. This number must then be
recorded on the front cover of the file (or
in a file register and a file prominently in electronic records) and will be
number must be allocated. used in all correspondence and documents
generated by the firm. File registers (or index
books) may be in electronic format, but a book-based system works equally well.
Whether the file register is kept in electronic format or in a book, it is always
advisable to make regular backup copies.
The file register should ideally be cross-referenced, meaning that files are
indexed both numerically and alphabetically, using two different registers. In the
numerical register, the next available number will be allocated to the file, indicat-
ing the name of the client to whom that number has been allocated, as well as the
type of matter. For example, for a file opened in 2006, the numerical register
would contain the following information: ‘005673/06 – S Ndaba (Divorce)’. This
means that it is the 5673rd file to be opened in the year 2006, for the client
S Ndaba in his divorce matter. This number is then also recorded in the alphabet-
ical register, next to the client’s surname. For example, under the letter ‘N’ in the
alphabetical register, you will record ‘Ndaba, S – 005673/06’.
Proper file registers, besides being a file tracking system, may also provide
useful information to the law firm or clinic. Various statistical data may be drawn
from file registers, such as the total number of active files at any given point in
time, the number of files opened in any given year, the spread of matters by type
and how many files each individual practitioner in the firm is dealing with.
In the areas of file registers and statistical data, electronic filing systems can
provide a useful advantage over traditional paper-based systems.
5.4 Typical file structure

5.4.1 Introduction
You will no doubt, somewhere in your career, be asked to take over an existing
file, perhaps because the client chose to transfer the file to you, or because a
colleague left the firm or retired. Getting to grips with a file that has been active for
a number of years is no easy feat. You will spend hours upon hours reading all
the notes, correspondence and pleadings in the file, trying to piece together the
history of the matter. If you have no idea of how attorneys’ files are structured, it
may seem like an insurmountable task. Once you understand this structure, it
becomes easier to read a file and to locate important information. It will also assist
you in structuring and maintaining your own files in a proper and professional
manner.
86
5.4.2 Reading case files

A paper-based case file usually contains a bundle of documents arranged from
the oldest at the bottom to the most recent on top, all secured together by means
of a paper binder (electronic files often allow you to choose how documents are
ordered). These documents include letters, faxes, file notes, consultation notes
and client’s documentation. By opening a case file, you should therefore immedi-
ately be able to see what was done last on the file. This should give you an idea
of the current status of the file, or determine whether urgent action should be
taken. In order to fully understand the history of the matter, you should read the
file starting with the oldest documents and moving to the newest (that is, in the
case of paper-based files from back to front, meaning you start at the bottom of
the bundle of documents and work your way to the top.)
5.4.3 Sub-folders
Some practitioners prefer to keep sub-folders, being separate folders inside the
client’s file. These sub-folders separately contain documents like pleadings,
evidentiary matter, research, or any other documents that the practitioner may
want to refer to separately, or may want easy access to.26 Sub-folders may con-
sist of A3 paper folded in half. The name of a sub-folder should be written or
printed on the cover in order to identify its contents. Once again, in paper-based
systems the oldest documents in a sub-folder are usually those at the bottom of
the bundle and the most recent on top. In a pleadings sub-folder, the last pleading
filed should therefore be on top of the bundle.
5.4.4 The activity record

An activity record (or note sheet/action sheet) is an ongoing summary of all action
taken and time spent on a file, and should be kept in each file. The purpose of
such recording is twofold: first, it serves as a detailed record of all activities on the
file, and second, it serves as a record of time spent, which practitioners commonly
use as a basis for their billing.
The activity record may be a printed form or a piece of lined paper, usually
secured on the left-hand inside cover of the file, or recorded electronically on a
computer-based system. Some files have pre-printed lines on the inside cover for
this purpose. One of the first entries on the activity record will usually be the date
upon which the instructions were received and the file was opened. The activity
record is further used to make contemporaneous notes of all telephone attend-
ances, letters and pleadings drafted and received, time spent on research, travel-
ling time and expenses incurred. Remember that in private practice, time is
money and it is essential to record the exact time spent on each activity. Although
________________________
26 Separate sub-folders may be used for the application form, correspondence, pleadings,
office notes, documentary evidence and research done. Depending on the complexity of the
matter, sub-folders can be combined; eg, one sub-folder may be used for both office notes
and documentary evidence.
87
a record of time spent may not be as important in law clinics, it is a good habit to
start with as early as possible.
Electronic files have their own equivalents used to record activity. The software
may also assist with the calculation of professional fees based on such record.
5.4.5 File notes
In addition to keeping the activity record up to date, file notes should also be kept.
These notes serve to record important information which would otherwise be lost,
for example the content of important telephone discussions, findings of an inspec-
tion in loco or thoughts on strategy. You should strive to record as much detail as
possible on each file. File notes serve to record action taken and often fill the gaps
between formal documents like pleadings and letters. You will be amazed at how
useful these notes may become months later.
5.4.6 Records of trust funds
Keeping a proper record of trust funds is essential. It should be readily ascertain-
able from a file exactly the actual monetary value of the trust funds received, how
much has been spent and how much is still available. This will enable practition-
ers to know when to request further trust deposits and to make cash flow projec-
tions. Records of trust funds are also important at law clinics where deposits are
taken to cover expenses. Unless such deposits are, by agreement with the client,
considered as donations to the clinic, it remains trust monies and must be deal with
accordingly. As previously mentioned, computer-based accounting systems are
available for lawyers to use.
5.5 Case management

5.5.1 Introduction
As your practice grows, you will probably see a substantial increase in your case
load. Legal matters take months and even years to finalise. Unless properly
managed, you may soon find yourself overwhelmed with work and unable to
cope. A few basic management tools may be used to plan and regulate your
workload. These are discussed below.
5.5.2 The diary system
The diary system is used extensively by legal practitioners to regulate their work-
load. It may take the form of a paper-based diary or may be an electronic system.
Essentially, it is a system that aims at ‘feeding’ the practitioner with files that need
attention, and storing files that have already received the required attention. ‘Files
placed in the diary’ means they are placed in the filing cabinet, marked with a future
date upon which they will be drawn for further attention. The diary system aims to
circulate files to and from the practitioner’s office. It tries to prevent a build-up of
files in the practitioner’s office, which may easily lead to important matters being
overlooked. The following are some important principles in using the diary system
effectively:
88
l diaries are usually kept by one designated person in the office, perhaps the
filing clerk, a secretary or the office administrator. That person must be meticu-
lous in entering diarised files in the diary, placing diarised files in the filing cab-
inets, drawing all diarised files on a daily basis and handing them to the
practitioner concerned;
l files should be diarised regularly, at least once a month. Do not allow files to
accumulate unnecessarily in your office. Plan and manage your time effectively.27
If you cannot deal with a matter immediately, rather diarise it to a future date than
let it accumulate dust in your office;28
l when prescription of a claim is looming, make sure the file is diarised well in
advance of the prescription date, in order to give you sufficient time to take the
necessary steps in order to prevent prescription;
l if incoming mail is received for a diarised file, the designated person should
draw the file, cancel the diarised date on the file cover and in the diary and
hand the file to the practitioner concerned. Once the necessary action has
been taken, the practitioner should re-diarise the file;
l the diary system is not fool proof. Consider delegating a person to go through
the filing cabinets from time to time to search for files that are not diarised, or
for ones that are past their diary date.
5.5.3 Incoming mail
Incoming letters or faxes must be filed in the relevant case file and brought to the
attention of the legal practitioner as soon as possible. These files should be taken
and set aside with the diarised files for that day to ensure that attention is given to
all new documents or correspondence.29 A responsible person must be appointed
to handle the incoming and outgoing mail. A system for doing these tasks should
be in place in each practice. An incoming and outgoing mail register may be kept.
This indicates the date and the specific mail that was sent or received; the cost
incurred in sending the mail; and the identity of the sender or receiver.30 This
information also applies to email and attachments that are received by email,
which must be stored in the correct files.
5.5.4 File summaries
If a practitioner plans to take leave, but fears that some action may take place on
a file in his/her absence which may require a colleague to work on the file, in
addition to diarising and making sure the colleague knows the date for which each
file is diarised, file summaries are most helpful. File summaries are also useful
________________________
27 Time management is dealt with in more detail in para 7.8.1 below.

29 Spangenberg (ed) (2002) Practical Legal Training Manual: Business Management
at 6.2.1.4.
89
when a file is being transferred from one practitioner to another, or, in the case of
law clinics, from one student to the next. A file summary is an outline of the case
and typically lists the steps that have been taken, the steps that need to be taken,
any other important information and the costs involved.31 File summaries are
usually placed on top of all the other documents in the file for easy access.
5.5.5 Reminder forms
Diarising files will generally serve as a reminder to deal with them on the diarised
date, but may not remind the practitioner of exactly what action needs to take
place on that date. For this purpose, an additional reminder system can be used,
which may work as follows: the practitioner completes a reminder form, detailing
the action required on a specific file. The form is handed to a designated person,
who will place the reminder form in a diary. On the designated date, the form will
be sent to the practitioner. Once the necessary action has been taken, the form
will be removed from the system. A standard form must be compiled to suit the
needs of the practice and one person must be held responsible for the administra-
tion of the system.32 This system may be useful, particularly in a large or busy
practice. In some systems (particularly some electronic systems) this is incorpo-
rated into the diarising system.
5.6 Closing files
Once you have completed the client’s mandate, debited the necessary fees, sent
a final statement of account to the client and ensured that payment has been
received, the file may be closed. It is good practice to send a final letter to the
client, thanking him/her for the instruction and confirming that the file will be
closed. If important documents are on file, you should make them available to the
client, or confirm that they would be placed in safekeeping. Once a file is closed, it
should be recorded as such in the file register, a new storage number should be
allocated and the file should be placed in an archive. Attorneys’ files must be
stored for a period of five years from the date of closure before they may be
destroyed. A proper system of closed and archived files should be devised to
facilitate their retrieval when needed.
5.7 Conclusion
Proper file-keeping may seem unnecessary and tedious to the young practitioner.
While tedious it may sometimes be, unnecessary it certainly is not. File-keeping
and file management are often central to the quality of services rendered by legal
practitioners. It reduces the risk of professional negligence, facilitates the render-
ing of efficient services and helps enormously with accurate billing. Efficient
services will market your firm like no other marketing strategy and are one of the
keys to successful practice. An effective file management system will result in a
professional, well-managed legal practice.33
________________________
32 Spangenberg (ed) (2002) at 7.5.2.
90
Numeracy skills
1
By Lourens Grové
6.1 Introduction
The most elementary branch of mathematics is arithmetic, from the Greek
arithmos meaning ‘number’. ‘Numeracy skills’ means the ability to work with
numbers. Without even thinking about it, we all use it daily, for example when
shopping or telling time. In legal practice specifically, there are frequent instances
that require you to apply these skills. For example, you may need to calculate
costs in a civil matter; calculate interest on a judgment debt; calculate percent-
ages when dealing with the Apportionment of Damages Act2 (pro rata apportion-
ment) or administering an estate; calculate Value Added Tax on legal services
rendered to clients; advise a client on the profitability and tax implications of an
investment or business venture; or read, interpret and understand the financial
statements relating to your practice.
Without a basic competency in numeracy, you
Without a basic may expose yourself and your clients to serious
competency in numeracy, risks. It is neither practical nor financially viable
you may expose yourself to refer all your calculations – especially the
and your clients to most elementary ones – to an accounting officer.
In order to manage your practice effectively, you
serious risks. need to have a firm grasp of the basics.
Calculators (also found on virtually all cellular telephones) and computers can
do arithmetic very quickly and are useful tools, provided that the user has suffi-
cient understanding of the basics to utilise the tool properly and get accurate
results. This is what this chapter introduces, rather than principles of algebra or
accounting.
Note that this does not mean that the ability to do calculations in your head is
not important. Sometimes we merely need rough estimations rather than full,
________________________
1 With acknowledgement to Dr Neels Swanepoel from the University of the Free State Law
Clinic and Mr Anton Kok from the University of Pretoria Law Faculty for having provided the
original drafts of this chapter for the 2nd edition, including some of the examples used herein.
2 Act 34 of 1956.
91
completely accurate calculations. For example, it is often sufficient to say that you
spend approximately R300 per month on transport, rather than calculating the
exact amount, for example R298,53. Such rough estimates can sometimes be
done much quicker and easier in one’s head than with a calculator, and they also
provide a good way of ‘double-checking’ those calculations that do have to be
done more accurately and with the aid of a tool.
6.2 Using your calculator
There are important differences in the way calculators work that can significantly
influence the answer they give you.
One small difference is in how calculations are entered: on traditional calcula-
tors, multiplication is indicated by using the multiplication button that looks like an
X and division is indicated by using the division button that looks like a line with
dots above and below it (÷). On cell phones and computer programs, multiplica-
tion is indicated by the asterisk button that looks like a star (*) and division is
indicated by using the slash button (/). So if you enter ‘3x3=‘ on a traditional
calculator, you would enter ‘3*3=‘ on a cell phone or computer and if you enter
‘3÷3=‘ on a traditional calculator, you would enter ‘3/3=‘ on a cell phone or com-
puter.
A less obvious thing to know is whether your calculator does calculations in the
order you enter them, or in accordance with a different set of rules. The terminol-
ogy below is not important; what is important is that you understand how to enter
a calculation into your specific calculator to get the correct result.
The reason different calculators do not give the same result for a calculation
entered in the same way is that some calculators follow arithmetic logic (normally
found in cellular telephones and everyday calculators) and some follow algebraic
logic (normally found in scientific and financial calculators, as well as many
spreadsheet programs).
Arithmetic logic means that the calculator will do the calculations in the order
you enter them.
Algebraic logic means the calculator will do simple calculations in the following order:
1 First, all calculations contained in brackets are calculated;
2 Second, all exponents are calculated;
3 Third, all multiplications and divisions are done;
4 Finally, all additions and subtractions are done.
The result of a calculation can be very different between the two methods, and
ignoring this difference may lead to your calculator performing a different calcula-
tion from the one you intended.
A quick test to see what logic your calculator follows:

• Enter the following into the calculator:
1+2×3=
• If the result your calculator gives you is 9, it follows arithmetic logic;
• If the result your calculator gives you is 7, it follows algebraic logic.
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Numeracy skills
In the case of the arithmetic logic, the calculator did the following:
First step: 1+2=3
Second step: 3×3=9
In the case of algebraic logic, the calculator did the following:
First step: 2×3=6
Second step: 1+6=7
If your calculator follows algebraic logic, but you want it to do the calculation as a
calculator with arithmetic logic would have done it, you have two options. The first
is to press the ‘equals’ (=) button after each number you enter. The second (more
correct) method is to insert brackets around the calculations you want performed
first. In other words, you would enter:
(1 + 2) × 3 =
Some calculators and programs have settings that allow you to choose the logic it
uses. For example, the calculator software included in Microsoft Windows™ has
two settings: ‘Standard’ and ‘Scientific’. When set to standard, it follows arithmetic
logic; when set to scientific, it follows algebraic logic. Consult your calculator’s
manual for details on your specific model.
6.3 Basic numerical writing and reading
When writing down numbers, it is good form to separate – with a space – the
figures into groups of three, starting by grouping together the last three digits
before the decimal point (or the last three digits if there is no decimal point). This
makes the number easier to read.
In other words, you would write:
65 432 198 rather than 65432198 and
R1 983 389,00 rather than R1983389,00
When writing down monetary amounts in a column, it is good form to line up the
figures and decimal points.
In other words, you would write:
R500,00
R 45,98 rather than
R500,00
R45,98
The symbols most commonly used for comparing numbers (and fractions) are:
Symbol Meaning
> ‘is larger than’
< ‘is smaller than’
= ‘is equal to’
≤ ‘is smaller or equal to’
≥ ‘is larger or equal to’
≠ ‘is not equal to’
≈ ‘is approximately equal to’
93
One way to remember which symbol means ‘is larger than’ and which symbol
means ‘is smaller than’, is to look at which side of the symbol is larger. The num-
ber on the larger side of the symbol is the larger number.
In practice, you will probably come across these most often in lookup tables, for
example tax tables that indicate categories of income.
6.4 Addition
Q1: If you earn R10 000 per month, but this month you also get a bonus of R5 000, what is
your combined income from these two sources?
Addition is merely a shortcut method of counting or ‘piling things up’. It is easier

and quicker to use addition to calculate your combined income from these two
sources than to actually pile up all the money and count it out. We use the plus
sign (+) to represent the operation of addition.
Additions can be performed in any order; in other words, 6 + 7 is the same as
7 + 6, because if you combine a pile of 6 things and a pile of 7 things, it doesn’t
matter which pile you add to which – you end up with the same pile in the end.
A1: Our example can therefore be written as ‘10 000 + 5 000’ (or ‘5 000 + 10 000’). The final
answer you get from the calculator should be 15 000. Add the rand (R) sign to the result
to get R15 000.
6.5 Subtraction
Q2: If you earn R10 000 per month, but you have to pay UIF of R101 per month, how much
money will you get after UIF contributions?
Like addition, subtraction is also a shortcut method of counting. The only differ-
ence is that here we are removing items from the pile. It is easier to use subtrac-
tion to calculate how much money your will get after UIF contributions than it is to
take a pile of R10 000, remove R101 from this pile and then count how much you
have left. We use the minus (–) sign to represent the operation of subtraction.
(Note that this example is merely for demonstration purposes. In real life, you
have to pay taxes as well.)
Unlike addition, subtraction cannot be performed in any order. The first number
you use will represent what you had initially (in our example, R10 000) and the
second number will be that which you take away (in our example, R101).
A2: Thus our example can be written as ‘10 000 – 101’. The final answer you get on the
calculator should be 9 899. Add the rand (R) sign to the result to get R9 899.
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Numeracy skills
6.6 Multiplication
Q3: If you are writing fees on a file in which you have to photocopy 60 pages, and you may
charge R1,25 per page, how much may you charge for all 60 pages combined?
Multiplication is a shortcut method of adding the same figure repeatedly.

It is easier to use multiplication to determine the amount you may charge,
rather than adding the prescribed fee for photocopies 60 times over (or worse,
piling everything up and counting it!). We use the multiplication (×) sign to repre-
sent the operation of multiplication.
Like addition, multiplication can be performed in any order.
A3: Our example can be written as ‘60 × 1,25’ (or ‘1,25 × 60’). The final answer you get
from the calculator should be 75. Add the rand (R) sign to the result to get R75.
6.7 Division
Q4: Your attorney charges you R75 for the 60 pages of photocopies made and you now
want to know how much you were charged per page.
Division is just the reverse operation of multiplication.

Rather than taking the R75 and trying to manually divide it into 60 piles, you
( )
use division. We use the division ÷ sign to represent the operation of division.
Many computers and cellular telephones use the slash (/) to represent division,
rather than the normal division sign.
Like subtraction, division cannot be performed in any order. The first number
would be the amount that you want to divide; the second number would be how
many equal ‘piles’ you want to divide it (‘break it up’) into.
A4: We will write our example as follows: ‘R75 ÷ 60’. The final answer returned by the
calculator should be 1,25. Add the rand (R) sign to the result to get R1,25.
6.8 Averages
Q5: You work on commission. In the past six months you have earned, respectively,
R10 000, R5 000, R20 000, R12 000, R16 000 and R15 000. You now want to calculate
your average monthly income over these six months.
To calculate an average, we use a combination of addition and division. We add

the ‘value’ of all the items together and then divide the result by the number of
items.
First, you will add the earnings for the past six months together. Then you will
divide the result by 6 (because you added 6 numbers together).
95
Note that here we find the first example where different calculators have to be
used differently: in the case of a calculator using algebraic logic, the calculation
will be entered exactly as written below. Should the brackets be left out, the
calculator will give an incorrect result. In the case of a calculator using arithmetic
logic, the calculation can simply be entered without the brackets (in fact, calcula-
tors using arithmetic logic normally do not have brackets to add) and it will return
the correct result.
A5: Our example can be written as: ‘(10 000 + 5 000 + 20 000 + 12 000 + 16 000 + 15 000)
÷ 6’. The final answer returned by the calculator should be 13 000. Add the rand (R)
sign to the result to get R13 000.
In practice, this is often used in maintenance cases to determine average income,

average monthly expenditure or average expenditure on a specific item, amongst
others.
6.9 Exponents
Just as multiplication is a shortcut method of adding the same amount several
times, exponents are shortcuts for multiplying the same amount several times.
Exponents are written as a small number to the upper right of the number, for
example the 5 in 35. It is a shorter way of saying that the number 3 is multiplied by
itself 5 times, that is, the calculation could be written as 3 × 3 × 3 × 3 × 3.
Another example is 68 – the calculation could be written as 6 × 6 × 6 × 6 × 6 × 6 × 6 × 6.
We will use these exponents in calculating compound interest. If you have a

normal calculator (and most cellphones), you will have to enter the calculation the
long way (‘3×3×3×3×3’) in the example above. If you have a more sophisticated
calculator or a computer, it would probably have a way to enter exponents, normally
indicated on a button by ‘nx’ or something similar. The n would be the number 3 in
this example, and the x would be 5 (as you multiply 3 by itself 5 times). Consult
your calculator’s manual for details on and input methods for your specific model.
Both methods should give the same result.
6.10 Fractions
The word ‘fraction’ comes from the Latin fractus, meaning ‘broken’.
In mathematical terms, it indicates a certain number of equal parts of a whole. It
is closely related to division; in fact, divisions can be and are often written in
fractional form.3
________________________
3 This is where the use of the slash (/) symbol by computers to represent division comes
from: it is a way of writing a fraction with the number before the slash representing ‘above
the line’ and the number after the slash representing ‘below the line’. This means that
3
7 and 3/7 are just different ways of writing the same thing.
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Numeracy skills
To write something in fractional form, the number of equal parts into which the
whole is divided is written below a horizontal line. This number can never be zero.
The number of such parts that make up the fraction (broken part) is written above
the line.
Therefore, 52 means that a whole was taken, divided into 5 equal parts, and
you are now dealing with two of those five equal parts.
Let us say there are six partners in the firm who share profits equally. Each
partner’s share can be indicated in fractional form, being 61 or one sixth. This is
because the whole (total profits) was ‘fractured’ (divided) into six equal parts (for
the four partners), of which we are now only dealing with one part (the share of
one partner).
In practice, fractions are very often used in law of succession, as well as the
calculation of interest over a part of a year.
6.10.1 Equivalent fractions and common denominators

‘Equivalent fractions’ are fractions that look different but have the same meaning
and represent the same number. You can easily find equivalent fractions for a
number by multiplying or dividing the number above the line and the number
below the line with exactly the same number.4
3 6
For example: 5
= 10
3 6
Both the 3 and the 5 in 5
were multiplied by 2. This gave us 10 , which has
3
exactly the same value as 5
. The reason for this is that the relation between the
two numbers was kept the same.
This can easily be seen by looking at a picture of a divided circle:
You can see that any three of the five parts in the first circle combined are the
same ‘size’ as six of the 10 parts in the second circle combined, but that one of
the five parts in the first circle and one of the 10 parts in the second circle are not
the same size.
________________________
9
4 By multiplying by the same number above and below the line (eg 9 ), you are actually
multiplying by one, which doesn’t change the value of the original number.
97
This becomes useful in another kind of calculation: when we have to add or

subtract fractions from one another where the number below the line is not the
same, for example: 74 + 39 .
This calculation cannot readily be done (you are not adding pieces of the same
‘size’ together), so we have to change the numbers below the line to be the same.
If you are using a calculator, the easiest way to do this is to multiply both the
numbers in the first fraction with the number below the line in the second fraction,
and multiply both the numbers in the second fraction with the number below the
line in the first fraction.
3
To calculate 74 + 9 :
4 3 4× 9 3×7 36
21
7
+ 9 becomes 7 × 9 + 9 × 7 which equals 63 + 63 . Now it is easy to add the two numbers
together, which will equal 57

63
.
This method of getting the numbers below the line the same should also be used
when comparing fractions to determine which one is larger.
If both the number above the line and the number below the line are divided by
the same number, the value of the fraction also remains the same. In the case of
57
63
, we can see that both numbers can readily be divided by 3, so we can
change the number to 19 21
(by dividing both numbers by 3), while still retaining
the value of the original fraction. This makes the fraction easier to understand and
work with.
6.10.2 Multiplying fractions

When doing calculations with numbers that contain both whole numbers and
fractions, it is easiest to first convert the whole numbers to fractions. This is done
by multiplying the value of the whole number with the number below the line, and
adding the result to the number above the line. This whole number is then
dropped. This method is useful for addition and subtraction, and necessary for
multiplication and division.
5
For example: 1 32 + 34 is thus converted to 3 + 34 (because 1 × 3 = 3 and 2 + 3 = 5).
It is now easy to calculate the result, which is 93 . If we enter 9 divided by 3 into

our calculators, we find the final result to the calculation above is 3.
It is even easier to multiply fractions: The numbers below the line are multiplied
to get the number below the line in the final answer, and the numbers above the
line are multiplied to find get the number above the line in the final answer.
8
For example: 32 × 34 = 9
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Numeracy skills
To turn a whole number into a fraction, simply place the number above the line
and the number 1 below the line. You may then proceed to multiply as above.
640 640
For example: 640 × 41 = 1 × 41 = 4 = 160
6.11 Reading decimal fractions

Most fractions can also be expressed as decimal numbers. A decimal number is a
number that is followed by a comma (the ‘decimal point’) and then some more
digits, for example 10,21. You are already familiar with this system, as it is the
system we use for money. You know that R30,21 means 30 rand and 21 cents, or
30 rand and 21 hundredths of a rand. Working with decimals is often easier than
working with fractions, as decimal numbers are based on units of 10.
Some fractions cannot be accurately converted to simple decimals. For ex-
ample, 31 , in decimal form, is 0,3333333 . . . (with the 3s continuing into eternity).
This is called a recurring decimal and is written with a dot over the recurring
figure or dots on the first and last figures of a recurring set. So 31 may be writ-
ten as 0,3& and if you had to write a decimal number where a certain set of num-
ber recurs, for example
. . 0,27127127127127 . . . (continuing into eternity), you
would write it as 0,271.
6.11.1 Multiplying, dividing, adding and subtracting decimals
When doing these calculations using a calculator, it is important to enter the
decimal point at the correct position. Other than that, it works exactly the same as
with whole numbers.
6.11.2 Rounding
Rounding is a way to make a long decimal shorter and more workable for a spe-
cific use.
Most of your contact with decimals will probably involve money, which we round
off to two decimals. This is because you are not allowed to cut money in half to
give someone half a cent and there are 100 cents in a rand, so two decimals are
sufficient.
To round a number to a certain number of decimals, we look at the decimal just
to the right of where we want to ‘cut off’ the number. If this decimal is less than 5,
we simply cut the number off. If it is 5 or more, we increase the previous decimal
(the last one we want to retain in our number) by 1.
If we want to reduce 91,8765 to two decimal numbers, we look at the 6 (the decimal to the
right of the position where we want to ‘cut off’ the number) and see that it is higher than 5.
We therefore increase the previous number (7) by 1, and then cut off the rest of the number.
So the result we get is 91,88.
With spreadsheets and some calculators, it is possible to set or specify the num-
ber of places it rounds off to. Consult your calculator’s manual for details on your
specific model.
99
6.12 Percentages
The word ‘percent’ comes from the Latin word centum, meaning ‘hundred’ (which
is why we use words like ‘century’ – 100 years, ‘cent’ – of which there are 100 in a
rand). We use the percentage symbol (%) to express percentages. It looks a bit
like a one and two zeroes, as in ‘100’.
A whole unit of something is always 100 percent (100%) or 100 per 100. Per-
cents are actually fractions with the number 100 below the line. So 100% is also
100 90
100
and 90% equals 100 . Due to familiarity, it is often easier for us to visualise a
part of something when expressed as a percentage, rather than a fraction. For
example, it is easier for most students to understand 80% rather than 48 out of 60
48
or 60 for a test.
Percentages are also often used to indicate increases or decreases, for ex-
ample in salaries, inflation or maintenance amounts.
To work with percentages, it is normally easiest to convert the percentage into
a decimal fraction, do the calculations and then convert the answer back to a
percentage.
6.13 Conversions
6.13.1 Converting percentages and decimals
To convert a percentage to a decimal fraction, simply divide it by 100 and drop
the percent symbol. To convert a decimal to a percentage, simply multiply it by
100 and add the percent symbol.
Thus: 56% = 0,56 and 0,97 = 97%
6.13.2 Converting a fraction to a decimal

When you want to use your calculator to do calculations with fractions, you will
have to convert the fractions to decimals. To convert a fraction to a decimal,
divide the number above the line by the number below the line.
For example: To convert 34 you calculate 3 ÷ 4, which gives you the fraction in decimal form:
0,75.
Note that this conversion will often result in a decimal fraction that has to be
rounded off, thereby losing some accuracy.5 This is one of the reasons why it is
sometimes still necessary to be able to do calculations with fractions in fractional
form.
________________________
5 If you were to type 1 ÷ 3 into a normal calculator, press the ‘=’ sign and then multiply the
result by 3, you would get the recurring decimal 0,9, . whereas the correct answer is 1. This
is the result of rounding off (which your calculator did because it cannot work with numbers
continuing into eternity).
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Numeracy skills
6.13.3 Converting percentages and fractions

Writing a percentage in fractional form is normally very easy: place the percent-
age above the line in the fraction, and place 100 below the line.
46
Thus: 46% may be written as 100 .
If the percentage contains recurring decimals, the method is more complicated.
It will not be discussed here, as it is fortunately not encountered very often in
everyday situations.
Converting a fraction to a percentage is also very easy: enter the number
above the line into your calculator, press the division button and then enter the
number below the line. Multiply the result by 100, and add the percentage symbol.
Thus: 2425
may be written as 96%. This is exactly the process you follow when
you calculate your percentage from the actual mark given to you on an assign-
ment or test.
6.13.4 Converting whole numbers and fractions
Any whole number can be written as a fraction by simply placing the number
above the line and placing the number ‘1’ below the line.
6.14 Interest
Percentage is commonly used to indicate interest on debt or savings. It is often
expressed as either ‘nominal’ or ‘real’ interest rates.6
When calculating interest, it is important to know whether it is simple interest or
compound interest. Simple interest and compound interest will produce different
results, even if the same principal amount and nominal interest rates are applied.
6.14.1 Simple interest
Q6: You have an R5 000 loan running simple interest at 12% per year. (a) How much mon-
ey would this interest amount to per year?; (b) What will the total amount be that you
owe after a year?; and (c) How much would the interest be after only 5 months?
When the fee charged for borrowing money is a fixed percentage of the principal
amount, it is called simple interest. To calculate simple interest, convert the per-
centage to a decimal fraction and then multiply the decimal fraction by the princi-
pal amount. This gives you the interest over the period stipulated with the interest
(normally a year).
If interest did run for the entire year and you have to calculate the total amount
payable after a year (rather than just the interest), you will add 1 to the decimal
fraction (this includes the principal amount in the total).
________________________
6 ‘Nominal interest’ is what most people would think of if they hear, eg 10% interest. ‘Real’ or
‘effective’ interest takes the effect of compounded interest over a specific period into ac-
count. Ie if you pay 10% nominal interest on an overdraft, you will be paying more interest
than someone that pays 10% effective or real interest on the same overdraft.
101
If you have to calculate the interest over only a part of the year, you would mul-
tiply the interest rate by the number of parts for which you want to calculate
interest (for example five months or 20 days), and then divide the total by the
number of such parts that form a year (for example 12 months or 365 days).7 The
result from this calculation gives you a new number to use instead of the yearly
interest rate, which you then use in the way described above, rather than the
original yearly interest rate number (the interest rate didn’t change, but the new
number reflects the fact that the interest only ran for part of the year.)
A6: (a) Convert the 12% to its decimal value (0,12). Multiply the principal amount by the
decimal fraction (R5 000 × 0,12) and you get the result (R600). This is the interest
per year.
(b) Calculate: 5 000 × 1,12 and get the answer as R5 600, which is the total amount
(principal + interest) that will be owed after a year.
(c) To calculate only the interest over a five-month period, in the example above, you
5
will take the decimal value fraction (0,12) and multiply it by the fraction 12 (the 5
represents the five months, the 12 represents the fact that there are 12 months in
the year). This gives you a new decimal fraction (0,05) which you can now use to
calculate the interest for the five months: R5 000 × 0,05 = R250.
6.14.2 Compound interest
Q7: You have a loan of R5 000 running interest at 12% per year, compounded yearly.
Determine the full amount that will you will owe after three years, assuming that no
repayments are made.
The more common form of interest is compound interest. The interest earned
over a period of time (for example, per year) is added to the principal amount, so
that at the end of the next period interest is paid on the new total. This is some-
times referred to as ‘interest on interest’, which is a very good description of what
actually happens – you also pay interest on the accrued interest.
The process of adding the interest to the capital amount is referred to as com-
pounding. In other words, if the interest gets added to the capital amount once a
month, it is ‘compounded monthly’. Similarly, if interest only gets compounded
every six months, it is ‘compounded semi-annually’.8
________________________
7 Alternatively, you may multiply the interest rate with the fraction where the number above
the line is the number of parts for which you want to calculate interest, and the number
below the line is the number of such parts that form a year. In mathematical terms, it is
exactly the same calculation.
8 When dealing with interest per year, compounded annually, a quick ESTIMATE of how long
the interest will take to double (note: in duplum rule) is to divide the number 72 by the rate
of interest.
Eg, you pay interest at the rate of 12% per year; in approximately how many years will
the principal amount double? 72 divided by 12 gives 6, so the answer is six years. Note that
continued
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Numeracy skills
If no repayments are made, the combined value of the principal amount and
compound interest can be calculated as follows:
• convert the interest percentage to a decimal fraction;
• add 1 to the decimal fraction. The result you get here will be the new decimal
fraction that you will use in the rest of this calculation;
• multiply the new decimal fraction by itself once for each year (if compounded
yearly);
• the result (which represents your ‘effective’ or ‘real’ interest rate for the period) is
then multiplied by the original amount owed;
• the final result represents the total of the principal amount and all accrued
interest over the period. If you want to calculate only the interest, subtract the
principal amount from this end result.
A7: Make the following calculations:

• Convert percentage to decimal fraction (12% = 0,12)
• Add 1 to decimal fraction (0,12 + 1 = 1,12)
• Multiply once for each year: (1,12 × 1,12 × 1,12 = 1,404928)
• Multiply original amount: (R5 000 × 1,404928 = R7 024,64)
So the amount you owe after three years will be R7 024,64.9

If you want to know only what the accrued interest over the three years is, you
subtract the original amount to get your answer (R7 024,64 – R5 000 =
R2 024,64).
If payments are made during the period, the calculation has to be done in a
slightly longer way, best illustrated by an example.
Q8: In an attorney’s practice, you are instructed to handle a debt collection matter.
You act for Ariel. Belinda owes Ariel an amount of R500. On 28 May 2002 Belinda offers
to settle the amount in instalments of R100 per month. A collection commission of 10% is
payable on every instalment and interest of 15% per year is payable on the amount out-
standing from time to time, calculated monthly in advance. Belinda’s payments will first
be applied to cover collection commission: then interest payable from month to month,
thereafter to cover capital. Belinda pays on the following dates at your office:
30 June R100
31 July R100
30 September R100
After payment on 30 September, she asks you what the exact amount outstanding is, so
that he can send someone with a cheque. Assume that interest starts to run from 1 June.
________________________
this is an estimate; a quick calculation and it is not completely accurate – in fact, the higher
the interest rate, the less accurate the calculation.
9 If the interest had been simple interest, the amount you owe after three years would have
been R6 800. Do the calculation yourself and make sure you get the same result and that
you understand the difference.
103
15 1
A8: During June interest of 100 × 500 × 12 = R6,25 accrues.
10
When B pays R100 at the end of June, R10 collection commission ( 100 × 100) must be
deducted. That leaves R90 that must be deducted from R500 (capital) + R6,25 (inter-
est): R506,25 – R90 = R416,25 is due on 1 July.
15 1
During July interest of 100 × 416,25 × 12 = R5,20 accrues.
When Belinda pays R100 at the end of July, R90 must be deducted from the due
amount: R416,25 + R5,20 (interest) – R90 = R331,45 is due on 1 August.
15 1
During August interest of 100 × 331,45 × 12 = R4,14 accrues.
Belinda does not pay and the due amount increases to R335,59 (331,45 + 4,14).
15 1
During September interest of 100 × 335,59 × 12 = R4,19 accrues.
When Belinda pays R100 at the end of September, R90 must be deducted from the due
amount: R335,59 + R4,19 (interest) – R90 = R249,78.
Therefore, on 1 October, R249,78 is due.
If you are not entitled to a collection commission on a settlement amount, you will inform
Belinda to pay R249,78. If you are entitled to a commission on this amount, you need to
make one more calculation:
P = the percentage commission you are allowed to charge
100
(100 −P)
× the amount he would have had to pay if you were not entitled to commission.
So, in our example, let’s say you are entitled to 10% collection commission. Using the
formula above, we can then calculate:
100
(100 −10)
× R249,78
100
That is 90 × R249,78
And we find our final answer, which is R277,53.

This means that Belinda’s final instalment will be R277,53. If you subtract your 10%
collection commission (10/100 × R277,53 = R27,75), that leaves R249,78 – which is the
amount due to your client.
A statement reflecting these calculations could be set out as follows:
Interest Commission Debt

Month Instalment
payable payable outstanding
30/6 R100 R6,25 R10 R416,25
31/7 R100 R5,20 R10 R331,45
31/8 R0 R4,14 R0 R335,59
30/9 R100 R4,19 R10 R249,78
1/10 R277,53 NA R27,75 R0
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Numeracy skills
6.15 Ratios and rates
Q9: Allan, Bart and Carl are three partners in a firm. The firm makes R154 087,95 profit,
which has to be divided according to the ratio 1:2:3. How much does each partner get?
A ratio is a way to compare the relative size of two numbers, expressed as a

proportion. For example, if you and a partner share profits unequally, say you get
two-thirds of the profits and he gets one third, you are sharing the profits on the
ratio of 2 to 1. This means that for every R2 that you will get, he will get R1.
There can be more than 2 numbers in a ratio as well. In the example, there are
three partners, called Allan, Bart and Carl respectively. For every R1 that Allan
gets, Bart must get R2 and the Carl must get R3. The ratio is then 1 to 2 to 3.
Ratios can be expressed in a variety of ways, for example using the word ‘to’ or
‘for’ as above, or more commonly, using a colon. When using the colon, we would
write the above two examples as follows:
‘2 to 1’ will be written as 2:1
‘1 to 2 to 3’ will be written as 1:2:3
To do calculations on ratios, all the numbers in the ratio are added up. This total
is then placed below the line in a fraction for each partner. The original number
that corresponds to each partner is written above the line in that partner’s fraction.
So, in the previous example, we take the ratio 1:2:3 and calculate the number
that goes below the lines. This number must be 1 + 2 + 3, so it is 6.
Placing the original numbers above the lines of each corresponding partner’s
fraction, know that the fraction of the total profits that the partners must get is:
Allan: 61
2
Bart: 6
3
Carl: 6
This means that for every R6 profit that the firm makes, Allan receives R1,00, Bart
receives R2,00, and Carl receives R3,00.
A9: Allan will receive R154 087,95 multiplied by 1 and divided by 6, which, rounded off
equals R25 681,33.
To calculate Bart‘s share, you have to first multiply R154 087,95 by 2 (because B
receives 62 ), and then divide it by 6, which equals R51 362,65.
Carl’s share is R154 087,95 × 3 ÷ 6, which equals R77 043,97.
To check whether your calculations are correct you can add Allan, Bart and Carl’s
respective shares, which should equal the total profit, namely R154 087,95.
105
6.16 Apportionment of damages
Q10: Jonathan, the employee of Bakers and Sons, collides in a traffic light-controlled inter-
section with Llewellyn while attending to a delivery on behalf of Bakers and Sons.
Jonathan was the driver of a delivery van with the registration number ABC 123 GP
and Llewellyn was the driver of a motorcycle with the registration number
XYZ 987 GP. The delivery van is written off in the collision. Bakers and Sons receives
R3 400 for the wreck from a salvage yard. The vehicle was insured for R34 000. You
may assume that this amount accurately reflects the market value of the vehicle prior
to the collision. The repair costs of the motorcycle amounted to R8 500. Assume that
Jonathan was 35% negligent and Llewellyn was 65% negligent and that Bakers and
Sons issued a summons against Llewellyn. Llewellyn instructed his attorneys to insti-
tute a counterclaim. Apply set-off and calculate the amount that one of the parties will
have to pay to the other.
Apportionment of damages is nothing other than the application of principles

relating to fractions and percentages.
The Apportionment of Damages Act allows for an apportionment of damages
according to the respective degrees of negligence where two or more parties’
fault contributed to the same damage. These principles are often applied in motor
collision cases.
A10: Based on vicarious liability, Bakers and Sons is responsible for 35% of Llewellyn’s
35
damage. That is 100 × 8500 = R2 975.
Llewellyn is responsible for 65% of Bakers and Sons’ damage. Their damage amount-
65
ed to 34 000 – 3400 = R30 600; 100 × 30 600 = R19 890.
If one applies set-off, R2 975 must be subtracted from R19 890:
R19 890 – R2 975 = R16 915 must be paid by Llewellyn to Bakers and Sons.
It is not necessary that the respective degrees of negligence must add up to

100%. Theoretically a presiding officer must ascertain to which degree a wrong-
doer deviated from the norm of the reasonable person in assessing the degree of
fault. It does not necessarily follow that because one driver was, for example,
40% negligent, that the other driver would automatically be 60% at fault. Using
the same example as above, assume that Jonathan’s negligence is assessed at
20% and Llewellyn’s negligence at 35%. This means that the parties were negli-
gent in the proportion of 20:35. Proportional allocation must now be used to
calculate the due amount:
Llewellyn must pay 35
55
× R30 600 = R19 472,73
20
Bakers and Sons must pay 55 × R8 500 = R3 090,91
Applying set-off, Llewellyn must pay R16 381,82 (19 472,73 – 3 090,91) to Bakers
and Sons.
106
Numeracy skills
6.17 Calculating Value Added Tax
Q11: Your firm buys a computer that costs R15 650,00, inclusive of VAT. You may have to
calculate the VAT portion of the purchase price for purposes of submitting your VAT
return to the Receiver of Revenue, and also to establish the real cost of the computer.
Value Added Tax (VAT) is a tax payable to government on almost all products
and services, including legal services. At the time of writing, VAT is charged at
14% on the value of the goods provided or services rendered. If an account to
your client is for example R100,00 you will calculate the VAT payable by your
client by multiplying R100 by 14 and dividing the product by 100, in other words:
R100 × 14 ÷ 100 = R14,00. The account to your client will therefore be for the
sum of R114,00, which includes VAT.
A11: In order to do this calculation, you need to learn a simple formula: purchase price
(R15 650,00) multiplied by 14 (the current VAT rate), divided by 114 (100 + current
VAT rate) = the VAT payable (in this case rounded off to R1 921,93) To calculate the
cost price of the computer you subtract the VAT payable (R1 921,93) from the pur-
chase price (R15 650,00) which equals R13 728,07.
When you account to your client, you will from time to time include disbursements
– in other words, expenses that you incurred on behalf of your client. VAT would
already have been added to these amounts, therefore when you account to your
client do not add VAT to these amounts again:
Fees Disbursements
(VAT excl) (VAT incl)
R R
Correspondence 250 10
Summons 300 20
Telephone calls 100 16
Counsel’s fees 2 400
Subtotal 650 2 446
Plus VAT (14%) 91
Plus disbursements 2 446
Total 3 187
6.18 Combining calculations

For most real-world problems, you will need to combine several calculations to
get an accurate result.
107
Q12 You are working on a divorce case and have to determine what your client is entitled
to in terms of their pre-nuptial contract.
The parties are married out of community of property, with inclusion of the accrual
system. In terms of the pre-nuptial contract, Susan entered the marriage with an
estate worth R50 000 and John entered the marriage with an estate worth R68 000.
During the first few years of the marriage, Susan was very successful in her career,
but after three years the couple decided to have children and that Susan would stay at
home and raise the children. She resigned from her job, and as a result her estate
didn’t grow as much after that point.
At present, her estate is worth R237 000 and John’s estate is worth R774 535.
You went to the website of Statistics South Africa (www.statssa.gov.za) and found the
appropriate consumer price index. According to the document, the base year was the
year 2000 (where the value is 100). The parties got married in 1998, were the average
index was 90,2 and the average index for the present year is 128,0.
A12: Step 1:
Calculate the present day value of Susan’s original estate
128,0
90,2
× 50000
1
= 6400000
90,2
≈ R70 953,44
(Multiplying fractions: paragraph 6.10.2; and Rounding off: paragraph 6.11.2)

The reason you have 128 above the line and 90,2 below the line is that you need
128 cents today for every 90,2 cents that you would have needed in 1998 to buy the
same things. So we see that Susan needs R70 963,44 today to buy the same things
she could have bought for R50 000 in 1998.
Step 2:
Calculate the present day value of John’s original estate
128,0
90,2
× 68000
1
= 8704000
90,2
≈ R96 496,67
(Multiplying fractions: paragraph 6.10.2 and Rounding off: paragraph 6.11.2)

Step 3:
Calculate the growth in Susan’s estate
R237 000 – R70 953,44 = R166 046,56
(Subtraction: paragraph 6.5)
This represents the present value of Susan’s estate minus the present day value of
her original estate.
Step 4:
Calculate the growth in John’s estate
R774 535 – R96 496,67 = R678 038,33
Step 5:
Calculate the difference in the growth of Susan and John’s estates
R678 038,33 – R166 046,56 = R511 991,77
continued
108
Numeracy skills
A12: Step 6:
Determine half the difference in growth of Susan and John’s estates
R511 991,77 ÷ 2 ≈ R255 995,89
(Division: paragraph 6.7)
Step 7:
Determine final result
It is clear that John’s estate showed the most growth, so he will have to transfer value
to Susan. From our calculations, we can see that Susan is entitled to a payment of
R255 995,89 from John, in addition to her own estate. Ultimately, this means that
Susan should end up with an estate worth
R237 000 + R255 995,89, which equals R492 995,89
(Addition: paragraph 6.4)
Q13: Take the same set of facts as in the previous example, but determine the final value
John’s estate should have after the divorce.
A13: Step 1:
If you haven’t done so already, do steps 1 to 6 in the previous question.
Step 2:
Determine the final result
As John’s estate has shown the most growth, he has to pay half the difference in
growth between his and Susan’s estate to Susan. We already calculated this to be
R255 995,89, so now we merely subtract this amount from the current value of John’s
estate: R774 535 – R255 995,89 = R518 539,11
Q14: The Court granted an order in terms of which John has to pay maintenance to Susan
in the amount of R700 per month for herself and R400 per month per child for each of
the 2 minor children, aged 3 and 5. In accordance with the court order, this amount
has to be increased by the consumer price index on the first of January of each year,
while payment must be made on the seventh day of each month.
It is now the first of January, 10 months after the divorce. You contacted StatsSA and
determined that a rand today has only got the buying power that 92 cents had at the
time of divorce.
Determine the amount that John must pay in maintenance each month after the con-
sumer price index has been taken into account as per the court order.
A14: Step 1:
Put the information you have regarding the consumer price index in fractional form:
100
92
The 100 represents the 100 cents per rand that you have today, the 92 represents the
buying power it has in relation to the time the order was made.
continued
109
8% of the money Susan would get beginning on the first of January is in effect being
‘spent’ on inflation.
This is similar to the case of debt collection, where 10% of the money paid is being
spent on the debt collector’s fees. So the formula used in such cases can also be
used here and leads to the same result.
(Compound interest: paragraph 6.14.2)
1
We could have worked with rands, writing the fraction as 0,92
, but it is easier to work
with whole numbers in a fraction. 100

92
has exactly the same value as 1
0,92
.
(Equivalent fractions and common denominators: Paragraph 6.10.1)

Step 2:
Multiply the fraction you created in Step 1 by the amounts of maintenance payable at
time of divorce.
In respect of Susan:
100 700 70000
92
× 1 = 92
≈ R760,87 per month
(Multiplying fractions: paragraph 6.10.2)

In respect of each of the minor children:
100 400 40000
92
× 1 = 92
≈ R434,78 per month
(Multiplying fractions: Paragraph 6.10.2)

Step 3:
Calculate the total payable per month.
R434,78 × 2 + R760,87 = R1 630,43
(Addition: paragraph 6.4; and Multiplication: paragraph 6.6)
Note: Due to the operation of calculators following arithmetic logic, the amount pay-
able per child was first multiplied by 2 and then the amount payable for Susan was
added. Doing it the other way around on a calculator following arithmetic logic would
have caused the calculator indicate the result as R2 391,30, which is incorrect.
If you don’t feel like ordering your calculations this way, simply calculate R434,78 +
R434,78 + R760,87.
(Using your calculator: paragraph 6.2)
6.19 Conclusion
In the legal profession, it is often necessary to combine several different skills and
bodies of knowledge to solve a specific problem. Numeracy skills are no different
– one often has to only figure out what calculations are needed, but also to com-
bine different calculations to get to the correct answer. As the world seemingly
becomes more and more data driven, numeracy skills will only become more
important to lawyers.
110
Practice
management
By Marc Welgemoed
7.1 Introduction
Upon graduating with the LLB degree, you may well have all the necessary
knowledge of the theory and some of the practical skills required for the practice
of law. Yet, you may soon find that the management of a law practice requires
considerable knowledge and skills about client and staff satisfaction that were not
provided during academic study. In the preceding chapters you were introduced
to the values and ethics of the legal profession, consultation skills, and so on. The
aim of this chapter is to provide you with a basic knowledge of the proper man-
agement of a law practice. This is very important, as you will need to know how to
turn your practice into a very successful law firm, in terms of both financial suc-
cess (which requires basic numeracy skills) and management. This chapter
consolidates much of what is contained in those chapters, plus other important
other considerations, all under the broader concept of practice management. It
does not pretend to provide a thorough exposé of a highly technical and special-
ised field of knowledge, but merely aims to provide a sound basic foundation
upon which to build.
Not all LLB graduates will enter legal practice as private practitioners. Some
may practice law as salaried employees of an institution that provides legal ser-
vices, be that as a State prosecutor, a State attorney, a State advocate, or as an
attorney or advocate employed by a University Law Clinic or a Justice Centre at
Legal Aid South Africa. Some may become legal advisors to private companies or
particular organs of State. This chapter is aimed particularly at those in, or enter-
ing, legal practice as attorneys. It deals with some of the most important aspects
concerning client care, legal fees, cost orders and trust accounts. Furthermore,
this chapter provides suggestions on dealing with risks in the legal profession,
managing your time and coping with stress. Finally, some considerations when
starting a new law practice are discussed.
7.2 Definition of ‘practice management’

In order to grasp the subject matter of this chapter, it is makes sense to start with
an explanation of what the term ‘practice management’ generally means.
111
7.2.1 Practice
An attorney’s practice may be conducted using different business structures.
These comprise a sole proprietorship, namely a business owned by a single
owner for his/her personal account;1 a partnership, namely a business entity in
terms of which two or more persons in partnership conduct a law practice, where
the partners are jointly and severally liable for the partnership liabilities;2 an incor-
porated company, namely a separate legal entity that has a ‘life’ separate and
apart from its owners, with rights and duties of its own, where all shareholders
must be directors of the company;3 or a practice in association with others, such
as with another legal practitioner or law firm sharing common premises, facilities
or assets, but not income.
The Legal Practice Act (LPA),4 which will be discussed below in more detail, will
eventually become the sole governing piece of legislation prescribing the busi-
ness structure of an attorney’s practice. This Act provides that attorneys may only
practice5 –
(a) for their own account;6
(b) as part of a commercial juristic entity referred to in subsection (7);7
(c) as part of a law clinic;8
(d) as part of Legal Aid South Africa;9 or
(e) as an attorney in the full-time employment of the State as a State attor-
ney, or in the employ of the South African Human Rights Commission.10
Advocates practice as sole proprietors, as they are not allowed to form partner-
ships or conduct business through an incorporated company. Advocates who are
members of bar associations often practice in ‘groups’, meaning that they share
office space, secretarial services and/or libraries, whilst still maintaining their
independence from each other professionally.
Parts of the LPA came into operation on 1 February 2015.11 The whole Act will
bring about significant changes to legal practice in South Africa when it is fully
________________________
1 Viljoen (1981) Die Prokureurspraktyk: ’n Bedryfsekonomiese Ontleding at 28–29.

2 Supra at 31.
3 S 23 of the Attorneys Act 53 of 1979.
4 28 of 2014.
5 S 34(5).
6 S 34(5)(a).
7 S 34(5)(b). Subs (7) refers to ‘[a] commercial entity’ that may be formed by attorneys, which
can be interpreted in the same way as the current entities, allowed for attorneys’ practice,
as explained above. This interpretation is reinforced by the use of the terms ‘. . . sharehold-
ing, partnership or membership as the case may be . . ‘ in s 34(7)(a).
8 S 34(5)(c).
9 S 34(5)(d).
10 S 34(5)(e).
11 http://www.lssa.org.za/?q=con,368,Legal+Practice+Act+28+of+2014. Parts 1 and 2 of Ch 10
of the Act have come into operation.
112
Practice management
operational. In terms of the Act, both attorneys and advocates are referred to as
‘legal practitioners’,12 which term is defined as ‘an advocate or attorney admitted
and enrolled as such in terms of sections 24 and 30 respectively’.13 Both sec-
tions 24 and 30 set out the requirements for the admission and enrolment of
attorneys and advocates as legal practitioners. Although some of the principles
discussed in this chapter may apply to the management of an advocate’s prac-
tice, the chapter primarily concerns the management of the practice of an attor-
ney. Because the LPA is only partially operational, the terms ‘attorney’ and
‘advocate’ are still used in order to refer to the current offices of these types of
practitioners.
‘Practice’ in the context of this chapter may therefore be described as the busi-
ness enterprise in terms of which legal services are rendered for financial gain by
the owners of the enterprise. The key elements of a legal practice as a business
enterprise are the following:
l it provides or sells services that produce
income for its owners;
A legal practice is a
l it has expenses; business which should be
l it employs people; planned, established,
l it has a business premise; managed and monitored
l it is subject to certain statutory requirements; in terms of generally
l it has an infrastructure that requires accepted business
resources such as equipment; and principles.
l it requires finances from its owner(s).
A logical conclusion is therefore that a legal practice is a business, which should
be planned, established, managed and monitored in terms of generally accepted
business principles.
7.2.2 Management
At the outset, the term ‘management’ implies a continuing process. It entails a
wide range of activities with the aim of providing direction to the business’s
resources in order to achieve its goals in the most cost-effective way.14 All indi-
viduals within an enterprise should apply management principles in the perfor-
mance of their duties, in order to create an environment in which individuals work
together towards attaining the goals of the enterprise.15
The four fundamental actions that form the management process are the
following:16
________________________
12 S 1 of Act 28 of 2014.
13 Supra.
14 See Kroon (ed) (1996) General Management at 8. See also Pannett (1997) Butterworths
Legal Practice Handbook: Managing the Law Firm at 1.
15 Kroon (ed) (1996) at 3.
16 See Kroon (ed) (1996) at 8 et seq. See also Pannett (1997) Butterworths Legal Practice
Handbook: Managing the Law Firm at 1 et seq. Kroon refers to the management action as
continued
113
l planning, that is, identifying the goals of the practice, determining how these
goals should be achieved, and what resources are required in order to achieve
them;
l organisation, that is, organising who will do what, when and how;
l guidance, that is, instructing and motivating staff to perform activities in view of
the practice goals. Effective guidance requires good communication and leader-
ship skills; and
l control, namely monitoring the overall performance of the practice and review-
ing actions or situations that deviate from the practice goals.
An important part of the management process will take place at the offices of the
attorney. ‘Office management’ will therefore be one of the primary items on the
daily to-do-list of an attorney and can be described as the organisation and
supervision all of the administrative activities that facilitate the smooth running of
an office. It can be defined more formally as ‘. . . a process whereby people in
leading positions use human and other resources as efficiently as possible in
order to provide certain products and/or services, with the aim of fulfilling particu-
lar needs and achieving the enterprise’s goals.’17
7.3 Legal practice and professional ethics

You should not be misguided by the idea that,
because legal practice is conducted as a ‘busi- Ultimately, success is
ness’, financial reward is the only goal. Although not necessarily
most legal practices aim at providing high quality
legal services with the ultimate aim of achieving
measured in
financial success, a legal practice must be con- financial terms alone.
ducted within a framework of professional ethics.
It is important to stress that professional and business ethics should not be
regarded as a burden, but rather as a tool to enhance the integrity and image of
the practice, which in turn will promote its financial success.18 Ultimately, success
is not necessarily measured in financial terms alone. Success may also be meas-
ured against the degree of respect earned from clients or colleagues in the pro-
fession, the degree of satisfaction derived from the provision of quality legal
services, or the ability to make the law more accessible to people that ordinarily
would not have been able to afford legal services. The more respect clients have
for a firm, the more likely they will be to return to it, as well as to refer potential
clients and spreading favourable news regarding about it. Ethical practice could
therefore be utilised as an investment with high returns, financially and otherwise.
________________________
‘activating’, describing it as ‘. . . the process of influencing people in such a way that they
will enthusiastically contribute towards the work activities in order to achieve the business’
goals as effectively as possible’ (at 10).
17 Kroon (1991) at 6.
18 See Kroon (ed) (1996) at 92 et seq.
114
Practice management
7.4 Client care and marketing

In a highly competitive industry, law firms must engage in active marketing strate-
gies, targeting both existing and potential clients. It is therefore essential that you
acquire and apply the necessary skills to market and sell your professional services.19
One of the most effective ways to market a law
One of the most effective practice is by word of mouth. This usually relates
ways to market a law directly to the quality of care given to existing
clients. Effective client care will reward the prac-
practice is by word of tice by selling it, irrespective of how big or small
mouth. the practice is. As was stated earlier,20 satisfied
clients will refer potential clients to the firm on the
basis of their positive experience of the firm’s service delivery. A few pointers in
this regard are listed below:21
l Be aware of your clients’ expectations and needs. Ask your clients what they
expect. If their expectations are unrealistic, convey that message to them in a
diplomatic yet firm manner.
l Keep your clients informed of progress in their matters. One of the most com-
mon complaints against practitioners is that they fail to do so. Report to clients
on a regular basis, such as twice per month.
l Telephone etiquette. Ensure that the receptionist answers incoming telephone
calls promptly and in a professional and friendly manner. This is often the first
impression that a new client forms of the legal practice. Its impact may be
quite negative if a receptionist is unco-operative, unfriendly, or blunt. Likewise,
it is important that you cultivate a professional manner when communicating
by telephone. Be sure to return all telephone calls as soon as possible. In this
regard, ensure that the receptionist or personal secretaries keep note of all in-
coming telephone calls and other messages and that such messages are
timeously conveyed to the person to whom they are directed.
l Welcoming clients at the firm’s offices. Ensure that clients are received in a
friendly, helpful and professional manner. Be polite and friendly. Make clients
feel wanted instead of feeling guilty for imposing on your time. You should
manage your time in such a way that clients experience your full and undivided
attention.
l Giving advice. Remember that when a client seeks advice, you do not have to
have the answer readily available. Offer to research the matter and get back to
the client as soon as you can, rather than rendering ill-considered or incorrect
advice. In this regard, remember that medical practitioners work on the same
basis: samples are taken and referred for analysis, which will assist them to
________________________
19 Pannett (1997) at 5.
20 See para 7.3.
21 Legal Education and Development (LEAD) Manual (2005) Introduction to Practice Man-
agement at 45 et seq.
115
provide a proper diagnosis for a patient. In a similar way, legal research will
assist in providing proper and professional legal advice to a client.
l Rendering services. Render your services as quickly and efficiently as possi-
ble. Immediately confirm your instructions to the client in writing. This will reas-
sure the client that you understand the instruction and that you will attend to
the matter immediately.
l Keep your clients informed. Consider keeping your clients abreast of develop-
ments in areas of law that may be of interest to them. This does not only show
that you care, but also that you are abreast of new developments yourself.
Newsletters, brochures and pamphlets may also be used as powerful market-
ing tools.
l Be punctual. Punctuality in all businesses, including legal practice, is of vital
importance. Being late for appointments (or even worse, for court), or making
clients wait beyond the scheduled time for an appointment, creates an infinitely
poor impression and shows disrespect for another’s time. It may furthermore
convey a negative message to a client or colleague from another firm, or even
to the court, suggesting that you do not know how to manage time in a profes-
sional manner.
l Be clear about fees. Discuss and agree on fees and invoicing methods with
your clients at the first consultation. The importance hereof is twofold. Firstly, it
will ensure that your clients are fully aware of what is expected of them as far
as payment of fees and disbursements are concerned. Secondly, it provides a
proper structure to your offices as to how much money may be expected from
a particular case, as well as when payments by clients will be made.
l Handling complaints. Although a complaint may be directed only at a particular
member of staff, it reflects negatively on the practice as a whole. Deal with
complaints immediately and firmly. Do not hesitate to reprimand and always
apologise sincerely to the client.
l Entertainment. Entertaining clients or potential clients is commonly used by
law firms to market their services, provided it is done in good taste. A pleasant
social function with clients from time to time may for example be used to
inform clients about the range of services you render. Be cautious of being
seen as trying to unduly influence certain individuals in your or your clients’
favour through entertainment, for example by sponsoring a lunch for your local
magistrates, prosecutors, members of the South African Police Service, etc!
l Sponsorships. This is another promotional tool. Law Society Rules allow activ-
ities such as the sponsorship of a sports event or prize-giving ceremonies.
Many law firms sponsor, for example, university law faculty prize-giving func-
tions by providing prizes and scholarships or funding the whole or part of such
events.
l Telephone and law directories. Law firms are allowed to have their names
printed in bold in telephone directories. Hortors Legal Diary is a well-known
publication that lists, amongst others, all law practices in the country. Hortors
usually contacts all firms annually in order to obtain their latest details. Ensure
that your practice name and details are included and regularly updated.
116
Practice management
l Business cards. Most attorneys carry business cards that may be handed to
persons interested in your services. Be careful not to hand these out indiscrim-
inately, as it may constitute touting for business, which is considered miscon-
duct by the law society. For example, handing a number of your business
cards to a court interpreter with an instruction to hand them to persons in need
of an attorney will be considered unprofessional conduct. Another example is
having a member of your firm present at motor vehicle accident scenes, hand-
ing out business cards in an attempt to secure potential clients for claims
against the Road Accident Fund. It has also happened that such business
cards are handed out in hospitals for the same reason. Such actions also con-
stitute unprofessional conduct and must be avoided.
l Membership of organisations: Turn your membership of sporting, cultural
and/or religious organisations into an appropriate marketing tool for your prac-
tice. Your involvement as a professional person in such organisations often
exposes you to new clients. As mentioned earlier, your firm is allowed to spon-
sor events of such organisations.
l Advertising. Law Society Rules permit the advertising of attorneys’ services.
There are, however, certain guidelines and parameters within which you may
advertise. You may, for example, not advertise your firm to ‘be the best’ or
‘better than other firms’. A typical and professional advertisement should only
include the name of the firm, as well as contact details and main areas of
expertise and services rendered. If in doubt, contact your provincial Law
Society for guidance.
7.5 Financial management

7.5.1 Introduction
The financial management of a law practice is similar to that of any other busi-
ness. For example, all businesses must keep a complete record of income and
expenses during a financial year. All businesses have expenses. In the law firm,
these expenses would include salaries and wages, stationery, office rental and
municipal accounts for water and electricity. Having expenses, a business should
have an income from which to pay the expenses. The income in a law practice is
mainly derived from professional fees earned through the delivery of legal ser-
vices. Businesses have assets. In a law practice, these could include immovable
property, for example the business premises, movable property, such as furniture,
equipment, vehicles, money in the bank, and debtors, namely the people who owe
the practice money. Businesses have liabilities such as bank overdrafts, creditors
and outstanding balances on credit agreements.
117
Financial management may be

Financial management may be described as the control, man-
described as the control, management agement and administration of
financial resources in such a way
and administration of financial as to maximise the financial
resources in such a way as to maximise returns of the practice.22 Financial
the financial returns of the practice. management provides the means
to measure the performance of the
practice in relation to its development and growth plan. Financial management is
an ongoing process and is equally important to the small and larger law practice.
7.5.2 Financial reports

One of the main actions in the financial management process is the comparison
between the actual performance of the practice versus its budgeted performance.
It is only when this comparison is made that meaningful decisions can be taken to
improve performance. In order to measure the actual performance of a law prac-
tice, proper accounting systems and procedures must be maintained so as to
capture all financial data accurately. The financial data of the practice is pro-
cessed and reflected in its financial reports. The most important financial reports
of a law practice are the income statement, the balance sheet, the cash flow
report, the debtor’s age analysis report, the trust surplus report and the fee debit
report. The following constitute examples of such reports:
l The income statement: This statement sets out the income and expenditure of
the enterprise for a specific accounting period.
l The balance sheet: The financial position of an enterprise at a particular point
in time is set out in the balance sheet. It contains details of assets, liabilities
and the owner’s equity in the enterprise.
l The cash flow report: This report reflects the influx and outflow of cash in the
enterprise for a particular period. It indicates either a favourable or unfavour-
able closing bank balance at the end of that period.
l The debtors’ age analysis report: This report shows the amount of money
owed to the enterprise by clients for services rendered. It must be studied reg-
ularly and remedial steps must be taken to collect outstanding fees, failing
which the liquidity of the enterprise may be at risk.
l The trust surplus report: This report reflects the amount of money in each
client’s trust account that is available for transfer to the business account, in
other words, funds that have already been earned but not yet transferred. This
report should be reviewed to ensure that funds which have legally accrued to
the enterprise are not left to accumulate in the trust account.
________________________
22 Kroon (ed) (1996) at 6.
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Practice management
l The fee debit report: This report reflects the fees that have been debited for a
particular period, meaning the income earned by the enterprise through the
rendering of services. This report is also used to monitor the performance of
the respective fee earners in the enterprise, as well as the profitability of differ-
ent departments within the enterprise.
7.5.3 Actual performance and budgeted performance

A budget may be described as a financial plan for the future23 and is an integral
part of proper financial management. It takes into consideration the estimated
income and expenditure of the enter-
prise. The information contained in a A budget involves the
budget must be objective, consistent, preparation of a plan that
reliable and realistic. A budget involves forecasts in an intelligent manner
the preparation of a plan that forecasts
in an intelligent manner the future the future course of the practice.
course of the practice. In order to draft a
budget, it is necessary to think ahead and to anticipate possible future conditions
that may affect the practice.24 In preparing a budget, various budgetary elements
such as income, expenditure, assets, liabilities, capital expenditure and cash flow
requirements must be examined. The past performance of specific items must be
assessed in order to predict their future performance. The budgeted expenditure
must be deducted from the projected income in order to arrive at the budgeted
profit or loss.
A comparison must take place between the actual performance of the enter-
prise, by using the financial statements, and its budgeted performance for the
same period. Income and expenditure items that deviate from the budget are
called ‘variances’. Proper financial management requires one to identify ways in
which to remedy variances, such as increasing the enterprise’s income,25 collect-
ing outstanding debts or decreasing expenditure. Once this process has been
completed, it should be possible to make informed decisions regarding the finan-
cial future of the enterprise.
7.5.4 Legal fees

The primary source of income of a law practice is derived from fees charged to
clients for legal services rendered. It is common practice for all professional staff
at a law firm to have a monthly or annual ‘fee target’. Like any other business
enterprise, the clients of a law practice are invoiced (billed) for legal services
rendered. It is important to stress again that legal fees must be discussed and
________________________
23 See also Lambrechts (ed) (1990) Financial Management at 151 et seq who defines a
budget as ‘a systematic statement of the expected income and expenditure for a particular
future period, usually a month or a year, which is drawn up to control expenditure and to
serve as a measure for the evaluation of the financial performance’.
24 Lambrechts (ed) (1990) at 151.
25 In this regard, consider some of the aspects listed above in para 7.4.
119
agreed to during the first consultation. By discussing fees with clients, they will
know what to expect and understand how fees are calculated. A written fee
agreement may assist in avoiding disputes in the future, and some firms do this
as a matter of standard practice.
Most practitioners charge a fee calcu-
Most practitioners charge a fee lated on an hourly basis. When you join
calculated on an hourly basis. a firm as a junior attorney, you may be
told what your charge-out rate should
be. As you develop your practice, you
will set your hourly rate having regard to numerous factors, such as the industry
standard, your experience and expertise, as well as the nature of your client base.
For certain types of work, the law prescribes a set tariff. The executor of a
deceased estate may, for example, only charge 3,5% of the gross value of the
assets in the estate.26 Legal fees for the transfer of immovable property are also
prescribed by statute. For litigious work, the various rules of court also prescribe
different tariffs, but it is not compulsory to charge according to these tariffs. Litiga-
tion tariffs are typically used to calculate costs pursuant to cost orders27 and
attorneys usually charge clients at a much higher rate.
Contingency fee agreements are popular in certain types of cases, particularly
in personal injury claims such as those against the Road Accident Fund. Contin-
gency fees, or sometimes called ‘success fees’, are governed by the Contingency
Fee Act,28 and generally provide that the client will only be liable for legal fees if
the case is successfully concluded. Often, contingency fee agreements provide
for a percentage of the capital recovered to be payable to the practitioner, subject
to a maximum of 25%.29 Contingency fee agreements must be in writing and in a
prescribed form30 which includes, for example, a statement that the client was
advised of alternative ways in which to finance the litigation, and that in the event
of unsuccessful litigation, the client may be liable for the other side’s taxed costs.
The prescribed form further provides for a description of what will be considered
‘success’ or ‘partial success’, and what amounts will be payable in the event of
either. Finally, a ‘cooling off’ period is allowed should the client have second
thoughts about the agreement.31
________________________
26 See s 51(1)(b) of Act 66 of 1965.

27 See para 7.5.5.
28 66 of 1997. The Act came into operation on 23 April 1999 (see GG 20009, Notice no 48,
dated 23 April 1999).
29 The Act provides, amongst others, that practitioners are entitled to fees equal to or, subject
to certain maximums, higher than his/her normal fees, but that it must be set out in the
agreement (s 2(1)(b)). It further stipulates that agreed fees may not exceed normal fees by
more than 100%, provided that in cases ‘sounding in money’ the total of a ‘success fee’
may not exceed 25% of the total amount awarded or any amount that the client obtains as a
result of the proceedings (s 2(2)).
30 S 3, read with the prescribed form published in GG 20009, Notice no 547, dated 23 April 1999.
31 See s 3(3)(h) of the Act. The client has 14 days, calculated from conclusion of the agreement,
to withdraw from the same.
120
Practice management
The different provincial Law Societies from time to time issue guidelines as to
what would be considered a fair fee for
different kinds of work. Clients who feel Overreaching a client is considered
that they have been overcharged may to be misconduct which may result
complain to the law society, who will in disciplinary action.
assess the reasonableness of the fee.
Factors such as the complexity of the matter and the experience of the attorney
are taken into account when assessing the fee. Overreaching a client is consid-
ered to be misconduct which may result in disciplinary action.
Clients are invoiced either on a monthly basis or upon finalisation of the case.
The manner of invoicing often depends on the type of legal work that the law firm
is instructed to do. From a financial management perspective, it is crucial that the
client is invoiced for all time spent on the matter. To this end, it is important to
keep detailed records of all activities on all files.32
7.5.5 Cost orders

As a rule, the client is liable for all legal fees and
The general rule is that disbursements incurred in his/her matter. In liti-
costs follow the cause. gious matters, a client may, however, recover at
least part of such legal costs by means of a
favourable cost order against the opposing party. The general rule is that costs
follow the cause, meaning that the successful party is usually entitled to his/her
costs, payable by the unsuccessful party. Such costs, once recovered, are for the
client’s account or may be set off against the fees owed by the client to his/her
legal representative.
There are different types of cost orders. A distinction is made between party-
and-party costs, attorney-and-client costs and attorney-and-own-client costs.33
Attorney-and-client costs encompass all legal costs the legal practitioner may be
entitled to in order to conduct the case on behalf of the client.34 Party-and-party
costs, on the other hand, are only the costs that were reasonably incurred in the
________________________
32 For a detailed discussion on file management, see ch 5 above.

33 Hoffmann (1997) at 49. See also Paterson (2005) Eckard’s Principles of Civil Procedure in
the Magistrate’s Courts at 233.
34 A practical illustration of the difference between the two may be the following: you success-
fully acted for a party in a claim against another party for damages arising from say, defa-
mation. Every time your client consults with you, you are entitled to a so-called consultation
fee. However, your client telephones you at all reasonable and sometimes unreasonable
hours to, often unnecessarily, discuss the case. On the one hand, you are entitled to your
fee for each consultation, but on the other hand, it would be unreasonable to expect the
unsuccessful litigant to pay for unnecessary consultations. Therefore, when the court orders
costs in favour of your client, he/she will only be allowed to recover those costs that were
reasonably incurred, meaning party-and-party costs. The ‘unnecessary’ consultation fees
will have to be collected from your client and not from the unsuccessful litigant, being attor-
ney-and-client costs.
121
case.35 Party-and-party costs are determined in the tariffs contained in the regula-
tions of the Magistrate’s Court Act36 and the Supreme Court Act.37 Attorney-and-
own-client costs represent the fees that an attorney is entitled to in terms of a
special fee agreement with the client,38 for example a predetermined hourly rate
outside the prescribed tariffs, or a rate higher than the prescribed tariffs. It is
important to explain to your client at the outset that a successful cost order may
not result in the recovery of all the costs incurred by your client. The prescribed
tariff is usually lower than the rate charged by the attorney. There may, however,
be instances in which the court wishes to demonstrate its displeasure at the
conduct of a litigant, including the conduct of that litigant’s legal practitioner, in
which case it will make a cost order on the scale as between attorney and client.39
In exceptional cases, for example in the case of vexatious or reckless litigation,
and where the guilty party acted in a representative capacity, such as the trustee
of a trust, or a legal practitioner on behalf of a client, the court may make a punitive
cost order called costs de bonis propriis.40 This order means that the representative
of the litigating party, in other words, the practitioner or trustee, against whom the
cost order was made, must make payment out of his/her own pocket, as opposed to
‘normal’ cost orders which are made against a litigating party. When a cost order de
bonis propriis is made, it may, as in the case of any other cost order, be made
either on the party-and-party scale or attorney-and-client scale.41
When a litigant is awarded costs, that litigant’s
legal representative prepares a bill of costs which The taxed bill is a
is taxed before the taxing master of the relevant
court. A bill of costs is a chronological exposition
liquid document.
________________________
35 Hoffmann (1997) at 49. The author defines party-and-party costs as ‘(embracing) all such
costs as are necessary and proper for the attainment of justice or for defending the rights of
any party’.
36 32 of 1944.
37 59 of 1959. See Patterson (2005) at 233 et seq. The author notes that nothing prevents an
attorney from charging more than the prescribed tariff. However only the prescribed tariff is
recoverable from the opposition if a cost order is obtained against the opposition. In such a
case, the difference between the fee agreed upon between the attorney and the client and
the prescribed tariff, will be recoverable from the client as attorney-and-client costs. Party-
and-party costs are therefore determined by the prescribed tariffs and attorney-and-client
costs are determined by the agreement between the attorney and the client.
38 Hoffmann (1997) at 49.
39 Patterson (2005) at 243.
40 Supra.
41 See eg Webb and Others v Botha 1980 (3) SA 666 (N) where the court demonstrated its
displeasure with the conduct of an attorney in an appeal case by awarding costs de bonis
propriis against him on a scale as between attorney and client. See also Government of the
Republic of South Africa v Maskam Boukontrakteurs Bpk 1984 (1) SA 680 (A) where the
Appeal court, as it was then, warned that the inclusion of unnecessary documents in an
appeal record may invite a cost order de bonis propriis against the attorney concerned. See
further Waar v Louw 1977 (3) SA 297 (O) for the circumstances in which a cost order de
bonis propriis will be made against an attorney.
122
Practice management
of all fees and disbursements that were incurred by the litigant and that are
allowed in terms of the statutory tariffs. The taxed bill is a liquid document and
legal action may be instituted on such document should payment of costs not be
made. In order to ensure that a bill of costs accurately reflects all the events that
took place in a particular matter, it is important that legal practitioners keep
detailed file notes of all such events.42
7.5.6 Recovery of disbursements

The comparison between the practice budget The recovery of disburse-
and its actual performance may reveal a lack of
recovery of disbursements. Proper financial ments requires meticulous
management therefore requires ongoing atten- file administration.
tion to the control, limitation and recovery of
disbursements. Telephone, telefax and photocopying costs may have an astound-
ing influence on the net financial income of the firm. It is therefore standard prac-
tice to record all disbursements incurred in client’s matters as accurately as
possible, and to recover such expenses from the client concerned. For example, if
you make a telephone call on a client’s behalf, you should invoice the client not
only for the time spent on the telephone call, but also for the expenses incurred in
making the call. Likewise, if you are drafting pleadings on a client’s behalf, you
should invoice not only for your time spent on drafting, but also for the necessary
copying of the pleadings for service and filing on an opponent or his attorney, as
well as at court. The recovery of disbursements requires meticulous file admin-
istration. Various computer software programs are available to assist practitioners
in this regard.43
Some disbursements cannot be directly recovered from clients. These over-
head costs, such as telephone accounts, internet access, maintenance of equip-
ment, stationery, rates and taxes and rental must be strictly controlled. If not, such
expenditure could have a hugely negative impact on the net income of the prac-
tice. Substantial cost saving may be achieved if proper controls are implemented
to limit overhead expenditure, for example devising means to control bank charges,
exercising control over stationery, petty cash, postage stamps, controlling the use
of telephones, cellular phones, fax and photocopying machines, as well as alerting
________________________
42 Practitioners should ensure that they keep detailed notes of all telephone calls, attendances,
consultations, preparation for court appearances, as well as expenses, in the client file. The
reason for this is that all these items can be included in a bill of costs to be submitted to a
client or other litigant, depending on whether the bill of costs is an attorney-client- or party-
party-bill. A practitioner cannot just include a global amount for ‘legal services rendered’, as
well as for ‘disbursements’ in such a bill. All amounts in a bill of costs must be capable of
being substantiated by the practitioner. Should the taxing master of the court, or the Law
Society – or, as it will later be called, the Legal Practice Council – tax or review a bill of
costs, it will never be expected of a client or other litigant, depending on what the situation
is, to pay amounts that cannot be substantiated.
43 Lexpro System, Ghostpractice, Legalsuite, Pastel and Winlaw are good examples of such
software.
123
staff to conserve electricity by switching off lights, air conditioners and heaters
when not in use, for example over weekends and public holidays.44
7.5.7 Trust deposits

It is common practice, and most advisable, for attorneys to take deposits from
clients as cover for fees and disbursements. This is particularly important when
dealing with new clients, or in matters that are bound to take long and in which
there will be inevitable disbursements,45 for example the costs of obtaining police
reports, medical reports, sheriff fees, tracing agent fees and revenue stamps on
court processes. All such payments must be deposited in your practice trust
account, from which you can draw cheques for disbursements, or make transfers
into your business account once you have invoiced the client. Once a client’s trust
deposit is depleted, it is good practice to request a further deposit. The rules
relating to trust accounts are most important for any attorney. The following
paragraph deals with these rules in more detail.
7.6 Trust account management

7.6.1 Introduction
At present, only legal practitioners who are practising attorneys are allowed to
receive and hold trust funds on behalf of clients. The provisions relating to trust
funds therefore apply only to attorneys. When we deal with trust account man-
agement, we differentiate between the attorney’s trust account in its financial
books, which denotes a collective reference to each client’s trust account in the
general ledger, the trust banking account and two different trust investment ac-
counts, respectively in terms of section 78(2) and (2A) of the Attorneys Act.46
Attorneys often receive and hold large sums of money on behalf of their cli-
ents.47 It has been said that the dignity attached to the legal profession provides
the basis for a citizen to entrust his/her money to the attorney.48 The handling of
trust funds places a huge professional responsibility on the attorney. Unfortunate-
ly, the good name of the profession has in the past been tarnished by dishonesty
and criminal conduct on the part of attorneys in respect of trust funds.49
________________________
44 Legal Education and Development (LEAD) Manual (2005) Introduction on Practice Man-
agement at 79.
45 Hoffmann (1979) Handy Hints on Legal Practice at 52.
46 53 of 1979. The Legal Practice Act 28 of 2014 provides for similar accounts in s 86(3) and (4).
47 Lewis (1982) at 269. Trust monies are either held for purposes of paying it over to someone
else, such as the deposit received from the purchaser of immovable property, which will be
paid to the seller upon transfer, or trust monies held by the practitioner as cover for his/her
own fees, which will be transferred into the practitioner’s business account once an invoice
has been rendered.
48 Lewis (1982) at 269.
49 See eg Law Society, Cape v Peter SCA case 2005/126 (unreported), judgment delivered on
28 March 2006 (full text available on http://wwwserver.law.wits.ac.za/sca/cases), Holmes v
Law Society of the Cape of Good Hope and Another 2006 (2) SA 139 (C) and Incorporated
continued
124
Practice management
For this reason, the Attorney’s Act aims to strictly regulate the receipt and man-
agement of trust monies. Intimate knowledge of these provisions is fundamentally
important for any person entering legal practice as an attorney. In this regard, the
Legal Practice Act also plays an important role. The Legal Practice Act will, in due
course, regulate attorneys’ and advocates’ practice in South Africa. The Act has,
as already stated, come into partial operation on 1 February 2015.50
Both the Attorneys Act and the Legal Practice Act make it compulsory for all
practicing attorneys to open and keep a
The Attorneys Act and the Legal separate trust banking account at a
Practice Act make it compulsory banking institution in the Republic. All
for all practicing attorneys to money held or received by an attorney on
account of any person must be deposited
open and keep a separate trust into that account as soon as possible
banking account at a banking after receipt thereof.51 Proper accounting
institution in the Republic. records must be kept of all monies so
received.52 Both Acts further provide that
an attorney who contravenes these provisions ‘shall be guilty of unprofessional
conduct and be liable to be struck off the roll or suspended from practice’.53
7.6.2 Types of trust investment accounts
Besides the standard current trust banking account that every attorney must open
and maintain, there is also the option of opening separate trust investment
accounts. These trust investment accounts typically offer a higher rate of interest
compared to current accounts. The Attorneys Act and the Legal Practice Act
provide for two different types of trust investment accounts.
Section 78(2)(a) of the Attorneys Act, as well as section 86(3) of the Legal
Practice Act, provides that an attorney may invest any money deposited in his/her
trust banking account which is not immediately required for any particular purposes
in a separate trust savings or other interest-bearing account. Section 78(2)(b) of
the Attorneys Act provides that such investment shall contain a reference to this
subsection.54 In practice, this provision is complied with by indicating on the
________________________
Law Society Transvaal v Meyer and Another 1981 (3) SA 962 (T). See further para 3.6.8 in
respect of sanctions imposed by the law society for mismanagement and theft of trust funds.
50 Parts 1 and 2 of Ch 10 of the Act.
51 S 78 of the Attorneys Act, as well as s 86(2), read together with s 86(1) of the Legal Prac-
tice Act 28 of 2014. See further Oshry v Natal Law Society 1981 (2) SA 249 (N) in which
case the applicant, an attorney, was struck from the roll because of his failure to deposit
trust funds. See also Law Society (OFS) v H 1954 (3) SA 23 (O).
52 S 78(4) of the Attorneys Act and s 87(1) of the Legal Practice Act. See further Lewis (1982)
272 on the interpretation of ‘proper books of account’. See further Law Society v Matthews
1989 (4) SA 389 (T) and Law Society, Natal Law Society v De Jager 1949 (1) SA 412 (N) in
which attorneys were charged with not keeping proper books of account.
53 S 83(13) of the Attorneys Act. S 93 of the Legal Practice Act provides for similar sanctions.
See also Lewis (1982) at 271.
54 Although the investment account will be in the name of the law practice, it must contain a
reference the particular section and subsection of the Act. See Lewis (1982) at 273.
125
account that it is an investment in terms of section 78(2)(a) of the Act. Attorneys

may use this type of trust investment at their discretion, without instructions to that
effect, whenever they are of the opinion that the monies in the trust account will
not be immediately required. The client will, however, not benefit from the interest
so earned, as interest on trust accounts is generally paid over to the Attorneys’
Fidelity Fund. It is therefore usually the Fund that appeals to attorneys to make
use of the section 78(2)(a) investment.55
Section 78(2A) of the Attorneys Act, as well as section 86(4) of the Legal Prac-
tice Act, provide for a second type of trust investment. These sections create a
separate interest-bearing trust account for the purpose of investing therein, on the
instructions of the client, any money deposited in the
attorney’s trust banking account and over which the The main difference
attorney exercises exclusive control as trustee, agent between the
or stakeholder or in any fiduciary capacity. The main
difference between the section 78(2)(a) investment56 section 78(2)(a)
57
and the section 78(2A) investment relates to inter- investment and
est earned. As stated above, the interest earned in the section 78(2A)
the former investment is paid over to the Attorneys’
Fidelity Fund,58 whereas the interest earned in the
investment relates to
latter is for the client’s account. Typically, an attorney interest earned.
will make use of a section 78(2A) investment59 when
he/she, for example, receives the purchase price of an immoveable property in
trust from a client. In such instances, the money will only be released to the seller
once transfer takes place. In the interim, the client may want to earn interest on
the money, and for that reason he/she may instruct the attorney to place the
money in an interest-bearing trust account. Upon registration, the purchase price
is paid over to the seller and the interest earned to the client. The important
aspect of this type of trust investment is that it can only be made on the instruc-
tions of the client,60 and furthermore, although the interest earned goes to the
________________________
55 See para 7.6.3 dealing with interest on trust accounts on the role of the Attorneys’ Fidelity
Fund.
56 S 86(3) investment in terms of the Legal Practice Act.
58 Take note that, when the Legal Practice Act becomes fully operational, the Attorneys Fidelity
Fund will be known as the Legal Practitioners’ Fidelity Fund – see s 110 in this regard.
60 Although a technical interpretation of the particular section suggests that this type of
investment is only made ‘on instructions’ of the person depositing the funds in the attorney’s
trust account, there is a duty on the legal practitioner to inform the person paying in the
money of the option to invest it, and to get instructions from that person to invest. See Smith
v Price 1988 (1) SA 53 (W). This type of investment could also, eg, be made where a practi-
tioner is administering a deceased estate. As monies from the estate are generally paid out
only on approval of the final Liquidation and Distribution account by the Master of the High
Court, it is usual practice, in the interim, for the practitioner to invest liquidated monies until
time of distribution, on a separate interest-bearing account.
126
Practice management
client, it still remains a trust account that benefits from the protection afforded to
trust moneys in both the Attorneys Act and the Legal Practice Act.
7.6.3 Interest on trust accounts

As stated above, the general rule is that
interest earned on trust accounts is paid The Fund will reimburse
over to the Attorneys’ Fidelity Fund. 61
members of the public who have
Regulation 8(1) and (2) of the Attorneys had their trust moneys stolen by
Act provides that on or before the last day
of May in each financial year ending on
an attorney or any of his/her
the last day of February, a practicing employees.
attorney shall pay over to the Fund the
interest received on trust deposits. In exchange for receiving this benefit, the Fund
provides certain benefits to attorneys, as well as to the public who place moneys
in trust with attorneys. For example, the Fund will reimburse members of the
public who have had their trust moneys stolen by an attorney or any of his/her
employees.62 The Fund also contributes a portion of its income towards a profes-
sional insurance scheme that covers attorneys against professional negligence.
The Fund further provides bursaries for law students, provides an annual grant to
university law clinics, and subsidises the monthly attorneys’ journal, De Rebus,
which is distributed, free of charge, to all law society members.
7.6.4 Auditing requirements

Trust accounts are subject to strict accounting and auditing requirements. A list of
trust balances must be extracted at intervals of not more than three months,
indicating the exact amount of funds held on behalf of each client.63 Trust
accounts must be audited on an annual basis and a certificate in this regard must
be provided to the provincial Law Society confirming that the trust account and
trust investment accounts have been properly kept, that the trust funds are intact
in every respect, and that all requirements of the law have been fulfilled.64 The
person issuing the certificate must be an accountant approved by the relevant
Law Society. The respective Law Societies also have the right to inspect an
attorney’s books of account with the purpose of ensuring that the provisions of
Attorneys Act and the Legal Practice Act have been observed.65
________________________
61 The Attorneys’ Fidelity Fund is described in more detail in para 2.4.4 above. As already
mentioned, it will be known as the Legal Practitioners’ Fidelity Fund when the Legal Prac-
tice Act is fully operational.
62 S 26(a) of Act 53 of 1979.
63 Lewis (1985) at 277. See further Law Society, Cape v Visser 1965 (1) SA 523 (C) where the
failure of an attorney to take out trust balances quarterly, despite repeated requests to do
so by the law society, resulted in the removal of his name from the roll of attorneys.
64 See Lewis (1985) at 277.
65 S 78(5) of the Attorneys Act and s 87(2) of the Legal Practice Act. See further Lewis (1985)
at 274. Legal practitioners have the duty to react promptly to any inquiries addressed to
continued
127
7.7 Risk management

7.7.1 Introduction
Risk is an inherent part of any business, including that of the law practice. In legal
practice, as in most professions, risk mainly relates to professional negligence,
including the giving of incorrect advice, providing incompetent services and the
prescription of claims. It is essential that risk be managed in a manner that mini-
mises exposure thereto. Risk management requires that special attention be
given to all facets of practice management, such as financial control, administra-
tive systems and client and staff relationships. It is therefore necessary to consider
some suggestions on how to minimise your risk as a legal practitioner, and some
of the management tools you may use in this regard.
7.7.2 Professional development

The day will arrive when you complete your studies and become admitted to
practice. If you are under the impression that this spells the end of your learning
process, you are labouring under a sad illusion. The reality of your chosen pro-
fession is that the law is constantly in a state of flux. New laws are promulgated,
old laws are changed and the entire body of law is under constant scrutiny in the
light of the Constitution. In order to render quality legal services and to avoid
making unnecessary mistakes, you will constantly have to work on your profes-
sional development. In doing so, you will reduce the risk of liability for professional
negligence. Here are some suggestions:66
l Stay updated. A good starting point is to read professional journals, including
the monthly attorneys’ journal, De Rebus. These publications provide regular
updates, amongst others, on professional news, new legislation and new case
law. Reading the monthly law reports will ensure that you have a good grasp
of current case law. Professional bodies and law faculties regularly present
professional training courses on specific aspects of law and practice.
l Learn by experience. You should endeavour to make summaries of cases that
you worked on, keep research notes, and importantly, keep your own private
file of precedents. You will need them at times least expected.
l Specialise. Because of the vast area that law covers, the trend is to specialise
in particular fields of law. Bear in mind, however, that if you give yourself out
as a specialist, you will be expected to possess specialised knowledge and
skill in the area you profess to specialise in. Should you make a mistake, your
professional abilities will be judged accordingly.
________________________
them by the law society. See eg Incorporated Law Society v Le Roux 1973 (2) SA 413 (T)
and Ingelyfde Wetsgenootskap van die Transvaal v Broodryk 1975 (1) SA 206 (T).
66 Legal Education and Development (LEAD) Manual (2005) Introduction to Practice
Management.
128
Practice management
7.7.3 Prescription Alert

Avoiding the prescription of clients’ claims ‘Prescription Alert’ is a
under your care is a major source of concern
for many practitioners and one of the chief notification service
risks to be effectively managed. The courts available to all practitioners
have no hesitation in finding negligence on the in South Africa,
part of practitioners who allow claims to pre-
scribe.67 Prescription Alert is a notification
provided by the
service available to all practitioners in South Attorneys’ Fidelity Fund.
Africa, provided by the Attorneys’ Fidelity
Fund.68 Subscribers may register any time-barred matter conducted on behalf of a
client at no cost. The service alerts (warns) practitioners at regular intervals of the
impeding prescription, for example at three-month, two-month, one-month and
two-week intervals prior to prescription. The professional indemnity which all
attorneys in South Africa enjoy through the Attorneys Insurance Indemnity Fund
provides that if an attorney is held liable for the prescription of a claim, and that
claim was not registered with Prescription Alert, an additional deduction will be
payable by the particular attorney.
7.7.4 Maintain proper filing systems

Poor filing systems often result in time being wasted on locating missing files.
Lost files could cause much embarrassment, especially if this results in delays.69
More importantly, it may result in civil liability if damages are suffered as a result
of delays or, even worse, prescription. It has been suggested that there are two
ways in which to prevent time-barred matters from prescribing. The first is to
calculate the date of prescription accurately and to prominently note the date on
the client’s file to serve as a constant reminder. The second is to implement an
effective diary system.70 It has been said that in a law practice, files should only
be in one of three places: either on the desk of the person working on the file, on
the secretary’s desk for typing, or in the filing cabinet on condition that:
l the file has a date on it indicating when next it should receive attention;
l the file is entered into a diary; and
l diarised files are drawn on a daily basis.71
As already discussed, the Prescription Alert system72 can also be of great value in
keeping up to date with time-barred matters.
________________________
67 See eg Mashingo v Rondalia Assurance Corporation of SA Ltd 1977 (3) SA 431 (W). The
case is particularly relevant in the context of dealing with indigent clients.
68 The Attorneys Fidelity Fund also publishes a monthly ‘Risk Alert Bulletin’ included in the
monthly issue of De Rebus that contains imperatively important tips on all matters relating
to professional liability.
69 Huddy (1982) Introduction to Legal Practice at 18.
70 See para 5.5.2 for a more detailed discussion on diary systems in a legal practice.
71 Huddy (1982) at 18.
72 See para 7.7.3.
129
7.7.5 Maintain contact with clients

In some cases, it may be difficult to make contact with clients, particularly those
who live in informal settlements without proper postal delivery services and with-
out a contact telephone number. It has been held that, where such a client’s claim
is on the verge of prescription, it will not suffice for the practitioner to simply write
a letter to a client, informing the client that, unless instructions are received on or
before a certain date, the file will be closed. When accepting an instruction of this
nature, the practitioner should anticipate such problems and a special effort must
be made to contact the client.73 Consultations with clients should therefore include
the practitioner obtaining information from a client about any problems or potential
problems that may arise in contacting such client.
7.7.6 Seek advice

Never be afraid to tell a client that you do not know the answer, but that you will
contact him/her after you have researched the matter and sought advice.74 The
opposite would be to give incorrect advice on the basis of which you may be held
liable for damages if the client acts upon that advice. Seek a second opinion if
necessary. Suggest to the client that counsel be briefed for an opinion if the
nature of the case warrants such action. Discuss complex matters with senior
colleagues. It is often during such discussions that the answer to the problem
presents itself. Clients may also regard this ‘going-the-extra-mile’ behaviour as
beneficial to their cases; consequently, their respect for you will escalate.
7.7.7 Know when not to accept instructions

Always ask yourself whether you have the professional competency and the time
to complete an instruction adequately and within a reasonable time. If you are
doubtful, it is better not to accept the instruction lest you are held liable for dam-
ages arising from incompetence.75 If you accept an instruction to litigate a claim
that is on the verge of prescription, realise that, in accepting the instruction, you
undertake to institute the claim timeously.
7.7.8 Be clear on your instructions

Always confirm your instructions in writing. Take proper instructions from a client,
ensure that your instructions are complete and that both you and your client
understand the exact extent of your mandate.76 When you receive a settlement
offer, be sure to explain the offer to your client in detail, and ideally obtain your
client’s written confirmation before the offer is accepted or rejected.77
________________________
73 See eg Guthrie v AA Mutual Insurance Association Ltd 1986 (4) SA 979 (W) on an attor-
ney’s duties regarding the timeous delivery of documents in an MVA matter.
74 Hoffmann (1997) at 8–9.
75 Supra at 5–6.
76 Supra at 7.
77 Supra at 19.
130
Practice management
7.8 Personal management

The overall management of a practice is
impossible if the people involved do not Personal management, in the
individually manage themselves. Per- first instance, entails the proper
sonal management, in the first instance, management of time.
entails the proper management of time.
Time has to be planned carefully and used accordingly. By managing your time,
you plan how and when assigned tasks will be completed. It must make provision
for unforeseen circumstances. In a law practice, stress is a factor that must not be
underestimated. Legal practitioners often work under deadlines and according to
strict time limits. Managing a heavy case load induces stress and many practi-
tioners have suffered from ‘burnout’. Stress management is a further important
part of the personal management of legal practitioners. A few guidelines that have
been proven to assist with personal management are discussed below.
7.8.1 Time management

There are only 24 hours in a day, within which you must fit work, time for rest, as
well as time to sleep. It is therefore important that you learn, from a very early
stage in your practical career, how to manage your time effectively in order to
achieve the maximum productivity each day, as well as ensuring that your mind
and body get the necessary rest. Effective time management involves the following:
l Plan ahead. Discipline yourself to take some time during the beginning of each
year, month, week or day to sit quietly with your diary to plan ahead. Think
carefully of what has to be done during the particular time period. Make a list.
Write it down. Keep deadlines in mind, because it will often dictate much of
your time planning.
l Establish the order of tasks. Plan the order of activities, keeping in mind the
following:78
• first, attend to important and urgent work. These are tasks that simply
cannot wait and must be done immediately;
• next, do important, but not urgent, work. These tasks are important, but can
be done later;
• next, attend to urgent, but not important, work. These tasks can usually be
delegated, like attending to mail, telephone calls, certain meetings or certain
interruptions; and
• finally, attend to neither important nor urgent work, like planning your vaca-
tion or a golfing appointment with a colleague or friend.
l Control interruptions. A common source of interruptions is incoming telephone
calls or visitors ‘just dropping in’. Interruptions can be controlled to a certain
________________________
78 Legal Education and Training (LEAD) Manual (2005) Introduction to Practice Management
at 114.
131
extent by setting aside time in your day when interruptions will not be accom-
modated, preferably a regular time each day. Train your receptionist and/or
secretary to handle interruptions effectively. Let clients and staff know when is
a good time, and when not, to get hold of you.
l Delegate. This is essential in effective time management. It has been suggested
that one should:79
• identify the activities to be delegated, as well as when it should be delegated;
• choose a capable person with the necessary knowledge and training to
complete the delegated task;
• explain to this person the necessity of the task and why it is delegated to
him/her;
• explain the goals and results that should be obtained;
• provide the delegated person with all the necessary and applicable infor-
mation relating to the task;
• assist him/her to establish priorities, bearing in mind the rest of his/her
workload;
• set reasonable deadlines and enter such deadlines in your diary;
• demonstrate your confidence in the person’s ability to do the job;
• delegate in such a way that you would like to be delegated to; and
• demand the completed work at the set time.
7.8.2 Stress management

The nature of practicing law inevitably involves a fair amount of stress. Doing
proper time management and putting in
By identifying the causes of extra work at the office or at home over
stress, one can learn how to deal weekends may reduce stress. Stress in
legal practice is due to a number of
with it effectively. factors. By identifying the causes of
stress, one can learn how to deal with it effectively. Some of the typical stress-
inducing factors, as well as ideas on how to manage them, are the following:
l Remain objective. A substantial part of legal practice is spent listening to
clients’ problems and finding ways in which to resolve them. A practitioner
must learn to draw a clear line between having empathy for a client and
becoming emotionally involved. The old adage of ‘don’t make the client’s prob-
lem yours’ may sound harsh, but allowing yourself to become emotionally
involved will leave you drained. Your professional duty is to view the client’s
problems objectively. Send your clients for professional help if they require
assistance in dealing with their emotions, particularly in emotionally-charged
cases such as certain divorce matters.
________________________
79 Legal Education and Training (LEAD) Manual (2005) Introduction to Practice Management
at 115.
132
Practice management
l It is not all about winning. Those who practice litigation must be aware of the
adversarial nature thereof – the ‘we versus them’ syndrome. Remember that a
case is only as good as the facts, over which you have no control. Not all the
facts in all your cases will favour your client. Do your best, but where the out-
come does not favour your client, bear this with grace. There will be times
when you fiercely disagree with the court or the opposition, but avoid getting
personal. In this context, never attack an opponent. Remember: you are
‘fighting’ the case, not the person. Conduct your client’s case with dignity.
After all, there are procedures in place to take matters on review or appeal
where appropriate.
l Tell someone. A great stress reliever is to talk with others about your frustra-
tions and fears. Experience has shown that partners or co-directors in the
practice often make the most valuable listeners. Talking about stress is an
inherent ‘stress reliever’. Be sure, however, that, when discussing a case with
others, neither names nor identifying features of clients are mentioned!80
l Know your limits. Beware of taking on too much work for the sake of maximum
profits. Besides increasing your stress levels, it is unprofessional to accept
work that you are not capable of doing competently or completing within a rea-
sonable time.
l Deal with ‘graveyard files’. These are typically files that have not progressed
well or involve difficult or intricate aspects. The longer you take to deal with
them, the more averse you become towards them. You are constantly aware
of the need to tackle them, but somehow always find more pressing matters to
attend to. These files have a nasty habit of accumulating. You end up avoiding
clients’ telephone calls and conjuring up excuses for not dealing with them. It
often helps to discuss these matters with partners, co-directors or colleagues
or to set apart ‘special time’ in order to focus on them alone.
l Keep physically fit. This is widely recognised as a good stress reliever.
7.9 Miscellaneous statutory provisions

Legal practitioners have to comply with a number of statutory requirements, some
of which have already been discussed above. Several further statutory require-
ments are the following:
l Candidate attorneys and their admission to the profession. The Attorneys Act
and the Legal Practice Act set out a number of requirements in respect of the
registration of articles of clerkship, the supervision of candidate attorneys, as
well as the compulsory attendance of practical training courses. These Acts
also deal with the admission requirements applicable to attorneys, notaries
and conveyancers.81
________________________
80 In this regard, it is important to keep the attorney-client privilege in mind.

81 S 15 of the Attorneys Act, as well as s 24 of the Legal Practice Act.
133
l Fidelity fund certificates. Attorneys, whether practicing for their own account or
in partnership, may not act as such unless they are in possession of a valid
fidelity fund certificate.82 Attorneys who practice without such a certificate are
not entitled to a fee or reward for any professional services rendered.83 Attor-
neys must apply annually, in the prescribed form, to the secretary of the Law
Society concerned for a fidelity fund certificate.
l Membership of professional body. All practicing attorneys must be members of
the Law Society in the province where the practice is situated.84 Membership
means that attorneys are automatically subject to the rules of the Law Society
concerned. These rules deal with matters such as the filing of notices of inten-
tion to practice, providing particulars of the trust banking accounts, providing
postal and physical addresses, applications for fidelity fund certificates and
providing the details of practice auditors.
l Value Added Tax requirements. The services rendered by legal practitioners
are subject to Value Added Tax (VAT). Every vendor is obliged to account for
VAT, either on the invoice basis (VAT is payable at the end of the accounting
period irrespective of whether payment has been received) or on the payment
basis (VAT is only accounted for after payment for services is received). The
general rule is that vendors must account on the invoice basis unless the
Receiver of Revenue, on application by the vendor, permits the vendor to
account on the payment basis. The Value Added Tax Act85 deals with aspects
such as the keeping of records, the basis of accounting to clients86 and the
calculation of payment.87 VAT is levied on the value of goods and services
supplied. It is charged and accounted for as a percentage of the value of the
goods supplied and/or the services rendered. Currently, the rate for most
goods and services is set at 14%. The responsibility to collect VAT rests on
the vendor who supplies the goods or services.
l Income Tax Act requirements. In terms of the Income Tax Act,88 practitioners
will have to register as taxpayers and may also have to register as employers
in order to deduct income tax from employees’ salaries.
l Workplace requirements. In terms of the Compensation for Occupational Injuries
and Diseases Act,89 the practice must register with the Workmen’s Compensa-
tion Commissioner and submit an annual declaration in a prescribed form of all
________________________
82 S 41 of the Attorneys Act. See s 84(1) of the Legal Practice Act in this regard.
83 See eg Ingelyfde Wetsgenootskap van die Transvaal v Broodryk 1975 (1) SA 206 (T). Also
see s 84(2) and (3) of the Legal Practice Act in this regard.
84 S 57. The term ‘Legal Practice Council’, instead of ‘law society’, will be used when the Legal
Practice Act is fully operational. In this regard, note the provisions of s 30 of the Legal Prac-
tice Act, dealing with the enrolment of legal practitioners with the Council.
85 89 of 1991.
86 S 15.
87 Ss 1(b)(3) and 27.
88 58 of 1962 (as amended).
89 130 of 1993.
134
Practice management
salaries and wages. The Workmen’s Compensation Commissioner makes an

assessment and the practice is required to make payment of this within a cer-
tain time. Furthermore, the practice will be required to register with the local
Metropolitan Council and pay a monthly regional services council levy.
Employees will also have to be registered for purposes of the Unemployment
Insurance Fund.90
l FICA requirements. The Financial Intelligence Centre Act91 also applies to
attorneys. The Act deals with the identification of clients and, as its main objec-
tive, stipulates that one may not establish a business relationship or conclude
a single transaction with a client unless you have taken certain steps to estab-
lish and verify the identity of the client or of those on whose behalf they purport to
act.
7.10 Starting out

Starting a law practice of your own is not a simple process and a huge amount of
planning must go into it. It would be over-ambitious for this chapter to provide you
with a detailed guide on the subject. Suffice it to say that if you do not have the
knowledge and skill to start a practice by yourself, you should seek professional
help. When you decide to establish your own law practice, consider the following
aspects very carefully:92
l Personal qualities. Consider whether you have sufficient knowledge, experi-
ence, resources and contacts to start your own practice.
l Type of services. Decide what type of legal services you aim to deliver. Is
there a need in the market for such services? Who are your main competitors?
Where will you position your services in the market?
l Client base. Do you have an existing client base or do you intend to build a
client base from scratch? Do you have contacts to broaden your client base?
l Business premises. What size and type of premises would you require? Where
will it be ideally situated? Will you buy or rent? What rental can you afford?
How will you finance the acquisition of premises?
l Furniture and equipment: What furniture and office equipment will you need?
Is it better to buy or lease equipment? For example, you would need a tele-
phone system, a fax machine, dictaphones and computers. You may need cer-
tain computer software programs, for example word processing, bookkeeping,
________________________
90 Unemployment Insurance Fund Act 63 of 2001.

91 38 of 2001. The purpose of the Act as set out in its preamble is ‘. . . (t)o establish a Finan-
cial Intelligence Centre and a Money Laundering Advisory Council in order to combat
money laundering activities and the financing of terrorist and related activities; to impose
certain duties on institutions and other persons who might be used for money laundering
purposes and the financing of terrorist and related activities; to amend the Prevention of
Organised Crime Act, 1998, and the Promotion of Access to Information Act, 2000; and to
provide for matters connected therewith’.
92 Legal Education and Development (LEAD) Manual (2005) Introduction on Practice Management.
135
collections, litigation or conveyancing programs. You will need filing cabinets,

an archive, a safe, a franking machine, a moneybox, bookcases or shelves in
the library, a fridge, kettle and crockery.
l Staffing requirements: What will your staffing requirements be? Do you need
professional assistants, candidate attorneys, secretaries, bookkeepers, and/or
messengers? How much should (and could) you pay them? What benefits
would you offer? What would their job descriptions be?
l Financial considerations: Will you use your own finances, or will a bank loan
be required? Have you drawn up a budget and a cash flow statement? Bank
accounts will have to opened, including a trust and business account. You will
also have to make use of a chartered accountant for the purpose of drafting
annual financial statements relating to your trust and business accounts.
l Stationery: Letterheads, business cards, receipt books, debit and credit notes,
fee notes and fee books, files, complimentary slips and other stationery will be
needed.
l Auxiliary services: You will have to select and appoint an auditor and negotiate
the cost of such services. You will have to apply for telephone, fax and Internet
lines. You may have to enter into service agreements in respect of the lease of
equipment such as computers and fax machines.
l Insurance: You will have to insure your business assets. You may want to take
out additional professional indemnity insurance. You should consider disability
and income protection insurance.
l Marketing: You should devise a marketing strategy, decide on signage for your
practice, design letterheads and logos, decide where to advertise and develop
a database on client information.
l Office administration: You should develop fee structures, office policies and
procedures and a filing system.
l Legal requirements: You will have to comply with the various statutory
requirements in respect of, amongst others, professional practice, income tax
and employees.
7.11 The business plan

A business plan is an essential tool for any practitioner setting out to establish a
legal practice, or even for those that have already established a practice. It pro-
vides a structured guideline of what the practitioner aims to achieve, how he/she
intends achieving it, and when, where and why he/she intends to achieve it.93 The
development of a business plan is not a once-off exercise. The plan should be
reviewed regularly and adapted as may be necessary. A business plan serves to
define the practice in writing and sets its goals. It serves to remind the owners of
________________________
93 See Hisrich and Peters (1995) Entrepreneurship, starting, developing and managing a new
enterprise at 112. See also Pannett (1979) at 103.
136
Practice management
their goals and it helps in the marketing of the practice.94 A business plan enables
the practitioner to budget and make cash flow projections. At the end of this
chapter, a general guide to the structure and content of a basic business plan is
provided.95
7.12 Conclusion
It should be clear that the management of a law practice is a complex and highly
technical affair, and that this chapter is a mere foundation on which to build.
Whether you intend to start out on your own or join an existing law practice, you
will require knowledge, skill, resources, resourcefulness, dedication and a sense
of professional commitment. Should your venture be successful, you will de-
servedly reap the benefits of all your hard work.
BUSINESS PLAN
1. Introduction: State the name of the firm, provide a brief description of the
firm, where it is situated, the number of partners, when it was established
or when it is intended to establish the firm.
2. Description of services: Describe the nature of the business enterprise, for
example sole proprietorship, partnership or incorporated company.
Describe the type of legal services that are/will be rendered. Describe the
current client base and/or target market. Describe the area in which the
firm is/will be situated, if clients are/will be drawn from that area. Mention
the main competitors of the firm.
3. Goals and objectives: Describe the main goals and objectives of the firm.
Detail the results that should be achieved over the long- and short-term.
These could include aspects such as to be an employer of people, to build
a capital asset, or to enhance community status.
4. Human resources: Detail the staff composition of the firm, discuss the
skills and characteristics of the management team and explain who is
responsible for what tasks.
5. Financial plan: Draw up a budget setting out the initial capital expenditure
and the projected income and expenditure for a period of at least six
months. Produce a cash flow projection. Detail systems of control over
financial spending and income.
continued
________________________
94 Legal Education and Development (LEAD) Manual (2005) Introduction to Practice Man-
agement at 23 et seq.
95 Drawn from various sources, including Legal Education and Development (LEAD) Manual
(2005) Introduction to Practice Management; Hisrich and Peters (1995); Kroon (ed) (1996);
Pannett (1997); and Viljoen (1981).
137
6. Strategic plan: A strategic plan sets out how the business will achieve its
stated goals and objectives. It should deal with the client base, how it will
be established or expanded and the spending potential of existing/new
clients. The strategic plan should take into account likely changes in politi-
cal, economic, social and technological spheres. For example, if convey-
ancing will be the business’ main source of income, it would be important
to establish contacts with property developers and estate agents. An
important part of the strategic plan is the so-called SWOT analysis, which
deals with strengths, weaknesses, opportunities and threats of and to the
business. For example, the strengths of the business could lie in the
owner’s experience, qualifications or contacts. Its weaknesses could
include the lack of a solid client base. Opportunities could include a partic-
ular need for the services in the market. Threats could include the existing
competition. A strategic plan also includes the following:
Short-term objectives: The objectives set for a period of six to twelve
months. In the case of starting a practice, these could include the ability to
generate sufficient income within three months to cover running costs and
the ability to start repaying loans within twelve months.
Long-term objectives: Plans to employ additional staff within say, eighteen
months from inception, or the delivery of a broader range of legal services.
Operational plan: Deals with administrative arrangements including sys-
tems and the manner in which the practice will be conducted. For example,
control systems on the issuing of cheques, spending of petty cash and the
receipt and banking of money; defining responsibilities and duties for staff
members; control over stationery, books and vehicles; the safekeeping of
clients’ documents and a salary and wage register. The operational plan
could also deal with risk management such as professional indemnity
insurance and complying with statutory requirements for legal practices.
Conclusion: The strategic plan would conclude by itemising the specific
actions and resources that would be required over the following six to
twelve months in order to implement the strategic plan.
138
Legal research and
writing opinions
By Anton Kok 8
8.1 Introduction
You would have realised by now that ‘the law’ is an extremely wide-ranging and
complex field. It is unlikely that you will in all cases be able to advise a client
immediately and sometimes you will have to under-
take substantial research to reach a satisfactory You will need to
answer. You will need to develop the ability to do develop the ability
effective research. Most often, you will have to come to do effective
up with an answer in a short space of time. It is likely research.
that your supervisor in the law clinic will request you to
set out the results of your research in a written office memorandum. It may be that
your supervisor will query one or more of the recommendations and you may be
asked to supplement the research. Eventually, the office memorandum may serve
as the basis of a letter to the client, setting out the results of the research, the
recommendations, and substantiation of the recommendations.
8.2 Legal research in a law clinic

Legal research in a law clinic differs from academic research. Academics can
usually afford the luxury of spending weeks or months researching a particular
topic. Practitioners face pressure from their clients and their opponents, once a
summons has been issued to settle a matter or to push it to trial. During the
consultation, you need to form a clear picture of what it is that the client desires.
You then need to undertake research to ascertain whether the law provides a
remedy. The client will eventually want a relatively ‘clean’ answer. From a plain-
tiff’s perspective, this would refer to the possible cause(s) of action and the pro-
spects of success; from a defendant’s perspec-
In a law clinic, the main tive, this would refer to the possible defences
aim is to find the existing to the plaintiff’s claim; and from an accused’s
perspective, this would refer to the possible
law and solve the client’s defences to the charges brought. Your
immediate problem. research consequently needs to be highly
focused. Academic research sometimes has the
139
explicit purpose of advocating legal reform. In a law clinic, the main aim is to find
the existing law and solve the client’s immediate problem.
8.3 Suggested research method1

8.3.1 Identifying the subject area(s)
Review the chapter on interviewing skills before
studying this section. During the interview, you must Identify the area(s)
establish what it is that the client wants by identifying of law that may play
the relevant facts. During the interview with the
client, you must also identify the area(s) of law that a role in solving the
may play a role in solving the client’s problem. client’s problem.
Remember that the South African national law may
be divided into substantive law and adjective law.2 Adjective law consists of law of
criminal procedure, law of civil procedure, law of evidence and interpretation of
statutes. Substantive law may be divided into private law and public law. Public
law consists of constitutional law (including human rights law), administrative law
and criminal law. Private law may be divided into law of patrimony, law of per-
sons, family law, law of personality and indigenous law. Law of patrimony may be
further subdivided into property law, law of succession, law of obligations (delict
and contract) and law of intellectual property. Commercial law subjects are some-
times applied to private law, for example third-party compensation law, and some-
times have a public law character, for example tax law. You need to identify the
relevant subject areas to assist in your research (for example books in the univer-
sity library will be sorted according to the Dewey Decimal Classification system,
and the various subject areas have been accorded a particular call number; for
example, ‘343’ would be public law, ‘346’ private law and ‘347’ civil procedure).
The university library will contain a list of the further subdivisions.
This, however, is only a start. It should be relatively easy to identify the broad
subject area. You now have to focus on the particular issue(s) affecting the client.
For example, five minutes into your consultation with the client may make it clear
that the law of delict is the relevant subject area. The client may, for example,
have been sued as a result of a motor collision he was involved in. You should
then keep asking questions and collating information. You should also try to
narrow down the research task by formulating crisp, to-the-point legal questions
that arise from the consultation. A number of issues may arise, for example: the
plaintiff’s locus standi (civil procedure); the client’s alleged negligence (delict); the
amount being claimed; and the calculation of the amount (law of damages).
________________________
1 See Kleyn and Viljoen (2010) Beginner’s Guide for Law Students at 312–321; Kok, Niena-
ber and Viljoen (2011) Skills Workbook for Law Students at 53–83; Campbell, Fox and Du
Zwart (2010) Students’ Guide to Legal Writing, Law Exams and Self assessment; Maisel
and Greenbaum (2001) Introduction to Law and Legal Skills at 97–102.
2 See Kleyn and Viljoen (2010) at 93–106.
140
Legal research and writing opinions
Perhaps the client admitted liability immediately after the collision and promised to
pay the plaintiff’s excess insurance payment (law of contract). Perhaps he paid the
excess to the plaintiff a week later. You should then establish the effect of such
payment on the insurance company’s right to sue the defendant (insurance law).
8.3.2 A convenient starting point: The Law of South Africa (LAWSA)

The Law of South Africa (LAWSA) is a 35-volume legal encyclopedia and should
be available in most university libraries.3 LAWSA is published by LexisNexis and
can thus also be found on the LexisNexis online database (see 8.3.7 below under
‘Reference Works’). It is a convenient starting point for research as LAWSA
contains concise summaries of particular subject areas. The footnotes contain
helpful references to other sources. Your research would start with the index
volume (volume 34). Identify possible appropriate keywords in the index and find
the relevant volume. LAWSA also has a ‘Current Law’ issue that consists of a
‘review’ and a looseleaf section. ‘Current Law’ is issued every four weeks and
aims at updating LAWSA insofar as it is not already updated by the LAWSA
‘annual cumulative supplement’. It is important to remember that LAWSA, as is
the case with all secondary sources, is at best persuasive authority in a court of
law.
Assuming you do not know the answer to the last question posed under 8.3.1:
‘What is the effect on the insurance company’s right to sue a defendant if the
defendant had paid the plaintiff’s excess payment?’ you have to find volume 34 of
LAWSA in the university library, and page to the index entry ‘Insurance’. It will
look somewhat as follows:
INSURANCE
Comprehensively 12: see detailed index in volume
Additional references:
arbitration clause in 1r 419
aviation insurance:
common law principles 1r 595
domestic air services 1r 589
international air services 1r 582
interpretation of warranty 1r 595
business see INSURANCE COMPANIES
conflict of laws on domestic policies 2r 472 fn 10
contracts:
generally see POLICIES
by minor 20(1)r 371(a)
...
The index refers you to volume 12 of LAWSA. A comprehensive index appears at

the back of this volume. Think of keywords that may assist in finding the relevant
information. An insurance company’s right to sue in the name of the insured is
known as ‘subrogation’. Find the index entry:
________________________
3 See Kleyn and Viljoen (2010) at 315.
141
Stamp duty
on cession of policy 436
payable on policies 136
Subrogation
doctrine 373
basis for 377
cession distinguished 378
constructive trust created 375
origin 374
purpose 376
salvage distinguished 379
duty of insurer:
preservation of insured’s claim 394
to bear costs of proceedings 395
effect on third parties:
defences available 396
settlement and release 397
provisions in contracts:
adding to rights of insurer 398
denying subrogation: legality 399
reforms proposed:
independent right of insurer 402
shortcomings of doctrine 400
transfer of rights by operation of law 401
...
The entry ‘effect on third parties’ seems promising. References in LAWSA are to
paragraph numbers, not pages. Paragraphs 396 and 397 (highlighted in the rele-
vant passages) in volume 12 read as follows:
396 Defences available to third party Since the action against the third party is for the
enforcement of the insured’s rights against him, the third party may, irrespective of who is
bringing the action, raise any defence which would have been available to him had subrogation
not taken place.1 For example, the third party may rely on the fact that the insured has released
him from liability;2 that the insured has no remedy against him because of the provisions of an
agreement between him and the insured;3 that the insured is guilty of contributory negligence;
that a splitting of claims is not permissible;4 that the matter has already been decided (res
iudicata); or that the claim has been settled. However, the third party cannot put forward the
argument that the insured has suffered no loss because he has been indemnified by his
insurer,5 unless it can be proved that the insurer intended to discharge the debt of the third
party by paying the insured.6 . . .
1 Commercial Union Assurance Co of SA Ltd v Golden Era Printers and Stationers
(Bophuthatswana) (Pty) Ltd [1997] 3 All SA 165 (B) 172; 1998 2 SA 718 (B).
2 Cf Phoenix Assurance Co v Spooner [1905] 2 KB 753 (CA).
3 Cf Commercial Union Assurance Co of SA Ltd v Golden Era Printers and Stationers
(Bophuthatswana) (Pty) Ltd supra where the court took the view that if a contract of
lease required the lessor to insure the object of the lease, the contract prima facie
excluded an action by the lessor against the lessee for loss or damage to the object of
the lease, since the insurance would be intended to insure the interests of both parties.
This does not mean that the lessee must be a co-insured (179). An important pointer
would be that the lessee was made responsible for payment of the premiums. The same
continued
142
would apply if the costs of the premiums were incorporated in the rent. It was not con-
sidered whether such an arrangement in the contract of lease must be disclosed to the
insurer. See also par 382 ante as to rights against the co-insured.
4 Avex Air (Pty) Ltd v Borough of Vryheid 1973 1 SA 617 (A) 625H.
5 Weber v Africander Gold Mining Co (1898) 5 OR 251; Ackerman v Loubser 1918 OPD
31 35; Millward v Glaser 1949 4 SA 931 (A); Teper v McGees Motors (Pty) Ltd 1956 1
SA 738 (C) 742; Van Dyk v Cordier 1965 3 SA 723 (O) 725A. Cf Mutual and Federal
Insurance Co Ltd v Swanepoel 1988 2 SA 1 (A) 8–9; Standard General Insurance Co Ltd
v Dugmore [1996] 4 All SA 415 (A); 1997 1 SA 33 (A).
...
397 Settlement and release of claim by insured or insurer As the insured’s claim against
a third party in respect of a loss remains vested in the insured,1 he is in the position to effect a
valid settlement with the third party. Similarly, the insured may validly release the third party
from any liability. The position is the same whether the settlement or release is effected before
or after2 payment by the insurer. However, if the insured acts unreasonably, such conduct will
constitute breach of contract towards the insurer.3 . . .
1 See par 373 ante.
2 West of England Fire Insurance Co v Isaacs [1897] 1 QB 6 (CA); Phoenix Assurance Co
v Spooner [1905] 2 KB 753 (CA).
3 Phoenix Assurance Co v Spooner supra. See par 391 ante.
4 See Clarke The Law of Insurance Contracts par 31–6C1.
5 On the doctrine of notice, see Cussons v Kroon [2002] 1 All SA 361 (SCA); 2001 4 SA
833 (SCA).
6 This question must be answered by applying the principles of agency.
The footnotes contain references to other sources, primarily case law and text-
books. Find these sources and read them as well.
8.3.3 Textbooks
Textbooks are another convenient starting point for research.4 It is also a second-
ary source of law and does not constitute binding authority in a court. As is the
case with LAWSA, good textbooks contain very helpful references to other
sources in the footnotes and in the bibliography. Most, if not all, university libraries
use a computer-based catalogue system. (It may be that older textbooks are
accessed with a card catalogue system.) Access your university’s search tool on
a computer and select the ‘keyword’ or ‘title’ option and type in the word(s) that
may facilitate the search. You should then find the book and use the table of
contents and index to narrow the search. For example, you could type in the
keywords ‘insurance’ and ‘law’ on the university’s electronic-search catalogue. It
may be that some of the following titles appear on the computer screen:
Dobbyn JF Insurance in a nutshell St Paul West Pub Co 1989 (call number 346.860973)
Gordon G (Davis DM) South African law of insurance (Gordon and Getz on the South African
law of Insurance) Cape Town Juta 1983 (call number 346.860968)
continued
________________________
4 Kleyn and Viljoen (2010) at 315–316; Kok, Nienaber and Viljoen (2011) at 65–71.
143
Lowry JP Insurance law: doctrines and principles Oxford Hart 1999 (call number 346.860941)
Reinecke MFB General principles of insurance law Durban LexisNexis Butterworths 2002
(call number 346.860968)
Millard D Modern Insurance Law in South Africa Cape Town Juta 2013 (call number
346.860968)
Print the references or make a note of the necessary details and find the books in
the library. You may decide to start with Reinecke. As you page through this
textbook, you will note that it is a replica of volume 12 of LAWSA. Then continue
with the search in the other sources. Focus on South African sources, remember-
ing that you are not undertaking academic research. In principle, South African
courts rely on South African authorities.
You may decide to consult the Gordon textbook. It may appear as follows:
THE
SOUTH AFRICAN
LAW OF INSURANCE
SECOND EDITION
By
GERALD GORDON
QC, BA, LLB (CAPE)
Advocate of the Supreme Court of South Africa;
Of the Middle Temple, Barrister-at-Law
Co-Author of The Law of Compulsory Motor Vehicle Insurance in South Africa
Assisted by
WS GETZ
BA, LLB (CAPE), BA (OXON)
Of Gray’s Inn, Barrister-at-Law
Advocate of the Supreme Court of South Africa
JUTA & CO, LIMITED
CAPE TOWN WYNBERG JOHANNESBURG
1969
It is clear from the title that this book relates to South Africa. The publisher is also
based in South Africa. This particular source, however, is very dated as it was
published in 1969. Take note of what is mentioned in this textbook but follow up
on other leads to ascertain whether the book still sets out the current South
African position. The table of contents and index are helpful search tools:
CONTENTS
PREFACE .................................................................................................................................. v
KEY TO AUTHORITIES............................................................................................................ xi
TABLE OF STATUTES ............................................................................................................ xv
TABLE OF CASES ................................................................................................................ xxiii
continued
144
PART I: SOURCES
1 Sources of South African and Rhodesian Insurance Law ................................................... 1
PART II: INSURERS AND INSURANCE BUSINESS

2 Control of Insurers and Insurance Business ........................................................................ 9
3 Judicial Management and Winding-Up of Insurers ............................................................ 47
PART III: GENERAL PRINCIPLES OF INSURANCE LAW

4 The Nature of the Contract ................................................................................................ 75
5 Insurable Interest ............................................................................................................... 86
6 The Duty of Good Faith.................................................................................................... 104
7 Formation of the Contract ................................................................................................ 117
8 Agents .............................................................................................................................. 133
9 Duration of the Contract ................................................................................................... 147
10 The Risk ........................................................................................................................... 159
11 The Premium ................................................................................................................... 172
12 Terms of the Contract ...................................................................................................... 181
13 Warranties ........................................................................................................................ 192
14 Interpretation .................................................................................................................... 213
15 Measure and Effect of the Indemnity ............................................................................... 221
16 Reinstatement .................................................................................................................. 227
17 Subrogation ...................................................................................................................... 230
18 Rights and Duties of Third Persons under the Contract .................................................. 239
19 Reinsurance ..................................................................................................................... 256
20 Over-insurance and Under-insurance.............................................................................. 259
STOCK-IN-TRADE
insurance of, proposal for, 119
STOPPAGE IN TRANSITU
English law of, incorporated, 2, 95
insurable interest of unpaid seller, 95
SUBJECT
contract, of, 83
insurance, of, 83, 160
change in identity of, 163
definition of, fundamental, 160
SUBJECT-MATTER
over-valuation of, effect of, 259–64
undervaluation of, effect of, 264–6
value of, calculation of, 222–6
continued
145
SUBROGATION
generally, 230–8
contractual claims, in, 232
defences of third party on, 235
delictual claims, in, 232
enforceable rights essential to, 232–3
essentials of, 230
funeral insurance, in, 346
general average, in, 373
Page to the indicated page in the textbook and start reading:
CH. 17 SUBROGATION 235

7. DEFENCES AVAILABLE TO THIRD PARTY
In the action between the insurer and the third party, the latter may raise any defence
which would have been available against the insured himself had he sued.36
It is not a defence available to the third party that the insured has suffered no loss because
he has been indemnified by the insurer.37 Thus in Weber and Others . . .
...
236 GENERAL PRINCIPLES PT. III
8. INSURED MUST NOT PREJUDICE INSURER
The insured must not prejudice the insurer’s right of subrogation.43 He may not renounce or
compromise any right of action he has against a third party by the exercise of which he can
diminish his loss. If he does he will render himself liable to his insurer.44
In Phoenix Assurance Co v Spooner . . .
...
CH. 17 SUBROGATION 237
B. PAYMENT BY THIRD PARTY
1. INSURED CANNOT RECOVER MORE THAN HIS LOSS
...
2. PAYMENT BY THIRD PARTY AFTER PAYMENT UNDER POLICY
...
238 GENERAL PRINCIPLES PT. III
3. PAYMENT BY THIRD PARTY BEFORE PAYMENT UNDER POLICY
If, before payment under the policy, the third party pays the insured, the latter’s loss is pro
tanto diminished, and he can no longer recover a full indemnity under the policy. The amount
the insured received from the third party must be taken into account, and, depending on the
amount received, the insurer’s liability will be diminished or entirely extinguished . . .
Before the amount paid by the third party can be taken into account, however, it must be
clear that it was paid in reduction of the loss . . .
36 London Assurance Co v Sainsbury (1783) 3 Doug K.B. 245. He may also raise the defence
that the policy was invalid and so gave no right of subrogation: John Edwards and Co v Motor
Union Insurance Co [1922] 2 K.B. 249; Ivamy, General Principles, p 406–8.
continued
146
37 Halsbury, par 517; Mason v Sainsbury (1782) 3 Doug K.B. 61; Darrell v Tibbitts (1880) 5
Q.B.D. 560 (C.A.); Ackerman v Loubser 1918 OPD 31 at 35 36; Millward v Glaser 1949 (4) SA
931 (A) at 940; Teper v McGee’s Motors (Pty) Ltd 1956 (1) SA 738 (C) at 742.
...
43 West of England Fire Insurance Co v Isaacs [1897] 1 Q.B. 226 (C.A.); cf. the insured’s duty to
minimise his loss, above, p 225.
44 Horse, Carriage and General Insurance Co Ltd v Petch (1916) 33 T.L.R. 131. Cf. below p 247,
under ‘Motor Insurance’.
...
Follow the same process with all the other available textbooks. Different authors
on the same topic may not necessarily agree. To be safe, find as many books on
the topic as possible and compare the authors’ views. Find and read the other
sources referred to in the footnotes of the different textbooks.
8.3.4 Law journals

Sometimes law journals contain useful articles on a particular topic.5 If it is a well-
researched article, the article will contain numerous references to other sources
as well. Follow up those references.
iSalpi (South African Legal Periodicals Index) is a free database made available
by the Constitutional Court and may be accessed at http://www.constitutional
court.org.za/uhtbin/webcat. When using this database, ensure that the ‘iSalpi’ tab
at the top of the page is selected, as the website will automatically select the
‘Catalogue’ tab if not changed by the user. There are various options to narrow
down your search including searching by author, article title, subject or journal.
Saflii (The Southern African Legal Information Institute) also has a collection of
journals which can be accessed for free at http://www.saflii.org/. You may have to
use this method if you cannot find the article by itself, and thus need to access the
whole journal in which the article is published. Simply look to the left of the
webpage for a list labelled ‘Law Journals’ and select a journal from the available
options. Once a journal has been selected, you can search according to publica-
tion year or alphabetically.
For foreign journals, you can use the Directory of Open Journals (DOAJ). This
free database can be accessed at https://doaj.org/. For a general search you can
use the ‘Search DOAJ’ tab on the homepage. Alternatively, use the ‘Advanced
Search’ option located directly underneath the general search tab.
Other free journals to consider include:
l African Human Rights Law Journal, accessible at http://www.ahrlj.up.ac.za/.
l De Jure, accessible at http://www.dejure.up.ac.za/.
l Law, Democracy and Development, accessible at http://www.ldd.org.za/.
l Potchefstroom Electronic Law Journal, accessible at http://www.nwu.ac.za/p-
per/index.html.
________________________
5 Kleyn and Viljoen (2010) at 316; Kok, Nienaber and Viljoen (2011) at 68–71.
147
Proceed by typing in keywords that will narrow down the research to a sufficient
degree. If you type in ‘insurance’, you will likely get a very long list of ‘hits’. If you
type in ‘subrogation’, a more manageable list will appear. From this list, select the
articles that seem to provide an answer to the problem:
Atkins NG ‘Subrogation’ 1991 (21) Businessman’s law 7

Van der Linde K ‘Right to cession or subrogation prejudiced’ 1994 De Rebus 205
Visser C ‘Insurance law: general principles’ 1994 Annual survey of South African law 435
Further sources that may be consulted are SA ePublications as well as ISAP

(Index to South African Periodicals), but these databases can only be used if you
are subscribed. Contact your institution to find out if you are subscribed and what
your Username and Password is in order to gain access. (Also see para-
graph 8.3.7 ‘Use of computers and the internet’ below.)
A more laborious method would be to find (hard copy) index volumes to particular
law journals. These indexes usually sort articles according to author and/or topic.6
8.3.5 Case law 7

Hopefully, the searches in the secondary sources discussed above have turned
up a number of references to South African court cases. Find and read these
cases. Comparing the facts of these cases to the client’s situation is absolutely
necessary. One should ask if the existing cases are comparable or distinguish-
able from the client’s situation.8 Consider the following example:
The client owns a small house. A small fishpond is situated in the front garden.
His neighbour’s child somehow gained access to the garden and drowned in the
pond. The client is now being sued for emotional shock and the State is consider-
ing a charge of culpable homicide. Assume that you find the following three cases:
l ‘A’ owned a large country mansion. He invited about 40 friends to a party.
Most guests consumed huge amounts of alcohol. At about one o’clock in the
morning, one of the guests slipped and fell into the large swimming pool and
drowned. ‘A’ was held liable.
l ‘B’ owned a double-storey flat. His neighbour’s child came to visit. The child
slipped and fell on the very slippery flight of stairs on his way to the bathroom
on the second floor. ‘B’ was held liable.
l ‘C’ owned a unit in a townhouse complex. One evening a burglar gained entry
into the unit. The burglar slipped and fell into the jacuzzi in the large enter-
tainment area. The burglar drowned. ‘C’ was held liable.
Decide if ‘A’, ‘B’ and ‘C’ are distinguishable or comparable to your client’s situa-
tion and substantiate your answer.
________________________
6 Kok, Nienaber and Viljoen (2011) at 69.

7 See in general Kleyn and Viljoen (2010) at 58–80; Kok, Nienaber and Viljoen (2011) at 57–62
and 89–103; Maisel and Greenbaum (2001) at 59–66 and 80–88.
8 Maisel and Greenbaum (2001) at 83–84.
148
If a case is distinguishable, the judgment case will not form part of the body of
precedent. If a case is comparable, it will form part of the body of precedent to be
considered by the court. Whether a particular case is distinguishable or compar-
able depends to a large degree on the argument presented in court and the view
that the presiding officer eventually takes on the respective cases. On a narrower
approach, the above examples are distinguishable from the client’s facts. For
instance: ‘A’ owned a large pool whereas the client owns a small fish pond, and
‘A’ invited the guests whereas the client did not invite the child to his house. ‘B’s’
case involved a slippery flight of stairs whereas an unguarded fishpond featured
in the client’s case. Likewise, as in the case of ‘C’, ‘C’ was faced with an (unin-
vited) burglar falling into a jacuzzi in the unit whereas the client’s case involves a
child falling into a pond in the garden. In the wider sense, the decisions may all be
comparable. For example, the defendant owns an (unguarded) potentially dan-
gerous object and the object caused harm to a third party.
Perhaps your searches in secondary sources of law did not contain useful ref-
erences to court decisions. You may then want to use the (hard copy) indexes.
LexisNexis and Juta publish a number of indexes to facilitate searches:
l Index to the South African Law Reports 1828–1946, and Noter-up;
l Butterworths’ Consolidated Index and Noter-up to the All South African Law
Reports; and
l Index and Annotations to the South African Law Reports.
All of these indexes are also available in electronic form.
A particularly helpful index is the subject index:
INSURANCE (continued)
Repudiation – (continued)
Insurance company not stating grounds of repudiation –
Effect: Amod v Moolla, 1952 (1) SA 754 (N)
Insurer alleging debit order dishonoured for lack of funds –
Onus of proof on insurer. Penderis v Gutman NNO v Liquidators, Short-Term
Business, AA Mutual Ins Assocn Ltd, 1992 (4) SA 836 (A)
...
SUBROGATION –
Action by insurance company in name of insured –
Claim for portion of loss only –
Balance of loss to be recovered by insured –
Plurality of claims. Avex Air (Pty) Ltd v Borough of Vryheid, 1973 (1) SA 617 (A)
Breach of warranty endorsement –
Liability of insured for negligence. Aviation Ins Co v Bates and Lloyd Aviation (Pty) Ltd;
Bates and Lloyd Aviation (Pty) Ltd v Aviation Ins Co Ltd, 1982 (4) SA 838 (T)
Damages claimed by insured –
Payment of damages by insurance company –
Effect on insured’s claim against person causing damage. Teper v McGees Motors
(Pty) Ltd, 1956 (1) SA 738 (C)
continued
149
Leased premises –
Lease obliging landlord to insure premises against fire –
Negligence of tenant causing fire. Commercial Union Assurance Co of SA Ltd v
Golden Era Printers and Stationers (Pty) Ltd, [1997] 3 All SA 165
Prejudicing of rights of subrogation by insured –
No prejudice where third party pays damages not covered by policy. Visser v Inc
General Insurances Ltd, 1994 (1) SA 472 (T)
‘Suicide’ clause
Whether onus on company. Nieuwenhuizen, Ep, 1950 (3) SA 125 (SWA)
...
Other helpful indexes include ‘case annotations’, ‘legislation considered’, ‘cases

reported’, ‘words and phrases’ and ‘table of statutes’.9
Jutastat offers another option for searching for relevant court cases. (Consult
the information provided under 8.3.7.)
8.3.6 Legislation10
LexisNexis publishes a looseleaf compilation of South African legislation that is
continuously updated. Juta publishes a compilation that is updated annually. Both
publishers also offer indexes to these compilations.
If you know the title of the particular Act that you are looking for, use the
‘alphabetical table of statutes’. This table lists the Acts alphabetically according to
short titles:11
Short title of Act No Year Subgroup

L
...
Local Loans Act 19 1926 –
Local Stock (Registration) Act 19 1916 –
Long-term Insurance Act 52 1998 INSURANCE (2)
Lord’s Day Act (Natal) Amendment Act 8 1917 –
Lotteries Act 57 1997 TRADE AND INDUSTRY (2)
...
continued
________________________
9 Kok, Nienaber and Viljoen (2011) at 58–61.

10 See in general Kleyn and Viljoen (2010) at 41–58; Bosman, Parker and Williams (2003) at
45–74.
150
S
...
Ship Registration Act 58 1998 SHIPPING (4)
Shipping Board Act 20 1929 –
Short Process Courts and Mediation 103 1991 COURTS (1)
In Certain Civil Cases Act
Short-term Insurance Act 53 1998 INSURANCE (2)
Silicosis Act 47 1946 –
...
If you know when an Act was published, use the ‘chronological table of statutes’.
This index lists Acts according to the number and year in which the Act was
published in the Government Gazette.12
Year Short title of Act Subgroup Repealed by Act

No (Vol no in brackets) No Year
...
1998
...
49 Insurance Amendment Act INSURANCE (2)
50 Demutualisation Levy Act REVENUE (3)
51 Insurance Second Amendment Act INSURANCE (2)
52 Long-term Insurance Act INSURANCE (2)
53 Short-term Insurance Act INSURANCE (2)
54 Inherited Debt Relief Act DEBTOR AND CREDITOR (2)
55 Employment Equity Act EMPLOYMENT AND LABOUR (4)
...
1999
...
________________________
151
If you are looking for a list of Acts that deal with a particular subject, use the
‘alphabetical index to the groups and subgroups’ (Juta) index:13
INSPECTION OF FINANCIAL INSTITUTIONS: see COMMERCIAL LAW and then BANKING

AND CURRENCY (2)
INSTITUTE FOR DRUG-FREE SPORT, SOUTH AFRICAN: see HEALTH and then MEDI-
CINE AND MEDICAL PROFESSIONS (1)
INSURANCE: see COMMERCIAL LAW and then INSURANCE (2)
INSURANCE, LONG-TERM: see COMMERCIAL LAW and then INSURANCE (2)
INSURANCE, MOTOR VEHICLES: see TRANSPORT and then MOTOR VEHICLES (4)
INSURANCE, SHORT-TERM: see COMMERCIAL LAW and then INSURANCE (2)
One should find volume two as indicated in the index entry. Volume two, in Juta’s
2014/15 index, lists the following sub-entries under the main group ‘Commercial
Law’:
Banking and Currency 1–3

Companies 1–223
Co-Operative Societies 1–419
Debtor and Creditor 1–477
Financial Institutions Amendment Acts 1–565
Insolvency 1–595
Insurance 1–657
Negotiable instruments 1–753
Purchase and Sale 1–771
Stock Exchange 1–847
Page to the subgroup ‘Insurance’. Juta’s 2014/15 index lists the following Acts
under this heading:
AVBOB Mutual Assurance Society Incorporation (Private) Act 7 of 1951 ........................ 1–659
South African National Life Assurance Company Incorporation (Private) Act
3 of 1954 ........................................................................................................................ 1–663
South African Mutual Life Assurance Society (Private) Act 52 of 1966............................. 1–672
War Damage Insurance and Compensation Act 85 of 1976 ............................................. 1–682
South African Mutual Life Assurance Society (Private) Amendment Act 53 of 1980 ........ 1–681
Reinsurance of Damage and Losses Act 56 of 1989 .........................................................1-684
Reinsurance of Material Damage and Losses Amendment Act 65 of 1990...................... 1–686
Insurance Second Amendment Act 51 of 1998 ................................................................. 1–686
continued
________________________
152
Long-term Insurance Act 52 of 1998 ................................................................................. 1–687

Pendlex: Long-term Insurance Act 52 of 1998 after amendment by the Insurance
Laws Amendment Act 27 of 2008.................................................................................. 1–716
Long-term Insurance Act 52 of 1998 after amendment by the Financial Services
Laws General Amendment Act 45 of 2013 .................................................................... 1–716
Short-term Insurance Act 53 of 1998 ................................................................................. 1–716
Pendlex: Short-term Insurance Act after amendment by the Insurance Laws
Amendment Act 27 of 2008 ........................................................................................... 1–746
Short-term Insurance Act after amendment by the Financial Services Laws General
Amendment Act 45 of 2013 ........................................................................................... 1–746
Conversion of SASRIA Act 134 of 1998 ............................................................................ 1–747
Insurance Amendment Act 17 of 2003 .............................................................................. 1–748
Insurance Laws Amendment Act 27 of 2008 .................................................................... 1–750
Alternatively, you could use the LexisNexis volume that contains the index entry
‘Insurance’. A list of Acts reproduced in the volume appears in the front of the
volume.
Once you have identified the relevant Act(s), use the ‘legislation considered’ index
in Juta’s Index and Annotations to the South African Law Reports to ascertain
whether a particular section in a particular Act has been given meaning in court
decisions:
Act 83 of 1988 s 1(h) .............................................................. 1994 (1) SA 162 (A)

s 6................................................................... 1993 (4) SA 621 (A)
Act 9 of 1989 ....................................................................... 1993 (3) SA 482 (SE)
....................................................................... 1995 (3) SA 538 (A)
Act 27 of 1989 s 2................................................................... 1993 (1) SA 571 (T)
s 2................................................................... 1997 (4) SA 1176 (CC)
s 7(1)(c) .......................................................... 1997 (1) SA 273 (N)
...
Act 32 of 1998 s 9................................................................... 1999 (4) SA 1201 (C)
s 10................................................................. 1999 (4) SA 1201 (C)
s 12................................................................. 1999 (4) SA 1201 (C)
...
Act 36 of 1998 s 35................................................................. 2001 (2) SA 815 (SCA)
s 163............................................................... 2001 (2) SA 806 (SCA)
s 163(1) .......................................................... 2001 (2) SA 815 (SCA)
Act 52 of 1998 ....................................................................... 2001 (3) SA 1 (SCA)
s 59(1) ............................................................ 2001 (2) SA 322 (W)
Act 73 of 1998 ....................................................................... 1999 (3) SA 191 (CC)
....................................................................... 1999 (3) SA 254 (CC)
s 6(1) .............................................................. 1999 (3) SA 1 (CC)
...
153
LexisNexis’ Consolidated Indexes and Noter-up to the All South African Law
Reports and the South African Law Reports offers similar assistance under the
heading ‘Table of Statutes’:
Act 36 of 1998, National Water Act

s 3..................................................................... [2001] 1 All SA 167 (C)
s 4..................................................................... [2001] 1 All SA 167 (C)
...
s 129 ................................................................ [2000] 4 All SA 95 2000 (4) SA 822 (T)
s 129(1) ............................................................ [2000] 4 All SA 95 2000 (4) SA 822 (T)
...
s 163 ................................................................ 2001 (2) SA 806 (SCA)
s 163(1) ............................................................ [2001] 2 All SA 521 (A)
......................................................................... 2001 (2) SA 815 (SCA)
...
Act 52 of 1998, Long-Term Insurance Act
generally........................................................... [1999] 3 All SA 290, 1999 (4) SA 532 (T)
......................................................................... [2001] 3 All SA 53 (A), 2001 (3) SA 1 (SCA)
s 26 .................................................................. [2000] 2 All SA 245 (A)
......................................................................... 2000 (2) SA 797 (SCA)
s 59(1) .............................................................. 2001 (2) SA 322 (W)
s 73 .................................................................. [1999] 3 All SA 405 (A)
......................................................................... 1999 (3) SA 924 (SCA)
...
Jutastat offers alternative research options. (See below.)
8.3.7 Use of computers and the internet

l Jutastat
Your university library is likely to have Jutastat available. Jutastat databases
contain the full text of certain Juta Law publications and include the South African
Law Reports, a Constitutional Library, a Labour Law Library, Appellate Division
Reports, Criminal Law Reports and a Tax Library. It also contains the South African
Statutes, Government Gazettes and certain provinces’ Provincial Legislation.
We suggest that you register for an orientation course at your university library
to get to know Jutastat’s powerful search options. Some of the basic functions are
presented below.14
A very helpful search tool in the Statutes and Regulations of the South Africa
database is the ‘legislation judicially considered’ option. Open the database and
click on the plus sign next to ‘Statutes of South Africa, Juta’s’. Then proceed to
click on the plus sign next to ‘legislation judicially considered’. Then click on the
plus sign next to ‘statutes judicially considered’. A list of years will open. Choose
the year of the Act that you are looking for. A list of Acts from that year will
appear. Then click on the specific Act you wish to research. A list of sections from
________________________
14 See also Palmer, Crocker and Kidd (2003) at 201–225.
154
that Act that has been considered by courts will appear, as well as the citations to
the court cases where the Act had been considered.
A relatively easy and efficient way to find court cases that deal with a particular
topic is to click on the ‘Choose Advanced Search Form(s)’ box in the top left
corner of the screen. A scroll-down menu will appear. Click on ‘Law reports
search’. A screen with various search boxes will appear. Type the keywords that
will assist in limiting your search in the box labelled ‘Flynote’. Jutastat will indicate
how many times it picked up the keyword(s) in flynotes of cases and list all these
cases. Choose the case that interests you and click on it. Jutastat will highlight
the keyword as it appears in the flynotes of that particular case. Use the arrow
keys at the bottom of the screen to scroll through the ‘hits’.
A number of ‘Boolean search’ options exist. To utilise these options, select the
‘Choose Advanced Search Form(s)’ box in the top left corner and choose ‘Bool-
ean search’:
l ‘AND’ (or the symbol &): If you, for example, type the words ‘substantive AND
equality’, Jutastat will search for cases that contain both these words.
l ‘OR’: If you divide the keywords with ‘OR’, Jutastat will search for cases that
contain either one of the keywords or all of them.
l ‘NOT’: Use ‘NOT’ to exclude certain words from the search. If you type ‘equal-
ity NOT discrimination’, Jutastat will search for all cases where the word
‘equality’ appears but will exclude from this list all cases that also contain the
word ‘discrimination’.
l ‘XOR’: This option tells Jutastat to find cases that contain either of the key-
words (not both, as the ‘OR’ option exercises this).
l ‘?’: If you replace one letter in the keyword with the symbol ‘?’, Jutastat will
replace the symbol with every letter of the alphabet and search for all possible
combinations. For example, if you type ‘b?y’, Jutastat will find ‘boy’ and ‘buy’,
amongst others. Use this option to search for the singular and plural form. For
example, when querying ‘wom?n’, Jutastat will find ‘woman’ and ‘women’ this way.
l ‘*’: Use the symbol ‘*’ to replace any number of letters. (‘?’ is used to replace a
single letter.) For example, if you type ‘gun*’, Jutastat will find ‘guns’, ‘gunmen’
and ‘gunshot’, amongst others.
l Ordered proximity query: If you type ‘gunshot wound’/10, Jutastat will search
for these words wherever they appear not more than 10 words apart and in the
order you typed them into the dialogue box.
l Unordered proximity query: If you type ‘gunshot wound’@20, Jutastat will
search for these words wherever they appear not more than 20 words apart,
and in any order.
155
A
Figure
F 8.1: A Juta ‘Law Report’
R searcch page
l Sabinet O Online
Your
Y universitty library is very
v likely a subscriber to o Sabinet, an online info ormation
provider.15 Yo ou may acccess the we ebsite at htttp://www.sab binet.co.za. Sabinet
Legal covers information pertaining sp pecifically to the legal field, whereas Sabinet
Reference
R inccludes sourcces from variious fields off study. As a general rule e, Sabi-
net Reference e is the bettter option when
w searching for secon ndary legal sources
s
such as journ nal articles, whereas
w Sabbinet Legal iss more appro opriate to search for
primary sourcces such as legislation orr Governmen nt Gazettes. Ask the info ormation
specialist in thhe library to gain
g access to the search engine.
Once you have access to the dattabase, you may eitherr select a pa articular
database or a particular topic. If you select a topic, you mayy conduct se earches
across a num mber of datab bases by tickking the boxe es of the data abases in wh hich you
wish
w to searcch. The data abases that maym be of use in a law clinic consisst of the
fo
ollowing:
l SA ePubliccations (foun nd on Sabine et Reference e): This dataabase covers s journal
articles of varied fields of interest and
a is a good d, general seearch engine to use.
l ISAP (The e Index to South
S African
n Periodicalss found on Sabinet
S Refe erence):
This datab base covers indexed articcles from mo ore than 900 0 South Afric can peri-
odicals. Sp pecialist periodicals are indexed fullyy, whereas general
g and popular
periodicalss are indexed selectivelyy. This datab base is comp piled under th he own-
ership of thhe National Library
L of Soouth Africa.
l Parliamentary Bills (fo ound on Sab binet Legal): This databa ase provides access
to the Sou uth African Bills,
B as introoduced to the e National Assembly
A from 1998
onwards.
l Provincial Gazettes (fo ound on Sab binet Legal): This databa ase provides access
to the full text
t of the Soouth African Provincial Gazettes
G from
m 1995 onwards.
__
_________________
_______
15 See Palmerr, Crocker and Kidd (2003) att 225–245 for detailed
d informa
ation.
156
Le
egal research
h and writing opinions
l South Africcan Gazette es (found on Sabinet Leg gal): This pro ovides accesss to the
full South African Govvernment Ga azette and th he Weekly Government
G Gazette
Index textss. The datab base include
es Acts, Bills, draft bills, green paperrs, white
papers, an nd regulationns published in the Gove ernment Gazzette. Also included
are genera al notices, government notices,
n presss releases, board notice es, legal
notices and proclamatiions.
l South Africcan Legislation (found on n Sabinet Legal).
Once
O you haave selected a database e, a search page will op pen where youy can
se
earch accord ding to a keyyword or an exact
e phrasee.
Sabinet alsso allows you u to use seaarch operatorrs. The searrch operators s are as
fo
ollows:
l To conducct a search for f a keyword d and its plu
ural form, add d a ‘+’ at the
e end of
the last wo
ord (for exam mple ‘airplane
e+’ will searcch for airplane and airplan nes).
l You may truncate a keyword k by adding ‘*’ ata the end. T Type at leasst three
letters beffore using thhe ‘*’ option. For examplle, typing ‘inf*’ will locate e words
such as informal, inform ormation, amongst otherss.
mer and info
l If you type e ‘?’ after a ro
oot word, Saabinet will seaarch for all words
w beginning with
that root word.
w
l You may also use ‘AN ND’, ‘OR’ annd ‘NOT’ in the same w way as you would
w in
Jutastat.
Figure
F 8.2: A Sabinet Reference page
e
157
A
Figure
F 8.3: A Sabinet Leg
gal page
l The Lexis sNexis webs site

Iff your univerrsity library iss a subscrib
ber to the Le exisNexis we ebsite, you will
w have
access to databases conttaining the fu ull text of certtain LexisNe
exis publicatio
ons that
in
nclude:
l All South A African Law Reports;
R
l Arbitration n Awards;
l Constitutio onal Reports;
l Judgemen nts On Line;
l Labour Law Reports; and a
l Statutes of South Afric ca.
The
T website may m be accessed at http:://www.lexisn nexis.co.za.
Figure
F 8.4: A LexisNexiss ‘Law Reporrt’ search opttion page
158
Le
egal research
h and writing opinions
Figure
F 8.5: T
The LexisNex
xis ‘Legislatio
on’ search option
l Useful we ebsites
Be
B careful wh hen utilising the internett for legal re esearch as itt is sometim mes very
difficult to verrify the authe
enticity of pa articular webbsites and thhe information found
may
m not always be up to date. d Informaation that yoou obtain fromm websites of o reput-
able universities is likely too be reliable.
Helpful inteernet websitees include the e following:
l Acts Onlin ne at http:///www.acts.co o.za/ contain ns certain basic
b South African
statutes, a available in full-text.
f Alternatively, thee University of Pretoria (in( part-
nership with certain la aw firms) ho osts a datab base of legislation that can be
accessed at www.lawo ofsouthafrica.up.ac.za.
l http://www w.polity.org.za
a is a very useful
u website for finding South Africa an Acts,
Bills, greenn papers, reggulations and d governmentt documents from 1994 onwards.
l The Consstitutional Court C of So outh Africa is availab ble at http:://www.-
constitutionalcourt.org..za/site/home e.htm. It conntains the fulll texts of judg
gments,
the Constittution, docum ments for forthhcoming hea arings, and infformation abo out, and
rules of, the
e Court.
l The Supre eme Court of o Appeal of o South Afrrica is availa able at http:://www.-
justice.govv.za/sca/. It contains the e full texts of
o judgmentss by the Cou urt from
1999 onwa ards.
l The Land d Claims Court
C of South Africa is availab ble at http:://www.-
justice.govv.za/lcc/indexx.html. It con ntains the full text of judgments of th he Land
Claims Co ourt, and information abou ut, and rules of, the Courrt.
l South Africcan Governm ment Online is available at a http://wwww.gov.za/. It contains
c
information n about the South Africcan Governm ment, the co ountry itself, Parlia-
ment, and publicationss including Biills and Acts from 1994 onwards.
o
l The Gove ernment Gazzette of Sou uth Africa is available at a http://www w.green-
gazette.co o.za/ and has s softcopies ofo all the Gazzettes from 2006
2 onward ds.
159
l To find South African attorneys and law firms as well as regional associations,
use http://www.attorneys.co.za.
l The Law Society of the Northern Provinces may be accessed at
http://www.northernlaw.co.za/. This website contains information about the
Society as well as links to other law societies, Australian and North American
websites, and law search-engines.
l The Kwazulu-Natal Law Society may be accessed at http://www.lawsoc.co.za/
and contains information on the Society, links to South African law associa-
tions and links of legal interest.
l The Law Society Library at http://www.lawlibrary.co.za/ contains very useful
links to websites of legal interest and South African legislation.
l The Faculty of Law at the University of Johannesburg may be accessed at
http://www.uj.ac.za/EN/Faculties/law/Pages/default.aspx.
l The Rhodes University Library website http://www.ru.ac.za/library/using-
thelibrary/branchlibraries/lawlibrary/ contains useful links to other South Afri-
can and foreign libraries (one should click on ‘Search & Find’).
l The UNISA College of Law may be accessed at http://www.unisa.ac.za/
Default.asp?Cmd=ViewContent&ContentID=15672.
l The University of Cape Town’s Faculty of Law is available at http://www.-
uct.ac.za. (Click on ‘Faculties & Departments’ and then ‘Law’.)
l The website of the University of the Free State’s Faculty of Law is available at
http://law.ufs.ac.za/, and includes an index to the Journal for Juridical Science
and a link to the Supreme Court of Appeal.
l The University of KwaZulu-Natal’s Faculty of Law may be accessed at
http://law.ukzn.ac.za/Homepage.aspx.
l The Faculty of Law at the Nelson Mandela Metropolitan University is available
at http://law.nmmu.ac.za/.
l The University of Pretoria’s Oliver R Tambo Law Library may be accessed at
http://www.library.up.ac.za/ and includes a number of useful links.
l The University of Stellenbosch Faculty of Law may be accessed at
http://law.sun.ac.za/ and includes a link to Cape High Court judgments.
l The Wits Law School is available at http://www.wits.ac.za/law/ and includes
links to prominent courts in South Africa, research institutions and the Wits
library.
l The South African Law Reform Commission’s website may be accessed at
http://www.doj.gov.za/salrc/index.htm and, amongst others, contains reports
and papers of the Commission.
8.4 Drafting an opinion

Written opinions may feature in different contexts. For example, if you are a
student at a law clinic or an articled clerk at a law firm, you may be required to
draft an opinion in the form of an ‘inter-office memorandum’ along the lines dis-
cussed below. If the opinion is intended for a client, a different format may be
160
more appropriate. Advocates, for example, often present their opinions under a
heading similar to one found in pleadings, with the word ‘Opinion’ printed
between the parallel lines below the heading. We suggest that the framework set
out below is a logical means of providing a written opinion.
Once you have collated and read all the sources, you need to set out your opin-
ion in an accessible, easy-to-read fashion. We suggest that you draft the opinion
along the following lines:16
TO:
FROM:
DATE:
RE:
FACTS
LEGAL QUESTION(S)
SHORT ANSWER
APPLICABLE LEGAL PRINCIPLES
APPLICATION
SUMMARY AND RECOMMENDATION
8.4.1 The office memorandum17

The office memorandum is a typical format used by law students in clinical courses
and by junior attorneys when reporting to their superiors. When you report on your
research to a superior, the message needs to be concise and to-the-point. The
aim is to inform and to recommend a course of action. Use plain legal language.
Be as objective as possible: analyse the facts, analyse the law, and present a
truthful, objective, balanced answer.
l The facts: Your superior may be fully conversant with the facts of the matter, in
which case you can afford to state the most important facts. If you had to collate
the facts, report back in detail. The easiest format to follow is to sort the facts
chronologically by using paragraphs. Present the information in an easy-to-
read format. Do not ‘hide’ sensitive information. The office memorandum is a
privileged document and will not be made available to the other side, should
litigation ensue.
l The legal question and short answer: Present the legal question and answer in
a few short lines. Your superior may, for the moment, only be interested in the
final answer. These two headings allow for a very brief summary of your views
________________________
16 Also see Kok, Nienaber and Viljoen (2011) at 128–136.

17 See in general Kok, Nienaber and Viljoen (2011) at 128–133.
161
on the matter. It may be that more than one issue had to be investigated. In
that case, break down the legal question into its constituent parts and answer
each of the questions separately.
l The applicable legal principles: You are likely reporting to a senior practitioner
with many years’ experience and you may, therefore, assume that he/she has
an extensive knowledge of the law. You therefore need not state trite prin-
ciples of law (for example, the five elements of a delict, or the definition of
murder). It is, however, important to discuss the relevant legal principles
exhaustively. State the principle and the authority for the principle. You may
also wish to briefly refer to the facts of decided cases. Where necessary, com-
pare or distinguish previous decisions from the client’s case. Discuss support-
ing authority as well as cases that point to a different conclusion as it is
important to aim at presenting an objective analysis of the law.
l Applying the law to the facts: Apply each of the principles discussed under the
previous heading to the facts of your client’s case. Discuss the strengths and
weaknesses of the case. This is due to the fact that, at this stage, you are not
presenting an argument to be addressed to a court. You must analyse the
facts from the perspective of a ‘neutral’ bystander and you should predict (as
best you can) what the likely outcome of the matter will be. This section and
the previous section will probably be the lengthiest (and most difficult) to draft.
l Conclusion and recommendation: Set out your conclusion, recommendation
and reasons for your recommendation relatively briefly in this final section.
This section proves to be more than an accurate summary of the previous two
sections. Your supervisor will not necessarily have the time to read the entire
memorandum, especially if it is very long, and he/she may then want to only
focus on the summary of the case.
8.4.2 An example
Consider the following example:
You act on behalf of ‘Happy Hippos’, a holiday resort in die bushveld. The re-
sort manager, Colossus Labuschagne, telephoned you six months ago in a
shocked state. A guest who has often visited the resort, Bessie Blaker, went for a
walk with her 87 year old father, Ben Blaker, next to the river. An angry hippopot-
amus charged out of the reeds on the other side of the river and started to tram-
ple Ben. Other visitors to the resort managed to chase the hippopotamus with
their wild screams. Ben was urgently taken to hospital and spent about two weeks
recuperating. Shortly thereafter, he instructed his attorneys to sue the resort for
the damage he suffered. In his summons and particulars of claim, he alleged that
the resort was negligent in not warning him that hippopotami are also dangerous
during daytime and that the resort should have fenced the river off to ensure that
the hippopotami are kept away from visitors.
You obtained the following witness statements:
Bessie Blaker: ‘I will never forget that day. I have often gone for walks along
the river during my stays at the resort. The hippos are always around with only
their ears and noses above the water. I have always understood from the resort
162
personnel that the hippos wander around at night and that one has to be careful
then. My father and I went for a walk next to the river on that day when the hippo
charged. I thought it was my last day on earth and I screamed at the top of my
lungs. After what felt like an eternity, the hippo stopped trampling my father and
returned to the water. The resort personnel were very helpful after the attack. The
resort manager told me that if one gets between a hippo and her calf she will do
whatever she has to do to protect her calf and that is probably why she charged
my father. But if that is the case, they should have warned us not to walk next to
the river.’
Ben Blaker: ‘I thought I would die when the hippo started to trample me. My
daughter has often visited the resort and has always returned with numerous
photos of the hippos in the water. When we booked into the resort the clerk at the
counter explained how to operate the electronic cardkey. While walking to our
unit, he came running after us and said he forgot to warn us about hippos wan-
dering between the units at night and that we should be careful. We went for a
walk next to the river the following day without incident. Young children play on
the sandy area next to the river every day. On the last day of our visit, we went for
a walk and that’s when the hippo charged and trampled me. I had a lot of pain;
the hippo cracked four of my ribs. It’s a blessing from above that no children were
on that sandy area on the day of the attack.’
Colossus Labuschagne: ‘None of the resorts in our vicinity fence off areas. This
was only the second incident of its kind during the resort’s existence. Nine years
ago a woman was killed when she got between a hippo and her calf. We warn
guests constantly to be very careful. We do not approve of children playing on
that sandy area but when we approach guests and tell them to be careful they
accuse us of spoiling their fun. Walk around the resort, you will see a lot of notices
warning guests.’
Mees Malan: ‘I am the clerk at the counter where guests book into the resort. Our
rule is that guests must book in prior to two o’clock on Friday afternoons. I cannot
remember the Blakers, but I always follow the same procedure when guests book
in. I explain how the electronic cardkey works with which they lock and unlock
their unit and I hand them the cardkey. They must sign that they received the
cardkey. The document contains sections where they fill in their particulars so that
we can send their account to them and they sign to acknowledge that there are
wild animals in the resort and that they must be wary of hippos walking around at
night. I was not present on the day of the attack; I heard afterwards of the poor
man’s serious injuries. From that day, I warn guests not to get close to the river.
I’m perhaps overcautious now but I would rather scare off guests than having
another incident like that.’
You have also undertaken an inspection of the resort. At the area where the
attack occurred, a warning sign in the shape of a triangle with a picture of a
hippopotamus inside the triangle has been erected. At the main entrance to the
resort, a notice board appears with the words: ‘WARNING: WILD ANIMALS –
This resort houses dangerous animals; be careful of hippos grazing at night’.
The document that Bessie Blaker signed when she acknowledged receipt of the
cardkey reads as follows: ‘I, ........................................ (space to fIll in full names
163
and surname) acknowledge receipt of the electronic cardkey to unit ........ (space
to fill in unit number). I am aware that wild animals are housed in the resort. Happy
Hippos resort may not be held liable for any damages of whatsoever nature
during a guest’s stay at the resort. I indemnify Happy Hippos against any claim
that may arise as a result of the resort’s negligence or any other cause’.
The newsletter that Bessie received when they booked into the resort contained
an item headed: ‘Hippos: Our resident hippo family has been extremely active
during the last few weeks and has acquired a new member to the family. Please
be careful as these are wild animals that are extremely dangerous and they must
be treated with respect at all times. Also take note that the hippos wander around the
resort at night. Therefore, if you are taking a walk, be sure to remain in well-lit areas.’
Write a legal opinion in which you set out the merits of the case and your
recommendation.
The area of law that you should research is law of delict – specifically, possible
defences to a claim based on delict.
The angle of approach is influenced by the brief or instruction. In this matter,
you act on behalf of the resort and therefore the memorandum should focus on
possible defences to the claim.
A possible approach could be:
TO: (The principal’s name)

FROM: (The legal practitioner’s name)
DATE:
RE: (The file reference and a brief explanation, for example: ‘Opinion on merits –
Happy Hippos/Blaker’)
FACTS
(Relate the facts of the case. You may attach the witnesses’ statements as annexures to the
memorandum.)
LEGAL QUESTION(S)
Will the defendant be held liable for the plaintiffs’ injuries?
SHORT ANSWER
Probably not. (But there are a number of weaknesses in the case.)
APPLICABLE LEGAL PRINCIPLES
A number of possible defences exist against the Blakers’ claim:
Disclaimer notice in registration card
In Booysen v Sun International (Bophuthatswana) Ltd 96/3261 (WLD) the plaintiff instituted
action against the defendant after she slipped, fell and injured herself while she was a guest
at one the defendant’s resorts. The defendant relied on a disclaimer clause contained in their
registration card which they alleged regulated the plaintiff’s conditions of attendance at the
resort, and in terms whereof she discharged the defendant from any liability arising from her
injuries on their premises. The card was handed to the plaintiff for signature without further
explanation. The card contained the heading ‘conditions of residence’ in which the disclaimer
continued
164
clause was contained. The court held that the plaintiff should reasonably have expected
conditions of residence to exist and apply to her and that the heading ‘conditions of resi-
dence’ should have alerted her to this fact.
The court rejected the plaintiff’s argument that she could not have reasonably expected to
find an exemption clause contained in the conditions of residence. The court referred to
George v Fairmead (Pty) Ltd 1958 (2) 465 (A) at 472H (‘But she knew she was assenting to
something, and indeed to something in addition to the terms she had herself filled in. If she
chose not to read what that additional something was, she was, with her open eyes, taking
the risk of being bound by it. She cannot then be heard to say that her ignorance of what was
in it was a justus error’) and dismissed the plaintiff’s claim with costs.
In Afrox Healthcare Beperk v Christiaan George Strydom 2002 (6) SA 21 (SCA), the
respondent argued that he was not bound by the disclaimer contained in the registration
document as, at signature, he was not aware of its existence and that the appellant had a
legal duty to inform him of its existence, as one would not expect such a clause in a contract
with a hospital – as a hospital is supposed to provide a service in a professional manner,
one would not expect a hospital excluding liability for the negligence of its staff. The Court
rejected this argument. The Court held that the respondent’s subjective expectations about
what the contract would have contained, plays no role in determining whether the admissions
clerk had a duty to inform the respondent about the disclaimer. The Court held that the ques-
tion is what would reasonably have been expected to be contained in the contract. The Court
held that disclaimers are the rule rather than the exception in standard contracts.
Warning signs and ‘volenti non fit iniuria’
In Central South African Railways v James 1908 TS 221 at 226 it was held that had a patron
seen a notice and realised that it contained terms relating to the contract but did not bother to
read it, there would have been actual consensus on the basis that the patron would have
agreed to be bound to those terms, whatever they might have been.
In Kings Car Hire (Pty) Ltd v Wakeling 1970 (4) SA 643 (N) the court held that a person
seeking to prove a contract should show that he did what would objectively be regarded as
reasonably sufficient to bring the conditions to the notice of the other party to the contract.
In Durban’s Water Wonderland (Pty) Ltd v Botha and Another 1999 (1) SA 982 (SCA) the
plaintiff contended that she had been aware of notices on the premises, but alleged that she
did not read the wording on the notices on the evening of the incident, or any other time. The
appellant (defendant) had to establish that the plaintiff was bound by the terms of the dis-
claimer contained in the notice, based on quasi-mutual assent. To establish quasi-mutual
assent it must be shown that the defendant was reasonably entitled to assume from the
patron’s conduct in parking and attending at the premises that she assented to the terms of
the disclaimer or was prepared to be bound by them without reading them. The court held
that the answer to this query depends on whether, in all the given circumstances, the
defendant did what was reasonably sufficient to give notice to patrons of the disclaimer
clause.
Volenti non fit iniuria conveys a notion that a person who willingly encounters a known and
appreciated danger forfeits any right to compensation if the risk materialises and harm even-
tuates. The defendant bears the onus of showing that the plaintiff acknowledged the danger,
appreciated the nature and extent of the danger, voluntarily elected to encounter the danger
and consented to take the risk upon herself. Neethling, Potgieter and Visser Law of Delict
(2015) at 108–114.
continued
165
APPLICATION OF LAW TO THE FACTS

Applying the principles set out above to the facts of this specific case, I am of the following
view:
Disclaimer
The defendant would be able to prove that the admission of the plaintiffs to the defendant’s
resort was at their own risk and subject to the disclaimer of liability if it can be proven that the
plaintiffs signed the registration form and the plaintiffs were not misled into signing the regis-
tration form. From the facts it appears that Ms Blaker signed the registration card. The card
read ‘. . . Happy Hippos resort may not be held liable for any damages of whatsoever nature
during a guest’s stay at the resort. I indemnify Happy Hippos against any claim that may
arise as a result of the resort’s negligence or any other cause.’ By signing the document,
Ms Blaker signified her assent to these terms.
In Minister of Education and Culture (House of Delegates) v Azel and Another 1995 (1) SA
30 (A) a similar clause had to be interpreted:
‘I fully understand and accept that all tours and excursions shall be undertaken at my
child’s own risk and I undertake, on behalf of myself, my executors and my child aforesaid to
indemnify, hold harmless and absolve the Department, the principal and his staff against and
from any or all claims whatsoever that may arise in connection with any loss of or damage to
the property or injury to the person of my child aforesaid in the course of any such tour or
excursion, in the knowledge that the principal and his staff will, nevertheless, take all reason-
able precautions for the safety and welfare of my child.’
The then Appellate Division held that ‘the exemption unambiguously absolves the appel-
lant from liability in the circumstances of this case’ (at 33D; the defence ultimately failed,
however, because of the qualification attached to the disclaimer).
Warning signs and ‘volenti non fit iniuria’
It could be argued that the plaintiffs knew of the presence of hippos in the resort, were aware
of the danger the wild animals posed to their safety, were aware of the risk in proceeding
onto the sandbank, and despite their knowledge and appreciating the risk of injury, climbed
onto the sandbank and therefore consented to the risk of injury.
On the plaintiffs’ own version they were aware that hippopotami were dangerous and she
confirmed receipt of a newsletter containing a warning to be aware of these animals. The
warning signs, however, specifically warned visitors to beware of hippopotami at night. The
fact that the attack occurred in the afternoon coupled with the fact that other visitors walked
on the sandbank where the attack took place suggest that the plaintiffs did not appreciate the
danger the hippopotami posed at the time of the incident. I am therefore of the opinion that
the defendant will not succeed with a defence based on the voluntary assumption of risk.
RECOMMENDATION
The matter could probably be successfully defended, based on the disclaimer notice in the
registration card. In the absence of a settlement proposal from the plaintiff, the matter should
be pushed to trial.
8.5 Conclusion
In a law clinic, your research is likely to focus on issues that affect the poor and
the vulnerable, for example access to basic services (clean water, electricity,
education), access to housing, and
Finding an effective remedy for domestic violence. These issues are often
your client’s problems will often deceptively complex from a legal perspec-
require in-depth research and a tive, particularly when it comes to socio-
economic rights. Finding an effective
creative application of the law. remedy for your client’s problems will
166
often require in-depth research and a creative application of the law. It is a small
miracle that these clients’ found their way to a law clinic: The legal system suffers
from a serious legitimacy crisis and most people faced with a problem will attempt
to solve it without recourse to a legal practitioner. Most people will argue that their
hard-earned income is better spent on providing for themselves or their families
than employing legal services. This makes it all the more important to provide
effective relief to poor claimants who do decide to approach a law clinic. Effective
and time-efficient research is part of the process of providing effective relief. Poor
clients’ time and money are extremely limited. To be told that another appoint-
ment must be scheduled because you have not completed your research may
well be the reason why your client simply gives up the fight. Budget your time and
plan well in advance: your client’s livelihood may depend on it.18
________________________
18 If a particular problem proves to be of such a complex nature that an expert in the field must
be consulted, consider briefing an advocate. Law clinics may be able to secure an advocate
on a pro bono basis.
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Drafting letters
By Danny Wimpey
9.1 Introduction
Communication is the core of the practice of law. A
practitioner who cannot communicate effectively can- A practitioner who
not practice effectively. cannot communicate
Letters written by legal practitioners have many effectively
purposes. They can persuade, inform, record facts,
make demand, enrage or calm the reader, all depend- cannot practice
ing on the skill of the writer and her intention in writing effectively.
the letter. Some letters have merely a formal purpose,
for example to confirm an arrangement or notify an opponent of a trial date. Other
letters may be of such significance that an error in the drafting may cause the
client to lose the case. All legal letters should be written in clear, concise lan-
guage and be easy for the intended reader to understand. This is still something
that most of us struggle with.
Today written communication is almost exclusively electronic. This presents its
own special challenges for everyone, and lawyers are not exempt. In the past, the
lawyer would have had a secretary who typed up the correspondence and in all
likelihood checked the letter before bringing it to the lawyer to check. The current
trend is for lawyers to type the letters themselves and send letters via email. This
instant communication is fraught with danger. It is essential for the lawyer to be
sure that the letter is accurate, complete and effective. There is no chance of
changing your mind once the ‘send’ button has been pressed. While older lawyers
may long for the days when things proceeded at a more leisurely pace, there is
no going back and we must all be attuned to the demands of this current age and
all the risks associated with it. In South Africa, the diversity of our society presents
additional challenges which all practitioners should bear in mind when communi-
cating in any form, whether in a letter, in a consultation, telephonically or other-
wise.
In law clinics things will be different, and when you start as a candidate attorney
you may be subject to the same restrictions. No lawyer should allow a student or
candidate attorney to send out letters unchecked. Thus, initially at the very least,
169
you will probably be drafting letters in the old style, hard copies and even
hand-written.
Your first attempt to write a legal letter will probably take more time than you
believed possible. You may find yourself drafting and redrafting only to have your
clinic supervisor or principal either draw a red line through it or tear it up! Try not
to take that personally; we can only learn by making mistakes. The habits which
you as a practitioner develop early in your career will be the habits that you will
have forever. Start as you wish to continue – by writing letters that do exactly
what they should do – communicate effectively.
Everyone has particular skills and talents and so for some, writing and in this
case, letter-writing comes easily, for others it is more of a challenge. Obviously for
the thousands of South Africans who have to communicate every day in a lan-
guage which is not their mother tongue, additional challenges may exist. These
are our realities. The aim of this chapter is simply to give you, dear student, some
easy to use tools to help you develop your skills and confidence in this most
important part of becoming an excellent practitioner. Remember, you have
reached this position precisely because you have all the attributes necessary to
become a lawyer. All that may now be needed is for you to grasp the proverbial
nettle and move forward.
At the beginning, use rules that can be easily applied to help you. This will
develop your confidence and understanding of the skill. After a while you will find
that you have developed your own style and can use it almost, but importantly,
never completely, without thinking.
As a student, you should make it your mission not to fall into the trap of using
old-fashioned, outdated words and phrases simply because they feel ‘formal’ and
therefore safe to you. At all times, and not just when writing letters, as a profes-
sional communicator you must think about how appropriate the language you use
is, taking into consideration who you are communicating with and that failure to do
so is tantamount to unprofessionalism. This is true everywhere in the world, but in
South Africa, with 11 official languages and wildly varying levels of education and
literacy it is doubly so. We should never operate in a vacuum.
The form of the letter should be designed to assist the reader to get the mes-
sage you intended to convey.
9.2 Format
The information should be arranged in such a way that it is both logical and
easy to understand. In legal practice, a number of conventions regarding letter
writing have become accepted over the years but these are not always uniform.
You may find yourself adapting your letter-writing style, depending on not only
your audience but additionally the firm you work in or indeed the client you act for.
At a specific law clinic or firm, there may very well be strict rules about the lan-
guage and format followed. There may, for example, be introductory phrases
used such as: ‘We are pleased to inform you . . .’ or ‘We refer to the above matter
and acknowledge receipt of your letter of 21st instant . . .’ These phrases have
the safety of overuse. Before deciding to use them, ask yourself whether
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Drafting letters
they contribute anything to the effectiveness of your communication. Often intro-

ductory phrases of this sort simply up the word count in the sentence, add no
more to its sense and can confuse rather than inform your reader.
For example, ‘Thank you for your letter dated 21st
October . . .’ is polite and direct and says as much as The best policy is to
any of the earlier phrases. As a rule of thumb, you make the letter simple
should always strive to make the letter simple and
easy to understand – not unnecessarily complicated
and easy to
by useless words and extra paragraphs. understand.
Whatever the case may be, you, as the drafter of
the letter, have the right and the duty1 to ensure that the letter conveys exactly
what you want it to convey. This may mean that you have to enter into a debate
with your superior to change the format of the letter. Do not be afraid to do so. It is
only by thinking and questioning that you will learn. If you have faith in the form of
your letter, use it unless otherwise convinced. By meekly submitting to the de-
mands of those expecting a letter to conform to a rigid formula for it to be valid,
you lose the opportunity to produce clear, concise and easily understandable
letters.
It does not mean you should always change what is
Some conventions given to you as a precedent. Some conventions make
make perfect sense. perfect sense and it may be difficult to imagine a more
effective way of operating.
Most people learnt the basic conventional form of a letter at school. A legal
practitioner’s letter should follow that basic convention, changing when necessary
to make it more understandable.
In South Africa, because we have so many languages and levels of education,
it is really important that letters should be in a familiar form. Familiarity or conven-
tion, does not mean that something is wrong and needs changing.
In most cases these days, letters/written communication will go by email. Some
firms will type a hard copy on a letter head, sign it and then scan and send it
electronically as an attachment. If that is the convention which you follow, the
rules below regarding the format of hard copies apply absolutely. Since most of
the rules for basic letter writing also apply to emails (it is just the delivery method
that is so very different) a discussion of emails may be in order at this point
The old formality of a ‘lawyer’s letter’ as far as format is concerned has become
somewhat relaxed as email communication has become the primary method of
written communication. In discussions with attorneys there have even been light-
hearted suggestions made that ‘Whatsapp’ and other forms of instant communi-
cation may become the norm in the future. And indeed, there is – in principle – no
reason why this should not happen.
________________________
1 See Jenkins v de Sousa 1977 (2) SA 342 (W) where the court held that a practitioner may
not at a later stage deny responsibility for a mistake made by one of his members of staff in
a letter which has left his office.
171
There are, it seems, two schools of thought about emails. The first one regards
emails as merely an extension of the method of delivery of an email. That is, the
old method of drafting, typing up on a firm’s letterhead, printing, signing and
retaining a hard copy is applied. It is merely the delivery, where the letter is
scanned and sent as an attachment to a covering email that is different. No hard
and fast rule exists but possibly this will be something you will use where the
formality of the document, that is the letter itself, is important. So for example, if
the firm or the recipient has a very formal culture, or if the recipient is a more old-
fashioned kind of person, who prefers a formal style of communication, you would
use a printed letter. Or perhaps you know in advance that the letter will be used
as an annexure in court papers and you prefer to have a letter-head in that case.
It really is a question of style and corporate culture /image.
The other approach is for the content of the letter to be in the body of the email,
rather than as an annexure. This is by far the more common method and is in
keeping with the need for things to be done as efficiently as possible. Of course it
is far more cost-effective and far quicker for the attorney to type and draft letters
herself. I would also suggest that there is no basis to say than an email of this
nature, rather than a letter sent as an attachment as described above, cannot be
used as an annexure to court papers or in any other way that an old-school style
of letter could be used. As an aside here, there appears to be a growing school of
thought that sending a letter as an attachment is an unnecessary waste of time
and an inappropriate imposition of formality not in keeping with a dynamic and
rapidly changing profession.
A word here about signatures. The signature of a letter signals the intention of
the sender to ‘authenticate’ the contents of the letter. This has obvious legal
consequences. Defamation or other actions may be founded on a letter which you
have signed and your signature certainly does mean that you accept responsibil-
ity for the contents. In terms of the Electronic Communications and Transactions
Act 25 of 2002, an electronic signature is defined and section 13(2) provides that
an electronic signature is not without legal force and effect merely on the grounds
that it is in electronic form. This Act makes provision for all the legal consequences
attaching to old-school letters to apply to electronic communications.
The format of emails differs slightly from that of hard copy letters. Just for com-
pleteness, and so that we can understand how letters work, let us look at the
usual format of hard copies and compare it to that of emails. The conventional
format will probably be familiar to you from your days at school.
Old-school hard copy format Emails

Address of the sender (the clinic/firm) at the The electronic format of the email will
top of the letter. already contain your email address
Name and address of the receiver on the Name and address of the receiver on the
left-hand side, but underneath the sender’s left-hand side, but underneath the sender’s
address. This means you can use an enve- address.
lope with a window – saving time and costs.
continued
172
Drafting letters

Date also at the top, directly under the name The email delivery narrative will automatical-
of the sender and, most usefully, on the ly include the date. None the less, it is a
right-hand side so that it will stand out. Do good habit to always include the date.
not ever forget to date a letter!
If the letter is sent by registered post, high- Proof of delivery is a simple matter with
light this by using the actual words in capitals emails – read receipts, electronic perma-
and bold typeface – REGISTERED POST – nence, and cloud storage all make our job
either on the right-hand side or the left-hand much easier when it comes to proof of deliv-
side, also at the top, before beginning the ery, even where the letter is not of critical
body of the letter. importance. A letter which is by law obliged
to go by registered post will never be sent by
email but where receipt is important for other
reasons, emails remain valid. No reference
to the method of postage will be necessary.
Do the same if the letter is sent BY HAND or None of this will matter in the form of an
BY FAX. If the letter is by ordinary post, the email, except in the case of an email which
convention everyone understands is that has a letter, on a letterhead, attached. In that
nothing other than the postal address is case it is a good idea to put ‘VIA EMAIL’ at
used. the top of the letter.
When sending a letter to a particular person In some cases an email may go to a general
in a large organisation, make this fact clear inbox. If you know who the letter is going to,
by using: ‘Attention: Mr/Mrs/Ms’. The per- put their name, even the reference number,
son’s name should stand out. Large organi- whatever you have to distinguish your letter,
sations receive a lot of mail and sometimes into the subject line.
this can cause administration problems. It is
your duty to make sure that the letter reach-
es its target. Make an effort to put as much
as you can into the letter to help the person
responsible for distributing the mail to get it
to the intended target. This is another exam-
ple where you will be thinking properly about
who is receiving the letter and what you can
do to make this happen.
Include references. Most law firms, State Emails are less formal but the name of the
departments and large organisations have a person to whom they are addressed is
system to categorise and file documents. always there, since that is how they get deliv-
This system may differ from office to office. ered! What we have discussed above applies
To help the system work properly, most here to the description bar/subject line.
letterheads are printed with a particular place I would suggest that reference numbers are
for both the sender and the recipient’s refer- only included in the description bar/subject
ence. The reference is usually the name of line when the email is going to a general
the person dealing with the matter and their mailbox, otherwise include them in the body
file number. This is almost always placed of the email, in the normal way as with a
before the address of the recipient, on the standard letter. In the case of information
left hand side. References help with ‘turna- such as identity numbers and so on, include
round time’ (the time within which the these in the body of the letter, in the normal
receiver receives and responds to the letter) way.
continued
173

and with proper filing systems. It is also The ‘heading’ should be inserted into the
helpful particularly when dealing with gov- subject line. It serves to alert the reader to
ernmental departments to include the client’s the general topic of the letter, not the inten-
identity number. tion of the letter. Thus use the parties
Heading: in conventional letters this appears names, ‘letter of demand’ etc.
in the tramlines, after the greeting (see
below for a short discussion on Dear Sirs)
In all forms of letters crucial information must be clear: when it was sent, how, to
whom, by whom – these are essential parts of the communication and may later
become vital, for example in the course of litigation.
There are other conventions in common use:
l ‘Dear Sir/Madam’. This raises the possibility of gender discrimination, but one
must be sensible. Some people find it objectionable to be addressed as ‘Dear
Sir’. How to resolve this? My suggestion is that the phrase has been in use for
so long that, while it is gender-specific and references the patriarchy, it has
through its long use, become almost emasculated. In general, if you know the
gender of the person to whom you are writing, use the appropriate word. If you
are unsure, or are writing to an organisation and not a particular person, the
common phrase is ‘Dear Sirs’. You may of course choose not to do so, in
which case, perhaps the best is not to use a greeting at all. It is after all a mere
formality and if it has no real meaning, there is a strong argument for leaving it
out altogether.
Once you know the name of the person, address
Remember that in all that person by her name. This makes it quite clear.
cases, your purpose in (Some practitioners do have a problem with this
less formal approach, believing that the firm itself
writing the letter is to should be the proper addressee – this usually
properly deliver your means using ‘Dear Sirs’, but again, do not be afraid
message. to engage in debate on this issue. You and your
superior will no doubt acquire valuable insights into
how things can and do change.) No absolute rule exists. Remember, in all cases,
your purpose in writing the letter is to properly deliver your message. Where using
a gender-specific greeting will interfere with this (where the client will be offended,
for example), use what will be the most effective. In the case of specific clients,
address them by their names, for example, ‘Dear Mr Naidoo’. Where the client is
an organisation, you will usually be dealing with a particular person and their
name will be on the reference. In that case the simplest is to use ‘Dear Sirs’.
l The heading appears directly after ‘Dear Sirs’ and may cause some confusion.
The only true function of the heading is to help the reader identify the matter.
Do not confuse the heading with the reason for the particular letter
being written. The heading should only contain the names of the parties and,
perhaps, one other reference (for example the claim number in a letter to an
insurance company or the identity number of the client in a letter to a State
department). The reader should be able to glance at the heading and identify
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Drafting letters
the matter to which the letter refers without any further reading. The heading
does not contribute to effective communication when phrases such as ‘Letter
of Demand’ or more bizarrely ‘Confirmation of telephone call’ are used. Gen-
eral phrases like these just waste time in typing and in reading them. The use
of ‘legalese’ or code, such as ‘ in re’, ‘In the matter’, ‘ATS’, ‘v’ or even ‘versus’,
is also a waste of time, especially in the case of a reader who is not a
legal practitioner. Using old-fashioned wording just makes you seem outdated.
l Another debate exists around using ‘Yours faithfully’ or ‘Yours sincerely’ before
signing your name. In general, ‘Yours faithfully’ is more formal and is used by
most practitioners. ‘Yours sincerely’ is less formal and more intimate, but may
sometimes be appropriate. It has also become common, particularly when writ-
ing to counsel, or a colleague or client with whom you have a friendly relation-
ship, to use ‘Regards’ or even ‘Kind regards’. Once again the rules of the firm
may guide or influence you here. How to decide? Use the form of
address as a guide. In the case of ‘Dear Sir (or Madam)’, use ‘Yours faithfully’.
If the client’s name has been used, for example ‘Dear Mr Naidoo’, use ‘Yours
sincerely’ unless you prefer to remain formal.
It is a good idea to include the name of the writer at the end, particularly if your
system of references, as discussed above, does not include this name. Include
a direct telephone number here as well to make it easy for the reader to call
the relevant person.
l Where the letter is urgent and could not be checked and signed before being
posted, use a brief phrase such as ‘dictated by . . . and signed in her absence’. If
the letter is challenged later, this phrase may help to explain an error.2 It is
proper practice for the legal practitioner who is responsible for the matter to
sign the letters. In a law clinic, this will be either the supervisor of the clinic or
one of the admitted attorneys. When you are doing articles, this will probably
be your principal.
Below is an example of the format which is most commonly used in hard copy
correspondence:
Honest Attorneys Inc. Name and address

of sender
21 1st Street
Yellow Park
Orange Grove
PO Box 2222
WYNBERG; 2122
Tel.: 3333333 Contact details of
Fax: 4444444 sender
Email: lawyers@hoora
continued
________________________
2 See Jenkins v de Sousa 1997 (2) SA 342 (W). As discussed earlier, the practitioner will be
liable for the errors in letters which leave the office, even if another person made them.
175
ABC Insurance Company Receiver’s address

11 2nd Street
Yellow Park
Orange Grove
2122
Your ref: B.Brown/111/accident/de kock References

Our Ref: C.C/M21.2003
20 October 2003 Date
REGISTERED POST Manner of delivery
ATTENTION: MS B. BROWN Person dealing with

the matter
Mahlaba/de Kock Heading
Dear Madam, The reader is a woman
Body of letter How to use effective

language discussed
below
Yours faithfully Letter is formal
[space left for signature] Signature, name and

C Clever number of writer
3331111
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Drafting letters
What does an email look like?

Icons and other computer tools/instructions
Date and time of email
Name of sender and her email address
Name of recipient and her email address
Perhaps a photo, depending on the programme used
Subject line same as
‘heading’
Dear Mrs X, Recipient is a
woman and
you know her
name
Body of letter
Letter is
formal
Yours faithfully,
Make it easy
Your name, to be contact-
ed
Tel number
These must
appear
Footer of firm’s contact details.
9.3 Body of the letter

Letters should be kept simple by using plain lan-
Letters should be kept guage. We should move away from jargon and
simple by using plain elitism in our approach to language. You often hear
jokes at the expense of ‘lawyers’ who write unintelli-
language. gible prose. Despite this continued emphasis,
practitioners always seem tempted to use language
that has more to do with status than with communication. The writing style used
177
by legal practitioners must be dragged out of the 19th century and into the 21st
century. Let us look at some practical suggestions:
l Start by considering who the person receiving the letter is. What is her level of
education? Is she able to read and understand complex technical language?
Will she be confused by legal terms or be offended if you do not use them? A
letter is always used to convey information to its reader. It is a dialogue
between you and the reader and the format and language which you choose
should help this to take place effectively. Be sensitive to the realities of the
society in which you practice and choose language that is appropriate and
above all respectful.
How to do this? Imagine you are talking to the person and then write the letter
in the same sort of language. This is not to say that you should be informal or
unprofessional. Simply apply your mind to what you are writing and imagine it as
a conversation. Will the other person be looking in a blank and confused way at
you, searching for an escape? Will there be the light of understanding in her
eyes? Or, will she be looking at you as if you are a simple-minded child who
does not understand the complex nature of what you are dealing with? Keep in
mind that ‘legal language’ does not exist. It is just habit that makes practitioners
write as they do.
l Begin by thinking about what you want to communicate. Factor in who your
reader is and then make sure that the message is drafted in language that is
appropriate to that reader. Where the reader is sophisticated, highly educated,
uses similar language every day and the matter is complex, legal phrases are
in fact often the most convenient and effective. A less educated reader, even if
the matter is complex, will understand better if you make the effort to use less
complex language. As time goes by, you will find it easier and eventually it will
become second nature. Use every opportunity to practise writing simply and
effectively.
When you begin, the following suggestions will help you to plan and then write
your letter.
9.3.1 Be organised
l Collect all the information you need before starting the letter. This includes
actual names, addresses and other factual details.
l Do your research. If you have to write expressing an opinion, find out what the
law is, form an opinion and then write the letter. It may be helpful for you to
write a draft first and then check it for errors where the law is complicated or
new to you, before sending it out.
l Arrange the letter so that the most important information is at the beginning
and the rest of the information follows in descending importance. At the end
you will have the so-called ‘nice to know’ information such as office hours. This
does not mean that the first sentence in a letter will always be the most im-
portant. It is convention to have an introductory sentence and it is often useful
or necessary. The actual information in the letter should follow this format.
Sometimes information will carry equal weight. In that case set it out in the
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Drafting letters
most logical way; for example, a letter of demand, which will be discussed in
detail below, is best set out chronologically. A letter should be a story with a
logical flow: a beginning, a middle and an end.
l If the letter is organised properly, there should be one idea per sentence and
one idea per paragraph. The reader should follow the letter with ease and
understanding. Confusing the issue by introducing more than one idea to a
sentence or paragraph is a bad idea. It is especially helpful when starting out
on letter-writing to number each paragraph. This helps you to order your
thoughts.
9.3.2 Be clear
l Use the way you speak as a guide. Most people do not use words like ‘afore-
said’ or ‘7th ultimo’ when speaking. Remember that this letter is part of a dia-
logue with the reader and only use words that contribute to the overall sense
of the letter. Do not get too concerned with trying to appear formal or confuse
formality with professionalism. All that is required is for you to write in simple
grammatically correct language. Then the letter will have the required formality
the reader expects and the law demands. (Please bear in mind that all these
rules should be applied holistically.)
l Write in the active voice. To avoid confusion, there must be a subject and an
object in every sentence. Look at the following two sentences: ‘Your client
assaulted my client’ and ‘My client was assaulted’. Obviously the second one
lacks an essential element – the attacker.
l Refer to actual names and places in the letter. This provides less chance for
confusion. For example: ‘John Smith assaulted my client, Mary Smith, at the
Johannesburg Airport’ is far more informative than ‘A man assaulted my client
at the airport.’ The sentences are about the same length and the language is
clear in both. However, the first sentence provides a complete picture, while the
second does not.
l Use short sentences. Students are often given, somewhat arbitrarily, a limit to
the number of words to use in a sentence. This can actually be quite helpful
because it forces you to be disciplined, to use commas effectively and to use
‘and’ sparingly. Think about the sentence as conveying one fact rather than
telling a whole story.
l Use short well-known words and phrases. When deciding which word to use,
choose the one that is the shortest, provided it has the correct meaning. In
other words, meaning is more important, obviously, than brevity. You do not
always have to exclude legal jargon, which is often the best choice provided it
is well-known and understood. Your aim is to make sure that your reader
understands you. The best way to write understandably is to consciously pay
attention to the meaning and purpose of each word.3
________________________
3 For many South Africans, English is not their first language and this is a problem when it
comes to drafting and writing letters. A tip, which we often give students in the clinic, is to
read a daily newspaper, not necessarily to follow the style of journalists but to develop a
familiarity with how English is written idiomatically.
179
l In South Africa, many levels of literacy and language competency exist. A

large proportion of people who receive letters may not always understand
them clearly because they are not written in their first language. It is unprofes-
sional and unethical to take advantage of this and you should never deliberately
confuse the reader, particularly an unrepresented party, with complicated
language.4
9.3.3 Think about presentation and image

l Whether we like it or not, the image of a letter
counts. Law is a profession and legal practitioners It is a misconception
need not only to act but also to look like profes- to think that
sionals. Bearing this in mind, it is also wrong to
think that pompous words and elitist language
pompous words and
equate to professionalism. In fact, it may mean the elitist language
opposite. The writer may be too absent-minded or equate to
lazy, for example, to bother to keep up with current
trends or to think properly about what he/she is professionalism.
saying. The manner in which you write a letter may
convey the impression that you are an up-to-date professional or an old fuddy-
duddy lost in the past.
l Image is also reflected in the look of the letter. All of the following will be bad
for your image as a professional:
• spelling mistakes
• untidy layout
• unbalanced spacing
• illegible or smudged typeface
• dirty or damaged paper
• untidy folding of the finished product
• mistakes crossed out and rewritten by hand
• the use of correction fluids such as Tippex and
• grammatical errors
l Once the letter has been sent, you will not be able to alter it. To prevent later
embarrassment, always look at the letter as the person receiving it would. Be
satisfied with the letter as a complete product reflecting your professional repu-
tation. Letters form a big part of the trade of legal practitioners – your letters
could even mean the difference between a successful or unsuccessful business.
________________________
4 See Leite v Leandy 1992 (2) SA 209 (D) where it was held that a practitioner owes certain
duties to unrepresented parties. Essentially, the court held that a practitioner may not
exploit the lack of understanding of an unrepresented party.
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Drafting letters
9.4 Some specific letters

9.4.1 Letters to the client
l Practitioners are under an ethical, professional and contractual obligation to
keep their clients up-to-date on progress in their case.5 These are important
letters and you should report to your client regularly. You may also have to ask
for more information, further instructions, or to notify clients of a development –
for example a possible settlement offer or date of trial. To repeat – always read
the letter as if you had received it. Practitioners have the reputation for writing
complicated letters that are difficult to understand. Write to your client in such
a way that it is not necessary to explain what you meant later. Your aim in writ-
ing to your client should be to foster and maintain a good relationship and not
to frustrate, irritate or intimidate.
l In most instances, the language often used by legal practitioners in their letters
is meaningless jargon to the ordinary person. Words like ‘perused’ and ‘unen-
cumbered’ may cause great confusion. It is bad practice to try to impress the
client with legalese at the expense of proper communication.
l Due to the demands of practice, practitioners often work under a great deal of
pressure. This may tempt you to use the same old-fashioned format, words
and phrases used in earlier, less enlightened days. Such standard form letters
provide a practitioner with a sense of safety and comfort. They can be time
savers, but use them with discretion – carefully and professionally. All cases
must be dealt with individually even if they fall into one category. Non-
professionals, such as secretaries, may also use standard form letters incorrectly.
The practitioner remains liable for such errors and could seem incompetent. If you
do use standard form letters, try to regularly update and improve the original.
9.4.2 Letters to the opponent

l Of all the letters that leave a practitioner’s
office, letters addressed to the opponent are If you are involved in
probably the most common. If you are involved litigation, anything sent
in litigation, anything sent to the opponent could
be used against your client. Always be very to the opponent could be
careful about the contents of the letter as well used against your client.
as the manner in which it has been written. In
particular, be very sure that you use no ambig-
uous language. Once again, the best way to do this is to write simply.
l The next important point to remember is that a letter should never be rude or
written in anger. The brief satisfaction you may feel by sending off a rude letter
may cause you lasting embarrassment, cost you your reputation or lose you
the case and the client. Remember that other practitioners are your colleagues
________________________
5 Nyembezi v Law Society, Natal 1981 (2) SA 752 (A). See also Incorporated Law Society,
Transvaal v Bothma 1962 (4) SA 177 (T).
181
and that at a later stage you may be in the uncomfortable position of having to
ask that very person for a favour. It is always unprofessional and inappropriate
for legal professionals to be rude in letters.6
l Even more importantly, never use defamatory statements.7 A brief statement
of the true position is a far more effective way of dealing with an unpleasant
opponent.
l If you have to write to an opponent and you have to express your anger, write
the letter and ask a colleague to read it and give you their opinion. In most
cases, you will find that the independent person will advise you not to send it!
9.4.3 Letters of demand

A letter of demand is sent to a possible defendant on the basis of your client’s
instructions. In essence, this letter sets out the basis of your client’s claim and
informs the defendant that your client will sue unless the defendant does what the
letter demands. In South Africa there are no formal requirements for such letters
but you may in the course of your career hear of letters such as ‘Cease and
desist’ and other formal letters of demand. These apply to other jurisdictions. So,
while no formal rules exist, there may be very serious consequences if your letter
is not drafted with care and accuracy. It has cost implications and can affect
tactics, onus and credibility. These are some rules to follow:
l Letters of demand use the same structure and language as any other letter
and the same rules apply. The temptation to use legalese and old-fashioned
language is probably at its greatest here. Do not give in. The most important
rule, once again, is to keep it simple. While there is a basic framework which
you can use, only use a standard form letter if it has all the required information.
l Do not head the letter ‘Letter of Demand’ or ‘Notice’. This will not add sense to
the letter. The point of this letter is to set out your client’s case accurately and
then give the defendant the chance to settle the matter before it goes further. It
is bad practice and inappropriate to try to frighten the reader into settling by
using bullying tactics.8 Once again, the best heading to use is the client’s
name, the defendant’s name and the circumstances that link the two parties,
for instance ‘Accident: 21 October 2003’. This will help the defendant place the
matter. Any other details will follow in the letter in any event.
________________________
6 There is much truth in Judge Denning’s warning that ‘many cases have been won by
courtesy and lost by rudeness’ see Denning ‘The Traditions of the Bar’ 1955 SALJ 43 53.
7 If you are concerned that certain statements may be defamatory of the recipient, it is best to
try to limit your liability for defamation by marking the letter ‘private and confidential’ and try-
ing to make sure that there is personal delivery.
8 During mid-2006, a debate took place regarding intimidatory letters of demand and how
they served to bring the profession into disrepute, resulting in one provincial Law Society
taking disciplinary action against a perpetrator. See ‘Letters to the editor’ 2006 (Jul) De
Rebus 3.
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Drafting letters
l The introductory paragraph should say that you act on behalf of the particular
client and that the letter is being written in terms of your client’s instructions. In
other words, you are establishing that you have a mandate and that your client
has given you the information contained in the letter. It should also makes it
clear that you, the practitioner, must be contacted, not the client.
l The next group of paragraphs should briefly and logically state, in chronologi-
cal order, the facts on which your client relies. Introduce these paragraphs with
a phrase like ‘Our client’s instructions are . . .’ and then follow with the story.
Limit the facts to the absolute minimum necessary
Limit the facts to to establish the case, as if they were a part of a
the absolute minimum pleading. Any inaccuracy may affect your client’s
eventual success in the trial or in the settlement
necessary to establish negotiations. Obviously, it is essential that the facts
the case. are completely accurate and are the same facts
which you will rely on in the pleadings and at the
trial. The client’s credibility may be badly affected by inaccuracies in the letter.
The rule ‘collect all the information before starting to write’ will never be more
important.
l The next step is to draw the conclusion in law from the facts. An example may
be ‘These statements are defamatory and our client is entitled to claim dam-
ages from you as a result.’
l Thereafter make demand. What relief is your client looking for? Is it a claim for
a sum of money, for a specific performance, or for the defendant to stop doing
something?
l The usual phrase is ‘Our instructions are to claim the amount of R50 000,00 in
respect of our client’s damages’ followed by the phrase ‘as we hereby do’. This
is because there has been an argument that the first phrase simply repeats
your instructions but does not actually make demand. Whether or not this
argument is correct, bypass the problem by saying ‘In terms of our instructions
we demand payment . . .’ The problem has been caused by reliance on an old-
fashioned term, so do not use it any longer!
l Explain the consequences of not complying with the demand – that your client
could sue them, or cancel the contract – in fact, any one of a number of things.
Here you are making a threat and it must, of course, be a lawful one, in other
words, one which the client is legally entitled to make as a result of the facts of
the case.
l To write such a letter, you must be absolutely sure that it is correct both in
terms of the facts and the legal conclusion. Understand both the law and the
facts before you start. A word of caution here – it is a crime to threaten to re-
port another person to the police unless they comply with your client’s demand
183
and you, and possibly your client, could be prosecuted.9 Also remember that
once something is written, it is a permanent record.
l The last paragraph should contain ‘nice-to-know’ information, for example:
‘Payment can be made to our offices between 08:00 am and 16:30 pm, Mon-
days to Fridays’.
The general advantage of making a proper demand is that your letter may very
well convince the defendant that the best option is to settle the matter, rather than
get involved in litigation.
9.4.4 Statutory letters

Letters of demand are not usually a formal legal requirement, but in some specific
instances the failure to send a letter of demand may result in the subsequent legal
action being fatally flawed at great cost to your client and to your reputation! An
example of this, based on the common law of con-
tract, is the requirement that a defendant be placed A letter of demand
in mora before instituting legal action. Sometimes a may also be required
letter of demand may also be required in terms of a in terms of a statute.
statute. For example, the Institution of Legal Pro-
ceedings against Certain Organs of State Act10 provides that no legal proceedings
may be instituted against an organ of the State unless prior written demand has
been made in a very particular way.11 Recent legislation regarding evictions also
prescribes formalities in respect of letters of demand (or notices) before legal
action may be instituted.12 Another example is in the Small Claims Court Act,13
where the letter of demand is an essential part of the proceedings and the legal
formalities of the letter are specifically prescribed.14
9.4.5 ‘Without prejudice’

Legal practitioners and non-lawyers often
Legal practitioners and use the phrase ‘without prejudice’ but most
non-lawyers often use this of the time its meaning is misunderstood. An
phrase, but most of the time example is the story of an estranged hus-
its meaning is misunderstood. band who was advised by his lawyer to write
‘without prejudice’ on all written communica-
tion with his wife, including emails making access arrangements. The practitioner
in this instance was missing the point. The phrase has no special legal meaning
or significance independent from the content of the communications. There must
be a contemplated settlement for there to be any privilege in respect of the
________________________
9 The crime of compounding.

10 40 of 2002.
11 See ss 3 and 4.
12 See eg s 4(2) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act
19 of 1998 and s 9(2)(d) of the Extension of Security of Tenure Act 62 of 1997.
13 61 of 1984.
14 See http://smallclaimssa.co.za/forms.
184
Drafting letters
communication.15 In other words, if the communication has nothing to do with a

settlement, then the privilege which the phrase tries to create, cannot exist. If the
wife, in the example mentioned above, wished to use the letters in a custody or
access dispute, she would not be prevented from doing so by the fact that the
communications included the phrase ‘without prejudice’.
Another good example of how this phrase is misunderstood is its common use
by insurance companies when making demand for payment as a prelude to
litigation! What is the intention of the company here? Presumably they do not
want their demand to be admissible in court. (Perhaps because of their universal
use of standard form letters they are afraid of making a mistake!) The letter will
always be admissible even though it is supposedly sent ‘without prejudice’. By
itself, the phrase does not have any legal meaning. A letter which contains the
phrase must be concerned with a settlement in order for the privilege to arise.16
It follows then that only that part of the letter which has to do with the settlement
negotiations will be protected. To avoid problems with this, send separate letters,
one dealing with the settlement and therefore privileged, the other containing
information which is not privileged.
Strictly speaking, the phrase is unnecessary. If a letter is part of a settlement
negotiation and this is clear, it will not be admissible, whether the phrase is pre-
sent or not. Admissions made solely for the purpose of settling the matter will still
be inadmissible if the negotiations fail.17
The purpose of the phrase and the protection of these kinds of admissions is to
encourage people to settle disputes without having to go to court. For example, if
a defendant makes an offer less than the claim and the plaintiff rejects it, the
plaintiff will not be able to use that offer and its implied admission to prove the
claim in court. This is because the offer was made solely to settle the matter. All
communications, which form part of the negotiations for settlement, will be pro-
tected, even if privilege is not expressly claimed.18
Although these words alone do not convey any special privilege, they may be
used to emphasise: ‘My intention in writing this letter is to attempt to settle the
matter . . .’. By including the phrase, you make it clear that the communication is
intended as part of the negotiations, provided that is the purpose of the letter. If
you are going to use it, do so properly and not indiscriminately.
Another example of a situation where the phrase will be meaningless is where
a bill of costs is marked ‘without prejudice’. The taxing master can still tax it,
unless it has been submitted simply to indicate costs for the purpose of the set-
tlement. You cannot deny either your own client or your opponent the right to
taxation of your bill just by including the phrase.
________________________
15 Gcabashe v Nene 1975 (3) SA 912 (D).

16 Gcabashe v Nene supra. See also Sibeko v Minister of Police 1985 (1) SA 151 (W).
17 Gcabashe v Nene supra.
18 Gcabashe v Nene supra.
185
In a similar manner, where a contract is created by an offer and subsequent

acceptance in a series of letters, the letters will be admissible to prove that con-
tract, even if the letters are part of a series of settlement negotiations and are
marked ‘without prejudice’. The letters will, however, not be admissible to prove
the matter which was the subject of the initial dispute.
If the letter is part of a crime, for example an attempt to extort money, the fact
that it is marked ‘without prejudice’ will be irrelevant in the trial. Obviously, a letter
which is defamatory will be admissible in a subsequent action for defamation,
even if it is marked ‘without prejudice’.
What about letters marked ‘off the record’? This phrase is also often used in
meetings. It is used interchangeably with ‘without prejudice’. The best practice is
to only use one phrase rather than introducing a new and possibly confusing one.
It is also hard to imagine that the phrase would be treated any differently insofar
as admissibility is concerned.
While we are on this subject, what about dis-
cussions conducted over the telephone? Very In some cases, it is obvious
often you may have a frank discussion with the that the information is
practitioner on the other side. In some cases it intended to be kept private.
is obvious that the information is intended to be
kept private. Conversations like this should be avoided as they open up too many
difficulties. In general, if the intention is to keep the information private, respect
that unless your client’s interests are compromised.
9.5 Methods of delivery

You can deliver letters in many different ways: by hand or courier, ordinary mail,
registered mail, email or fax. In future, it is possible that a SMS sent from a cell
phone may be an acceptable medium! All of these methods can cause problems,
so let us consider each one.
9.5.1 Ordinary mail

l As pointed out earlier, ordinary mail is becoming less and less frequent. Where
letters are still received this way, in most offices they are opened centrally and
distributed thereafter. If you intend the letter to be confidential, make sure that
this is clearly marked, not just on the letter but on the envelope as well. To be
on the safe side, where confidentiality is really important, it would be best to
send the letter by courier with instructions that only the named addressee may
receive it.
l All letters sent by mail should be recorded in a book kept especially for that
purpose. Record all posted items and the date they were posted. This helps if
you have to trace or perhaps prove that a letter has been sent. It also is a
good exercise in practice management to do so.
l Another good idea is to include a return address on the back of the letter, in
case the letter cannot be delivered for any reason. This is to ensure that the
letter does not to fall into the hands of anyone other than the intended recipient.
186
Drafting letters
9.5.2 Registered mail

l Letters to be sent by registered mail should state this on the letter itself.
l Keep a copy of the registered postal slip, issued by the post office, and attach
that to the copy of the letter kept in your file in case you need it in future.
Sometimes letters sent by registered post are returned because the person to
whom it was sent has not collected it from the post office. In that case, keep
the returned original as well and the envelope, which is usually marked with a
report from the post office.
9.5.3 Fax and e-mail
l When you use other methods such as, most
infrequently, fax, be aware that security and pri- Be aware that
vacy are important. The possibility does exist security and privacy
that another person, other than the intended are important.
recipient, may read the message. In your office
there should be a separate page, a fax cover sheet, which has details of the
sender, recipient, their respective fax numbers, the total number of pages sent,
the date, and a note stating that the contents of the fax is confidential and
intended for the named recipient only.19
l Keep the fax transmission report which shows that the fax was successfully
sent. Some older fax machines use paper on which the ink fades over time.
Make copies of these faxes to keep in your file.
l Some practitioners send a fax and then post the original letters. This doubles
the effort and costs for the practitioner (and ultimately the client). If posting the
letter was sufficient, there was no real urgency. Why then send a fax? If you
have proof of the fax delivery, why also send a letter? Try to make things as
simple as you can for yourself!
l In the case of emails, you may wish, if you have hard copies of everything, to
print out a copy to keep for future reference (or type the letter in the conven-
tional way and scan it to email). This will be necessary until we are able to
keep all our files safely in electronic format. Despite improvements in this
regard, we still seem to keep hard copies of our files. Proof of delivery is no
longer a problem and it is very rare that a dispute arises around the delivery,
or otherwise of an email. You can get a report from your server that the mail
was delivered to the email address if necessary.
l Email is now the most intimate, cheapest and most efficient form of delivery. It is
the most common form of delivery, and in many law firms it is the norm. In many
other industries, it has become virtually the only form of written communication.
If your firm has many overseas clients, email is the most efficient and common
form of communicating. Electronic communication has so many advantages that
any future practitioner must become computer literate to succeed.
________________________
19 This is an attempt to establish privilege in respect of the fax, although this has not been
tested as yet in court.
187
9.5.4 By hand
l Make sure the words ‘By hand’ appear on the letter.
l Get an acknowledgment of receipt: a signature in a delivery book or on a copy
of the letter.
9.6 Conclusion
This chapter continually emphasises the need to consider the person to whom
you are writing. This is particularly important in South Africa. We have a very
diverse society and good practitioners will not assume that the recipients of their
letters have the same level of education, gender, cultural background or language
ability as themselves. Write your letter with sensitivity and with respect, whoever
your client or the recipient is. This is good ethical practice.
Although South Africa has 11 official languages,
Although South Africa English has emerged as the ‘default’ language,
has 11 official languages, most commonly used in commerce and related
English has emerged as industries. As a result, it will be more effective for
the ‘default’ language. you to communicate, particularly in letters, in
English.20 This is a practical, pragmatic approach.
For many, however, English is their second, third, fourth or fifth language.
Whether English is your first or fifth language will naturally affect how you use it. If
English is not your first language, all the points discussed in this chapter are
intended to help you formulate letters which communicate in the most effective
way. In particular, it is best to use simple words and short sentences and to stay
away from complex language. This is a practical suggestion. You are less likely to
make an embarrassing error if you do so. Idiom in all languages is difficult to
master, even more so if you are proficient in a number of languages. You will
really damage your image as a legal practitioner if you use incorrect grammar
and, of course, you will not be acting in your client’s best interests if you cannot
be understood.
If English is your first language, be aware that in many cases it will not be your
recipient’s first language. Keep in mind that your intention is to communicate
properly. Again, follow the guidelines suggested in this chapter both to ensure
that your grammar is correct and that you do not confuse your reader with un-
necessarily complicated language.
________________________
20 Afrikaans is still used extensively, particularly in rural areas, where it still features promi-
nently in letters and pleadings. You can expect to be confronted with it at some stage. If you
are addressed in Afrikaans and can use it, do so if you believe this will assist you in the
proper running of the matter. This is not meant to be prescriptive, just a practical sugges-
tion. It is your choice and what should guide you is whether the language of choice will be
the best for your client. In most cases, however, you will find that to reply in English is
appropriate, as it has become, by default, the common language of the legal profession in
South Africa.
188
Drafting pleadings,
notices and
applications
By Dakalo Singo1
10.1 Introduction
It often happens that the first impression of a case that
the court, or any party to a legal dispute is presented Drafting is a skill
with will be in the form of the legal documents drafted that can only ever be
by the parties. The drafting of pleadings and other
court documents is therefore an essential skill that a developed, and
legal practitioner must possess, as these documents ultimately
set the scene for the case to be argued in court. mastered, through
Drafting is a skill that can only ever be developed, and
ultimately mastered, through repeated practice. This repeated practice.
skill has been described as follows:
The drawing of pleadings is an important part of the art of the advocate and the attorney
and is an ability which is acquired and perfected only after years of experience. To set
down in clear, concise and lucid form the distilled essence of a plaintiff’s cause of action
or of a defendant’s defence is the essence of that art. It requires a clear conception not
only of the client’s case but also constitutes a searching test of the pleader’s knowledge
2
of the law involved.
Effective drafting requires a good command of the lan-
guage in which a legal document is drawn up.3 A good ‘A litigant
understanding of language and how it may be adapted and must stand or
applied, based on tools as simple as grammar and punc-
tuation, may be the difference between pleadings that fall by their
outline the substance of a case (cause of action or defence) papers’.
with articulate precision and those that are excipiable. It is
________________________
1 With acknowledgment to Elsabe Steenhuisen, who wrote the original version of this chapter
as it appeared in the previous editions of this book.
2 The late Mr Harry Snitcher QC, as quoted in the prolegomenon to the sixth edition of Harms
(1999) Amler’s Precedents of Pleadings.
3 Van Blerk (1998) Legal Drafting: Civil Proceedings at 1.
189
not uncommon for a case to fail based purely on the failure of the drafter to plead
a case properly. As is often said by the courts: ‘a litigant must stand or fall by their
papers’.4
Before one can start drafting pleadings, it is important to understand that the
reason for pleading in civil matters is to enable parties in the dispute to prepare
adequately to meet the case of the other party.5 Additionally, the courts have held
that pleadings allow for the better administration of justice by ensuring: that par-
ties to litigation go to court well-prepared; that courts can administer justice
speedily and efficiently; and that courts are clearly informed of the legal questions
they are required to resolve.6 In light of the above, the purpose of pleadings may
be summarised as follows:7
l to inform the parties of the legal and factual issues;
l to define the scope or limits of the legal dispute;
l to place the issues on record; and
l to determine which party bears the onus of proof.
This chapter aims to develop drafting skills in civil litigation by providing practical
guidelines to be considered when drafting pleadings, notices and applications. It
does so by making reference to the relevant court rules and case law from which
these guidelines arise. The chapter also outlines some essential principles to be
applied when drafting court documents.
10.2 Preparing to draft

10.2.1 General
Proper drafting takes time. You should therefore ensure that you have allocated
sufficient time to do so, taking into account the nature of the court document and
the complexity of the dispute concerned.
Generally, legal drafting is a stylistic exercise that will necessarily be influenced
by factors as varied as the drafter’s personality,8 cultural background, command
of language, scope of vocabulary, personal preference and the nature and pur-
pose of the document being drawn. The question then becomes: if different
factors might influence a drafter’s style, what then is the unifying staple that
ensures acceptable uniformity in the drafting of court documents? The answer is
simple: the rules of court.
________________________
4 Pountas’ Trustees v Lahanas 1924 WLD 67 68. That being said, parties to litigation may
apply to amend their pleadings and the courts exercise their discretion regarding whether or
not to allow any proposed amendments.
5 Benson and Simpson v Robinson 1917 WLD 126 130.
6 King v King 1971 (2) SA 630 (O) 635.
7 See Daniels (2002 6th ed) Beck’s Theory and Principles of Pleading in Civil Actions at
43–44. See also Theophilopoulos, Van Heerden and Boraine (2015 3rd ed) Fundamental
Principles of Civil Procedure at 173–174.
8 Harms (1999 7th ed) Amler’s Precedents of Pleadings at xv.
190
Drafting pleadings, notices and applications
These rules specify what court documents should

contain. In some instances, court rules make
Drafters are required
reference to forms (attached as annexures to the to draft their documents
rules) which are templates providing an outline of to reflect the rules
the relevant court document. Drafters are required
to draft their documents to reflect the rules and and forms as closely
forms as closely as the circumstances allow. In as the circumstances
addition to the rules, the content of court docu- allow.
ments may be informed by practice manuals,
practice directives or directions, circulars by the Registrar or clerk of the court and
any other internal procedural requirements of a specific court. Based on the con-
tent of the practice manuals and directions of some courts,9 as well as general
practice, the following general format is suggested for drafting court documents,
subject to the requirements of individual courts:
l Paper size: A4.
l Font size: 12 point.
l Font type: Arial or Times New Roman.
l Line spacing: 1.5 or 2.0.
Rule 18(3) of the Uniform Rules of Court which regulate proceedings in the High
Court (hereafter abbreviated as ‘HCR’) and rule 6(3) of the Rules Regulating the
Conduct of the Proceedings of the Magistrates’ Courts of South Africa (hereafter
abbreviated as ‘MCR’) provide that pleadings should be divided into paragraphs (and
sub-paragraphs, where applicable), which should be numbered consecutively, and
which should contain a separate averment in each paragraph. Affidavits in application
proceedings should also be set out in consecutively numbered paragraphs.
What follows is a brief discussion of drafting guidelines that must be considered
before or during the drafting process.
10.2.2 Know the facts of the dispute
As the drafter, you are required to be familiar with the
details of your client’s case before you start drafting.10 Never start
This means you should conduct proper consultations, drafting court
interview witnesses and study any relevant material that
may have evidentiary value, such as witness statements
documents unless
and affidavits, plans, photographs, expert opinions, tape you are absolutely
or electronic recordings, and other available material. clear on the
Having done so, you should critically analyse all the
facts, identify any improbabilities, gaps or inconsisten- facts.
cies, and canvass these fully with your client. You should
never start drafting court documents unless you are absolutely clear on the facts.
________________________
9 See eg the practice directions for the High Courts in the Western Cape, Venda and
Mafikeng, as well as the practice manual for the Labour Court.
191
10.2.3 Conduct legal research

‘Before you can draw a pleading you’ve got to know the
law’.11 Once you have established the facts, you should ‘Before
research the applicable law, bearing in mind the legal prob- you can draw
lem at hand. Research must be conducted on the substan-
tive law relating to the matter, as well as on relevant aspects a pleading
of the law of evidence and the law of civil procedure (this you’ve got
includes taking time to study any relevant court rules).12 As
part of your research, you should determine the applicable
to know
elements of the legal dispute, find case authority showing the law’.
how the courts have applied the relevant law, identify any
available defences, and consult the opinions of academic writers where necessary.
10.2.4 Apply the law to the facts

Your research should be followed by an analysis and application of the law to the
facts at hand. At this point, you should be able to advise your client on the appro-
priate legal strategy. Only after having completed this process should you embark
on the drafting task. Always ensure that whatever you are drafting is in accord-
ance with your client’s instructions.
10.2.5 Precision
The issues in pleadings should be set out with such particularity that the dispute
will be clear to all parties concerned.13 Pleadings, notices and applications must
be absolutely precise and correct. If not, you may later have to amend your
client’s papers and may suffer embarrassment14 and adverse cost orders. The
law consists of various fields of speciality which are often very technical. This may
require higher degrees of precision than in less technical cases. The requisite
degree of precision in a case will ultimately depend on the circumstances of each
case.15 You must, however, carefully consider each statement or averment that
you make in a court document. You should question the purpose of each state-
ment, its formulation and whether it supports the results you wish to attain.
10.2.6 Proof
There must be a reasonable possibility of proving all statements and averments
made in court documents. This does not necessarily mean that you have to believe
in the truth of the evidence available to prove the allegations. It is sufficient that
________________________
11 The late Prof. Wille, as quoted by Hiemstra J in Alphedie Investments [Pty] Ltd v Greentops
[Pty] Ltd 1975 [1] SA 161 (T) 161H.
12 Mullins and Da Silva (2010 6th ed) Morris Technique in Litigation at 78.
13 See HCR 18(4) and MCR 6(4).
14 Where a pleading is vague and embarrassing or does not disclose a cause of action or
defence, the opposing party may raise an exception. See HCR 23 and MCR 19.
15 Imprefed (Pty) Ltd V National Transport Commission [1993] 2 All SA 179 (A) 188.
192
you do not know the evidence to be false. It is also sufficient that you believe in
the possibility of favourable inferences being drawn by the court, based on the
available evidence.
10.2.7 Relevance
One of the basic rules of drafting pleadings is that
you should include only facts which are strictly Pleadings
relevant. If a pleading contains material that is irrele- should ‘contain
vant, argumentative and superfluous and that does
not establish a claim or defence in any way, it is a clear and concise
16
potentially excipiable. Pleadings should ‘contain a statement of the
clear and concise statement of the material facts material facts upon
upon which the pleader relies’ for their claim or
defence. 17 which the pleader
When drafting pleadings, you (as the drafter) are relies’ for their
required to distinguish facta probanda from facta claim or defence.
probantia. The term ‘facta probanda’ refers to the
material facts in issue. The term ‘facta probantia’, however, refers to the evidence
that a party needs to adduce to prove the material facts.
As a general The distinction between these two terms is important
rule, the because as a general rule ‘the pleading of evidence is
bad. Facts should be pleaded and these facts should be
pleading of proved by legal and admissible evidence and inferences
evidence is bad. properly drawn from such evidence’.18 This distinction is
sometimes difficult to discern. The courts have expressed
this as follows: ‘Rule 18[4] imposes a ‘Goldilocks test’ in the sense that it requires
a balance between too few and too many allegations. Too few allegations could
render it excipiable for lack of the necessary averments whilst too many create
the risk that unnecessary allegations could render the pleading vague and embar-
rassing’.19 It is therefore your responsibility to determine, as part of your prepara-
tions for drafting, where the facta probanda end and the facta probantia begin.
Over the years, some important rules have been developed in this regard. These
include the following: do not plead the law or evidence; only plead evidence when
an inference is sought to be drawn; and only mention the history of the matter by
way of introduction, not to strengthen the cause of action.20
________________________
16 Bosman v Van Vuuren and Another 1911 TPD 825 832.

18 Ahlers, N.O. v Snoeck 1946 TPD 590.
19 Inzinger v Hofmeyr & others [2010] JOL 26423 (GSJ) para 8.
20 See generally: Ahlers, N.O. v Snoeck 1946 TPD 590; Du Toit v Du Toit 1958 (2) SA 354 (D);
and Union Free State Mining and Finance Corporation v Union Free State Gold and
Diamond Corporation 1960 (4) SA 547 (W).
193
In general, a pleading must contain two princi-

pal concepts: firstly, the allegations of facts which In general, a pleading
constitute the party’s case and secondly, the must contain two
conclusions of law which flow from those facts. A
conclusion may be very simple, for example: ‘The principal concepts:
Defendant is therefore liable to pay the said firstly, the allegations
amount to the Plaintiff’. You should plead the of facts which
facts and conclusions separately.21 Although you
should not plead the law, you may, in the heading constitute the party’s
of the pleading, refer to the relevant rule of court. case and secondly, the
In application proceedings, relevance is also conclusions of law
very important. Although affidavits should (contrary
to pleadings) contain all evidentiary matter needed which flow from
to prove the case, litigants must never burden the those facts.
court with unnecessary material or information.
Similar to drafting pleadings, you should not include legal arguments in affidavits,
as it will not serve to promote your client’s case. Legal arguments are formulated
in heads of argument and presented in court at the hearing of the application.
10.2.8 Precedents
The issue of relevance is closely related to the use of prece-
dents. It is very tempting when drafting court documents to Blind
want to rely on precedents, especially when you are drafting a reliance on
document for the first time. Precedents may be very useful
when used properly.22 At the end of the day, however, they
precedents
were drafted by someone who may or may not have dealt with is the mark
the legal issues sufficiently. The danger is that if the precedent of a poor
on which you rely has not dealt with issues properly, you may
jeopardise your client’s case. Blind reliance on precedents is drafter.
the mark of a poor drafter. The courts have criticised legal
practitioners who put ‘a square peg into a round hole’ by using a single template
as a precedent for every matter that is somewhat similar to a previous matter, ‘on
the simple basis that one size fits all’.23
Precedents, when used with care, have their advantages. For example: they
can be used as a guideline to determine how to outline the elements of a cause of
action or defence; they can serve as examples of the order in which the elements
should be dealt with; they can also provide examples of the appropriate wording
of certain averments; and they can help save time.24 Their disadvantages include
________________________

23 ABSA Bank Ltd v Havenga & Similar Cases 2010 (5) SA 533 (GNP) 536A–B.
24 Van Blerk (1998) at 1.
194
the following: they inhibit your ability to develop your drafting skills; they prevent
you from developing your own drafting style; they stifle your development as a
legal practitioner because they limit your capacity for applying your mind and for
critical analysis; they may be misleading in that they may be similar to but inap-
propriate for a specific case; they encourage a ‘cut-and-paste’ approach which is
problematic as each case is dealt with on its own merits and facts; and, they may
be flawed or defective and therefore wholly unreliable.25
It is suggested that when you are drafting a court document for the first time,
you should do so without having looked at a precedent. After you have completed
your first draft you may then compare it to a precedent, provided of course that it
is a reliable one that is relevant to, and appropriate for, your client’s case.
10.3 Essential preliminary considerations

10.3.1 Cause of action or defence
Prior to putting pen to paper, you have to establish the
cause of action or defence. This means you must ana- Prior to putting
lyse the facts of your client’s legal problem in order to pen to paper, you
formulate and identify a cause of action or defence that
supports your client’s case. For example, you should be have to establish
absolutely clear on whether your client’s case is based the cause of action
in contract, delict or the law of negotiable instruments.
Sometimes there may be overlaps, for example, where
or defence.
you can sue either in contract or in delict. In this event,
you should either make a choice as to which cause of action is the most likely to
succeed; or, where appropriate, you should plead both causes in the alternative.
The same applies for instances where there is more than one possible defence.
You should also establish if the principles of other legal categories may apply.
10.3.2 Prescription
Having established the cause of action, it is important to determine whether or not
the claim has prescribed. Prescription refers to the time period which a party has
to institute their legal claim, failing which the claim becomes extinguished.26 A
plaintiff has a certain period, normally three years from the time the cause of
action arose, in which to issue and serve summons in a civil claim.27 If this is not
done, the claim will prescribe and the plaintiff will have no further legal recourse.
While the Prescription Act deals with prescription of claims generally, other Acts
or laws may stipulate prescription periods for specific claims that fall under the
operation of those Acts or laws.
________________________
25 Van Blerk (1998) at 1.

26 S 10 of the Prescription Act 68 of 1969 (‘the Prescription Act’).
27 See s 11 of the Prescription Act for other prescription periods.
195
You should therefore advise clients of their rights and assist them in instituting
their claims timeously. Legal practitioners who allow a client’s claim to prescribe
are generally considered to have acted unprofessionally and negligently and may
be liable to the client for damages. In the case of defendants, legal practitioners
should assist their clients by objecting to a claim which has become prescribed by
raising a defence (in the form of a special plea) in their pleadings. This is
important, because while prescription may be apparent from the facts, courts may
not raise prescription of their own accord.28
Generally, prescription of a debt starts running when the debt becomes due
and payable and the creditor has knowledge of the identity of the debtor and the
facts from which the debt arises.29 Prescription may be interrupted in several
manners, including by service of any process (usually a summons) claiming
payment of the debt.30
10.3.3 Locus standi

The legal capacity of the parties must be apparent from
the court papers. You have to distinguish between natural The legal
and juristic persons and in either event determine the capacity of
extent of their capacity in your particular matter. For
example, consider whether your client is acting in a per-
the parties must
sonal capacity, as an executor of a deceased estate, or as be apparent
an agent on behalf of a principal. Once you are clear on from the court
the client’s capacity, make sure if and to what extent your
client has locus standi in that capacity. For example, a papers.
minor child may not sue unless assisted by his/her parent
or guardian. Likewise, persons married in community of property must obtain their
spouse’s written consent to institute legal action in certain circumstances.31
In terms of HCR 17(4) and MCR 5(4), the citations of parties to a dispute must
include the following details and information:32
l For the plaintiff:
• full names (first name/s and surname);
• gender (if the plaintiff is a natural person);
• occupation;
• address of the plaintiff’s residence or place of business; and
• if the plaintiff sues in a representative capacity, a description of the nature of
the capacity.
________________________
28 S 17 of the Prescription Act.

29 S 12.
30 S 15.
31 See s 17(1) of the Matrimonial Property Act 88 of 1984.
32 While the content of these rules apply to action proceedings instituted by summons, practice
dictates that the same citations will generally be used in application proceedings.
196
l For the defendant:

• first names or initials and the surname by which the defendant is known to
the plaintiff;
• address of the defendant’s residence or place of business;
• occupation and employment address (if known to the plaintiff); and
• if the defendant is sued in a representative capacity, a description of the
nature of the capacity.
10.3.4 Jurisdiction
Jurisdiction is the power or competence of a court
to hear and determine an issue between parties.33 Jurisdiction is the
It is an essential part of any litigation process to power or competence
determine which court or other legal forum has
jurisdiction to determine a matter. The courts of a court to hear and
have held that jurisdiction is determined on the determine an issue
basis of the pleadings and not on the substantive
merits of a case.34 Where a party challenges the
between parties.
jurisdiction of a court at the outset of a case, the
pleadings of the plaintiff or applicant are the determining factor as they contain
‘the legal basis of the claim under which the applicant has chosen to invoke the
court’s competence’.35
The jurisdiction of a court will
The jurisdiction of a court will usually be determined by con-
usually be determined by sidering the nature of a claim
(substantive jurisdiction), the
considering the nature of a claim value of a claim (monetary
(substantive jurisdiction), the value jurisdiction) and the area where
of a claim (monetary jurisdiction) and the claim arose or where the
parties are located (territorial
the area where the claim arose or where jurisdiction). In addition, jurisdic-
the parties are located (territorial tion may be determined or
otherwise influenced by legisla-
jurisdiction). tion (statutory jurisdiction). There
are also various principles that
may have a bearing on jurisdiction, for example: the principle of effectiveness; the
principle of consent; the principle actor sequitur forum rei (which provides that the
plaintiff/applicant follows the defendant/respondent to the defendant’s legal forum
________________________
33 Graaff-Reinet Municipality v Van Ryneveld's Pass Irrigation Board [1950] 2 All SA 448 (A) 452.
34 Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC) 263 para 75C.
35 Supra, para 75D.
197
and institutes proceedings there);36 the principle of convenience; and other prin-
ciples based on the unique position of the peregrinus defendant.
When drafting, the plaintiff or applicant must allege that a court has jurisdiction
and must further be able to prove the facts necessary to establish that the court
has jurisdiction in the matter and over the defendant or respondent.37 It is insuffi-
cient to merely allege a legal conclusion of jurisdiction.38
Harms suggests that it is unnecessary in the ordinary course of events to make
any specific allegation concerning jurisdiction, provided that the underlying facts
establishing jurisdiction appear from the pleading as a whole.39 However, it is
mandatory when litigating in the Magistrates’ Court to make averments that the
court has jurisdiction over the defendant and in relation to the cause of action.40
10.3.5 Choice of procedure (action or application)

Once you have decided which court to approach, you must consider the type of
proceedings to institute, meaning either the action (trial) procedure or the applica-
tion (motion) procedure. Choosing the appropriate procedure is crucial, as the
wrong decision may result in your client’s claim being dismissed and adverse cost
orders being made.
A key consideration in A key consideration in making the choice
making the choice is is determining whether or not a dispute of
determining whether or fact will arise in the proceedings. If such a
dispute is likely to arise, it will mean that oral
not a dispute of evidence may be required, meaning that the
fact will arise in the action procedure will be appropriate. A
proceedings. dispute of fact is likely to arise in any of the
following instances:
l where the respondent denies all the substantial allegations made by the various
deponents on behalf of the applicant and furnishes positive evidence to the con-
trary by deponents or witnesses who testify on behalf of the respondent;
l where the respondent admits the allegations, or the accuracy of the evidence,
in the applicant’s affidavit, but raises other facts which in turn are denied by
the applicant;
l where the respondent concedes that he has no knowledge of the main facts
alleged by the applicant, but denies it altogether and orders the applicant to
prove the allegations. The respondent will then take it on himself to furnish
________________________
36 Sciacero & Co. v Central South African Railways 1910 TS 119 121.
37 Harms (2015 8th ed) Amler’s Precedents of Pleadings at 229.
38 Supra.
39 Supra. See also Mullins and Da Silva (2010 6th ed) Morris Technique in Litigation at 80.
40 Harms (2015 8th ed) Amler’s Precedents of Pleadings at 229. See also generally: ss 28, 29
and 46 of the Magistrates’ Courts Act 32 of 1944 (‘the Magistrates’ Court Act’).
198
evidence to indicate that the applicant and his/her deponents or the facts they
have presented are prejudiced or are not credible or reliable;
l where the respondent indicates that he can present no evidence by himself or
by other persons to dispute the truth of the applicant’s allegations which are
peculiarly within the applicant’s knowledge, the respondent may insist on the
proof thereof by requesting the submission of oral evidence subject to cross-
examination.
Table 10.1 (below) highlights some of the notable differences between action and
application proceedings:
Table 10.1: The differences between action and application proceedings
Action Application
1. Also called trial proceedings. 1. Also called motion proceedings.
2. Parties are called ‘plaintiff’ and ‘defendant’. 2. Parties are called ‘applicant’ and ‘respond-
ent’.
3. Deals with substantial factual disputes. 3. Deals with factual disputes that are of
such a nature that they can be dealt with
‘on the papers’ before the court.
4. Commence with the issuing of a summons 4. Commence with the issuing of a notice
by the plaintiff. of motion and a founding affidavit by the
applicant.
5. Further pleadings are exchanged by the 5. Further affidavits are exchanged, namely:
parties, namely: – answering affidavit; and
– defendant’s plea and counterclaim; – replying affidavit (if applicable).
– plaintiff’s replication (or reply) to defend-
ant’s plea; and
– plaintiff’s plea to defendant’s counter-
claim.
6. After the close of pleadings (litis contesta- 6. There is no procedural ‘preparation for
tio), the ‘preparation for trial’ stage follows. trial’ stage, after the exchange of affida-
Certain preparatory steps are then taken, vits, but parties may be required to sub-
such as discovery of documents and expert mit heads of argument before the matter
notices. is set down for hearing.
7. The action procedure ends in the trial court 7. The application procedure ends in the
where mainly oral evidence by the parties motion court. In principle, no oral evi-
and their witnesses is presented. dence is presented and the parties do not
testify. The case is argued by their legal
representatives on the papers before the
court.
199
10.4 Drafting pleadings

10.4.1 Introduction
Although the word ‘pleading’ is not defined in the court
rules, only certain court documents constitute plead- A pleading is a court
ings.41 A pleading is a court document, used in action document, used in
proceedings, that contains the material facts pertain-
ing to a litigant’s claim or defence to a claim. The
action proceedings,
pleading itself does not constitute proof or evidence of that contains the
the allegations it contains, but merely lists the state- material facts
ments that a litigant intends to prove at the hearing of
the matter, or which a litigant places in dispute. pertaining to a
HCR 18 and MCR 6 set out the basic rules relating to litigant’s claim or
pleadings in the High Court and Magistrates’ Court defence to a claim.
respectively.
The following court documents are considered to be pleadings:
l the declaration;
l the particulars of claim;
l the plea;
l the counterclaim (or claim in reconvention);
l the replication;
l the plea to the counterclaim (also referred to as counterplea or plea in recon-
vention);
l further replies (namely rejoinders, surrejoinders, rebutters; and surrebutters);42
l exceptions; and
l any amendments to any of the above
It is imperative that you
pleadings. take a detailed client state-
As mentioned above, the general approach to ment during your
drafting requires you to follow certain steps.
First, you should analyse the facts. In this
initial consultation as the
regard, your client’s statement will be content therein will inform
important. It is therefore imperative that you the content of your pleadings
take a detailed client statement during your
initial consultation as the content therein will when you consider the facts
inform the content of your pleadings when of the case.
________________________
41 Cilliers (2009 5th ed, vol 1) Herbstein & Van Winsen: The Civil Practice of the High Courts
and the Supreme Court of Appeal of South Africa at 562.
42 Daniels (2002 6th ed) Becks Theory and Principles of Pleadings in Civil Actions at 117–118.
These further pleadings are rarely used in practice and must therefore only be relied on
where they are absolutely necessary.
200
you consider the facts of the case. Then you should conduct legal research on the
law that applies to those facts and the essential preliminary considerations dis-
cussed above. After that you should identify the material elements (facta probanda)
as well as the non-essential elements (facta probantia). You should then decide on
the order of the paragraphs and only then formulate the averments. Finally, state
the conclusion in law. The drafting process involves drafting, reading, redrafting,
amending and only then finalising the document.
10.4.2 Heading
The heading of a pleading contains important basic information relating to the
legal dispute at hand. This information must be set out in a standard manner, as
has become the norm. The following details should appear:
l The court: The name of the specific court in which the action is brought, includ-
ing the relevant division (in the High Court) or the district or region (in the
Magistrates’ Court) must appear at the top of the document.
l The case number: This number is allocated by the clerk or Registrar of the
court when the document is issued. It usually appears on the top right-hand
side of the document and it consists of a reference number followed by the
year in which the number was allocated, for example 0097389/2015. An incor-
rect case number may result in the pleading being misfiled, resulting in incom-
plete records and the need to reconstruct court files.
l The parties: The names and surnames of the plaintiff and defendant must be
indicated or, in the case of a juristic person, the full name of that entity. The
names of the litigants usually appear in bold and uppercase script on the left-
hand side of the document, with their role in the legal dispute (for example:
‘Plaintiff’, or ‘Third Defendant’, etc.) appearing adjacent to their names on the
right-hand side of the document in normal case and without bolding.
l The nature of the document: The type of document is stated between parallel
lines (referred to as ‘tram lines’) that appear at the end of the heading below
the names of the parties. The type of document is usually set out in bold and
uppercase script that is centred.
10.4.3 The summons
The summons is the first document to be filed in action
The summons is proceedings and serves to institute the action.43 Both
the first document the High Court and Magistrates’ Courts Rules contain
prescribed forms in this respect.44 A summons is a
to be filed in process of court, addressed to the sheriff, by the
action proceedings plaintiff and issued by the Registrar or clerk of the
court, as the case may be. The summons sets out in
and serves to general terms the plaintiff's claim and calls upon the
institute the action.
________________________
43 See generally HCR 17 and MCR 5.

44 See generally HCR Forms 9–10, as well as MCR Forms 2–3.
201
defendant to defend the action within a specified time. The summons also indi-
cates the consequences should the defendant fail to enter an appearance to
defend within the prescribed time. After it is issued, the summons is given to the
sheriff for service on the defendant.
A distinction is drawn between the simple summons and the combined sum-
mons. The simple summons is typically used in claims for debts or liquidated
amounts. The simple summons does not contain separate, detailed particulars of
claim.45 It only contains a brief description of the cause of action and the relief that
is claimed. It thus merely labels and identifies the claim. The claim only has to be
set out with sufficient particularity to enable the court to grant default judgment,
should the matter be undefended. If the defendants decide to defend an action
instituted by way of a simple summons, they must deliver a notice of intention to
defend. After delivery of the notice, the plaintiff must deliver a declaration to the
defendant. The declaration must set out the plaintiff's claim in full, to enable the
defendant to respond thereto. The combined summons is a more detailed sum-
mons which, from the outset, contains complete particulars of claim as an annex-
ure thereto. It is used in cases such as divorce actions, damages claims or other
illiquid claims (that is, claims that do not qualify as a debt or liquidated demand).
10.4.4 Declaration and particulars of claim46

The declaration, which as stated above, is used in action proceedings instituted
by simple summons, is similar in content to the particulars of claim (annexed to
the combined summons). The same principles for drafting declarations will there-
fore generally apply to drafting particulars of claims.
The particulars of claim must follow an orderly and chronological course. Typi-
cally, you will need to start with a description of the parties (citations),47 followed
by statements of facts to establish the plaintiff’s cause of action. Thereafter, the
conclusion in law, followed by the desired relief, must be set out.
In dealing with the material facts, one must establish why the court has jurisdic-
tion. There are two ways of doing this. The first is specifically required in the
Magistrates’ Court, where averments must be made in separate paragraphs in the
particulars of claim stating that the court has jurisdiction on any one of several
bases that are acceptable in terms of any relevant laws, such as the Magistrates’
Court Act. This requires an explicit statement of jurisdiction. The other means of
________________________
45 For convenience, the term ‘particulars of claim’ will be used throughout the remainder of this
chapter, unless otherwise stated.
46 See generally HCR 18 and MCR 6 which deal with ‘General Rules Relating to Pleadings’.
47 See 10.3.3 above regarding the content of citations.
202
establishing jurisdiction, which is the suggested method to be applied in the High

Court and any other courts of equivalent jurisdiction, is by dealing with the facts of
the dispute in such a manner that makes it clear that the court has jurisdiction. In
terms of this method, by outlining the cause of action in the particulars of claim, it
should be apparent that the court has jurisdiction (for example, because the
cause of action arose within that court’s area of jurisdiction).48
The particulars of claim must outline the cause of action by stating the material
facts on which the plaintiff relies. The general rule is that the plaintiff bears the
onus of proving their claim (‘he who avers must prove’). To do so, the plaintiff is
required to establish the cause of
The plaintiff is required to action of the claim by dealing with all
the essential elements (essentialia)
establish the cause of action of of a specific type of cause of action.
the claim by dealing with all the For example, if the plaintiff sues the
essential elements (essentialia) of defendant as a result of breach of
contract, the plaintiff’s particulars of
a specific type of cause of action. claim may need to deal with the
following issues to establish a cause
of action: the existence of a valid contract; when, where and by whom the con-
tract was concluded; the nature of the contract (that is, whether the contract is
oral or written; and if it is a written contract, a copy of the relevant part must be
annexed to the declaration); the salient (or relevant) terms of the contract; the
nature of the breach; and the loss or damages sustained
by the plaintiff as a result of the breach.49 There are Once the cause
numerous different causes of action, each with its own of action has been
peculiar requirements. It is beyond the scope of this
book to provide specific guidelines to the pleading of dealt with in a
various causes of action.50 Furthermore, where a plaintiff clear and concise
has more than one possible claim which amount to
inconsistent claims, in that the requirements to establish
manner, the
a cause of action are notably different, the plaintiff may plaintiff must
plead such claims in the alternative, provided that an justify the legal
alternative claim is pleaded with the same clarity that
would be required if it stood alone. 51 conclusion drawn
Once the cause of action has been dealt with in a and the relief
clear and concise manner, the plaintiff must then justify sought.
the legal conclusion drawn and the relief sought.
________________________
48 See also Mullins and Da Silva (2010 6th ed) Morris Technique in Litigation at 80.
50 There are a few essential publications that will assist you in drafting pleadings, for example:
Harms (2015 8th ed) Amler’s Precedents of Pleadings; Marnewick Litigation skills for South
African Lawyers; and others.
51 Daniels (2002 6th ed) Becks Theory and Principles of Pleadings in Civil Actions at 57.
203
10.4.5 Plea
10.4.5.1 General guidelines
The plea is the defendant’s reply to the plaintiff’s declaration or particulars of
claim. We suggest the following approach:
l make a copy of the particulars of claim to work on as a draft;
l mark which paragraphs of the plaintiff’s claim you intend to admit, deny, con-
fess with avoidance or make non-admissions to;
l deal with each of the plaintiff’s allegations in separate paragraphs;
l deal with all admissions in a specifically allocated paragraph, applying the con-
cept to denials and non-admissions as well. For example:
AD PARAGRAPHS 1, 4, 5 and 7
The Defendant admits the contents of these paragraphs.
AD PARAGRAPHS 2, 3, 6 and 8
The Defendant denies the contents of these paragraphs and puts the Plaintiff to the proof
thereof.
l never admit an allegation unless you are sure that it is in accordance with your
client’s instructions;52
l acquaint yourself with the substantive law applicable to the specific case, as
certain defences must be pleaded specifically, for example a lack of authority
(a mere denial would be insufficient);
l establish whether the allegations of fact justify the conclusion of law set out in
the particulars of claim;
l take exception if the allegations of fact do not justify the conclusion of law set
out in the particulars of claim;
l inform the opponent in the plea of the case that they have to meet (this means
that your defence must be clearly stated);
l at the end of the plea, include a prayer requesting the court to dismiss the
plaintiff’s claim with costs;
l do not make bare denials,53 for example:
Ad paragraphs 1–21
The Defendant denies the contents of these paragraphs and puts the Plaintiff to the proof
thereof.
________________________
52 It is good practice to consult with your client to confirm the correctness of the draft once you
have completed it.
53 Bare denials do not specify why or how the issue is in dispute. This goes against the aim of
pleadings (that being: to place the issues on record, to state what issues the court is
required to decide, and to outline the limits of the dispute). More importantly, bare denials
fail to establish a defence as required by HCR 18(4) and MCR 6(4) and could therefore ren-
der a plea excipiable for lack of the necessary averments to establish a defence.
204
l do not plead the law. In the event of pleading a conclusion in law, state the
factual basis thereof, for example:
6. The marital relationship between the parties has broken down irretrievably and has
reached such a state of disintegration that there is no reasonable prospect of restor-
ing a normal marital relationship between the parties, more particularly as: [para 6 is
the conclusion]
6.1 The Defendant abuses alcohol which is unacceptable to the Plaintiff.
6.2 The Defendant does not maintain the Plaintiff or the children or the joint estate.
6.3 The Defendant commits adultery on a regular basis with one Claudia Naidoo, which
is irreconcilable to the Plaintiff within a continued marital relationship.
6.4 The Plaintiff does not love the Defendant any longer and wants a divorce.
[para 6.1–6.4 form the factual basis]
l always ensure that you have pleaded the defendant’s defence, for example:
AD PARAGRAPH 6.3
The Defendant denies the content of this paragraph and puts the Plaintiff to the proof
thereof. The Defendant pleads that it is the Plaintiff who commits adultery on a regular
basis with one Mike Naidoo, which is irreconcilable to the Defendant with a continued
marital relationship.
or
AD PARAGRAPH 6.3
The Defendant denies the content of this paragraph and puts the Plaintiff to the proof
thereof. The Defendant refers to his defence and reasons for the breakdown of the mar-
riage as set out in his counterclaim below which he begs the Honourable Court to read in
here as if specifically inserted.
10.4.5.2 Stating the defence

Stating the defence consists of two parts. The first is the answer to all the material
facts by making:
l admissions;
l denials;
l confessions and avoidance;
l non-admissions; and
l stating multiple and/or alternative defences.
The second part is to formulate the defence clearly and precisely by stating the
nature of the defence and all the material facts the defendant relies on.
205
In most instances, the two parts should occur

concurrently, but you must ensure that you deal A drafter should make
with both parts independently from one another. an analysis of the
It is suggested that a drafter should make an
analysis of the declaration or particulars of declaration or particulars
claim, the law on the issues for both plaintiff and of claim, the law on the
defendant, and the defendant’s set of facts,
before pleading the defence.54
issues for both plaintiff
and defendant, and the
10.4.5.3 Admissions
defendant’s set of
Admissions are made in respect of facts and
averments which the defendant admits and facts, before pleading the
those which are common cause. The effect of defence.
an admission is that the particular issue is no
longer placed in dispute. This would mean that no evidence needs to be led at the
trial. An admission is ‘conclusive, rendering it unnecessary for the other party to
adduce evidence to prove the admitted fact, and incompetent for the party making
it to adduce evidence to contradict it’.55
An admission must be clear and unambiguous. If the plea does not specifically
state that an allegation in the declaration or particulars of claim is admitted or
denied, it shall be deemed to be admitted.56
Once an admission is made, it stands. If the defendant wishes to withdraw an
admission, this may only be done by bringing an application to amend. The courts
are reluctant to grant amendments under such circumstances.
10.4.5.4 Denials
A denial may be made where the defendant:
l disputes a factual allegation;
l does not contemplate admitting an allegation; and
l doubts the plaintiff’s ability to prove an allegation.
A denial must relate to a specific allegation and to the essential part thereof. The
effect of a denial is to place the issues in dispute, meaning that evidence may
have to be adduced by the parties at the trial to prove or disprove an allegation. If
a denial includes a defence, the material facts of the defence must be pleaded.
Furthermore, a denial must be unambiguous. If an allegation by the plaintiff
consists of more than one constituent element, then all the elements must be
denied. Alternatively, if not all the elements are denied, then it must be made
clear which elements are denied and which are admitted. The following is an
example of an ambiguous denial:
________________________
55 Gordon v Tarnow 1947 (3) SA 525 (A) 531.
56 HCR 22(3) and MCR 17(3)(a).
206
Allegation
The Defendant has stolen R500,00 from the Plaintiff.
Denial in the Defendant’s Plea:
AD PARAGRAPH 5
The Defendant denies that he has stolen R500.00 from the Plaintiff.
In the above example, it is unclear whether the defendant denies only having stolen
the amount of R500.00 from the plaintiff, or whether he denies having stolen
money from the plaintiff at all. The denial could be interpreted in such a way that
the defendant does not deny having stolen a different unspecified amount. To
avoid this confusion it would be more useful to plead to the allegation as follows:
The Defendant denies that he has stolen R500,00 or any other amount from the Plaintiff.
or
The Defendant denies that he has stolen any amount of money at all from the Plaintiff.
Similarly, the defendant’s plea would be ambiguous if a party pleads as follows:
Allegation in the Plaintiff’s Particulars of Claim:

The parties concluded an oral contract for the payment of R250,000.00 on 6 October 2015 at
Johannesburg.
Denial in the Defendant’s Plea:
AD PARAGRAPH 4
The Defendant denies that she and the Plaintiff concluded an oral contract on 6 October
2015 at Johannesburg.
In this scenario, the ambiguity lies in that it is unclear whether the defendant
contests the way in which the contract was concluded, or the date or place
alleged. It would be more useful to plead as follows:
The Defendant denies that she and the Plaintiff concluded any contract as alleged or otherwise.
or
The Defendant denies that she and the Plaintiff concluded any contract at all at any place.
In general, a bare denial of liability or a defence of total denial is not allowed.

However, a bare or total denial may be pleaded, in the context of the pleadings, if
it will not cause uncertainty or if it indicates the nature and factual basis of the
defence.57
10.4.5.5 Confessions and avoidance

A confession and avoidance occurs when a defendant admits to an allegation, but
raises some other fact or facts to qualify the admission in such a manner that
________________________
57 Dhlamini v Jooste 1925 OPD 223 236.
207
avoids the legal consequences of the admission. For example, a defendant could
admit the conclusion of a contract, but plead a waiver, fraud or payment. This
means that the defendant admits some or all of the alleged facts, but in turn
alleges other facts that destroy the normal legal consequences of the alleged
facts. All the material facts that the defendant relies on must be set out in the
plea.
A plea must clearly state the material facts of the avoidance, for example:
Denial
Save to admit that the lease period expired on 31 July 2014, the Defendant pleads in avoid-
ance that the parties renewed the contract of lease for the period of 1 August 2015 until
31 December 2015.
10.4.5.6 Non-admissions
It is possible to include a non-admission in a plea. This would usually be based on
the defendant’s lack of knowledge regarding the contents of an allegation made
by the plaintiff. It is suggested that the effect of a non-admission by a defendant
on the basis of their lack of knowledge is that the plaintiff will be required to prove
the allegation by furnishing evidence at trial. This would mean that the defendant
would effectively require the plaintiff to bring evidence to court in support of the
allegation, after which the defendant will be able to challenge such evidence in
cross-examination during the trial.58
The following are examples of how a non-admission may be pleaded:
The Defendant has no knowledge of the allegations contained in this paragraph and can
therefore neither admit nor deny the allegations therein, and accordingly puts the Plaintiff to
the proof thereof.
or
The Defendant has no knowledge of the allegations contained herein and accordingly puts
the Plaintiff to the proof thereof.
or
The Defendant has no knowledge whether or not the Plaintiff is the lawful owner of the said
shares and premises and cannot admit or deny the said allegation, but puts the Plaintiff to
the proof thereof.
________________________
208
10.4.5.7 Multiple and alternative defences

A defendant may plead multiple defences to a plaintiff’s claim, provided they are
clearly distinguished from each other, for example:
The Defendant pleads that the Plaintiff was negligent in causing the accident in one or more
of the following respects:
1. The Plaintiff did not keep a safe following distance;
2. The Plaintiff did not brake timeously;
3. The Plaintiff did not stop at the red robot; and/or
4. The Plaintiff failed to keep a proper lookout.
If defences are contradictory, a defendant has to plead them in the alternative.

For example:
AD PARAGRAPH 6
The marriage has not broken down irretrievably for the following reasons:
7.1 The Defendant still loves the Plaintiff; and
7.2 The Defendant went for treatment and has not drunk and thus abused alcohol for the
last six months.
Alternatively
If the court finds that the marriage has broken down irretrievably, the Defendant pleads that it
is not due to the Defendant’s behaviour, but due to the following reasons:
8.1 The Plaintiff argues constantly with the Defendant; and
8.2 The Plaintiff spends more time at her family home than with the Defendant.
In conclusion, when drafting a plea you should ensure that you have addressed
each and every allegation of the plaintiff, that your defence is stated clearly,
unambiguously and contains relevant allegations, and that the plea informs the
plaintiff of the case they have to meet.
10.4.6 Replication59
Depending on the facts of the specific case, it may be necessary to reply to
allegations contained in the defendant’s plea. For example, where the defendant
pleads a specific defence, such as lack of authority, and the plaintiff wishes to
reply to that plea. The purpose of the replication is to:
l answer to any new allegations raised by the defendant in the plea;
l limit the issues in dispute by making admissions;
l clarify certain issues raised by the defendant; and
l introduce new allegations or facts to nullify the defendant’s defence.60
________________________
59 In the Magistrates’ Courts, a replication is sometimes referred to as a ‘reply’.
209
No new issues may be raised in the replication. Raising new

No new issues in a replication constitutes a departure and a depar-
issues may be ture in a replication is bad in law and therefore renders such
a replication excipiable.61
raised in the
It is not a procedural requirement to reply to the plea, as
replication. the plaintiff’s failure to do so is, in any event, deemed to
constitute a denial.
In the reply, you may not introduce a new cause of action or deviate from the
original particulars of claim.
In drafting the reply, it is important to make it clear what paragraphs are specif-
ically contended. Only those paragraphs which require a reply must be addressed
in the replication.
10.4.7 Counterclaim62
A defendant may raise a counterclaim against the plaintiff’s claim. The appropri-
ate time to file a counterclaim is at the time of filing the defendant’s plea. As the
counterclaim is in principle a claim, it should comply with the same requirements
as those applicable to the particulars of claim. The counterclaim may be wholly
unrelated to the plaintiff’s claim and may arise out of an independent right or
cause of action in terms of which the defendant could institute action against the
plaintiff.63
The description of the parties in a counterclaim could become confusing. While
terms like ‘plaintiff in reconvention’ and ‘defendant in reconvention’ may be used,
it is suggested that you should rather plead as follows:
For purposes of convenience, the Defendant refers to the parties as in convention.

or
The parties shall be referred to as in convention for the sake of convenience.
The above averments have the effect of referring to the plaintiff throughout the
pleadings as ‘Plaintiff’ and to the defendant as ‘Defendant’, for the sake of con-
venience.
________________________
60 This will usually apply in circumstances where the defendant has raised a plea in confession
and avoidance. See Theophilopoulos, Van Heerden and Boraine (2015 3rd ed) Fundamen-
tal Principles of Civil Procedure at 298.
61 Daniels (2002 6th ed) Becks Theory and Principles of Pleadings in Civil Actions at 115.
62 Also referred to as a ‘claim in reconvention’. See generally HCR 24 and MCR 20.
63 Theophilopolos, Van Heerden and Boraine (2015 3rd ed) Fundamental Principles of Civil
Procedure at 299.
210
10.4.8 Exceptions64
A litigant may raise an exception where any
A litigant may raise an pleading is vague and embarrassing, or lacks
exception where any the averments necessary to sustain a claim or
defence. Where an exception is alleged, the
pleading is vague and onus rests upon the excipient to establish a
embarrassing, or lacks the legitimate legal basis for the contention.65 The
averments necessary to extent of the detail that the excipient must
mention in the notice of exception will depend
sustain a claim or defence. on the nature of the allegation being excepted
to.
Procedurally, where a party intends to except to a pleading which is vague and
embarrassing, they must provide the opponent an opportunity to rectify it by
removing the cause of complaint. A pleading is generally considered to be vague
and embarrassing where it:
l is ambiguous, unclear or capable of being interpreted in numerous ways;
l lacks sufficient particularity;
l is contradictory;
l contains irrelevant averments; and
l contains the averments necessary to establish a cause of action or defence,
but is otherwise incomplete or defective in a manner that causes prejudice to
the excipient in the pleading process.66
Whether or not a pleading is excipiable for lacking the averments necessary to
sustain a cause of action or defence will be determined on a case-by-case basis.
As stated above, different causes of action or defences have different require-
ments or essentialia. If the essentialia of a cause of action or defence are either
not addressed sufficiently or not addressed at all, the pleading is rendered poten-
tially excipiable. A pleading will also be excipiable on this basis if it is bad in law.
A pleading is bad in law if it is premised on a claim or defence that is not recog-
nised in law.67 In this instance, the excipient is not required to grant an opponent
an opportunity to rectify the pleading, but in practice this is done informally as a
professional courtesy.68
________________________
64 HCR 23 and MCR 19.

65 Amalgamated Footwear & Leather Industries v Jordan & Co Ltd 1948 (2) SA 891 (C) 893.
67 Theophilopolos, Van Heerden and Boraine (2015 3rd ed) Fundamental Principles of Civil
Procedure at 243.
68 Supra.
211
10.5 Drafting notices

Notices feature in both action and application proceedings. Whether a court
document is a notice and not a pleading is usually indicated in the relevant rule
itself. For example, HCR 19 deals with a ‘Notice of Intention to Defend’ which
clearly is a notice. A further example is HCR 21, which deals with ‘Further Particu-
lars’ and provides that a party may ‘deliver a notice’
calling upon the other party to furnish certain further Notices are
particulars. generally used
Often, the rules of court prescribe standard forms for
use of various notices, the content of which should be
for informative
followed as closely as possible. If no prescribed form purposes and
exists for a particular notice, drafters should use the to deal with
basic format of any notice and adapt it as may be re-
quired in the circumstances by following the actual procedural issues
wording of the relevant rule as closely as possible. in the litigation
It is worth noting that notices are generally used for process.
informative purposes and to deal with procedural issues
in the litigation process.
10.6 Drafting applications

10.6.1 Introduction
Applications (or motions) typically consist of a ‘notice of motion’ (in the prescribed
form)69 supported by an affidavit. The notice of motion is similar to a summons, in
that it sets out the details of the parties, the court in
‘The notice of which the matter will be heard, the relief sought, and
any other pertinent procedural aspects. Unlike a sum-
motion and mons, however, the notice of motion does not contain
founding affidavit, a list of statements on which the case is based. In-
together with its stead, this is done in supporting affidavits and annex-
ures. In motion proceedings ‘the notice of motion and
annexures, founding affidavit, together with its annexures, consti-
constitute pleadings tute pleadings and evidence 70
which must justify the
and evidence which grant of the relief sought’.
Affidavits contain evidentiary matter placed before
must justify the the court on oath, and as such are admitted as evi-
grant of the relief dence. Applications are usually decided on the pa-
sought’. pers, after hearing oral arguments from the parties or
their legal representatives. Application proceedings
________________________
69 See HCR Form 2 and 2(a) and MCR Form 1 and 1A.
70 MEC for Education, Gauteng Province, and Others v Governing Body, Rivonia Primary
School and Others 2013 (6) SA 582 (CC) 611 para 93.
212
therefore differ materially from action proceedings, which entail the presentation
of oral evidence before the court, as a matter of course.
When drafting applications, you must take care to use the correct form of the
notice of motion.71 As stated above, the rules have prescribed forms included in
the respective rules to provide a template for the content of an application. Addi-
tionally, practice manuals and directions may provide further guidance in this
regard.
A few initial considerations are important:
l Urgency:72 If the application is brought on an urgent basis, special procedures
apply. The normal time limits prescribed by the rules of court may be disre-
garded and notice requirements may be adapted as may be determined in the
circumstances.
l Interim or final relief: This would determine the formulation of prayers and a
request for an interim order (rule nisi).
l Documents to be attached (annexures): It is important to have an idea of what
documents are relevant to the dispute and may therefore need to be attached
to the affidavit as evidence in the matter. Only relevant documentation should
be attached to the affidavit. The attachment of excessive and unnecessary
documents burdens the courts and may consequently have cost implications.
l Supporting affidavits: When referring to facts which do not fall within the know-
ledge of the person deposing to the affidavit, it is imperative to obtain support-
ing or confirmatory affidavits. This prevents any averment made by the
deponent from being inadmissible as hearsay.
The remainder of this section will deal with the types of applications before deal-
ing with the components that constitute an application, namely: the notice of motion,
affidavits and annexures.
10.6.2 Types of applications

10.6.2.1 Ex parte applications
The ex parte application usually involves only an applicant. Ordinarily, there is no
respondent in the matter as the applicant is the only interested party. The appli-
cant is required to address the application to the Registrar or clerk of the court
who receives prior notice of the proposed application.
An ex parte application may be used where:
l the applicant is the only person with an interest in the case;73
l the application is a preliminary step in the matter;74 or
________________________
71 That is, either the short form or the long form.

72 See HCR 6(12) and MCR 55(5).
73 Eg, where application is made to appoint a curator for a mentally-ill patient.
74 Eg, where application is made to sue by means of substituted service in a divorce action.
213
l urgent relief is sought and notice to the respondent or the delay which may be
caused thereby will create the prejudice which the applicant seeks to avoid.75
If the interests of other parties may be affected by an order granted ex parte, the
court will usually not grant a final order immediately. Instead, the court will grant a
provisional order with a return date (rule nisi). The sheriff then serves the provi-
sional order on the respondent. The rule nisi calls upon a respondent to appear
before the court on a certain date to furnish reasons why the provisional order
should not be made final. In this way, the audi et alteram partem rule is complied
with.
Since the applicant places version before the court without any input from a pos-
sible respondent or any other person whose rights or interests may be affected by
the ex parte application, there is a duty on the applicant to disclose and to act in
good faith. The same duty is placed on applicants in an urgent application.
10.6.2.2 Bilateral applications (applications made on notice)

If the application is likely to affect the rights or interests of another party, notice
must be given to that party from the outset. The applicant is required to address
the application to the Registrar or clerk of the court as well as the respondent
party in the matter.
10.6.2.3 Interim (interlocutory) applications

Interim or interlocutory applications are brought during the course of an existing
action or motion. Interim applications often concern procedural aspects such as
discovery, the exchange of documents or exceptions.
10.6.3 Notice of motion

What was said above regarding notices applies equally for notices of motion. The
notice of motion differs slightly in that it is accompanied by an affidavit which
outlines the merits of the relief sought therein. Generally, notices of motion will
contain the following information:
l Heading: This includes the court’s name; the case number; the names of the
parties; and the nature of the application.
l Notice of hearing: Details of when (date and time) the matter will be heard, if
such details are available. These details will usually be available for urgent
and ex parte applications, most of which require the applicant party to obtain a
date prior to launching the application.
l Prayers: This details the relief sought by the applicant party. Each prayer is
itemised separately.
________________________
75 Eg, an Anton Piller application where application is made for the court to authorise the
applicant to search premises and seize any relevant evidence which may be destroyed by
the person in possession thereof should he/she become aware of the applicant’s intention to
use that evidence in a legal dispute.
214
l Procedural information: This portion of the notice explains to the respondent

party any pertinent procedural aspects, such as the name of the deponent to the
supporting affidavit; the applicant party’s appointed address for further service;
explanation to the respondent regarding how to oppose the application; and
any other relevant aspects.
l Date and signature: This outlines the date on which the notice of motion was
signed, as well as where and by whom it was signed (either the applicant or
the applicant’s attorney) and the duly appointed address at which they will
accept further service in the matter. As part of the address, the applicant or the
attorney will usually also include further contact details such as cellular phone,
telephone and fax numbers, email addresses and a reference number (if one
exists).
l Details of the recipient/s: This includes details of the person/s to whom the
notice of motion will be delivered, namely, the court and the respondent/s. The
court is usually addressed first, with the respondent/s being addressed imme-
diately thereafter. The respondent party’s details should include a physical
address and any other available details (such as the ones listed above for the
applicant).
10.6.4 Affidavits in support of applications

Affidavits are attached to the notice of motion in support of the relief sought
therein. They serve a dual purpose, namely: to define the issues between the
parties; and to place the essential evidence before the court.76 They may contain
primary and secondary facts. Primary facts are those factual averments or allega-
tions capable of being used for drawing inferences as to the existence or non-
existence of other facts. Such other facts are the secondary facts. In the absence
of primary facts, secondary facts are nothing more than the deponent’s own
conclusions and, accordingly, they will not constitute evidential material capable
of supporting the cause of action or opposition.77
A drafter must take special care when drafting an affidavit on behalf of the
client. This is because affidavits are made under oath. Therefore any contradict-
ory or incorrect statements not only affect the credibility of the deponent, but will
in fact constitute the offence of perjury.78
The beginning of the affidavit (after the heading and below the parallel tram
lines) must state the full names and surname of the deponent and the fact that
he/she is making the statement under oath. For example:
________________________
76 Die Dros (Pty) Ltd and Another v Telefon Beverages CC and Others 2003 (4) SA 207 (C)
217 para 28.
77 Supra.
78 See s 9 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963.
215
I, the undersigned,
MPHO JONAS FAKUDE
do hereby make oath and state that:
Following the above statement, affidavits should then generally contain the follow-
ing information:
l the names and descriptions of the applicant and respondent;
l facts from which the locus standi of the applicant is apparent;
l facts from which the court’s jurisdiction is apparent;
l the material facts upon which the claim or opposition is based;
l reference to annexures that constitute evidence of statements made in the
affidavit (the annexures are also attached and will form part of the affidavit);79
l conclusions of law based on the presented facts and evidence;
l a prayer for the relief claimed; and
l a portion for the oath (including the deponent’s signature, a statement certify-
ing that the deponent understands and acknowledges the content of the affi-
davit, and the commissioner’s signature, together with details of his/her
designation, the area for which he/she holds his/her appointment or his/her of-
fice if he/she has been appointed ex officio).80
The affidavit must be drafted in the first person (as it is in
The affidavit the name of the client) with the drafter making allegations
must be drafted on behalf of, and as if he/she was, the client. Only factual
in the first person. allegations should be stated in the affidavit, as opinion or
legal arguments are not allowed. The use of legal jargon
in the affidavit should be avoided. It is better to use plain and simple language
which is clear and unambiguous. Remember
that it is the client’s affidavit and not your After you have completed the
own, even if you are the one drafting it. If the draft affidavit it is imperative
use of legal jargon is unavoidable, and
where legal submissions are made which to go through it with your
the deponent could not possibly have made client to ensure that the
on his/her own, it is recommended that a
paragraph be included which explains that content is correct and that
such jargon and submissions are made on he/she understands it.
the advice of the client’s attorneys, which
________________________
79 See Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others
2008 (2) SA 184 (SCA) 200 para 43, where the court said: ‘It is not proper for a party in
motion proceedings to base an argument on passages in documents which have been
annexed to the papers when the conclusions sought to be drawn from such passages have
not been canvassed in the affidavits’.
80 See Absa Bank Ltd v Botha NO and Others (39228/12) [2013] ZAGPPHC 163 paras 6–7.
216
advice the deponent understands and accepts as correct. In any event, after you
have completed the draft affidavit it is imperative to go through it with your client
to ensure that the content is correct and that he/she understands it.
An important consideration in applica-
tions is deciding who should depose to the The person who is in the
affidavit. It is suggested that based on the best position to give evidence
principles of the best evidence rule, the
person who is in the best position to give
in the application should be
evidence in the application should be the the deponent of the affidavit.
deponent of the affidavit.
Opposed applications may consist of up to three sets of affidavits:81 the appli-
cant’s founding affidavit, the respondent’s answering affidavit and the applicant’s
replying affidavit. These are discussed in turn below:
l Founding affidavit: An applicant’s notice of motion is usually accompanied by
an affidavit setting out the facts upon which the application is based. Apart
from the general information above, a founding affidavit must contain certain
further information. For example, it is important that the applicant’s interest in
the matter be clear from the affidavit. All relevant documentation serving as
proof for the applicant’s allegations must be referred to in the affidavit and cop-
ies thereof must be attached. Supporting affidavits of witnesses should also be
attached. The founding affidavit usually concludes with a request that the court
grant the relief as set out in the notice of motion.
l Answering affidavit: An answering affidavit (also called the ‘opposing affidavit’)
should not only consist of admissions and/or denials of the applicant’s allega-
tions. It is not the same as a plea. It should set out the respondent’s response
to the applicant’s version in a narrative fashion. Although it is important to deal
with all the allegations made by the applicant, the answering affidavit does not
have to deal with them separately. The answering affidavit must respond to the
founding affidavit in a logical and orderly manner, so that the respondent’s
opposition is clear.
l Replying affidavit: The replying affidavit is the applicant’s opportunity to reply
to matters raised in the respondent’s answering affidavit. It is not, however, an
opportunity for the applicant to raise new matters, except in response to alle-
gations raised by the respondent in the answering affidavit. The principle is
that an applicant must, in the founding affidavit, set out the full basis for the
claim. The reply should only deal with new matters and points of clarity based
on the opposition outlined by the respondent in the answering affidavit and
should not be used to simply expand further on the founding affidavit.
________________________
81 In some circumstances supplementary affidavits may be allowed. Affidavits are statements

made under oath. Therefore they cannot be amended. They may, however, be supplement-
ed either with leave of the court or if the court rules allow for it.
217
l Supporting affidavits: Should the applicants or the respondents wish to present

evidence by another party in support of their versions, they must obtain an
affidavit from such person and attach it to the notice of motion together with
the founding or answering affidavit. Replying affidavits may also have support-
ing affidavits.
10.7 Drafting other court documents

This section of the chapter deals briefly with court documents that do not consti-
tute pleadings, notices or applications but which may be made use of as part of
the litigation process. The discussion is limited to two such court documents,
namely heads of argument and pre-trial minutes.
10.7.1 Heads of argument
A legal practitioner must prepare and present a proper argument on behalf of the
client and should use every argument and observation that can legitimately,
according to the principles and practice of law, be put before the court. Heads of
argument serve a critical purpose in this regard.82 The heads should focus on the
best arguments available to the client. In formulating heads, legal practitioners
must engage fairly with the record of evidence and advance submissions thereto,
supported by case law or any other applicable legal authority.
Heads must be concise and should not deal with irrelevant issues. Further-
more, the drafter should not mislead the court in his/her heads of argument and
must adequately address the legal issues that the court is required to determine.
There is no definitive guide for what must be contained in heads of argument. It
is suggested that, when drafting heads of argument, you should adopt the follow-
ing approach:
l start by identifying the legal issues;
l provide a summary of the relevant background and material facts;
l make provision for the proposition of law with reference to authority and the
record (if applicable);
l apply the propositions of law to the facts;
l state the pertinent conclusions of law; and then
l conclude by referring to the relief the litigant is entitled to.
10.7.2 Pre-trial minutes
After the close of pleadings in action proceedings, the preparation for trial stage
commences. One aspect that is often dealt with during this stage is the pre-trial
conference.83 During a pre-trial conference the parties or their legal representatives
________________________
82 See S v Ntuli 2003 (4) SA 258 (W) 265E–F regarding the importance of filing proper heads
of argument. The court may take various remedies where inadequate heads of arguments
are filed, like deprivation of the right to charge a fee and the referral to the appropriate
authority for institution of disciplinary proceedings.
83 See generally HCR 37, MCR 25 and s 54 of the Magistrates’ Court Act.
218
meet to discuss procedural aspects aimed at narrowing the legal issues, shorten-
ing the length of the trial, facilitating settlement between the parties and curbing
the costs of the litigation process.84 This is done by, for example, agreeing on
factors such as: what issues are in dispute, what facts are common cause, who
bears the duty to begin, whether an inspec-
tion in loco is required, how many witnesses Once the parties or their
the parties intend to call, the anticipated legal representatives have
duration of the trial, and other similar factors. signed the pre-trial minute,
The issues to be dealt with at the pre-trial it constitutes a binding
conference are usually specified in the rules.
Once the pre-trial conference has been held, agreement from which a
the parties record the principle points of party cannot retract without
discussion in a pre-trial minute which must special circumstances.
be signed by the parties. It is important to
note that once the parties or their legal representatives have signed the pre-trial
minute, it constitutes a binding agreement from which a party cannot retract
without special circumstances.85 A drafter must therefore be careful when prepar-
ing a pre-trial minute on a client’s behalf.
10.8 Conclusion
If you follow all the guidelines as discussed above, you should succeed in drafting
pleadings, notices and applications that will be effective in expressing your client’s
case in court. As stated above, you will only develop your drafting abilities through
diligent practice. Innes CJ presented the following thought:
The object of pleading is to define the issues; and parties will be kept strictly to
their pleas where any departure would cause prejudice or would prevent full enquiry. But
within those limits the Court has a wide discretion. For pleadings are made for the Court
86
and not the Court for pleadings.
________________________
84 MEC for Economic Affairs, Environment and Tourism, Eastern Cape v Kruizenga and
Another 2010 (4) SA 122 (SCA) 126 para 6.
85 Filta-Matix (Pty) Ltd v Freudenberg and Others 1998 (1) SA 606 (SCA) 614B–C.
86 Robinson v Randfontein Estates GM Co Ltd 1925 AD 173 198.
219
Drafting wills
By Jobst Bodenstein
11.1 Introduction
The professional responsibilities attached to drafting of wills are highlighted by the
obvious fact that it is impossible to ascertain a testator’s true mindset after death.
This point is underscored, if not always appreciated by laypersons, by Gest’s
warning that ‘every man who knows how to write thinks he knows how to write a
will and long may this happy hallucination possess the minds of our lay brethren’.1
This chapter is aimed at engendering a professional approach towards the
drafting of wills, whilst providing practical guidance with regard to the entire pro-
cess, commencing with the general approach to drafting, important prior consid-
erations, and ultimately the execution of the will. Being primarily concerned with
practical aspects of the drafting of wills, the discussions will be limited to the more
common concepts of the law of succession. It is, however, imperative that readers
acquaint themselves with the prescribed formalities for the execution of wills2 and
other equally important but less common concepts (for example massing, colla-
tion, revocation and fideicommissa).
The chapter also contains a useful interviewing checklist when taking instruc-
tions, as well as two examples of simple wills.
11.2 Client communication and professionalism

There is far more to drafting a will than a knowledge of succession laws, the
contents of a will and the legally appropriate phrases to be used in a will. As shall
become apparent, it is most certainly not an activity that should be attempted in
haste or as an ‘in-between’ task in a busy law practice. Rogers describes the
making of a will as ‘one of the most solemn and sacred juristic acts a person can
perform’.3 The role of the professional will drafter is in assisting a layperson in
________________________
1 Gest (1907). Practical Suggestions for Drawing Wills. The American Law Register
(1898–1907), 55(8), (465–506) at 465. http://doi.org/10.2307/3307015.
2 The Wills Act 7 of 1953 (as amended by Acts 48 of 1958, 80 of 1964, 41 of 1965 and 43 of
1992) (the Wills Act).
3 Rogers ‘The Action of the Disappointed Beneficiary’ 1986 SALJ 581–611.
221
traversing a potential minefield of statutes, court precedents, legalese and the

uncertainty and well-being of loved ones. Professional duty may even necessitate
overriding the assertive and imposing client, who ‘knows what he wants’ and who
‘doesn’t have time to waste on unnecessary matters’.4
11.2.1 Professionalism and drafting of Wills

There is a general expectation by the recipients of wills drafting services, which is
embedded in the code of the legal profession, that an attorney who undertakes to
draft wills on behalf the public should be properly trained and should act with due
care and diligence.5 The legal profession and the courts6 have bemoaned the
standards of legal writing in general.7 Will drafters are urged to peruse the plethora
of reported decisions of examples where South Africa’s courts were called upon to
interpret wills arising from inexpertly drafted wills. This state of affairs no doubt led
Leach JA in the Supreme Court of Appeal case of Raubenheimer v Raubenhei-
mer and Others to remark that it is ‘a never-ending source of amazement’ that so
many people rely on untrained advisors when preparing their wills – ‘one of the
most important documents they are ever likely to sign’. The upshot is that courts
must ‘all too often’ deal with disputed wills which result from ‘shoddy drafting or
incompetent advice’ ’.8 In general, the attorneys’ profession requires a practitioner
to serve with competence, care, and diligence and according to high ethical
standards.9 Apart from representing the best interest of client, a will drafter also
has a duty of care towards a beneficiary and could, if found to have acted negli-
gently, face delictual action by a beneficiary who has suffered economic loss.10
Rogers contends that the standard of care applying to attorneys would also apply
to other persons holding out to have the necessary competency, sounding a
‘warning to students who, through university legal-aid clinics, undertake to super-
vise the drawing up and execution of wills’.11
________________________
4 Emergency situations (impending death or hospitalisation) may of course necessitate a

more urgent and less intensive approach.
5 Louw NO v Engelbrecht 1979 (4) SA 841 (O); Meyrowitz Administration of Estates and
Estate Duty (2004) para 5.2.
6 Steyn J, in Ex parte Kock NO 1952 (2) SA 502 (C) 516, laments that ‘our courts are almost
daily approached to construe wills badly drafted and in which the meaning and intention of
the testator is not clearly expressed’.
7 Greenbaum ‘Teaching legal writing at South African law faculties: A review of the current
position and suggestions for the incorporation of a model based on new theoretical per-
spectives’ (15:1) 2004 Stellenbosch Law Review 3.
8 2012 (5) SA 290 (SCA) para.1 See also Ries v Boland Bank PKS Ltd and Another 2000 (4)
SA 955 (C) 969; De Waal ‘The Law of Succession and Trusts’ (2012) Annual Survey of
South African Law 833–841.
9 Louw v Engelbrecht 1979 (4) SA 841 (O) 846; Van der Merwe ‘Cautioning the careless
writer: The importance of accurate and ethical legal writing’. (39(2)) 2014 Journal for Juridi-
cal Science 23–52
10 Ries v Boland Bank; Schultz JA in BOE Bank Ltd v Ries 2002 (2) 39; Rogers at 594–613.
11 Rogers at 618.
222
Drafting wills
The professional drafting of wills requires the following specialised competencies:

l Expert knowledge in at least the laws of succession and administration of
estates, whilst keeping abreast of latest developments in these and related
fields.
l Communicate effectively and clearly with the client and take proper instruc-
tions.12 The more time spent on becoming acquainted with the personal and
financial circumstances, the psychological profile and the client’s outlook on
life, the better equipped the practitioner will be to fulfil the task professionally.
Drafters should have a clear understanding of the testator’s wishes. These
wishes can best be determined by consulting directly with the testator, rather
than through an intermediary. In Ex parte Lutchman and Others,13 an attorney
took instructions from the testator’s son, who was unaware that his father had
already executed a valid will. Based on the son’s ignorance and on miscom-
munication between the attorney and the son, the attorney drafted a will revok-
ing the existing will, whilst only disposing of part of the assets of the testator.
This necessitated an application to court after the death of the testator. The
court expressed its disapproval at the actions of the attorney. Clients should
be advised to have their wills regularly reviewed in the light of constant chang-
es to their personal and financial circumstances.
l Translate the testator’s wishes into terms which make legal sense and which
are practically executable.
l While drafting:
• be brief: Whilst the size of the document may appear impressive, unneces-
sarily padding it increases the chances for potential errors, whilst possibly
exposing the integrity of the practitioner who charges per page.
• use precedents and templates with caution: The practice of ‘patching’
together a will from clauses derived from various precedents or templates is
both dangerous and unprofessional. One sees wills based on foreign tem-
plates using outdated or irrelevant phrasing and based on foreign laws. As
pointed out by Roux and Strydom, laymen do not realise the potentially far-
reaching consequences of the injudicious use of even a single word or
phrase on the validity of a will.14 Every will should be seen as a unique doc-
ument adapted to the special circumstances and needs of each individual
testator. There is, on the other hand, no reason why certain phrases, which
have withstood the test of time and whose meanings are fully understood by
the drafter, should not be used, albeit judiciously.
• use simple language: In interpreting wills, South Africa’s courts have placed
great reliance on the ‘language used’(author’s italics) in order to determine
________________________
12 Meyerowitz ‘Meyerowitz on Administration of Estates and Estate Duty’ (2004) at para 5.2.
13 1951 (1) SA 125 (T).
14 Roux and Strydom ‘The forgotten art of drafting wills’ Without Prejudice March 2014 34 35.
223
the wishes of the testator.15 Furthermore, since the will represents a per-
sonal declaration of its maker, who must be able to understand it, only plain
and simple language should be used.16 The use of Latin phraseology and
complex legal words increases the likelihood of the drafted document not
being fully understood by the client, thereby unnecessarily compromising
the accuracy of the true intention of the testator.17 A well-drafted will should
not only be clearly understood, but also not be open to any misunderstand-
ing. Ensure that there are no ambiguities in the will. This presupposes that
the draftsperson has carefully considered what is intended to be said and
excludes the possibility of different meanings being attached to the text.
Punctuation, if correctly used, may be crucial in correctly expressing the tes-
tator’s intention.18 It may also ‘provide the decisive reason for [a court]
accepting one construction rather than another’.19
• follow a logical order: The order of the will should be logical, dealing with
one issue at a time. It is, for example, logical to first deal with all legacies
before accounting for the residue of the estate. This will ensure that un-
necessary repetitions and omissions are minimised.
l Rather than running the risk of making a mistake with potentially dire conse-
quences, set aside sufficient time and prioritise the completion and execution
of the will. This further entails a flexible approach towards prioritising clients
based on their age or medical emergencies.20
l Be meticulous about full compliance with the formalities of the Wills Act
regarding the execution of wills.21 In the Raubenheimer case,22 the advisor had
‘completely improperly’ suggested that the testator should sign the will and that
he (the advisor) would later ‘attend to the witnessing thereof in my
offices’.23 In Pretorius v McCallum,24 the court awarded delictual damages
against an attorney who had caused a will to fail by not ensuring that the for-
malities for execution were properly complied with.
________________________
15 In terms of the formulation of the ‘golden rule’ by Innes ACJ in Robertson v Robertson’s
Executors 1914 AD 503 507; see also Van Wetten and Another v Bosch and Others. 2004
(1) SA 348 (SCA).
16 On the use of language in legal documents, see also the relevant paragraphs in the chap-
ters on letter writing, drafting of pleadings and drafting of contracts; Cloete ‘Note – Guard
against disappointed Beneficiaries: the Will-Drafting duties of the Legal Practitioner’ 2003
TSAR 540 543.
17 Barker (1993) The Drafting of Wills in South African law at 5.
18 Supra at 98.
19 Harter v Epstein 1953 (1) SA 287 (A) 298.
20 Cloete at 542.
21 S 2(3) inserted by the Law of Succession Amendment Act 43 of 1992 into the Wills Act. See
also discussion in para 11.8.5. ‘Non-compliance with formalities’ below.
22 See fn 8.
23 De Waal at 834.
24 2002 (2) SA 423 (C). See also Hutchinson ‘The disappointed beneficiary smiles at last’
2000 SALJ 186.
224
Drafting wills
11.2.2 Wills consultation with client

Many persons live in fear of the process of dying and avoid talking about it, espe-
cially with a stranger. People stress about the impact of sudden death and the
well-being of their loved ones. To be allowed inside the client’s personal inner
sanctuary and to contend with emotionally-charged issues calls for a combination
of empathy, trustworthiness, sensitivity, listening skills, calmness, patience and
the ability to solve problems. The reward for success is a happy and contented
client, professional contentment and the possibility of continued patronage.
Be sensitive: Many persons react quite emotionally when having to face up to
their eventual death. The client should be treated with the necessary sensitivity.
Counsel the client: Testators sometimes regard a will as a vehicle to spew
anger or to convey vindictive parting shots against those who had slighted or
crossed them. Professional drafters should not allow themselves to be used as
mere recorders of vented emotions. Under these circumstances, a fine balance
needs to be maintained between following instructions on the one hand, and
acting professionally on the other hand.
The interview should commence with the client being provided with an overview
of what the process entails: the will drafter must show an understanding of the
concerns and wishes of the client; the client’s family circumstances; financial
planning; personal wishes regarding the disposal of mortal remains; details of all
the assets and liabilities; and the persons who should benefit. Where necessary,
the will drafter should conduct a discussion on how best to achieve a balance
between the interests of the beneficiary and the wishes of the testator. Clients
should also be advised of the need to regularly review their wills in the light of
constant changes to their personal and financial circumstances.
It is suggested that a will interview form be used. This will not only ensure a
logical step-by-step approach, but also obviate the embarrassment of having
overlooked information or documents and having to approach the client for a
second interview. A suggested checklist with the most important information to be
obtained is contained in paragraph 11. 5 below.
Cautionary notes to will drafters

l Confidentiality: The rule of confidentiality prevents the will drafter from ever
using any information obtained to the detriment of the testator without his/her
consent. A practitioner who obtains joint instructions from spouses to draft
their joint will should not represent either of the spouses in potential subse-
quent divorce proceedings.
l Custody of the original will: A practitioner who has been instructed to hold the
testator’s will has a duty, firstly to hold the will in safe custody and free from
damage or theft and, secondly, to give effect to the testator’s intentions by dis-
closing the existence of the will within a reasonable time after the testator’s
death.25
________________________
25 Cloete at 544; Late disclosure of the existence of a will can result in professional liability,
see Arthur E Abrahams and Gross v Cohen 1991 (2) SA 301 (C) 301.
225
11.2.3 Estate Planning

According to Van der Westhuizen,26 estate planning is about ‘the deciding in
advance by an estate owner of what to do with his assets and liabilities during his
lifetime and upon his death, how to do it, when to do it and who to do it.’
Satisfactory synchronisation should be attained between the terms of the will and
the financial position at the time of the testator’s death. The will drafter should
have a rudimentary knowledge of the laws pertaining to income tax, estate duty,
life assurance and pensions.27 Estate planning is necessary to ensure that proper
provision has been made for the following exigencies:
l Sufficient liquid assets to cover:
• expenses arising immediately upon death,28 including medical (‘deathbed’)
expenses (for example, hospitalisation and operations following a serious
accident) and funeral costs;
• the costs of administration of the estate. These include bank charges on the
estate’s banking account, costs of placing statutory advertisements for
debtors and creditors and the liquidation and distribution account to lie for
inspection, and executors’ fees. An executor is entitled to a set fee, which
presently constitutes a flat rate or 3,5% of the gross value of the assets in
the estate and 6% on any income collected/accruing after the death;29
• creditor’s claims, including bonds over fixed property, credit agreements
and income tax on income and capital;30
• maintenance and education of dependants;31
• the diminishing effect of inflation on the financial needs of the testator’s
dependants at the time of death;32
• the continuation of a family business; and
• estate duty and income tax, including capital gains tax.33
In determining the liquidity of the estate, it is important to assess the life assurance
portfolio of the client: is there sufficient cover against the client’s indebtedness in
terms of a mortgage bond or credit agreements and to provide financially for the
family after death? If necessary, the client should be referred to a life assurance
broker for specialist advice on life assurances and to an accountant for advice on
taxation.
________________________
26 Van der Westhuizen ‘The Multidisciplinary nature of Estate Planning as a Science’ 2002
Journal for Estate Planning Law Vol 1 1.
27 Carroll ‘Who’s estate is it anyway’ Moneyweb’s Personal Finance October 2012 810.
28 Davis, Beneke and Jooste ‘Estate Planning’ LexisNexis Loose-leaf Edition at 1–7.
29 Prescribed in terms of Regulation 5(1)(a) of the Administration of Estates Act 66 of 1965.
30 Davis et al at 1–5.
31 Davis et al at sections 1, 9, 10 and 15; Goodall, Botha and Geach Estate Planning, ‘The
South African Financial Planning Handbook 2015’ LexisNexis Loose-leaf Edition at 35; see
also ‘Claims for Maintenance’ in para 11.4.2.5 below.
32 Davis et al at 1–7.
33 Davis et al ‘Estate Planning’ 1–5 and Davis et al ‘Financial Planning’ LexisNexis Loose-leaf
Edition chapters 1, 6, 10–12.
226
Drafting wills
11.2.4 Execution of wills

The formalities in regard to the execution and amendment of wills are discussed
in paragraph 11.8 below. These formalities ensure the authenticity of wills, elimi-
nate false or forged wills34 and help to avoid uncertainty and speculation35
Strangely enough, although lawyers are trained in approaching laws methodically
and studiously, the non-compliance with the formalities in terms of the Wills Act is
one of the more prevalent reasons why problems with wills land in court.
11.3 General approach to drafting

11.3.1 Language
Since the will represents a personal declaration of its maker, only plain and simple
language should be used.36 The use of Latin phraseology and complex legal
words increases the likelihood of the drafted document not being fully understood
by the client, thereby unnecessarily compromising the accuracy of the true inten-
tion of the testator.37 A well drafted will should not only be clearly understood, but
also not be open to any misunderstanding. Ensure that there are no ambiguities
in the will. This presupposes that the draftsperson has carefully considered what
is intended to be said and excludes the possibility of different meanings being
attached to the text. Punctuation, if correctly used, may be crucial in correctly
expressing the testator’s intention.38 It may also ‘provide the decisive reason for [a
court] accepting one construction rather than another’.39
11.3.2 Terminology 40
Clearly identify classes of people: When identifying classes of people, it is most
important to use precise and legally-accepted terms.41 A bequest, for example ‘to my
sons’ children’, begs the question whether the testator had intended to limit the
bequest to those of his sons’ children born at the time of his death, on the one hand,
or any children that may ever be born to his sons, on the other hand. The words
‘family’ or ‘relations’ have no precise legal connotation and should be avoided.
________________________
34 Macdonald and Others v The Master and Others 2002 (5) SA 64 (O) 69I–70A.
35 Pace and Van der Westhuizen Wills and Administration of Estates LexisNexis Loose-leaf
Edition A4.
36 On the use of language in legal documents, see also the relevant paragraphs in the chap-
ters on letter writing, drafting of pleadings and drafting of contracts.
37 Barker (1993) at 5.
38 Supra at 98.
39 Harter v Epstein 1953 (1) SA 287 (A) 298.
40 Unit 5 of Van der Walt and Nienaber (2004) English for Law Students provides a useful and
practical insight into the use of legal terminology in the drafting of wills.
41 Estate Watkins v CIR 1955 (2) SA 437 (A) 448, where the court criticised the use of tautol-
ogous language. See also Pace ‘Wills’ in Pace and Van der Westhuizen Wills and Trusts
LexisNexis Loose-leaf Edition A1.
227
They could be intended to include one or all of the children, spouse, brothers and
sisters, parents, uncles and aunts.42 Unless otherwise indicated in the will, an
adopted child and a child born out of wedlock are regarded as ‘children of the
testator’.43
l Clearly identifying classes of objects: Take note that the term ‘money’ includes
notes and coins as well as the proceeds of savings, current, call and short-term
deposit accounts.44 The use of the term ‘business’ may also give rise to uncer-
tainty. This term may, for example, refer to the goodwill of the business only, or
to the assets of the business only, or to the assets and liabilities of the business.
If the testator wishes to bequeath a business as a going concern, it is suggested
that the will specifically mentions all the constituent parts of such business.
l Clearly distinguish between a direction and a wish of the testator: A direction is
a condition that is binding on the beneficiaries and the executor and which has
to be enforced as, for example, a bequest. A wish, on the other hand, is some-
thing that the testator would like a beneficiary or the executor to do, without
binding such person.
l Avoid the use of empty or rhetorical words or phrases: The phrase sometimes
used in the heading of a will, ‘being of a sound and disposing mind, memory
and understanding, and capable of any act that required thought, judgment, or
reflection’, is not only tautologous, but altogether meaningless and superfluous
(in view of the presumption in favour of the testator).45
11.4 Prior considerations

11.4.1 Capacity to make a will
Persons over the age of 16 have the capacity to make a will unless, at the time of
making of the will, they were mentally incapable of appreciating the nature and
effect of such act.46 A person with diminished mental powers will however not
necessarily lose the capacity to make a will.47 In Katz and another v Katz and
others, the court used a three-step approach in determining mental capacity in
terms of section 4 of the Wills Act: firstly, an appreciation of the act of disposing of
one’s property after death; secondly, the ability to distinguish between potential
heirs and to make a rational and reasoned decision as to their respective claims;
and thirdly, the ability to appreciate in broad terms the nature, extent and value of
the testator’s estate.48 This requirement could disqualify a person who is either
________________________
42 Pace and Van der Westhuizen A31

43 S 2D of the Law of Succession Amendment Act 43 of 1992.
44 Pace and Van der Westhuizen A41.
45 Supra A46.
46 S 4 of the Wills Act.
47 Tregea and another v Godart and another 1939 AD 16.
48 [2004] 4 All SA 545 (C) 552 paras 22–24; see also Naidoo NO v Crowhurst NO [2010] 2 All
SA 379 (WCC) Essop v Mustapha and Essop NNO 1988 (4) SA 213 (D) and Kirsten v
Bailey 1976 (4) SA 108 (C); Jacobs and Lambrechts ‘Valid or not: general principles for
continued
228
Drafting wills
drunk or so ill that his/her capacity to correctly express his/her true intention is
impaired. It has however been held that the consumption of alcohol cannot in
itself invalidate the juristic act of making a will.49
The onus of proof that the testator lacked the required capacity to make a will
rests on the person alleging it.50 A will made by a mentally incapacitated person
may, however, be valid if made during a lucid interval.51 The decisive moment for
determining competence of the testator is the time when the will is made and
executed and not when the testator gave instructions for the drafting of the will.52
A certificate provided by a general practitioner or psychiatrist, attached to the will,
may assist a court in deciding whether the testator possessed the necessary
capacity at the time of execution of the will.
11.4.2 Freedom of testation:

As a general principle, and subject to certain exceptions, some of which are
discussed below, South African law provides for a virtually unfettered right to
testation, thus allowing the maker of a will to include and exclude anyone as
beneficiary. Some of the limitations include the following:53
11.4.2.1 Bequests contrary to public policy

According to common law, a condition imposed in a bequest, which is illegal,
against public policy (contra bonos mores) or too vague, is regarded as pro non-
scripto (that is, as if not written). Examples of conditions considered by our courts
to have been contra bonos mores include the following:54
l A condition aimed at the break-up of a marriage.55 However, a condition re-
straining the remarriage of the testator’s surviving spouse has been held to be
valid;56
l A condition excluding the jurisdiction of the court. In Yenapergasan v Naidoo,57
the testator had directed in his will that any dispute between legatees and the
executor, or between the executors themselves, be submitted to a specified
attorney for arbitration. The court ruled that the said provision was void on the
basis that it sought to oust the jurisdiction of the courts and was thus against
public policy.
________________________
challenging a will’ (October 2013) De Rebus 30 32; Driver LexisNexis Family Law Service H
15 and Pace and Van der Westhuizen LexisNexis Wills and Administration of Estates A8.
49 Thirion v Die Meester en Andere 2001 (4) SA 1078 (T).
50 Corbett, Hahlo and Hofmeyr (1980) The Law of Succession in South Africa at 5–7.
51 Pace et al ‘Capacity to make a will’ A8.
52 The Essop case.
53 For further restrictions not discussed, see Pace and Van der Westhuizen A2 ‘Freedom of
testation’.
54 Pace and Van der Westhuizen A55; ‘Testamentary condition’; De Waal, Schoeman and
Wiechers (2001) Law of Succession at 92.
55 Oosthuizen v Bank Windhoek Ltd NO 1991 (1) SA 849 (NHC).
56 Rubin v Altschul 1961 (4) SA 251 (W).
57 1932 NPD 96.
229
11.4.2.2 Bequests deemed to be unconstitutional

It is possible that certain bequests, which may previously not have been regarded
as contentious, would now be invalidated on the ground that they negate or
infringe on constitutionally-protected rights. In terms of section 36 of the Constitu-
tion,58 as envisaged by section 8(3)(b), a court is obliged to balance constitutional
rights against the testator’s right to freedom of testation.59 In Minister of Education
& another v Syfrets Trust Ltd NO & another,60 the directions in a testamentary
trust restricting applicants for a university bursary to deserving students of ‘Euro-
pean descent’, whilst explicitly excluding applicants who were either females or of
Jewish descent, were held to be discriminatory and contrary to the Constitution.61
11.4.2.3 Pension funds
A benefit accruing from a pension fund is excluded from the estate of the
deceased member. In deciding which of the testator’s dependants should receive
benefits from that pension fund, the fund trustees have the authority to deviate
from the nominations made by the deceased.62
Pension funds have discretionary powers in deciding to which natural or juristic
person a death benefit due to a minor nominee should be paid.63 Section 37C of
the Pension Fund Act defines ‘dependents’ to include both ‘legal’ and ‘factual’,
and may thus also include a cohabitee or partner in a universal partnership.64
11.4.2.4 Restriction on encumbering property with a fideicommissum
Section 6 of the Immovable Property (Removal or Modification of Restrictions) Act
94 of 1965 restricts the duration of a fideicommissum to two substitutions, where-
after it lapses and the last fideicommissary retains ownership without encum-
brance.65
11.4.2.5 Claims for maintenance
The Maintenance of Surviving Spouses Act66 entitles the surviving spouse of a
marriage dissolved by death to make a claim against the deceased spouse’s
________________________
58 Constitution of the Republic of South Africa, 1996, formerly cited as Act 108 of 1996.
59 Du Toit ‘The constitutionally bound dead hand?’ 2001 Stell LR (1) 222 234 et seq.
60 2006 (4) SA 205 (C).
61 See also discussions in Wood-Bodley ‘Freedom of testation and the Bill of Rights: Minister
of Education v Syfrets Trust Ltd NO’ SALJ 2007 687 and Pace A2.
62 S 37(c) of the Pension Fund Act 24 of 1956, as amended by s 21 of the Financial Institu-
tions Second Amendment Act 54 of 1989.
63 S 37C of the Pension Fund Act as amended by the Financial Services Laws General
Amendment Act 22 of 2008. The latter Act has created a new type of concept, ie the ‘bene-
ficiary fund’, which is an optional depository vehicle for pension funds in a deceased estate
accruing to minor beneficiaries. See also Hlathi v University of Fort Hare Retirement Fund
[2009] 1 BPLR 37; and Mhango and Dyani ‘The Duty to effect an appropriate mode of pay-
ment to minor Pension Beneficiaries under Scrutiny in Death Claims’ 2009 (12:2)
PER/PELJ 144 145.
64 Schwellnus N1 ‘Cohabitation: Pension’ LexisNexis Family Law Service.
65 Pace and Van der Westhuizen A3 ‘Statutory limitations’.
66 Act 27 of 1990.
230
Drafting wills
estate for reasonable maintenance needs.67 The Act does not differentiate
between whether the deceased spouse died testate or intestate, nor between the
different matrimonial property regimes.68 The constitutional principles of ‘equality
‘and ‘human dignity ‘have resulted in both judicial and legislative changes69 and
the inclusion of the following groups within the ambit of beneficiaries (‘surviving
spouse’) in terms of Act: a civil-union partner,70 a partner in a customary law
marriage and each partner in a polygamous customary law marriage,71 and a
partner in a monogamous Muslim marriage, as well as each partner in a polyga-
mous Muslim marriage.72
A child has a claim for maintenance and education against the deceased
estates of either the father73 or the mother.74 The right to maintenance against the
estate of a deceased parent is based on consanguinity and thus includes children
born out of wedlock, and grandchildren.75 The incidence of this duty depends on
the means, circumstances and needs of the child and ‘does not terminate when
the child reaches a particular age but continues after majority’.76 However, where
maintenance is claimed from a deceased estate by a major child, the onus is on
the claimant to prove both necessity and the amount.77 The duty to maintain
pertains to both legitimate children and those born out of wedlock.78
Estate debts enjoy preference over claims for maintenance, whilst claims for
maintenance, in turn, enjoy preference over claims by residuary heirs or legatees.
The maintenance claim of the survivor is treated on an equally preferential basis
as that of a dependent child.79 If they compete with each other, these claims shall
be reduced proportionately.
________________________
67 S 2 of Act 27 of 1990; Van Zyl ‘Maintenance’ in LexisNexis Family Law Service C24.
68 Coetzee ‘Die lnvloed van die Wet op Onderhoud van Langslewende Gades 27 van 1990 op
Testeervryheid vanuit 'n Boedelbeplanningsperspektief’ (2004) LLM Dissertation, NWU
(Potch) http://dspace.nwu.ac.za/bitstream/handle/10394/973/?sequence=1.
69 See Du Toit ‘The Constitutional Family in the law of Succession’ 2009 (126:3) SALJ 463–488.
70 S 13(1) and (2) of the Civil Union Act 17 of 2006.
71 Kambule v The Master 2007 (3) SA403 (E); Palesa NO & another v Moleko & others [2013]
4 All SA 166 (GSJ); The Recognition of Customary Marriages Act 120 of 1998; De Waal
‘Law of Succession & Trusts’ (2013) Annual Survey of South African Law 996–997.
72 Hassam v Jacobs [2008] 4 All SA 350 and Faro v Bingham NO & others [2013] ZAWCHC
159 (C). See also Osman-Hyder ‘The Impact and Consequences of Hassam v Jacobs NO
on Polygamous Muslim Marriages [a Discussion on Hassam v Jacobs NO 2009 11 BCLR
1148 (CC)]’ 2011 (2) Stellenbosch Law Review 233–246; De Waal ibid.
73 Carelse v Estate De Vries (1906) 23 SC 532; Van Zyl v Serfontein 1992 (2) SA 450 (C);
Van Zyl C21 ‘Support of deceased estates–minor children’ LexisNexis Family Law Service.
74 Goldman v Executor Estate Goldman 1937 WLD 64.
75 The Goldman case supra and Lloyd v Menzies 1956 2 SA 97 (N).
76 Bursey v Bursey 1999 (3) SA 33 (SCA) 36C–E; as per Smit v Smit 1980 (3) SA 1010 (O)
1020–1024, the duty to maintain may also include funding of the child’s tertiary education,
including clothing and food; See also Botha ‘The Duration of the Duty to Maintain and of a
Maintenance Order (125:3) 2008 SALJ 715–730.
77 Van Zyl C22 ‘Support out of deceased estates: major children’.
78 Supra.
79 S 2(3)(b) of Act 27 of 1990.
231
Regarding the duration of maintenance obligations, our courts have distin-

guished between two situations: firstly, in the case of maintenance orders, in
terms of a written agreement made an order of the court, the obligation may
survive the death of the maintenance debtor, provided that the maintenance
creditor has neither remarried nor predeceased the debtor;80 and secondly, where
an order for maintenance was made in the absence of an agreement between the
parties, the maintenance obligations do not survive the death of the maintenance
debtor.81
11.4.3 Surviving spouses

Testators married in community of property cannot dispose of their spouses’ half-
share of the joint estate. The act of marriage in community of property does not
divest third parties of their rights. Such marriage does thus neither revoke a
bequest in a will which was executed prior to the marriage, nor a nomination of a
beneficiary in terms of an insurance policy.82 Cohabitees living together can only
inherit from one another by virtue of a testamentary disposition.
The Matrimonial Property Act 88 of 1984 provides that the right to accrual
against an estate is to be determined before effect is given to any testamentary
disposition.83 There is a duty on the surviving spouse to quantify the accrual and
to lodge a claim against the estate with the executor.84 A spouse married out of
community of property and subject to the accrual system has, on dissolution of
the marriage by death, a claim for one half-share of the accrual if such surviving
spouse has either been disinherited or inherits less than his/her half-share.85
11.4.4 Will maker married according to customary law

The will drafter and particularly the student, candidate attorney or attorney serving
at a law clinic, should take cognisance of a number of recent developments as
regards customary laws. The Recognition of Customary Marriages Act 120 of
1998 has affected the matrimonial proprietary consequences of a customary
marriage entered into after 15 November 2000 (the date of promulgation of the
Act) and distinguishes between:
________________________
80 S 7(2) of the Divorce Act 70 of 1979; Owens v Stoffberg 1946 CPD 226 and Milne v Estate
Milne 1967 (3) SA 362 (C).
81 Van Zyl C37 ‘Duration of maintenance awards to divorced spouses’; Hodges v Coubrough
1991 (3) SA 58 (D).
82 See Hees NO v Southern Life Association Ltd 2000 1 SA 943 (W); Sonnekus B18 ‘Commu-
nity Property’ LexisNexis Family Law Service.
83 S 4(2); see Green ‘Accrual can imperil inheritance’ November 2008 De Rebus 22.
84 S 4(2) of the Matrimonial Property Act 88 of 1984; Barnard v Van Der Merwe 2012 (3) SA
304 (GNP); De Waal ‘The Law of Succession and Trusts (including Administration of
Estates)’ 2012 Annual Survey of South African Law 844.
85 Act 88 of 1984.
232
Drafting wills
l monogamous customary marriages, regarded as being in community of prop-

erty and of profit and loss between the spouses86 and;
l polygamous customary marriages, regarded as being out of community of
property and of profit and loss.87
In October 2004, the Constitutional Court (in Bhe v The Magistrate, Khayelitsha)88
declared section 23 of the Black Administration Act 38 of 1927 and the customary
rule of male primogeniture to be unconstitutional. The Constitutional Court’s
findings on the unconstitutionality of the customary law of intestate succession
was regulated legislatively by the promulgation of the Reform of Customary Law
of Succession and Regulation of Related Matters Act 11 of 2009.89 Section 6 of
the Recognition of Customary Marriages Act has introduced equality between a
customary law wife and husband as to their rights to dispose of their share of the
community property.
11.4.4 Divorced spouses
A divorced spouse is, for a period of three months from the date of divorce,
excluded from inheriting from the will of the former spouse which was executed
prior to the divorce.90
11.4.5 Bequests to minors
A cash bequest to which a minor becomes entitled must be paid into the Guard-
ian’s Fund,91 unless provision has been made for the creation of a trust. Funds in
the Guardian’s Fund earn nominal interest and are only released when a benefi-
ciary reaches the age of 21 years. The natural guardian is entitled to receive the
movable property on behalf of the minor to whom it has been bequeathed.
11.4.6 Disqualified beneficiaries92

l In terms of the common law, and based on the principle that no one should
derive a benefit from his own wrongful act, a person may not inherit from
________________________
86 In terms of s 7(3) of Act 120 of 1998, Ch III and ss 18, 19, 20 and 24 of the Matrimonial
Property Act 34 of 1984 apply to this category of customary law marriages.
87 See Mafuthi and Bekker ‘The recognition of the Customary Marriages Act of 1998 and its
impact on family law in South Africa’ (35:2) 2002 Comparative and International Law Jour-
nal of Southern Africa (CILSA) 188–189.
88 2005 (1) SA 580 (CC). In Moseneke v The Master (2001) 2 SA 18 (CC), the Constitutional
Court likewise declared s 23(7) of Act 38 of 1927, which had excluded the jurisdiction of the
master with respect to the administration of Black intestate estates, to be unconstitutional
and invalid.
89 As amended by the Judicial Matters Amendment Act 42 of 2013; See Rautenbach ‘South
African Common and Customary Law of Intestate Succession: A Question of Harmonisa-
tion, Integration or Abolition’ 2008 (3) Journal of Comparative Law 119–132; Mwabene
‘Succession in Customary Law and in South African general’ G76–80 LexisNexis Family
Law Service.
90 S 2(B) of the Wills Act.
91 S 43 of the Administration of Estates Act 66 of 1965.
92 See also Driver ‘H21: Law of Succession’ LexisNexis Family Law Service.
233
someone whose death was caused by his criminal wrongfulness.93 The same
principle applies to someone who forged a will in order to deprive his siblings
of intestate benefits94 and to undue influence or duress. The latter conduct has
been regarded as being akin to coercion or fraud.95 A will can be declared in-
valid on this ground if it can be shown that ‘the conduct has resulted in the
substitution of the wishes of another for the wishes of the testator.’96 The testa-
tor’s mental state, his ability to resist prompting and instigation and the rela-
tionship between the people concerned are factors to be taken into account. A
document that contains the wishes of someone other than those of the testator
cannot constitute a valid will. 97
l In terms of statutory law, the following persons are disqualified from benefiting
from a will:98
• anyone who signs as a witness to that will;
• anyone who signs a will in the presence and by the direction of the testator;
and
• anyone who writes out the will or a part of it in his/her own handwriting, and
that person’s spouse.
The disqualifications, however, fall away under the following three circum-
stances:
• a court may declare that person to be competent to inherit, if the court is
satisfied that that person neither defrauded nor exerted undue influence on
the testator;
• that person would have been entitled to inherit according to the laws of
intestate succession, but not exceeding what would have been his/her intes-
tate share; and
• the will has been signed by at least two other competent witnesses who do
not benefit from it.
The nomination in a will of a person or his/her spouse as executor, administra-
tor, trustee or guardian will be null and void if the person nominated or his/her
spouse is one of the witnesses or has signed the will for the testator in his/her
presence.99
11.4.7 Substitution
A bequest only takes effect if the nominated beneficiary is alive, willing or able to
inherit upon the death of the testator. Substitution provides for the appointment of
________________________
93 In Makhanya v Minister of Finance and Others 2001 (2) SA 1251, the court extended this
principle to pension benefits payable despite the fact that these benefits did not directly
accrue from the estate of the deceased.
94 Pillay v Nagan 2001 (1) SA 410.
95 Katz and another v Katz and others [2004] 4 All SA 545 (C) 575.
96 Supra, 575 para 111.
97 Spies NO v Smith en Andere 1957 (1) SA 539 (A). See also Kirsten and others v Bailey and
others 1976 (4) SA 108 (C) 111F.
98 S 4 of the Wills Act; see also Driver ‘H24 Law of Succession – Statutory disqualifications’.
99 S 4A (3) of the Wills Act.
234
Drafting wills
one beneficiary in place of another. Failure to provide for substitution of an heir or

legatee who predeceases the testator may either result in a legacy falling into the
residue of the estate, or in the inheritance devolving by intestate succession.100
There are different forms of substitution:
l Direct substitution: Here the substitute steps into the shoes of the original
beneficiary. Where a number of beneficiaries are named, the linking of their
names with the word ‘or’ normally indicates that the testator intended direct
substitution, whereas the linking with ‘and’ normally indicates an intention of
the beneficiaries inheriting jointly.101 If testators leave their estate, for example,
to their three children and only one child survives the testator, the two prede-
ceased children leaving two and three children respectively, the question
arises whether the five grandchildren should inherit equally (per capita) or
should share only in the portion which their deceased parent would have got
(per stirpes or ‘by representation’). The difference between ‘substitution per
capita’ and ‘substitution by representation’ must be made clear in the will.102
Section 2C (2) of the Wills Act provides for direct substitution by presumption.
Where descendants appointed in a will predecease the testator, repudiate their
share or are disqualified from inheriting, their descendants would be entitled to
their share by representation, unless there are indications to the contrary in the
will.103 For example, X bequeaths her estate in equal shares to her three chil-
dren A, B and C. Upon her death, X is survived by A and B as well as by Y and
Z, her grandchildren of her predeceased child C. Unless X provided for substi-
tution per capita, A and B will be entitled to a third-share each and Y and Z to
a sixth-share each. The latter principle applies both to bequests to individuals
(for example ‘to my granddaughter’) and to class bequests (for example ‘to all
my children’).
l Indirect or fideicommissary substitution: Here the intention of the testator is to
bequeath a benefit, usually fixed property, to a specific person (the fiduciary
heir), subject to the fulfillment of a condition (usually the death of the fiduciary),
that the benefit will pass on to another beneficiary (the fideicommissary heir).
l Substitution of a surviving spouse in a joint will: It is advisable to provide for
the eventuality that both spouses succumb to a calamity and the likelihood of
encountering difficulties in determining who died first, or where the survivor
dies shortly after the first-dying spouse without making a new will.104 By provid-
ing a time period within which the spouses are deemed to have died simulta-
neously, for the purpose of the administration of their joint estate, the testators
can ensure that the joint estate immediately passes to their substitute benefi-
ciaries. The latter can result in considerable savings in time and in unneces-
sary fees and legal and administrative costs.
________________________
100 Driver ‘Succession-H53 Substitution of an heir or a legatee’.

101 Pace and Van der Westhuizen A61 ‘Substitution’.
102 Kernick LA 111.
103 Pace and Van der Westhuizen A62 ‘Substitution by implication or by statute’.
104 Shrand (1973) The Administration of Deceased Estates in South Africa at 30.
235
11.4.8 Conditional bequests

There are various types of conditional bequests in wills. These are discussed
below, with some examples:
l Suspensive conditions:
I bequeath my 1965 Porsche 976 to my son Patrick, provided that he attains a LLB
degree within one year after my death, failing which, I direct that this bequest shall
devolve upon my son Ian.
It is clear that the Porsche will only vest in Patrick on fulfillment of the condition
(that he attains a LLB degree). The condition imposed may, however, for obvi-
ous reasons, cause considerable delay in the winding-up of the estate. Without
the substitution clause in favour of Ian, the bequest would become a nudum
praeceptum (nude prohibition or gift-over), resulting in the condition falling
away.105
l Resolutive conditions:
I bequeath my jewellery to my daughter, Tembisa. Should she, however, marry Charlie

Shotgun, the jewellery shall devolve on my daughter Nkosinati.
In the event of the testator’s death, the bequest vests immediately on Tembisa
She will, however, be divested of the jewelry should the resolutive condition
(marriage to Charlie Shotgun) be fulfilled. Again, in the absence of substitution
(gift-over), the condition will fall away.106
l Conditions containing nude prohibitions: Conditions containing nude prohibi-
tions are regarded as pro non scripto and are unenforceable.107 Examples of
nude prohibitions include: the failure of the will to indicate consequences in the
case of the breach of a prohibition; the expression of a wish or a direction by
the testator, without granting someone the right of enforcing such wish or
direction;108 and a prohibition attached to a bequest, without providing for a
person, by gift-over, to enforce such prohibition.
l Vague and uncertain conditions: Conditions must be stated clearly and unam-
biguously. If a condition is vague and uncertain, it may be regarded as pro
non-scripto.109
l Usufruct and fideicommissum:110 It is important to clearly understand the
difference between these two modes of conditional bequests, especially as
regards restrictions on the use and ownership of bequeathed property.
________________________
105 Wiechers (1988) Testamente at 74.

106 Supra at 75.
107 Supra at 22.
108 Jewish Colonial Trust Ltd v Estate Nathan 1940 AD 163.
109 De Waal et al at 93.
110 Pace A63.
236
Drafting wills
In the case of a usufruct, property is bequeathed to a third party, subject to the

rights of possession and use and enjoyment in favour of the usufructuary. The
usufructuary does not become the owner, and the right ceases upon the death
of the usufructuary or the occurrence of an event stipulated in the will.
However, in the case of a fideicommissum, property being bequeathed to the
first taker (the fiduciary) would be subject to the condition that, on the occur-
rence of a specified event (for example the death of the fiduciary), the property
will pass on to the fideicommissary heir. The fiduciary then becomes the owner
but is prohibited from alienating the property and has a duty to pass on the full
value of the property to the fideicommissary heir. Fideicommissary bequests
are limited to two successive fideicommissary heirs.111
There is a general principle that testamentary bequests are unconditional and
thus a rebuttable presumption against the creation of a fideicommissum and, if
there is reasonable doubt, the courts will construe a condition as direct substi-
tution in avoidance of a fideicommissary substitution.112
It is also possible for the testator to impose a condition providing for similar
substitution, whilst permitting the fiduciary to alienate or use the property (fidei-
commissum residue).113
11.4.9 Testamentary trusts

Types of testamentary trusts: There are two types of trusts created by will.
Firstly, in the case of the ‘testamentary bewind trust’, the testator bequeaths
assets to beneficiaries. However, due to their incapacity (for example, minority)
the testator appoints trustees to administer such assets.114 Here limited ownership
is vested in the beneficiaries, with the control and management of the trust assets
being vested in the trustees. Secondly, in the case of the ‘testamentary trust’ (in
the narrow sense of the word), the testator bequeaths assets to the trustees to
administer for the benefit of beneficiaries.115 This type of trust is usually created to
provide for the education of testator’s children who are no longer minors, or to
cover living/medical expenses of dependants deemed to be unable to look after
themselves. In the case of a testamentary trust, in the narrow sense, ownership,
including management and control, normally vests with the trustees, but only for
the purposes of the administration of the trust.116
________________________
111 Suspension or Amendment of Limitations of Immovable Property Act 94 of 1965.

112 Ex parte Executors Estate Kemp 1940 WLD 26 30; Reed and others v Master of the High
Court of SA and others [2005] 2 All SA 429 (E) 451 paras 69–70; see also Pace and Van
der Westhuizen A63 ‘Fideicommissum’; for a discussion on the difference between fidei-
commissary and direct substitution, see Corbett, Hofmeyr and Kahn ‘The Law of Succes-
sion in South Africa’ (2001 2nd ed) at 199.
113 Driver H47 ‘Fideicommissa’.
114 Pace and Van der Westhuizen B7 ‘Formation of Trusts’.
115 Supra.
116 Pace and Van der Westhuizen B5 ‘Legal nature of a trust’.
237
Powers of trustees: A trust operates through its appointed trustees who hold
and administer the trust assets and affairs in a fiduciary capacity on behalf of the
trust beneficiaries. Normally, wide powers are granted to trustees, including
powers to invest trust funds as they deem fit. In formulating these powers, a fine
balance has to be struck between protecting the trust against abuse and empow-
ering the trustees to sustain capital growth as a hedge against inflation. It is thus
advisable to allow trustees sufficient flexibility.117 The obligations imposed upon
the administrators should be realistic. Where fixed property is held in trust for a
surviving spouse, it should be considered that such survivor may at a later stage
wish to move closer to the children, into a more manageable abode or to a more
secure environment.
Duration and the termination of the trust: A number of issues need to be
considered as regards the termination of a trust created for the maintenance and
education of more than one child and with considerable age gaps. It is difficult for
testators to foresee at what age their children will be responsible enough to
manage their finances independently, especially if they are still young. One solu-
tion would be to stipulate that the trust terminates when the youngest child reach-
es the age of twenty-five, with the provision that the trustee has the discretion to
pay capital to a child before it reaches the stipulated age, if there are good rea-
sons to do so.118 Should the trust be terminated only when the youngest benefi-
ciary attains the stipulated age or until all children have completed their tertiary
education? This may be prejudicial to the older siblings who, due to age differ-
ences, may have to face a lengthy wait before receiving their share of the capital.
On the other hand, it may not make sense to break up a trust and to pay a benefi-
ciary’s share of the capital. This would especially be true were there are fixed
properties which provide an income.
Nomination of trustees: In the case of a trust created for the protection of
minors, it is prudent to consider appointing a close family member as co-trustee
together with a professional (for example an attorney or accountant). The family
member will be in a better position to determine the day-to-day needs of minor
beneficiaries. A spouse, parent or child, nominated by the testator as trustee, is
exempt from furnishing security. A person nominated as trustee, falling outside
the said group, would have to be specifically exempted in the will from having to
furnish security.119
11.4.10 Nomination of a guardian

The term ‘guardianship’ includes both access to and custody of a child. These two
functions are, however, divisible.120 The guardian administers a child’s estate
________________________
117 Pace and Van der Westhuizen B7.2 ‘Trusts formed by means of a will’; Pinkerton (1971)
The Drafting of Wills with Precedents at 29.
118 Pinkerton at 30.
119 Trust Money Protection Act 34 of 1934; Honore et al (1992) at 194.
120 Schäfer E37 ‘Definition of Guardianship’ in ‘Children and Young Persons’ LexisNexis
Family Law Service.
238
Drafting wills
on its behalf and assists the child in entering into contracts.121 Custody on its own
also involves the day-to-day control over the child, including choice of religious
upbringing, language and education. It is preferable that the nominated guardian
should be a trusted relative or family friend who would be in a position to act in
the best interests of the child. Testators should be advised to discuss their inten-
tion with the person whom they wish to nominate.122
In terms of section 1(1) of the Guardianship Act,123 both spouses enjoy equal
rights and powers over their children. In the event of the death of one of the
parents, the survivor becomes the sole guardian. In the absence of any order to
the contrary, both parents retain such rights and powers after divorce.124 Such
rights and powers cannot be excluded by a will. When drafting a joint will for
spouses, it is advisable to nominate someone as guardian of the minor children in
the event of simultaneous death or the survivor dying without making a new will. It
is also advisable to provide for substitution in the event that the nominated guard-
ian is unable to accept the appointment.
11.4.11 Nomination of executor

The classes of persons competent to act on behalf of an executor include attor-
neys, trust companies and accountants.125 Such an arrangement will ensure that
the family retains close contact with the professional.
Nominated executors are exempt from having to furnish security to the Master of
the High Court, provided that they are a spouse, parent or child of the testator, or
anyone assumed by anyone of them126 or have been exempted in the will.
To enable the executor to act efficiently, the executor should be granted all the
necessary powers in the will. This includes the power of assumption (the power to
appoint someone to act as co-executor) in the event that the nominated executor
is prevented from administering the estate (for example for health reasons).127
11.4.12 Exclusion of community of property

One of the legal consequences of a marriage in community of property is the
creation of a single joint estate for the spouses. In Du Plessis v Pienaar,128 the
Supreme Court of Appeal had to consider the effect of a clause in a will, excluding
a bequest from a joint estate, against subsequent claims by creditors of the benefi-
ciary’s spouse. The court held that in a marriage in community of property, both
spouses were liable for the debts incurred by one of them. The court concluded that
________________________
121 Schäfer E37 fn 67.

122 Pinkerton at 9.
123 192 of 1993.
124 Schäfer E31.
125 Shrand 95; Wiechers and Vorster 2.2 ‘The executor’ Wills and Administration of Estates
LexisNexis.
126 S 23 (2) of Act 66 of 1965.
127 Corbett et al at 57; Barker at 23.
128 2003 (1) SA 671 (SCA).
239
creditors could thus recover the debt from the estates of both spouses, including
the separate property of one of the spouses.
11.5 Interviewing checklist

Before embarking on drafting the will, the drafter should obtain all documentation
which may impact on the client’s legal entitlements or obligations, for example
divorce or maintenance orders, antenuptial contracts, partnership agreements or
suretyships. In addition, all relevant information must be obtained. The following
interviewing checklist may be useful.
11.5.1 Personal details

The following personal details of the testator must be provided:
l full name;
l ID number;
l marital status;
l if married: which type, that is, civil or customary marriage; full names of
spouse; date and place (if married outside South Africa, state which country)
of marriage; marital property regime;
l if married out of community of property with the accrual system: the net com-
mencement value of the spouses estate;129
l domiciliary address; and
l full names and dates of birth of children.
11.5.2 Assets in the estate

The following details of all assets must be stated:
Fixed property
l the full property description and title deed number;
l the nature of ownership, for example freehold, communal property or alloca-
tion by tribal authority;
l the name of the registered owner of the property;
l if the property is leased, the name of lessee and expiry date of lease; and
l details of bond, namely, name of bondholder and the outstanding bond debt
Businesses
l the type of legal entity (for example, close corporation; sole proprietorship;
partnership; or private company);
________________________
129 The commencement value is determinable from either the declaration appended to the
antenuptial contract or from a separate declaration made by the spouses married out of
community of property.
240
Drafting wills
l the extent of the interest enjoyed by the testator (for example the share per-
centage in a partnership);
l whether the testators’ rights to bequeath their shares or interests are limited by
the terms of any agreement; and
l the legal implications of a bequest of shares/interest, for example, if the busi-
ness is a sole proprietorship, has provision been made for the continuation of
the business after the death of the testator, or, if the business is a partnership,
is there insurance cover on the lives of the testator’s partners?
Movable property
l Motor vehicle(s): does the testator wish the vehicle to be transferred to a
beneficiary or to be sold?
l Are furniture and household effects to be distributed between a number of
beneficiaries? If yes, then discuss ways of achieving this, which both minimise
potential conflict and are not too onerous for the executor.
Claims in favour of the estate
l Debts owed: obtain full names and addresses of debtor; date of indebtedness;
conditions of loan; copy of loan agreement or other instrument.
l Shares: list the name of company and extent of shareholding.
Insurance policies
l Names of companies, types of policies, policy numbers, amount of cover.
11.5.3 Estate liabilities

Cash needs of family on death of testator:
l Has the testator made provision for the eventuality of extended medical treat-
ment?
l What are the projected costs of the funeral?
l Has provision been made to cover the testator’s funeral expenses and for the
maintenance of the family after death?
Mortgage bonds
l Will the financial position permit the surviving spouse to continue living in the
family residence?
l The name(s) of bondholder(s) and total amount owing under the bond.
l Is the outstanding indebtedness covered by a mortgage insurance policy?
Credit agreements
l Name(s) of credit grantor(s).
l Amounts outstanding.
l Are the outstanding amounts insured?
Others
l Names and addresses of creditors.
l Date of indebtedness.
241
l Conditions of loan.
l Outstanding amount of debt.
11.5.4 Bequests
Legacies and residuary heirs
l Full names of all legatees/heirs.
l The nature of their relationships with the testator (for example ‘son’ or ‘niece’).
l Dates of birth.
l Postal addresses.
l Details of bequests (for example ‘the sum of R1000,00’ or ‘one third of the
residue of my estate’).
Creation of a trust
l Is there a need to provide for the creation of a trust in order to provide for the
maintenance and education of the testator’s children or the living/medical ex-
penses of dependants unable to look after themselves? If so, give the full
names and dates of birth of such beneficiaries.
l At what stage should the trust be terminated?
l Discuss the function and possible powers of trustees.
l Discuss whom to nominate as trustee(s) and obtain full names.
Substitution
l Names of substitute beneficiaries.
l Should, in the case of a bequest to the testator’s children, substitution be by
representation or per capita?
11.5.5 Appointment of executor
l Discuss the functions of an executor.
l Provide the full names of the nominated executor(s).
11.5.6 Appointment of guardian
l Discuss the functions of a guardian.
l Discuss the possibility of also nominating a substitute guardian.
l Provide the full names of the nominated and substitute guardians.
11.5.7 Special directions
l provide details regarding donation of organs, burial, cremation or other special
directions.
11.6 Contents and order of a will

There is no prescribed formula regarding the contents or sequence of clauses in a
will.130 The following is merely a suggested order based on logic and common
________________________
130 The Wills Act merely prescribes the formalities that have to be complied with regarding the
execution of wills. The inclusion or exclusion of clauses does not, accordingly, affect the
validity of a will.
242
Drafting wills
sense. In some instances, draft clauses are provided which are intended to be
useful guidelines:
11.6.1 Declaration of testamentary intent
This is the Last Will and Testament of me ............................................................. (Full names),

(Marital status) (For example married out of community of property) ............................ formerly
........................................................................................................................... (maiden name),
Identity Number ......................................................................................... Presently residing at
....................................................................................................................... (physical address)
or
This is the Last Joint Will and Testament of us, Sizwe Modise, Identity Number .......................
And Thamsanqa Modise (formerly Ndhlovu), (Identity Number) married in community of property
Presently residing at ..................................................................................... (physical address)
11.6.2 Revocation clause

The clause revoking all previous wills, codicils or other testamentary writings, is
aimed at ensuring that the testator has a ‘clean slate’ and to exclude any uncer-
tainty regarding the possible existence of more than one valid will or codicil.131 A
typical example is as follows:
I/We hereby revoke all previous Wills, Codicils and other Testamentary Acts made by me/
either of us.
11.6.3 Appointment of beneficiaries

There are generally two categories of beneficiaries, namely legatees (to whom a
specific asset or cash amount is bequeathed) and residuary heirs. Since the
rights of legatees enjoy preference over those of the residuary heirs, the will
should first deal with the former, before disposing of the residue of the estate, for
example:
Legacy: I bequeath a cash amount of R200 and my coin collection to X.
Residuary bequest: I bequeath my estate or ‘the residue of my estate’ to Y.
The beneficiaries should be clearly identifiable from the will. It is thus advisable to
reflect their correct names, their relationship to the testator (for example ‘my niece
Roshni Naicker’) and their residential addresses.132 This will assist the executor to
identify and trace the beneficiaries.
11.6.4 Substitution
An example of direct substitution:
I bequeath R500 to my friend Pregs Moodley or to her husband Anil Moodley, should she
predecease me.
________________________
131 See s 2A of the Wills Act regarding the formalities for revocation.
132 Meyerowitz (1990) The Law and Practice of Administration of Estates at 40.
243
It is clear from the wording that Anil will only replace his wife Pregs in the event
that Pregs predeceases the testator, is disqualified as beneficiary, or repudiates
her right.
An example of a fideicommissum:
I bequeath my farm ‘Aseko-Amanzi’ to my oldest daughter Lerato. Upon her death, said farm
shall devolve upon my youngest son Jabu.
An example of a fideicommissum residue:
I bequeath the residue of my estate to my daughter Kathryn. Upon her death, whatever shall
remain of my estate shall devolve upon my granddaughter Wynona.
An example of excluding substitution by representation (per stirpes):
I bequeath the residue of my estate to those of my children A, B and C who survive me.
Should any of my said children predecease me, I direct that his/her share shall devolve upon
my remaining children.
An example of substitution of a surviving spouse in a single will:
I bequeath the residue of my estate to my partner Ike, provided that he survives me for a
period of 30 days. Should my said partner predecease me or die within a period of 30 days of
me, I direct that my estate shall devolve as follows.
An example of substitution of a surviving spouse in a joint will:
We bequeath the residue of our estate to the survivor of us, provided that he/she survives the
first-dying for a period of 30 days. Should the survivor die within a period of 30 days of the
first-dying of us, we bequeath the residue of our estate as follows.
11.6.5 Categories of assets

An example of a voluntary division between the beneficiaries:
I bequeath my furniture, household and personal effects in equal shares to those of my
children who survive me, with the exclusion of the issue of a predeceased child. I direct that
the division of the items shall be effected between my children themselves and that their joint
receipt shall constitute a proper discharge of my Executor, who shall not be concerned with
the division thereof.
An example of a distribution in terms of a list attached to, but not forming part of,
the body of the will:
It is my wish, without imposing any obligation on my Executor, that these assets be divided in
terms of a list, which I attach to this my Will. I direct that a receipt, signed jointly by the said
beneficiaries, shall suffice.
An example of a bequest of a business:

I bequeath the goodwill, stock-in-trade, furniture and fittings, bank balances, book debts,
fixed property, liabilities of my business ‘Crash and Curry Trading Store’ to . . .
244
Drafting wills
11.6.6 Conditional bequests

An example of a usufruct:133
I bequeath my farm ‘No hope’ to my son Jannie, subject to the lifelong usufruct in favour of
my wife Marie.
An example of a fideicommissum:134
I bequeath my farm ‘Aseko-Amanzi’ to my oldest daughter Lerato. Upon her death, my said
farm shall devolve upon my youngest son Jabu.
An example of a fideicommissum residue:
I bequeath the residue of my estate to my daughter Kathryn. Upon her death, whatever shall
remain of my estate shall devolve upon my granddaughter Wynona.
11.6.7 Trusts
An example of the creation and objectives of a testamentary ‘bewind’ trust:
I bequeath the residue of my estate to my children X, Y and Z in equal shares. Should any of
my said children not have attained the age of 25 years, I direct that my trustees shall, hold
the benefit due, in trust for the maintenance, education and general welfare of such child.
My trustees shall be entitled to apply so much of the net income and, in need, capital of the
trust as they, in their sole discretion, may deem necessary for the above purposes.
An example of the creation and objectives of a testamentary trust (in a narrow

sense):
I bequeath the residue of my estate to my Trustees to be held in trust for the following pur-
poses; to apply so much of the net income and, in need, capital of the trust as my Trustees in
their sole discretion may consider to be reasonable for the maintenance, support and well-
being of my husband Fred. My Trustees shall as far as is possible ensure that my said hus-
band be enabled to maintain the standard of living he is accustomed to.
An example of general powers regarding the administration of the assets in a

trust:
I direct that my trustees shall have full powers to invest the capital in equities, interest-bear-
ing securities and/or other investments and to lease fixed properties, to dispose of fixed
properties, to bind and to incur liabilities on behalf of the trust as they, in their absolute dis-
cretion, may deem necessary.
________________________
133 Pace and Van der Westhuizen A68 ‘Usufruct’.

134 Pace and Van der Westhuizen A63 ‘Fideicommissum’.
245
An example of a termination clause:

My trustees shall terminate the trust upon such child attaining the age of 25 years and pay
the capital and transfer any fixed property, as it then exists, to such child.
11.6.8 Disposal of mortal remains and funeral arrangements

Since a will is often read only after the testator’s death, testators should be ad-
vised to communicate clauses containing directions or wishes regarding the
donation of mortal remains, funeral or cremation arrangements, directly to their
next-of-kin. The clause should be stated as a wish rather than a directive in order
to protect the executor, who may only have sight of the will after the event.
An example of donation of mortal remains:135
I record that I have donated my entire body to the Tissue Bank, Medical Faculty of the Uni-
versity of Cadavria and record that it may be used for dissection or medical research at the
complete discretion of the Dean of the Medical Faculty. I direct that such parts of my body as
may remain be cremated. I authorise my Executor to sign all prescribed forms in order to
carry out my instructions.
An example of directions for the disposal of mortal remains:

It is my wish that my remains be cremated and scattered at . . .
11.6.9 Exclusion of community of property

An example of an exclusionary clause:
I direct that any beneficiary taking under this my Will, shall take for its sole benefit and remain
its free and unencumbered property whether or not married or shall marry in community of
property. All benefits received hereunder shall likewise be excluded from any accrual in
terms of the Matrimonial Property Act 88 of 1984 and shall be protected against the creditors
of their spouses.
11.6.10 Appointment of a guardian

An example of the clause nominating a guardian:
Should any of our children still be minors at the death of the survivor of us, we appoint the
Testatrix’s brother, Like Kids, to be the guardian of such minor children. We direct that the
said guardian shall not be required to furnish security for acting in that capacity.
11.6.11 Appointment of executor

An example of the clause nominating an executor:
I nominate my spouse, Pule Niceface, as the executor of this my Will, granting unto him all
such powers and authority allowed in law, more especially, the power of assumption. I direct
that my Executor shall be exempt from having to furnish security to the Master of the High
Court.
________________________
135 Pace and Van der Westhuizen A74.2; McLennan ‘Unworthiness to inherit, the ‘bloedige
hand’ rule and euthanasia, what to say in your will’ 1996 SALJ (1) 143.
246
Drafting wills
11.6.12 Appointment of trustee

An example of the clause nominating a trustee:
We appoint the Testatrix’s sister, Jill Goodfella, and Honest Lawyer as Trustees of the Trust
created in this our Will with the power of assumption. Our said Trustees or assumed trustees
shall not be required to furnish any security for acting in those capacities.
11.6.13 Attestation clause

The purpose of this clause is to ensure certainty and compliance with the Wills
Act. A will is no longer required to be dated and in view of a presumption in favour
of the validity of a will, the clause is not necessary. The date of execution may,
however, assist in determining the competence of the testator to make a will and
of the witness to witness it. It also serves as a useful ‘checklist’ for ensuring
proper attestation.
An example of attestation clause:
Signed by me at ……………..this ...............................day of ........... 200.. in the presence of the

undersigned Witnesses, all of us being present at the same time.
SIGNED at ................................. on this ...... day of ......................... 20.......
...............................................................
(Testator)
AS WITNESSES:
1. ...........................................................
2. ...........................................................
(It is important that the full names of the witnesses are printed on the testator’s copy of the will.)
11.7 Formalities
The Wills Act 7 of 1953 and the Law of Succession Amendment Act 43 of 1992
regulate the formalities regarding the execution and alteration of wills. The more
important formalities are discussed below:
11.7.1 The will must be in writing and be signed

A testator may sign the will in any one of the following manners:
l by full signature;
l by initials;
l by the making of a mark (X); or
l by some other person in the testator’s presence and by his directions.
The testator must sign each page of the will and sign the last page of the will as
close as possible to the end.136
________________________
136 Kidwell v The Master 1983 (1) SA 509 (E).
247
11.7.2 Will signed by a mark or ‘by another person’

The following formalities apply:
l a commissioner of oaths must certify that he has satisfied him;/herself as to
the identity of the testator and that it is the will of the testator;137
l the will must also be signed in the presence of the commissioner of oaths, who
must sign each page of the will;
l the certificate by the commissioner need not, however, have been completed
at the same time as the signing of the will, but as soon as possible thereafter;
l the formalities referred to above and pertaining to the positioning of the testator’s
signature on the will, equally apply if the will is signed by ‘such other person’.
11.7.3 Blind or illiterate testators

Despite recommendations to the Law Reform Commission, the Law of Succes-
sion Amendment Act 43 of 1992 does not specifically provide for blind or illiterate
testators. It is, however, recommended that the contents of the will be read to this
type of testator prior to allowing the will to be signed.138
11.7.4 The testator’s signature must be witnessed

The testator or ‘such other person’ must sign the will in the presence of two or
more competent witnesses and, where applicable, before the commissioner of
oaths. A witness is defined as a person over 14 years of age who is competent to
give evidence in court.139 The witnesses must attest and sign either by their
initials or full signature (a mark is not acceptable), but only have to sign the last
page of the will. The testator, witnesses and the commissioner of oaths (if neces-
sary) must all be present and sign at the same time. The commissioner of oaths
may not act as a witness as well.
11.7.5 Non-compliance with formalities

Section 2(3) of the Wills Act provides for a ‘safety valve’ that permits a court to
accept a document as a will, notwithstanding the fact that it does not comply with
all the required formalities.140 Three requirements have to be met:
l the document must have been drafted and executed by the deceased: In
Longfellow v BOE Trust Ltd NO the husband of the testatrix, who was busy dy-
ing, completed a CNA precedent and read it to the testatrix, before she signed
the document. The court deemed the will not to have been ‘drafted’ by the de-
ceased as required in section 2(3), and was thus deemed to reflect the
spouse’s, rather than the deceased’s, wishes;141
________________________
137 The wording of Sch 1 to the Wills Act should be followed.

138 Pace and Van der Westhuizen A5(c) ‘Wills Formalities’.
139 S 2(a)(ii) and (iii) of the Wills Act.
140 Pace and Van der Westhuizen A7 ‘Condonation by court’; Keightley ‘Law of Succession’
2001 Annual Survey South African Law 485.
141 (13591/2008) [2010] ZAWCHC 117.
248
Drafting wills
l such person must subsequently have died; and

l there must be proof that it was the deceased’s intention for such document to
be his/her will. The third requirement should only be addressed once the first
two requirements have been met.142
The South African courts have interpreted the third requirement in section 2(3) of
the Wills Act on a number of occasions. Some examples follow.
l In Ramlal v Ramdhani’s Estate,143 an attorney drafted a will in accordance with
a client’s instructions, but the client died before having read and approved it.
The court held that on the facts, it cannot be proved that the document as it
stood was intended by the client to be his will.
l In Mabika v Mabika,144 the court deviated somewhat from the Ramlal judg-
ment, holding that the deceased’s ‘Application for the drafting of a Will’ to her
bankers, which she had completed, was indeed intended to be her will.
l In Bekker v Naude en Andere,145 the Supreme Court of Appeal, adopting a
strictly literal approach in regard to the word ‘drafted’ in section 2(3) , clarified
that written instructions to a third party (such as a bank or an attorney) cannot
be accepted as a will. The implications of the Bekker decision for will drafters
are that documents prepared by them but not executed by the testator will no
longer found a successful case146 and great care must thus be exercised that
the prescribed formalities for the execution of the will have been complied with.
l In Van Wetten and Another v Bosch and Others,147 a letter by the testator with
instructions on the devolution of his estate and amending terms of a previously
executed will was accepted as constituting the intention to be a final will.
l In Van der Merwe v Master of the High Court and Another,148 the court con-
doned a draft will sent by the deceased via e-mail on the grounds that the
email lent an ‘aura of authenticity’ and that it was intended to be the
deceased’s will.
l In O’Connor v The Master of the High Court & another,149 the deceased
attached his fingerprint to the will in the presence of two court officials, who
signed above the deceased’s fingerprint and placed an official date stamp over
their signatures. Having satisfied itself that the deceased had intended it to be
his will, the court condoned the failure to have the document signed before a
commissioner of oaths in terms of section 2(1)(a)(v) of the Wills Act.
________________________
142 Van der Linde ‘Longfellow v BOE Trust Ltd NO (13591/2008) [2010] ZAWCHC 117;
Mabika v Mabika [2011] ZAGPJHC 109; Taylor v Taylor [2011] ZAECPEHC: Recent Case
law’ 2012 vol 45(2) De Jure 412 415.
143 2002 (2) SA 643 (N) at 647.
144 2011 ZAGPJHC 109 (2011); see also a discussion on the Longfellow and Mabika judg-
ments by Van der Linde ibid.
145 2003 (5) SA 173 (SCA).
146 Jacobs ‘The Will that could haunt you’ De Rebus (September 2003) 16 19.
147 2004 (1) SA 348 (SCA).
148 [2010] JOL 26090 (SCA).
149 [1999] 3 All SA 652 (NC).
249
l In Henriques v Giles NO & others: In re Henriques v Giles NO & others,150

which resulted from some confusion during the signing of their separate wills,
two spouses inadvertently signed the other’s will. The Supreme Court of
Appeal decided that rectification was ‘an equitable remedy’ in order to give
effect to the ‘true intention’ of the parties in compliance with section 2(3) of the
Wills Act.
l In Logue v The Master,151 the testator made a will in his own handwriting, but
only signed it on the last page. The will was also not witnessed. The court
accepted the document as the deceased’s will in terms of section 2(3) of the
Wills Act.
11.7.6 Amendments to wills

Amendments are defined in section 1 of the Wills Act to mean a deletion, addition,
alteration or inter-lineation. Any amendment must be identified by the signature of
the testator or the person signing for him/her (in the presence of two or more
competent witnesses).152 Any such amendments must comply with the normal
formalities for execution, as set out in the Wills Act.
11.7.7 Revocation of wills

When a will that was last known to be in the testator’s possession cannot be
found, the testator is presumed to have destroyed it with the intention of revoking
it.153
11.8 Conclusion
From the above, it should be clear that the drafting of wills is an area of practice,
which, if taken lightly, may severely compromise the professional image of a
practitioner. To the practitioner who is, however, prepared to develop a methodi-
cal approach, keeping abreast of the latest developments in the laws of succes-
sion, administration of estates, taxation and family and customary law, this field of
practice can become most satisfying and rewarding.
________________________
150 [2009] 4 All SA 116 (SCA).

151 1995 (1) SA 199 (N).
152 S 2(b)(i), (ii) and (iii); Driver H14 LexisNexis Family Law Service.
153 Theart v Scheibert and others [2012] 4 All SA 278 (SCA).
250
Drafting wills
EXAMPLE OF A SIMPLE WILL

(Testator from rural area)
This is the last Will of me Surprise Hlope, ID No 4622830507, residing at Lekoneng Village,
Kuruman district, and married to Lindiwe Hlope (born Moseki) according to customary law,
which marriage was registered in terms of s 4(1) of Act 120 of 1998.
1. I revoke all my previous wills, codicils and other testamentary writings.

2. I record that the dispositions contained in this Will are what I consider to be in the best
interest of my family.
3. I record that both my homestead at Lekoneng Village and my cattle ranch at Nkomo’s
Post, Kuruman district, are situated on land allocated to me by the isiBambatha Tribal
Authority. Whilst I am aware that I do not have the right to dispose of such properties, I
direct that my Executor request the said tribal authorities to consider my wishes.
4. I bequeath the residue of my estate to my wife Lindiwe, provided that she survives me for
a period of 30 days. In the event of my said wife failing to survive me for a period of
30 days, my estate shall devolve as follows:
4.1 My Chevrolet pickup, registration number NC 234 GT to my son Vusi Hlope;
4.2 My cattle ranch at Nkomo’s Post, together with all my livestock, in equal shares to
my sons Vusi Hlope and Jabulani Hlope. Should either of my said sons die before
me, I direct that his share shall go to those of his sons who are alive at the time of
my death;
4.3 My homestead at Lekoneng Village, together with all my furniture and household
effects to my daughter Mayabuye Hlope, or in equal shares to those of her children
who are alive at my death, should Mayebuye die before me.
5. I direct that no benefits inherited in terms of this Will shall form part of joint estates of
beneficiaries married in community of property and shall be protected against the credi-
tors of their spouses.
6. I nominate my sister-in-law Rosemary Maseko as the executor of this my Will. I direct
that my Executor shall have the power to appoint a professional to assist her and shall
be exempt from having to furnish security to the Master of the High Court.
SIGNED at………………………………..this…………day of…………………………. 200…….
AS WITNESSES:
1. ……………………………………………… …………………………………………
(Full Names:………………………………….) (TESTATOR)
2. ……………………………………………..
(Full Names:………………………………….)
251
EXAMPLE OF A SIMPLE WILL

(Testator from urban area)
This is the last Will of me Francinah Maria Visagie (born Blaauw), ID No 50060955009,
residing at 133 Herzelia Smallholdings, Bela Bela district, widow.
1. I revoke all my previous wills, codicils and other testamentary writings.

2. I bequeath the residue of my estate in equal shares to those of my children Katharina
Smith (born Visagie) and Stefanus Visagie who survive me. Should any of my said chil-
dren predecease me, I direct that his or her share shall devolve upon my remaining child.
3. I direct that no benefits inherited in terms of this Will shall form part of joint estates of
beneficiaries married in community of property and shall be protected against the credi-
tors of their spouses.
4. I nominate my daughter, Katharina Smith, as the executor of this my Will. I direct that
my Executor shall have the power to appoint a professional to assist her and shall be
exempt from having to furnish security to the Master of the High Court.
5. I direct that my estate should not be burdened with funeral expenses. The proceeds of
my funeral policy with Happy Acres Insurance Company are sufficient to cover such
expenses.
SIGNED at………………………………..this…………day of…………………………. 200….
AS WITNESSES:
1. ……………………………………………… ………………………………………..
(Full Names:…………………………………….) (TESTATOR)
2. ………………………………………………..
(Full Names:…………………………………….)
252
Drafting contracts
By Patrick Stilwell
12.1 Introduction
A contract is an agreement between two or more people which creates legal rights
and obligations. At common law, contracts need not be in writing; however, cer-
1
tain kinds of contract must, by statute, be in writing.
When people enter into contracts in good faith, they have a clear purpose. In
the case of a contract of sale, the seller desires to exchange a piece of property
for a sum of money. The purchaser, similarly, desires to acquire the property on
payment of the price. The expectation of both is that the other will perform his/her
obligations faithfully and fully. They certainly do not desire, nor even anticipate,
disappointment. Yet, contracts often do result in disappointment when one or both
of the parties do not perform their obligations. If a property owner hires the ser-
vices of a builder to build a house, he/she expects that the builder will build a
house of good quality. It is also expected that the builder will complete the work
within the agreed time. If the builder fails to deliver as promised, the owner may
have to sue the builder. But suing may become hazardous if the terms of the
contract are vague and unclear. An innocent party may even lose the case because
the contract is vague or incomplete. Such situations can be avoided if the parties
record the terms of the contract clearly, and in detail, in a written document.
No legal practitioner is able to prevent the other party from committing a willful
breach. But it is the primary and fundamental task of a practitioner to draft a
contract with sufficient clarity and completeness so as to preclude a defaulting
party from escaping the effect of the breach because the contract itself is unclear
or imperfect. The drafter must invoke three areas of competence to achieve this:
l knowledge of the relevant law;
l understanding and foresight of the needs of the client; and
l the ability to write clearly.
________________________
1 Eg contracts involving the sale of land must, in terms of the Alienation of Land Act 68 of
1981, be in writing; suretyship contracts must, in terms of the General Law Amendment Act
50 of 1956, be in writing; and credit transactions must be in the form prescribed in terms of
s 93(2) of the National Credit Act 34 of 2005. It should be noted that this is not a complete
list.
253
12.2 The law

Drafting contracts is an intricate and technical undertaking. Learners and inexpe-
rienced practitioners should not attempt to draft even the simplest contract without
a thorough knowledge of general principles of contract, the common law and
statutes applicable to that type of contract. The consequences of doing so could
be disastrous, as discussed below. Without such knowledge, the contract could
be null and void. This has the potential for a claim of professional negligence
against the drafter.
It is beyond the scope and purpose of this book to present a comprehensive
treatment of the law applicable to all types of commercial contracts. What follows
should, therefore, be viewed as a series of ‘signposts’ alerting drafters of the
various matters to which attention should be given. These are presented in the
form of questions.
12.2.1 Do the parties to the proposed contract have the necessary
capacity?
It is trite law that parties to a contract must have legal capacity to do so. In the
case of natural persons, the parties must be adults (over the age of 18) and not
under any legal disability, such as insanity or insolvency. In the case of juristic
persons (such as companies, close corporations, trusts, voluntary associations
and statutory bodies), contractual capacity must be conferred on the entity either
in its founding document or by operation of law.
12.2.2 Does the person who will sign the contract have the necessary
authority to do so?
A natural person entering into a contract on his/her own behalf clearly has
authority to do so. The question of authority thus arises where the person con-
cluding the contract is not acting on his/her own behalf. It arises where such
person is either representing another natural person (as agent) or a juristic per-
son. Juristic persons do not have ‘a body to kick or a soul to damn’. All contracts
concluded by them have to be executed by a natural person acting on their
behalf. Companies or close corporations are usually represented by a director or
member. Authority is given to such person either by the founding instrument of
the entity or by special resolution. Similarly, in the case of voluntary associations,
trusts or statutory bodies, authority will be conferred either by statute, the found-
ing instrument or special resolution.
It is the duty of the drafter to check that any person purporting to represent a
juristic person has the necessary authority to do so.
12.2.3 Are the purpose and terms of the contract legal?
A contract is an agreement between two
The subject matter of a contract or more people, which the law will
can be any human activity, as enforce. The subject matter of a contract
can be any human activity, as long as it
long as it is lawful and not is lawful and not contrary to public moral-
contrary to public morality. ity. People can contract in respect of
matters ranging from an agreement to
254
Drafting contracts
marry, or to act or to refrain from acting in a certain manner (such as a restraint

of trade), to common commercial transactions such as sale, lease, agency or
employment.
Both common-law principles and statutory provisions exist in respect of many
types of contracts. Sometimes it is possible for parties to modify or even eliminate
them; however, this is not always the case. In a contract of sale, the common-law
imports into the contract an implied warranty against latent defects. However, it is
permissible for the parties to exclude this obligation by the inclusion of a ‘voet-
2
stoots’ clause. In terms of the Basic Conditions of Employment Act, employees
3
are entitled to certain basic rights with regard to, amongst others, hours of work,
payment for working overtime4 and annual leave.5 These are minimum rights
prescribed by law and the parties may not contract out of them unless the con-
tractual provision proves to favour the employee.6 Any provision included in a
contract which offends this rule will be null and void.
It is vital that the drafter iarItwith is vital that the drafter of any contract be famil-
all law applicable to the subject matter.
of any contract be familiar Should he/she fail to take this into account, all or
with all law applicable some of the terms contained in the document
to the subject matter. could be found to be unenforceable.
The purpose of this chapter is not to furnish
an exhaustive list of different types of contracts and the relevant legislation applic-
able thereto, but rather to alert students and inexperienced practitioners to the need
to familiarise themselves with the law before embarking upon the task of drawing
up a contract.
The following is a list of some common commercial contracts and the statutes
which influence them to some extent:
l Antenuptial contract
Deeds Registries Act 47 of 1937
l Donation
General Law Amendment Act 50 of 1956
l Employment
Labour Relations Act 66 of 1995
Basic Conditions of Employment Act 75 of 1997
Skills Development Levies Act 9 of 1999
l Money lending
Usury Act 73 of 1968
l Sale of business
Insolvency Act 24 of 1936
Competition Act 89 of 1998
________________________
2 75 of 1997.
3 S 9.
4 S 10.
5 S 20.
6 S 4.
255
l Sale of land
Subdivision of Agricultural Land Act 70 of 1970
Administration of Estates Act 66 of 1965
Shareblock Control Act 59 of 1980
Alienation of Land Act 68 of 1981
Property Time Sharing Control Act 75 of 1983
Sectional Titles Act 95 of 1986
l Sale of movables
Sale and Service Matters Act 25 of 1964
Credit Agreements Act 75 of 1980
l Suretyship
General Law Amendment Act 50 of 1956
l Credit Agreements
National Credit Act 34 of 2005
All contracts need to comply with the fundamental rights contained in the Bill of
Rights in Chapter II of the Constitution. If any term of the contract infringes on any
fundamental right, the term or the entire contract may be void.7
12.2.4 Does the law prescribe any formalities in respect of this contract?
Society regards certain kinds of contract to be very important. For this reason,
specific legislation has been enacted to regulate the validity of the contract
depending on the actual type of the contract. Such legislation commonly requires
that terms to the contract be reduced to writing and that the contract be signed by
the parties.8 According to Professor Sharrock:
The requirement of a written record resolves itself into two basic rules: (i) the written
instrument must on the face of it contain the essential terms of the type of contract in
question; and (ii) the wording of the writing must be such that the identity of the parties,
and the force and effect of the essential terms as well as any further material terms set
out in the document are ascertainable without evidence as to what the parties said, or
9
orally agreed to prior to signing the document.
12.2.5 Are any of the parties minors?
If any of the parties to a contract are minors, they will have to be assisted by a
guardian or curator. A sale of land by a minor is valid only if the prior consent of
the Master of the High Court, or the Court itself, has been obtained.10
12.2.6 Are either of the parties married?
Whenever a person, married in community of property, sells a piece (or all the
share in a piece) of land or enters into a suretyship contract, the written consent
of his/her spouse is required.11
________________________
7 S 8(2) of the Constitution of the Republic of South Africa, 1996.

8 See eg the Alienation of Land Act 68 of 1981 or the General Law Amendment Act 50 of
1956 in respect of suretyship contracts.
9 Sharrock and Griesel (2001) ‘Drafting of Contract’ Legal Education and Department (LEAD)
Manual at 26.
10 S 80(1) and (2) of Act 66 of 1965.
11 S 15 of Act 88 of 1984.
256
Drafting contracts
12.3 The art of drafting

12.3.1 Preparing a checklist
Experienced, especially specialist, practitioners are able to draw contracts with
relative ease and they probably do not need to work from a checklist. Most large
law practices will have a database of time-honoured precedents of most commer-
cial contracts and the task of drawing a contract is often a simple matter of insert-
ing variables into a good precedent. Even beginners can prepare a successful
commercial contract this way. However, risks are involved. The precedent may
not be up-to-date or it may not accord with current legislation or it may even be
poorly structured.
While it is acceptable to use precedents, it
While it is acceptable is inadvisable to place absolute reliance on
to use precedents, it is them. It must be remembered that the partic-
inadvisable to place ulars of the parties and their special require-
ments are unique. It is better to use a
absolute reliance on them. checklist.
The following are a number of points the practitioner must consider before draft-
ing a contract. These are presented in the form of questions and are issues the
drafter must address in his/her mind in addition to the matters referred to above:
l Who are the parties to the contract?
l Have all persons interested in the subject matter of the contract been involved?
l Do the parties have the necessary capacity to contract?
l Do the contemplated signatories have the necessary authority to sign the
contract?
l What are the essentiala of the particular type of contract? Here it is necessary
to consider the common-law definition of the particular contract and to make a
list of those common-law essentials.
l Are any mandatory legislative provisions applicable to it? And do they need to
be incorporated into the contract?
l Do any of the common-law rules relating to the type of contract need to be
modified or excluded?
l Where one or more of the parties are required to pay a contract price, should
provision be made for the furnishing of security?
l Is VAT, or any other form of tax, payable in terms of the contract? And if so,
which of the parties is liable to pay it?
l Is stamp duty payable in respect of the type of contract? And if so, which of the
parties is liable to pay it?
l What are the specific rights and obligations of each of the parties in terms of
the contract? These need to be listed in detail. Here it is necessary to consider
what benefit each party is to receive and what obligations he/she will incur.
l Is it necessary for any of the parties to provide a warranty?
257
l Is it necessary for any common-law warranty to be excluded?

l Do either of the parties require any special rights or interests needing protection?
l What are the risks inherent in the contract for each of the parties? And do any
of these need to be provided for?
l Is it necessary to make special provision in the contract in the case of a
breach?
l Is it desirable to have a non-variation clause?
l Is it desirable to have a dispute resolution clause, such as an arbitration
clause?
l Is it necessary to make provision for payment of the costs and stamp duty in
respect of the contract?
l Do the parties wish to consent to the jurisdiction of any particular court in
respect of any dispute arising from the contract?
12.3.2 The structure of a contract

No law actually prescribes the structure of a written contract. Even those statutes
which require written formality fall short of prescribing the layout. This is governed
by custom, convention, accumulated wisdom and individual preference.
Commercial contracts generally contain the following features, usually arranged
in the order given below:
l A heading: This is the label of the contract as it indicates the type of contract;
l A description of the parties: Here, the full names, addresses and identity
numbers (or registration numbers in the case of juristic persons) may be set
out;
l A recital clause: This sets out the background to, or the context of, the con-
tract. Two points need to be noted:
• not all contracts have or require a recital clause. It is usually included as an
aid to ascertain the intention of the parties; and
• the recital clause is not usually a term of the contract itself. Rather, it con-
tains historical information which may assist in its interpretation. If the par-
ties request it, a clause can be included in the main body of the contract to
the effect that the recital clause is meant to form part of the contract for
interpretation purposes;
l The main body of the contract: This is the important part and here one will
commonly find clauses relating to the following:
• the nature of the contract (for example, whether it is a sale, lease or agency);
• the principal obligations of the parties;
• any subsidiary obligations; and
• other clauses relating to matters such as breach, non-variation, choice of
jurisdiction or domicilium.
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Drafting contracts
l The conclusion/ending: This is the part of the contract where provision is

made for the date and signatures. Although it is not a legal requirement, writ-
ten contracts should be witnessed. It is a habit of modern life that people gen-
erally take less care in writing their signatures than writing any other word.
The signatures of some people are not more than a mere scribble and bear
little or no resemblance to a recognisable name. It is advisable that witnesses
be required to print their names below their signatures.
12.3.3 Language
The ability to communicate effectively is prob-
The ability to communicate ably a practitioner’s most useful skill. Given the
effectively is probably a importance of language in law, one would think
that most legal writing would be clear, concise
practitioner’s most and effective. Unfortunately, this is not always
useful skill. the case. A great deal of current legal writing is
tautological and over-burdened with outdated,
useless and long-winded expressions which lack clarity. The author Edward D.
Re advised: ‘Lawyers would do well to remember what may be called the ABC of
12
legal writing – A for Accuracy, B for Brevity and C for Clarity’. Legal documents,
such as contracts, are not written to amuse or please the reader. They are written
to advance or protect a legal interest.
12.3.4 Brevity
Brevity involves the use of short sentences, paragraphs and sections. The ordi-
nary person absorbs information much more easily if delivered in small quantities.
Studies have shown that 96% of people can understand an eight-word sentence.
13
Only 4% can understand a 21-word sentence at first reading. It is not always
easy to be brief as it requires extensive discipline. Drafters of contracts should
check the number of words in a sentence. If it is found that the word count
exceeds a dozen or so, they should opt to shorten the sentence by dividing it into
two or more parts.
12.3.5 Clarity
Legal documents should be written in clear,
Legal documents should plain language. In ‘Drafting Legal Documents’
by Barbara Child, the writer warns of a kind of
be written in clear, folklore that haunts the legal profession ‘per-
plain language. petuating a myth that judges prefer legalese
and that lawyers who do not use it will be
14
laughed out of court’ but also that ‘the myth is beginning to be exposed as such’.
Professor Sharrock conveys the following view:
________________________
12 (1993) Brief Writing and Oral Argument at 1.

13 Adai (1994) ‘The Effective Communicator’ Professional Skills for Lawyers: A Student’s
Guide at 48.
14 Supra at 54.
259
plain, simple language is the essence of good drafting . . . never use a word or expres-
sion which you yourself do not fully understand. Remember the degree of sophistication
of the parties: if appropriate pitch the language of the document at a level below that of
15
the ordinary reader.
Professor Sharrock also provides a list of words which commonly feature in
contracts and the recommended alternative:
Sophisticated Words Recommended Word
accord/afford give
adjacent/contiguous to next to
by means of/virtue of by
constitute appoint
covenant agree
determine end
effect/implement carry out
Expend spend
in accordance with by, under
in connection with with, about, concerning
in lieu of instead of
in relation to about, concerning
in the event that if
occasion cause
prior to before
remunerate pay
subsequent to after
Title owner
Utilize use
Vendor seller
with a view to to
with reference/regard to about, concerning
with respect to on, about

________________________
15 Sharrock and Griesel (2001) ‘Drafting of Contract’ LAWSA: Practical Legal Training Practice
Manual at 46.
260
Drafting contracts
Words, such as the following, should be avoided because they are not in common
use: hereinbefore mentioned; hereinafter called; hereinbelow described; hereto-
fore; hereunto; to wit; ultimo; whatsoever; wheresoever; and witnesseth.
16
Professor Sharrock provides the following hints regarding grammar and syn-
tax which, if followed, will result in a clearer document. One should therefore:
l Guard against imprecision: Here the drafter should be particularly weary of the
use of words which have more than one meaning.
l Beware of the expression ‘and/or’: The expression ‘A and/or B’ could mean
either ‘A or B’ or ‘Both A and B’.
l Use the active voice rather than the passive voice: For example ‘The lessee
must pay the rent by the first of the month’ is better than ‘The lessee shall pay
the rent by the first of the month’.
l Avoid double negatives: For example ‘The lessee may not take occupation of
the leased premises if he has not paid the rent’. The better way of expressing
this is ‘The lessee may not take occupation of the leased premises until he had
paid the rent’.
l Avoid long sentences.
l Follow the correct word order.
12.4 Examples
Examples of a selection of headings and clauses commonly found in commercial
contracts are set out as follows:
12.4.1 The heading or label

Contract of Sale
Note: It is not uncommon to come across headings such as ‘Memorandum of Agreement of
Sale’. This is not only tautology but may even create confusion. The words ‘Memorandum of
Agreement’ suggest that the parties have concluded a prior oral agreement and that the
written instrument is merely a recording of it. Issues of capacity, authority and legality could
arise, requiring a court to decide whether the document itself is the contract or whether it is
merely a written recording of an earlier oral agreement.
12.4.2 The recital

A recital is not necessary in a straightforward commercial contract. It often occurs,
however, that the actual terms of the contract will be better understood if the
background circumstances to it are explained. It must be emphasised that the
recital is no more than explanatory material. Recitals usually set out in contracts
the terms of which would be better understood if viewed against a certain histori-
cal background.
________________________
16 Sharrock and Griesel (2001) at 47–50.
261
The following is an example of a recital clause:
Background
1. Before concluding this agreement, A and B were partners in a business venture called A
and N enterprises.
2. They have agreed to dissolve their partnership.
3. In terms of their agreement, A will become the sole owner of the business.
4. In consideration for receiving ownership of B’s share in the partnership, A has undertaken
to transfer to B certain assets and to assume sole liability for payment of certain debts of
the partnership.
12.4.3 The parties

The Parties
The parties to this contract are:
Michael Tree (Identity Number 370607 0039 080)
Presently residing at 1 Athlone Avenue, Durban-North
(who, in this contract, will be called the Seller)
and
Priscilla Fox (Identity Number 550601 6745 080)
Presently residing at 18 Makinder Road, Howick
(who, in this contract, will be called the Purchaser).
12.4.4 The main clause(s)

The Seller agrees to sell to the Purchaser a ...............................................................................
(Note: Here, one would have to insert a description of the property being sold. It may be a
piece of land or it may be a movable item, such as a motor vehicle.)
The item of property being sold may be described as follows:
A certain piece of land described as Sub 21 of Lot 15 of the Townlands of Pietermaritzburg
or
A 1997 model Opel Kadett motor vehicle, registration number ....................... , engine number
................................ , chassis number .........................
12.4.5 The consideration clause

In all commercial contracts, one of the parties is exchanging an item or service of
commercial value in exchange for a piece of property or payment of money. Two
examples are given below. The one relates to an agreement of sale, the other to
an agreement of lease.
The Purchaser agrees to pay the Seller the sum of R25 000,00 for the property described in
Paragraph 1 above.
or
The Lessee agrees to pay the Lessor a rental of R2 000,00 per month for the leased
premises.
262
Drafting contracts
12.4.6 Method of payment (1)

Commercial contracts usually require payment of the consideration upon delivery
of the property or service. Alternatively, it may be done by way of periodical
instalments.
The following are examples:
The Purchaser agrees to pay the Seller an amount of R25 000,00 for the property described
in this contract.
or
The Lessee agrees to pay rent to the Lessor in the amount of R2 000,00 per month.
12.4.7 Method of payment (2)

The Purchaser agrees to pay the full purchase price of R25 000,00 on delivery of the motor
vehicle to him.
or
The Purchaser agrees to pay the purchase price of R25 000,00 in the following way:
R10 000,00 on delivery of the motor vehicle to him and the balance in monthly instalments of
R1 000,00, the first of which must be paid on 1 May 2004 and subsequent payments on the
first day of every month thereafter until the full price has been paid.
or
The full purchase price on registration in his name of the said piece of land.
or
The Purchaser agrees to pay the purchase price as follows:
R10 000,00 on delivery of the said motor vehicle to him.
The balance of R15 000,00 in ten (10) equal instalments of R1 500,00 each, the first of which
is payable on 1 November 2003 and all subsequent payments on or before the first day of
each succeeding month thereafter until the full purchase prices has been paid.
or
The Lessee agrees to pay the rental of R2 000,00 per month, monthly in advance, which
must be paid on or before the seventh day of each and every month during the currency of
the lease.
12.4.8 Subsidiary clauses in a lease

The Lessee may not do any of the following without the Lessor’s written consent:
l Make any structural alterations to the leased premises.
l Remove any trees or shrubs from the garden.
l Cede any of his/her rights under this agreement.
l Sublet any portion of the leased premises to any other person.
The Lessee must:
l Maintain the interior of the premises.
l Deliver the premises to the Lessor, at the end of the lease, in the same condition as it was
in when he/she took occupation.
l Notify the Lessor of any major faults in the premises no later than 14 days after they came to
his/her attention.
263
12.4.9 Voetstoots clause

This type of clause denies the Purchaser a remedy against the Seller for latent
defects. In colloquial language, parties believe that if an article is sold ‘as is’, it
has the same meaning as voetstoots. This is not a settled point and it is prefer-
able to use the term ‘voetstoots’.
The vehicle sold under this agreement is sold voetstoots.
12.4.10 Suspensive condition

This type of clause is commonly found in agreements of sale where the parties
intend that the agreement should not be binding unless a certain event occurs.
Often in sales of immovable property, the Purchaser is only able to pay the pur-
chase price if he/she obtains a loan from a financial institution. The agreement is
thus made dependent on the granting of that loan.
The terms and conditions of this agreement will be binding on the parties only if the purchas-
er is granted a loan of no less than R200 000,00 by a registered bank or building society, by
not later than 16 October 2002. This condition will be deemed to have been fulfilled if a regis-
tered bank or building society gives the Purchaser written notification that his/her loan appli-
cation, for that amount, has been approved in principle.
12.4.11 The VAT clause

If value added tax is payable by the Seller in terms of this agreement, the Purchaser will be
obliged to refund the Seller such amount as it becomes payable.
12.4.12 Breach clause

If either of the parties commits a breach of his/her obligations under this agreement, the
innocent party shall have the following rights:
• to cancel the agreement; and
• claim damages he/she has suffered.
or
• to enforce the agreement;
• claim such damages as he/she has suffered; and
• claim any outstanding amount owing by the defaulting party in terms of the agreement.
12.4.13 Interest clause

If the Purchaser fails to pay any instalment due on or before due date, he/she will be liable to
pay interest on the amount of such late instalment, at the rate of 17,5% per annum calculated
from the due date of payment until the actual date of payment.
12.4.14 Jurisdiction clause

The parties consent to the jurisdiction of the Durban Magistrates’ Court in respect of any
legal action which might be instituted by either of them arising from this agreement.
264
Drafting contracts
12.4.15 Arbitration clause

It is not usual for an arbitration clause and a consent to jurisdiction clause to be
embodied in one agreement because they are, to some extent, mutually exclu-
sive. It is, however, possible for parties to agree that an arbitrator will be appointed
to resolve a particular aspect of the dispute.
l In the event of a dispute arising between the parties as to their rights and obligations
under this agreement; to its interpretation; or to the breach by either of them of their obli-
gations, hereunder they agree to resolve such dispute by arbitration.
l The arbitrator shall be a person who has been a practicing advocate or attorney for a
period of no less than five years prior to the date when the dispute arose and shall be a
person chosen by the parties themselves.
l If the parties are unable to agree on an arbitrator they hereby mandate the Chief Execu-
tive Officer of the KwaZulu-Natal Law Society to appoint one and his/her decision will be
final.
l The provisions of the Arbitration Act will apply in respect of such arbitration.
12.4.16 The domicilium clause

The parties choose as their respective domicilia citandi et executandi the following addresses
for any legal proceedings which may be instituted arising from this agreement.
The Seller: (insert a physical address)
The Purchaser: (insert a physical address)
12.4.17 The costs clause

The legal costs incurred in connection with the preparation of this agreement will be borne by
the parties in equal shares.
or
The Seller will be liable for all legal costs incurred in connection with the preparation of this
agreement.
12.4.18 Non-variation clause

No amendments to or variations of this agreement will be binding unless they are reduced to
writing and signed by the parties.
265
Trial advocacy
By Daven Dass
13.1 Introduction
The expression ‘trial advocacy’ embraces the
The expression ‘trial idea of representing another person in court.
advocacy’ embraces the Quite simply put, trial advocacy is concerned
with the winning of cases through techniques
idea of representing that are acquired, practiced and constantly
another person in court. honed.1 In South Africa, practitioners are classi-
fied either as advocates or attorneys. However,
as a precursor to the full implementation of the Legal Practice Act2 the phrase ‘legal
practitioner’ will be used in this chapter to describe all legal practitioners (whether ad-
vocates or attorneys) who appear in court.3
Legal practitioners perform a variety of different tasks and of necessity require
a multi-faceted skill set to do them well. These include skills in interviewing,
problem analysis, legal research, drafting pleadings, negotiating, trial preparation
and the actual appearance in court. Many of these are discussed elsewhere in the
book. The underpinning of trial advocacy consists of techniques that you can
learn in the same way that you learned arithmetic – and they are techniques
which will ultimately form the basis for the making of intuitive decisions.4 In so far
as the crux of trial advocacy is concerned, simply put, ‘it’s the art and skill of
persuasion’.5 This chapter is concerned with skills associated with the actual
appearance in court on trial.
Legal practitioners also appear in court (or administrative tribunals) to argue
other types of cases (such as applications, appeals or reviews). These differ from
________________________
1 Ross QC (2007) Advocacy at 1.

2 28 of 2014.
3 The Legal Practice Act 28 of 2014 was passed into law on 24 September 2014. According
to this Act, which aims to transform and restructure the South African legal fraternity, both
‘attorneys’ and ‘advocates’ will be referred to as ‘legal practitioners’ in future.
4 Bergman (1989) Trial Advocacy in a Nutshell at 2.
5 Gravett and Van Loggerenberg Trial Advocacy Training in the United States Advocate April
2011 31.
267
trials in form. At the risk of over-simplification, one can say that arguing
applications, appeals and reviews requires the same range of skills as are re-
quired in the delivery of a closing argument in a trial. For this reason, this chapter
will not discuss those processes separately.
Both civil and criminal trials begin with a number of formalities. In a criminal
trial, the charge is read to the accused after which he/she is asked to plead. In a
civil trial in the High Court, proceedings begin with the legal practitioner informing
the presiding officer that a pre-trial conference has been held, and handing up the
minutes thereof, unless of course it has already been placed in the court file.6
Sometimes other formalities have to be dealt with, such as amendments to
pleadings and announcements of agreements concerning admissions.
More often than not, it is apparent that some legal practitioners become so
engrossed in the complexities of leading evidence or probing witness versions
that they often fall short in respect of the practical applications of the trial. Whilst
legal practitioners have an ethical and collegial duty toward to their colleagues
and the court, they should also be respectful toward and mindful of the office held
by the presiding officer. This courtesy manifests even prior to the commencement
of the trial by the legal practitioners introducing themselves to the presiding
officers in their chambers. Junior or inexperienced legal practitioners should seek
guidance from the court when they are unsure as to the procedure to be followed
and should familiarise themselves with phrases such as ‘with the indulgence of
the court’ and ‘as the court pleases’.
In so far as addressing the court is concerned, the legal practitioner should
endeavour to speak clearly and audibly, keeping in mind that more often than not
it is in fact true that ‘first impressions last’. When speaking, it is advisable that the
legal practitioner varies the pitch or tone of his/her voice so as not to lose the
attention of the presiding officer. It is also wise to conclude either the examination
of a witness or an argument with the strongest, most favourable point. Regarding
the stance and posture of the practitioner while addressing the court, Marnewick
provides an excellent summation of a ‘professional and convincing’ posture by
referring to the acronym SOLER, which essentially entails: 7
Shoulders square, meaning that you stand up straight, with your weight evenly
distributed on both legs;
Open stance, meaning that you stand upright, chin up, facing the person you
addressing;
Leaning slightly forward and engaging the audience instead of looking away;
Eye contact being maintained with your audience;
Relaxed meaning that that body must not be tense.
Throughout the trial, the legal practitioner must conform to the ethical and pro-
fessional dictates of the legal profession. The trial commences with an opening
address.
________________________
6 In this regard it is often prudent to consult the practice directive or practice manual of the
court or division concerned as it might prescribe certain steps to follow in respect of matters
before the court.
7 Marnewick (2007) Litigation Skills for South African Lawyers at 431.
268
Trial advocacy
13.2 The opening address

Each party has an opportunity to make an opening address. An opening address
is delivered immediately before a party presents evidence. In cases where the
burden of proof is on a party, that party’s legal practitioner speaks first. After the
close of that party’s case, it will be the turn of the other party to deliver an
opening address.
The purpose of an opening address is to
The purpose of an opening inform the court of the issues of fact and law in
address is to inform the the case. However, an opening statement is
court of the issues of fact often used to try to persuade the court to view
the evidence in a particular way. Research has
and law in the case. shown that in jury trials in the United Kingdom,
the verdict is often influenced by the opening address.8 Lindquist, an American
authority, is of the opinion that opening speeches determine the outcome of
50–85% of jury trials.9 In South Africa, where no jury system exists, the opening
address probably has far less influence on the outcome of a case.
13.2.1 The elements of an opening statement

An opening statement usually consists of four elements:
l A description of the nature of the case: Here, the legal practitioner will inform
the court of the broad factual basis of the case and the area(s) of law that are
applicable.
l The issues in dispute: The legal practitioner will inform the court of the facts of
the case as they appear from the pleadings and more especially the facts that
are common cause and the allegations that are in dispute.
l The evidence to be presented: The legal practitioner will inform the court of the
witnesses who will be called on behalf of his/her client and give a general
outline of their evidence. The purpose is to show the court how a party intends
proving the case.
l The relevant legal principles: The legal practitioner will highlight the area(s)
and principles of law relevant to the case. However, this is not the time when
the case is ‘argued’. This occurs at the end of the evidence. At this stage, the
legal practitioner’s job is to make the court aware of the relevant legal issues.
13.2.2 Technique
A few points regarding the technique of delivering an opening statement in order
to derive the greatest benefit for the client follow below:
l When informing the court of the witnesses that will testify and of the content of
their evidence, the legal practitioner should make the broadest possible
statement concerning the facts. Going into too much detail could be
disadvantageous in that it gives the opposition time to reflect on that evidence
and to consider ways of undermining it. It could also create the opportunity for
________________________
8 Inns of Court School of Law (1992) Advocacy, Negotiation and Conference Skills at 219.
9 Marnewick at 285.
269
discrediting a witness if the testimony of the witness differs from that which
was told to the court. Remember that in respect of the opening statement, only
the facts are presented and a legal practitioner should not advance argument
at this stage; however, this is the ideal platform to highlight facts favourable to
your client.
l The legal practitioner should attempt to make the opening address interesting.
Presiding officers are human. Although they are trained and experienced in
hearing cases, they are capable of doing this without displaying any special
interest in the case. The legal practitioner’s task is to try to get the presiding
officer to do the opposite, with the idea being to sketch a colourful picture of
the case to the court.
l The legal practitioner should refrain from arguing points of law at this stage.
The purpose of the opening address is to outline the case to the presiding
officer. The opportunity for comment and argument arises at the end of the case
during the closing address stage.
l The opening statement should be brief. While it is true that a presiding officer
will value a well-delivered opening statement, he/she will not wish to be bored
by having to listen to a speech reciting the evidence to follow.
l The legal practitioner should attempt to make the opening speech logical,
chronological and complete. This requires careful preparation. It will not be
easy to achieve these goals by making hasty, off-the-cuff speech moments
before presenting the evidence.
Example of an opening address:

My Lord, this is an action for damages arising from a motor vehicle collision in which the
Plaintiff claims damages of R100 000,00.
On the pleadings there are only two issues in dispute. The first is negligence and the second
is quantum of damages.
On the issue of negligence, the Plaintiff will call two witnesses. The first will be the Plaintiff
herself who will describe how, while driving her motor vehicle along Oak Street on the day in
question, the Defendant – driving a sports car – came around a corner and careered at
speed onto her side of the road, resulting in a head-on collision. The next witness will be
Mr Joe Ngcobo, a newspaper vendor, who was standing on the roadside near the scene and
saw the accident happen.
As to quantum of damages the Plaintiff will call one witness, Mr Jeff Spring. He will testify as
to his qualifications and experience as a panel beater and a person knowledgeable in respect
of the cost of repairing motor vehicles. He will testify further that two (2) days after the
accident, he inspected the Plaintiff’s vehicle and that, in his opinion, the fair and reasonable
cost of repairing it amounted to R35 000,00. He will furthermore advance the reasons for this
opinion.
My Lord, there are no unusual or difficult issues of law involved in this matter and I have
nothing to say in that regard.
13.3 Examination in chief

All court cases are based on sets of facts. In trials, facts are placed before the
court by way of admissions or oral evidence. In rare circumstances, evidence can
be introduced in the form of documents – usually an affidavit. Mostly, however,
evidence is presented by witnesses appearing in person and telling a story. The
270
Trial advocacy
presentation of evidence by a witness is usually divided into three phases. The

first is called evidence (or examination) in chief, the second, cross-examination
and the third, re-examination.
The aim of a witness’ evidence in chief is to place before the court all relevant
and material information which the witness knows concerning the facts in issue in
the case, so as to make out a sufficient case for the opponent to answer to. The
role of the legal practitioner is to ask the witness a series of questions. When
these questions are asked, the legal practitioner is said to be ‘examining’ the
witness, with the version of the witness consequently being placed before the
court. Examination in chief is, arguably, the most important phase of the trial, in that
each party puts forward his/her own version of the facts and provides an answer to
10
the opponent’s version. This is the first opportunity for the court to assess the
witness. When leading a witness, the legal practitioner should design the
questions so that the evidence comes across in a clear, logical, chronological and
forceful way. In so far as the persuasion of the court is concerned, key to this is:
The ability to develop a coherent and logical theory of the case. A case theory is the vehicle
11
through which the facts of the case are conveyed as a structured and credible whole.
The following are points worth noting when leading a witness:
13.3.1 Preparation
This entails a number of tasks. Once the legal practitioner has become familiar
with the pleadings and the issues in dispute, he/she should carefully and
pedantically interview each of the witnesses with a view to ascertaining which
aspect of the case that witness’ testimony will prove.
After interviewing all witnesses, the legal
It is important that the practitioner must decide on the order in which
they will be called. It is important that the first
first witness creates a witness creates a favourable impression on
favourable impression the presiding officer. This impression is likely
on the presiding officer. to last until the end of the trial. It is therefore
advisable to begin with a good witness, who
you believe to be your most credible witness. However, this objective must be
balanced with the need to present evidence in a logical and chronological order.
There is no hard and fast rule.
The interview serves another important purpose, namely the briefing of wit-
nesses. During briefing, the legal practitioner should address two sets of issues.
The first is to review the witness’ testimony, to ask questions, and generally to put
the witness through a rehearsal of his/her evidence. The second issue, which is
as important as the first, is that the briefing can be used to prepare the witness for
the experience of giving evidence. It is important to remember that this may be
the first time the witness appears in a courtroom. It is, therefore, understandable
that he/she will be both apprehensive and nervous about the experience. The legal
practitioner should explain the setting, customs and procedures of the court and
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10 Marnewick at 303.
11 Gravett and Van Loggerenberg at 31.
271
give the witness the opportunity to ask questions and abate any fears in respect
of the subsequent court experience. The legal practitioner should further explain
that the witness will be cross-examined and he/she should be informed of the
cross-examiners’ objectives and the witness’ rights in relation to it.
A witness sheet can be prepared to serve as an aid when conducting exami-
nation in chief. This is a document recording a number of items of information,
including the name of each witness, the order in which such witness is to testify,
and a list of the points intended to be covered by the witness’ testimony. It is not
advisable to write down the actual questions because the content and structure of
every question is influenced, to a greater or lesser degree, by the answer the
witness has given to the previous question. It is not possible to envisage what
those answers might be because if it is an unexpected one, it will necessitate the
abandonment of the next prepared question or series of questions. It is therefore
better to make a list of the key points which must be covered by the witness’
testimony. In doing so, the use of a ‘timeline’ may be useful. This is a list of
events in their chronological order.
13.3.2 Restrictions on examination in chief
There are a number of restrictions applicable to the form and content of questions:
l The first relates to relevance, materiality and admissibility. Questions must be
formulated in such a way that the answers elicited are relevant, material and
admissible. Questions aimed at eliciting inadmissible evidence are not allowed.
It is beyond the scope of this chapter to deal with the categories of evidence in
respect of which the exclusionary rules of evidence apply.
l Leading questions may, generally, not be asked during examination in chief.
The rationale for this rule is that courts are not interested in answers, but
12
rather in the testimony of the witnesses themselves. There are, however, two
circumstances under which leading questions may be used in examination in
chief. The first is in respect of innocuous, non-contentious material. An example
is given in the box below:
Example of a leading question relating to a non-contentious matter
Q Is it correct that you and the defendant were married to each other, in community of
property, in Durban on 1 July 1994?
The second instance is where leading questions are asked with the consent of
the opposition in order to facilitate the speedy conclusion of the matter.
13.3.3 Technique
A number of techniques can be employed to achieve the desired purpose of
conveying a concise, logical and forceful idea from the mind of the witness to that
of the presiding officer. The legal practitioner should utilise the following:
l Plain, simple language: the legal practitioner should always keep in mind that
most witnesses will be unfamiliar with legal jargon and the use of it may unsettle
or even confuse them. There is a misconception that success emanates from
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Trial advocacy
the use of convoluted and dense legal jargon and complex questioning. The
use of short sentences and questions being asked one at a time should be
recommended.
l Controlling the witness is a technique that uses the knowledge of the facts the
legal practitioner has attained to formulate the questions so that the answers
the witnesses will give will be the exact ones desired. The legal practitioner,
however, cannot give evidence for a witness. With effective questioning, the
witness’ testimony can be trimmed or expanded upon, in order to present the
most effective picture of the case. The art, here, is to control the witness
without using leading questions. The legal practitioner should guard against
questions that would illicit an unfavourable or adverse response.
The task would be simple if one could use a leading question. An example of a
leading question, which will not be permitted, is given below:
Would you agree with me that the distance between point A and point B is twenty-five
(25) metres?
Control can be exercised over the witness by cutting him/her short once the
main part of the question has been answered and he/she starts rambling on
about something else. This must however be done in a professional and fair
manner so as not to allow the other party or the presiding officer to make an
adverse inference. This can be achieved by telling the witness that it is not
necessary for him/her to tell the court about anything more concerning the
incident at this stage. In developing the technique of controlling the witness, it
may be instructive to take note of the different classifications of questions as
13
identified by certain writers.
These are:
• The open question, which gives the broadest possible freedom to the
person being questioned as to the form, length and content of the answer.
For example:
What did you do yesterday?
• The semi-open question, which gives the person being questioned a certain
degree of freedom in answering as the parameters are somewhat limited.
For example:
What did you have for breakfast yesterday?
• The closed question, which usually closes the options available to the
person being questioned. Generally, the answer to the closed question can
only be a single word or short sentence. For example:
Did you have coffee with your breakfast yesterday?
________________________
13 Inns of Court School of Law at 20–21.
273
• The leading question, which is formulated in such a way that the person
being questioned is usually required to answer with a simple ‘yes’ or ‘no’
answer. For example:
Did you only have coffee with your breakfast yesterday?
When conducting an interview, the open question is often the most effective
because it gives the person being questioned the greatest freedom to answer.
However, in a courtroom situation, it is not always desirable that he/she enjoys that
freedom and the legal practitioner may wish to exercise far greater control over
what the witness says. The semi-open and closed questions are perhaps the most
useful to adopt in this situation. It should be noted, however, that there is no hard
and fast rule about this and that circumstances may dictate that other formulations
of questioning be adopted. It should always be kept in mind that the main purpose
of controlling the witness is to professionally and ethically cut, trim, and shape the
evidence of the witness in such a way that it will come across in as clear, logical
and forceful a way as possible.
13.4 Cross-examination
13.4.1 Definition
Cross-examination is the procedural right to question
witnesses of the opposition. It has been described as Cross-examination
‘the primary and essential means of testing evidence is one of the most
for accuracy, completeness and reliability’.14 It is the effective ways of
opportunity to bring to light ‘contradictions, impro-
babilities, intrinsic discrepancies, interests, prejudices establishing whether
and omissions’.15 It is generally accepted that cross- a witness is telling
examination is one of the most effective ways of the truth.
establishing whether a witness is telling the truth.16
13.4.2 The objectives and purpose of cross-examination

It is generally accepted that cross-examination has the following purposes:
l To elicit facts favourable to the client’s case: Not every witness called by the
other side is necessarily hostile to one’s client. Many witnesses (even biased
ones) may have knowledge of facts which could help the client. Cross-
examination is the opportunity to bring out those facts. In trials, one often
encounters witnesses who are neutral. They are witnesses who do not
necessarily favour either party. They are people who simply have some know-
ledge of the subject of the trial. Such a witness may be called by one’s
opponent and he/she may be asked a number of questions. A legal
practitioner on the other side may have been selective in the choice of
questions to such a witness by asking only questions to which the answers
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14 Pretorius (1997) Cross Examination in South African Law at 79.

15 Supra at 8.
16 S v Cele 1965 (1) SA 82 (A) 91C–D.
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Trial advocacy
would be favourable. This type of witness is not necessarily hostile to one’s

client but may possess information which could be favourable to the client. The
purpose of cross-examining this witness is to elicit those favourable facts. An
example of this is given below:
The person being cross-examined is a medical doctor. He has testified in a case in which the
defendant has been sued for damages arising from an assault.
His evidence in chief has been to the effect that he examined the plaintiff and found that he
had a number of lacerations and bruises on the right side of his face. The plaintiff has said in
his evidence that the bruises were caused by being struck on the side of the face by the
defendant. The defendant’s defence is that the plaintiff was injured after falling down in a
scuffle. Cross-examination by the defendant’s legal practitioner may proceed as follows:
Q: Now Doctor, you have said that the plaintiff had a number of small lacerations and bruises
on the left side of his head.
A: Yes.
Q: And that these injuries were consistent with the plaintiff having been struck on the side of
his head with a clenched fist?
A: Yes, but not a single blow. I think it would have taken several blows to have caused those
injuries.
Q: Could those injuries have been caused in any other way besides a blow with a fist?
A: Yes, perhaps.
Q: Well, Doctor, the defendant will say that the two of them were involved in a scuffle and
that the plaintiff stumbled and knocked his head against the doorframe. Do you think the
injuries could have resulted in such a way?
A: Yes I’m sure they could have.
Note: The defendant’s legal practitioner has brought out a very important fact favourable to
his client’s case which is consistent with the defendant’s defence.
l To undermine the value of the evidence against one’s client: Undermining the
value of the evidence against one’s client may be done in three ways: First, by
showing that the evidence of the witness is unreliable because, for example,
his/her memory is faulty; or his/her opportunity to make an observation was
limited; or that it is inconsistent with the probabilities; second, by showing that
the witness him-/herself lacks credibility because he/she is biased or has a
motive to be untruthful; and third, by laying the foundation for drawing
comparisons between the evidence of the witnesses to follow. An example of
how this can be done is given below:
Here, the accused has testified that, at the time of the murder, he was not on the scene but
at another place, in the company of his friend B. It can therefore be anticipated that he will
call his friend B to give evidence corroborating his alibi.
The cross-examination of the accused may proceed along the following lines:
Q: Where were you at the time of the murder?
A: At the White Elephant Pub and Grill.
Q: In whose company?
Q: What time did you arrive there?
275
A: At about 8pm.
Q: Until what time did you stay?
A: 10pm.
Q: For what purpose were you there?
A: We had dinner together.
Q: Did anyone join you during that time?
A: No, we were alone all the time.
Q: What did you eat?
A: I had a steak and B had fish.
Q: What was your conversation about?
A: Oh we spoke about B’s new job and the difficulties he was having getting used to the
people he worked with.
Q: What, can you remember; did he say about his job and the people?
A: He said the job was very demanding and the people difficult to work with.
Note: Any number of additional questions can be asked to elicit from the witness, in detail,
what transpired between the two of them, what they wore, what they did, what was said, and
generally covering the events of the evening. When witness B is called to the stand he can
be asked the same range of questions. Invariably, if the alibi is false, the answers given by B
to the specific questions will differ from those of A. More often than not, this line of cross-
examination will expose a false alibi.
l One’s client’s version to the opposing witness: This is not so much an objective
17
as a duty. The duty arises because it is:
a standard and elementary practice for a party to put to each opposing witness so much
of his case . . . as concerns the witness . . . so as to give [the witness] fair warning and
opportunity of explaining the contradictions or defending his own character. It is grossly
unfair and improper to let a witness’ evidence go unchallenged in cross-examination and
afterwards to argue that he must be disbelieved.18
It is not enough merely to put to the witness that he is being untruthful. The
cross-examiner must go further and put details of his client’s version. The
extent of the detail may prove to be problematic. The Constitutional Court has
held that ‘it should be made clear not only that the evidence is to be
challenged but also how it is to be challenged’.19
13.4.3 Planning cross-examination

Like any other undertaking, cross-examination is most likely to be successful if
properly planned. Far too many (especially inexperienced)
practitioners plan their cross-examination by writing out, Trials, like wars,
word for word, a list of the questions they intend asking bring up the
opposing witnesses. They fail to give proper thought to the unexpected.
________________________
17 Pretorius at 92 fn 25; Stilwell (1997) Legal Practice Handbook: Cross-examination at 28.

18 Small v Smith 1954 (3) SA 434 (SWA) 438.
19 President of the Republic of South Africa and Others v SARFU and Others 1999 (10) BCLR
1059 (CC) 1090.
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Trial advocacy
aim of the questions and what they hope to achieve through cross-examination.
This approach is not advisable. Trials, like wars, bring up the unexpected. There
is no way of always predicting what answers a witness will give, and as each
question is predicated on the answer to the previous one, it is always better to
formulate a broad and general plan than to think of specific questions. An inherent
characteristic of the trial will be that the legal practitioner will have to ordinarily
think on his/her feet and will have to almost instantaneously bounce back and
shift focus, whilst still furthering the theory of the case, should he/she obtain an
unfavourable answer or response to a particular line of questioning. It is advisable
to prepare a cross-examination sheet in respect of each of the witnesses whom it is
expected will testify for the other party and to formulate a broad and general plan
for cross-examining them. Planning entails asking oneself a few basic questions
about the witness and his/her testimony and formulating an appropriate approach in
the light of the answers. Suggested questions are as follows:
l Who are the witnesses the other side are most likely to call?
l What are they likely to say? This can be noted on the cross-examination sheet.
l Is it likely that they will be hostile to one’s client? The answer to this will be
relevant in knowing what mood should be adopted in relation to those
witnesses. Should it be hostile and aggressive or quiet and accommodating?
l Which of the aims of cross-examination would be appropriate to employ in
relation to each witness? Here, the legal practitioner should consider whether
the witness is likely to be able to give evidence favourable to his client’s case,
and if so, the possible favouring facts that should be elicited from the witness.
Alternatively, if the witness is expected to give unfavourable evidence, the
basis of formulating a plan of attack should be made on his/her evidence.
Here, the legal practitioner must consider whether the witness is giving
unfavourable evidence because he/she is biased against the party or simply
because he/she is unreliable.
l Is it likely that the witness will be testifying about the same events which other
witnesses have testified to? If this is the case, a note must be made on the
cross-examination sheet to provide the basis for comparison between this witness’
evidence and witnesses who have already testified or who have yet to testify.
The legal practitioner should enter a reminder on the cross-examination sheet to
compare his/her client’s version to that of each witness. It is not necessary to
record the entire version of each witness, but only those parts of the version
which are relevant to the testimony of this witness.
277
13.5 Limitations on cross-examination

Cross-examination is not a free-for-all activity
which allows the cross-examiner to ask any
A presiding officer may
question, in any manner and at any time. There intervene
are certain limitations. These limitations are and disallow a question
designed to facilitate the efficient and expeditious
disposal of the case, but at the same time to
which goes beyond the
ensure that the witness is protected from abuse by established limits of
the cross-examiner. Given that the purpose of cross-examination.
cross-examination is to test evidence for its
accuracy, reliability and truthfulness, courts will allow a considerable leeway in
cross-examination.20 Thus, questions may be posed on any point in dispute in the
case, including the credibility of witnesses. Unlike certain other jurisdictions, in
South Africa, legal practitioners are not restricted to questioning of witnesses only
on issues raised in their evidence in chief.21 A presiding officer may intervene and
disallow a question which goes beyond the established limits of cross-examination.
These limitations have been established in case law. However, presiding officers
are likely to be mindful of the need to uphold the time-honoured value that justice
must not only be done but be seen to be done. An over-zealous enforcement of
judicial authority is curtailed by the counterbalancing requirement that a certain
degree of leeway is appropriate. Indeed, an erroneous refusal to allow questions
has been held to be an irregularity.22 There are, nevertheless, certain established
limitations on the scope of cross-examination. They are the following:
13.5.1 Relevance
Questions about matters not relevant to a point in
Determining what is issue will not be allowed. A useful definition of
(or what is not) relevance is found in Rule 401 of the Federal Rules
relevant is not easy. of Evidence in the United States of America. There it
is defined as ‘Evidence having a tendency to make
the existence of any fact that is of consequence to the determination of the action,
more or less probable than it would be without the evidence’.23 It is not always
easy to recognise the boundaries of what is relevant to the main point in issue. In
a murder case, the main point might be whether or not the accused is the person
who killed the deceased. In the process of arriving at this decision, the presiding
officer may have to decide whether or not witnesses implicating the accused
should be believed. The credibility of the witnesses thus becomes a subsidiary
issue. Therefore, questions put to a witness under cross-examination, which
relate to his/her general credibility, will be allowed because the answers may
assist the presiding officer in determining the principal issue. It has been held that
questions aimed at determining credibility should be allowed even though they do
________________________
20 R v Amod 1958 (2) SA 658 (N).

21 Distillers Corporation v Kotze 1956 (1) SA 357 (A).
22 S v Green 1962 (3) SA 886 (A).
23 Schwikkard et al (2009) Principles of Evidence at 46.
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Trial advocacy
not necessarily touch on the main issue of the trial.24 Justification for the
allowance of such questions is sometimes found in the fact that if a witness has
testified about a point in issue, any questions concerning the accuracy or
truthfulness of such testimony are indirectly relevant to the point in issue because
its determination may be influenced by the acceptance or rejection of such
evidence. Thus, questions may be asked to check: the accuracy of a witness’
memory;25 about his/her character;26 whether he/she had a motive to lie;27
whether he/she has been influenced to give the testimony;28 to test his/her
evidence against other witnesses;29 or if any other matter existed which would
assist the presiding officer in deciding whether the evidence should be
accepted.30 However, questions not connected with the relevance or credibility of
a witness will not be allowed.31 It must be noted, however, that cross-examination
on collateral issues is governed by a somewhat arbitrary rule that considers
answers elicited as being final. This means that evidence to rebut such answers
will not be allowed. The rationale given for this rule can be found in the following
passage from the nineteenth century English case of Attorney General v
Hitchcock:32 ‘If we lived for one thousand years instead of about sixty or seventy
and every case was of sufficient importance it might be possible, and perhaps
proper, to raise every possible enquiry as to the truth of statements made . . . In
fact mankind finds it impossible’. There are four exceptions to this rule.33
Rebutting evidence may be submitted where the cross-examination relates to
questions of:
l prejudice or bias;
l previous convictions;
l general reputation or unreliability; and
l previous inconsistent statements.
13.5.2 Pointless questioning

A presiding officer may disallow questions which are aimless, pointless, and
repetitive or seemingly a time-wasting excursion.34 If the question does not
advance or enhance the theory of the case in any way, the question should not be
put to a witness.
________________________
24 R v Mantingo 1952 (2) PH H 145 (N); Kayat v Amodjee 1936 TPD 340; Miller v Proos 1935
OPD 183 188; Pretorius at 169.
25 R v Varchia 1946 (2) PH H 218 (T).
26 Pretorius at 207.
27 R v Amod 1958 (2) SA 658 (D) 660.
28 Mhlumbini v Magistrate of Peddie 1957 (2) PH H 286 (E).
29 Caroll v Caroll 1947 (4) SA 37 (N).
30 Pretorius at 172; in Gillingham v Gillingham 1904 TS 126 the court disallowed questions
about the witness’ previous adulterous relationship; in R v Sacks 1931 TPD 188 the court
disallowed questions about the witnesses’ previous involvement in illegal diamond dealings.
31 R v de Bruyn 1957 (4) SA 408 (C); S v Maggaga 1984 (3) SA 377 (CPD) 388.
32 1847 16 LJ EX 259 154 ER 38.
33 Pretorius at 180. The learned author points out that these are not exceptions, as such, but
rather situations where credibility itself is relevant to the point in issue.
34 1957 (4) SA 408 (C) 412.
279
13.5.3 Questioning of a witness already discredited

A presiding officer may disallow questions aimed at discrediting a witness who
has already been discredited.35
13.5.4 Contradictory testimony

It is improper to ask a witness whose testimony is contradicted by the evidence of
another witness whether that witness is lying. A presiding officer may disallow such
questions.36 The rationale appears to be that the answer to that question is an
opinion and as such is inadmissible.
13.5.5 Presenting a distorted version

It is improper to present a witness with a distorted or incorrect version of what
another witness has said. The presiding officer may prevent the legal practitioner
from doing so.37
13.5.6 The character of a witness

A cross-examiner may not pose questions to ordinary witnesses which could
impugn their characters, unless there is a factual basis for doing so.38 In criminal
cases, an accused who testifies in his/her own defence may not be asked about
his/her previous convictions or bad character unless he/she gives evidence as to
his/her good character.39
13.5.7 Questions aimed at eliciting inadmissable evidence

Complex rules exist relating to cross-examination aimed at eliciting inadmissible
evidence. At the risk of over-simplifying them, it can be said that if the purpose of
the question is to elicit facts favourable to the cross-examiner’s cause, the
questions are impermissible.40 The rationale for this rule is that inadmissible
evidence remains inadmissible no matter who elicits it. However, an exception
occurs when it is found that the effect of the evidence is unfavourable to the
cross-examiner’s client. Here, the evidence will be allowed to stand.41 The
rationale is that if a party brings out unfavourable inadmissible evidence, it is
assumed that he/she consents to it.42 Pretorius points out, however, that the
‘question of cross-examination on inadmissible evidence is a familiar conundrum
and one which the courts have not always dealt with uniformly’.43
________________________
35 R v Dlende 1960 (1) PH H 128 (A).

36 Caroll v Caroll 1947 (4) SA 37 (N) at 41.
37 S v Maharaj 1987 (1) PH H 47 (N); Pretorius at 205.
38 Gluckman v Schneider 1935 AD 151; Pretorius at 207.
39 S 197 of the Criminal Procedure Act 51 of 1977.
40 Marnewick at 331; Pretorius at 228–249.
41 Marnewick at 331–332; Pretorius at 239.
43 Supra at 230.
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Trial advocacy
13.5.8 Demanding a simple ‘yes’ or ‘no’ answer

It is improper for a cross-examiner to insist that a witness answer a question with
a simple ‘yes’ or ‘no’ when it is clear that the witness wishes to clarify the answer.
Such behaviour is oppressive, and according to Marnewick, runs contrary to the
witness’ oath to tell the truth, the whole truth, and nothing but the truth.44 A
presiding officer may disallow such questions. If however it is clear that the
witness seeks to be unreasonably evasive and is mala fide in his/her demeanor
and response, the legal practitioner should request the intervention of the
presiding officer so as not to be seen to be badgering the witness. A legal
practitioner can be courteously firm without necessarily being abrasive.
13.5.9 Courteous treatment of witnesses

A cross-examiner must carry out the task with courtesy and respect towards the
witness. Instigative behaviour and personal comments are improper and will not
be allowed in court.45 A cross-examiner may also not adopt an insulting or mock-
ing attitude towards a witness.46 Robust and thorough questioning of a witness
should not be equated with arrogant and harassing questioning.
13.6 Technique in cross-examination

Technique in any activity is a matter of personal style. It is a way of doing some-
thing effectively. A particular technique may work well for one person but not for
another. One cannot, therefore, say that there is necessarily always a right way or
a wrong way of performing a particular task in cross-examination. However,
wisdom accumulated over years indicates that certain approaches have been
found to be generally useful in most or particular situations. These include the
following:
13.6.1 Selection of subject matter

There is no obligation on a cross-examiner to question, or not to question, a
witness about all aspects of his/her evidence in chief. It is the cross-examiner’s
privilege to decide whether to question the witness and the particular areas from
which those questions would arise. In this way, the questioner can probe, dwell
upon, or attempt to undermine those aspects of the witnesses’ testimony which
have been harmful to his/her client’s case. At the same time, the questioner can
purposefully avoid questions which are likely to elicit more unfavourable responses.
To conduct this effectively, careful thought and detailed planning are required.
13.6.2 Mood/Style
Marnewick describes four different attitudes (or moods) which can be adopted in
cross-examination.47 These are the confronting, probing, insinuating or undermining
________________________
45 S v Tswai 1988 (1) SA 851 (C).
46 S v Nkibane 1989 (2) SA 421 (NC).
281
styles. Examples of each of these approaches are presented below. Choosing the
right style for the occasion requires thought. In a given situation, it may be
appropriate to change style or to adopt more than one style. Factors to be con-
sidered in making this choice include, amongst others: matters such as whether
the witness has an interest in the proceedings; the impression which he/she is
likely to have created in the mind of the presiding officer; the extent to which
his/her evidence has had a damaging effect; and the nature thereof. It would be
foolish (and indeed counter-productive) to adopt a confronting approach towards
a witness who is independent, has no interest in the outcome of the case and has
been brought to court under subpoena, and who has obviously created a good
impression on the presiding officer.
Confronting
Q: I put it to you that you are deliberately lying to protect your brother, the accused.
Probing
Q: How far away were you from the scene of the shooting when it occurred?
Insinuating
Q: You have already stated that your eyesight is not very good, and I want to suggest to you
that you may have been mistaken in your identification of the person who carried out the
attack.
Undermining
Q: Your account of the incident differs from that of the previous witnesses in a number of
respects. I want to bring these to your attention and give you an opportunity to explain
them.
13.6.3 Leading questions

A leading question is one formulated in such a way that
the desired answer is contained in the question itself. Leading questions
See Example 1 below. Leading questions may be may be asked in
asked in cross-examination.48 The great advantage of a cross-examination.
leading question is that the evidence can be brought
out in words chosen by the cross-examiner. A witness is unlikely to quibble about
the way in which a question is phrased as long as it accords broadly with his/her
understanding of the facts. Thus, the cross-examiner enjoys the opportunity of
putting his/her own spin on the evidence.
Example 1
This is an example of a leading question:
Q: It is correct, is it not, that you were the driver of the BMW motor vehicle, which was
involved in an accident on 16 July 2002?
________________________
48 R v Ngcobo 1925 AD 561; S v Rall 1982 (1) SA 828 (A).
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Trial advocacy
Example 2
This is an example of the extent to which a leading question can be used to great advantage.
The manner in which the question is formulated is in such a way as to create, in the mind of
the witness, the impression that the cross-examiner knows more about the fact than the
witness himself/herself:
Q: I wish to put it to you, Mrs Smith that I visited the scene of the accident yesterday and
measured off the distance between the traffic sign and the point of the collision. I
measured it to be 50 metres. Would you agree with this?
Note: In this example, if the questioner had used an open question and had asked the
witness to tell the court the distance between the traffic sign and the point of the collision,
he/she might have answered anything from 20 to 100 metres. Yet, when the proposition is
put to the witness in the form of a leading question, he/she is unlikely to argue with the cross-
examiner and is more likely to agree. In this way, the cross-examiner can place evidence
before the court which puts his/her client’s version in the most favourable light.
13.6.4 Knowing when to stop

Before asking questions, a cross-examiner should ask him-/herself two basic
questions. First, ‘Has the evidence of this witness been damaging?’ and second,
‘Can this witness assist in proving the client’s case?’ If the answers to both
questions are negative, wise legal practitioners may refrain from asking any
questions at all. The only questions he/she may pose may be the ones used in
presenting the version of the client’s case. The danger of cross-examining when
there is no need to, is that questions may elicit answers that serve only to strengthen
their opponent’s case or to enhance the credibility of the witness. A further point
to note is that if a convincing and credible version has been placed before the
court, overkill is not necessary. It is neither necessary to waffle nor to ask irrelevant
or pointless questions, which do not in any way advance the client’s case.
13.6.5 Closing off routes of retreat
Observant (sometimes untruthful) witnesses are at times able to detect the
direction of the questioning and they are able to adapt their answers so that they
avoid or minimise the damaging effect of a contradiction or absurdity. A skillful
cross-examiner must anticipate and prevent this by eliciting information from
the witness which prevents him/her from doing so. An example of closing off such
routes of retreat is given below:
Assume that a witness has given a written statement to the police, which is contradictory to
his/her evidence in court. This may be a good opportunity to show that the witness is
untruthful. The opportunity can be totally lost if the cross-examiner does not close off routes
by means of which the witness can escape the damaging effect of the contradiction. It would
be unwise for the cross-examiner simply to put it to the witness that his/her testimony differs
from that given to the police previously. That would give the witness the opportunity of
denying that he/she ever gave such a statement to the police or denying his/her signature on
the police statement.
A more effective way of doing it would be as follows:
Q: It is correct, isn’t it, that after the accident you made a statement to the police?
A: Yes.
283
Q: I presume that you, being a responsible person, told the truth?

A: Yes.
Q: I presume, further, that being a responsible person you read the statement before signing it?
A: Yes.
The cross-examiner will then show the witness a portion of the statement containing his/her
signature without revealing the contents of the statement. After getting the witness to
acknowledge his/her signature on the document, the cross-examiner might proceed as follows:
Q: Can you now explain why your testimony in court differs from the statement you gave to
the police? I wish to show you paragraph three (3) of your statement where you said the
following . . .?
13.6.6 Putting (or presenting) the client’s version

Presenting the client’s version might appear to be one of the simplest tasks in
cross-examination. However, a cross-examiner may come across a number of
potential pitfalls which may be to the detriment of his/her client’s case. It is
therefore a task which must be undertaken with the greatest of care and skill. It is
a task which, perhaps more than any other in cross-examination, requires the
cross-examiner to be thorough, accurate and complete. It cannot be done
properly or effectively unless the cross-examiner has become totally familiar with,
understood and absorbed his/her client’s version of the case.
The following are the pitfalls to avoid:
l Presenting the version in too much detail: Here, the cross-examiner must
strike the right balance between being thorough, on the one hand, and
avoiding too much detail, on the other hand. The danger of introducing too
much detail into a question is that it could give one’s opponent ammunition to
attack one’s own witnesses. One should remember that any prior statement by
a witness (even if it comes out of the mouth of his/her representative) may be
used as a basis of comparison with the witness’ evidence to show
inconsistency. This is how a carelessly phrased question by a legal practitioner
can work to the disadvantage of his/her client. Consider that the client told the
legal practitioner that immediately after the accident, the plaintiff approached
her, red-faced and embarrassed, and apologised for the collision. When
presenting this version to plaintiff, it would be unwise to formulate the question
as follows:
Q: I put it to you that immediately after the accident you rushed up to my client red-faced
and ashamed and that you apologised for your bad driving.
A question formulated in the way presented above could lead to the

embarrassment, and even discredit, of the client when he/she testifies. Cross-
examination of one’s client should ideally be presented as follows:
Q: You have told the court that after the accident the defendant approached you and
apologised for her driving.
A: Yes.
continued
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Trial advocacy
Q: Describe her manner.

A: Well, she just apologised. She said she was sorry about the way she drove.
Q: Anything else?
A: No nothing I can recall.
Q: I want to remind you of the oath you took to tell the truth, the whole truth and nothing
but the truth.
A: I have told the truth.
Q: When your legal practitioner put your version to the Plaintiff, he stated that she was
red-faced and ashamed. You have not mentioned that. Did you make it up?
A: Oh no. The defendant was certainly ashamed. I forgot to mention that detail in my
evidence.
l Presenting the version in insufficient detail: Whilst guarding against the danger
of introducing unnecessary and superfluous detail into questions, the legal
practitioner must nevertheless put his/her client’s version to opposing
witnesses fully and completely. The example below illustrates what happens
when material is provided in insufficient details:
Q: In your evidence in chief, you said that after the accident my client came up to you,
apologised, and offered to pay your damages.
A: Yes.
Q: You were in court when your legal practitioner cross-examined my client.
A: Yes.
Q: You will recall your legal practitioner putting it to my client that after the accident she
approached you and apologised.
A: Yes.
Q: If you listened carefully to your legal practitioner’s questioning of my client, you might
have noticed that he /she did not put it to my client that she offered to pay your
damages.
A: Yes I noticed that.
Q: You consulted with your legal practitioner – did you tell him about my client offering to
pay the damages?
A: Yes. I’m sure I did. Of course I would have.
Q: Can you think of any reason why your legal practitioner did not mention that detail
when cross-examining my client?
A: Well, no I can’t really.
Q: Well I want to put it to you that your legal practitioner is a very experienced practitioner
and one who fully understands the duties of a cross-examiner. It is extremely unlikely
that he would have left out that detail if you had mentioned it to him.
A: Well, I can’t say anything about that.
Q: I wish to put it to you that you have made up that detail because had you mentioned it
to your legal practitioner, he would most certainly have put it to my client.
A: No. I dispute that. I really did tell him.
285
13.6.7 Failure to cross-examine

If any part of the evidence of a witness is disputed, a duty to challenge it exists.
Failure to do so may result in the court assuming that the defence accepts the
fact that the evidence is disputed.49 The rule, however, is not absolute and the
court has discretion to reject unchallenged and seemingly false evidence.50
Negligence is not a reasonable excuse to fail to cross-examine,51 and accordingly
courts will be more lenient when the cross-examiner has no schooling in law.52
13.7 Re-examination
Re-examination is an opportunity for the legal practitioner to ask his/her own
witness further questions after the opposing legal practitioner has cross-
examined. The basic purpose of re-examination is to repair damage caused to the
witnesses’ credibility through cross-examination or to clarify the evidence where,
under cross-examination, it may have appeared to be unclear.
There are two basic rules concerning re-examination:
l Re-examination is not a second opportunity to lead the evidence: A witness
may only be re-examined on matters raised in cross-examination even if it
appears to the legal practitioner that he/she omitted to ask a witness an
important question while leading the witness. This will only be allowed,
however, if the court grants its consent. Every question asked in re-
examination must have a direct bearing upon an item of evidence originating
from the cross-examination. When deciding whether or not a question will be
allowed in re-examination, one should ask the following: ‘Does the question
relate directly to an answer given by the witness under cross-examination?’ If
the answer is affirmative, the re-examination will be allowed.
l Leading questions are not allowed under re-examination.
More often than not, legal practitioners pose unnecessary questions to their
clients during re-examination, purportedly to rectify the apparent damage done by
the fact that there was no intrinsic need to re-examine a witness. A practical
guideline is that in respect of examination in chief, the legal practitioner should
endeavor to end with the strongest piece of evidence or advance the most
favourable component of the client’s testimony and then in re-examination repeat
or echo that point.
13.8 The closing address

A teacher of trial advocacy once told his class that a closing address consists of
three parts. The first is that which the legal practitioner prepared. The second is
that which he/she actually delivers in court. The third is that which he/she thinks
should have been delivered while driving home that day.
________________________
49 S v Becker 1968 (1) SA 18 (C); S v Mutsi 1985 (1) PH H 39 (O).

50 Rattner v Rex 1919 TPD 1327; Pretorius at 151–157.
51 S v Kgaile 1982 (1) PH H 80 (O).
52 S v Kibido 1988 (1) SA 802 (C); S v Govazela 1987 (4) SA 297 (O).
286
Trial advocacy
In films, eloquent and moving closing addresses are frequently made, with the
legal practitioner passionately pleading with a jury to acquit the accused. To some
extent, these closing addresses may be accurate reflections of what happens in
jury trials; however, the scriptwriter has most likely indulged in some creative,
emotive artistry.
In South Africa, no jury system exists. Cases are tried by presiding officers who
are seasoned lawyers. They are also, usually, not susceptible to film antics and will
confine the legal practitioner to addressing them on the facts and the law. That is
not to say that eloquent language and persuasive argument cannot be employed.
However, a closing address based on an appeal to emotion alone will have little
effect. The closing address is, nevertheless, a vital part of a legal practitioner’s
work. It is the final opportunity to persuade the presiding officer to accept the
evidence given by his/her own witnesses (and reject that of the opposing
witnesses) and to interpret the law in a way which will bring about a favourable
result for his/her client. It is the opportunity to enhance the strengths of one’s own
case and highlight the weaknesses of the opponent’s case.
A closing address is most likely to succeed if it is properly structured and well
delivered. After all, a presiding officer is more likely to be persuaded if the argu-
ment is delivered in a systematic, logical way rather than presenting a confusing
mixture of facts and opinions.
13.8.1 The structure

The law does not prescribe any precise structure for a closing address. It is up to
the legal practitioner to present it in any way he/she pleases. It is suggested,
however, that the following systematic and logical structure for a closing address
should be used.
l The closing address should begin with a statement of the issues in the case:
Here, the legal practitioner can bring to the presiding officer’s attention those
issues which are common cause and those which are in dispute; and most
importantly, the factual issues upon which he/she is required to make a
finding.
l This may be followed by an indication of where the onus lies: Here, the legal
practitioner should draw the attention of the presiding officer to the overall
onus. But it may be necessary to highlight any aspects of the case where the
evidentiary burden of proof may have shifted to the other party.
l An analysis of evidence: This is a crucial part of the closing address. This is
the legal practitioner’s opportunity to persuade the presiding officer that his/her
client’s version of the facts should be awarded preference over that of the
opposing witnesses. Here, it may be necessary to discuss the testimony of
each of the witnesses, to emphasise the strong points in the evidence of the
client’s witnesses and to highlight the weaknesses in those of the opponents.
Where two witnesses have given mutually destructive accounts of an event, it
is useful to analyse the evidence of the witnesses in terms of the following
criteria: one should ask whether the witness contradicted him/herself; if the
witness’ evidence was corroborated by that of other witnesses; if the evidence
287
of the witness was probable; if the witness had a motive to lie; if the
demeanour of the witness was satisfactory; and if the evidence of the witness
was consistent with objectively known facts.
The legal practitioner may proceed to evaluate the evidence of the witnesses
according to each of the above criteria and to make a submission as to which
witness’ testimony is consistent, truthful and reliable. Most importantly, this is
the platform for the legal practitioner to remind the presiding officer about the
credibility (or the lack thereof) in respect of certain witnesses.
l After evaluating the evidence, the legal practitioner may proceed to address
the court on matters of law. Here, it is the legal practitioner’s task to integrate
the facts with the relevant legal principles. Sometimes the law is clear and
settled on a point; and at times it is the opposite. This provides scope for the
legal practitioner to develop an argument aimed at persuading the presiding
officer to find that the law favours his/her client.
l Finally, the legal practitioner should ask the court to find in his/her client’s
favour and indicate the relief sought.
13.8.2 Limitations of the closing address

There are ethical and legal limitations to the contents of a closing address. They
are the following:
l The legal practitioner may not introduce new facts into a closing address: This
means that in addressing the pressing officer on the facts, he/she may not
bring out any fact which was not actually mentioned in the pleadings or the
evidence of the witnesses. Thus the legal practitioner may not, for example,
suggest that a witness’ identification of the accused should be rejected due to
poor lighting, unless evidence has been submitted to substantiate that the light
was indeed poor.
l While a certain amount of puffery occasionally occurs in a closing address, it is
improper for the legal practitioner to exaggerate. Thus, it is improper for
him/her to suggest to the court that a witness was an entirely satisfactory
witness, in all respects, when clearly this was not the case. It is, however,
proper for the legal practitioner to make concessions, where necessary, about
imperfections in the testimony of his/her own witnesses.
l When addressing legal issues, the legal practitioner owes a duty to the court to
draw to the presiding officer’s attention any authority relevant to the point in
issue, even if such authority is adverse to his/her own client’s case.
288
Alternative dispute
resolution
By Lourens Grové, Amanda Boniface &
Shaheda Mahomed
14.1 Introduction
Alternative Dispute Resolution (ADR)1 as a method of resolving disputes is
designed to be non-confrontational, flexible, inexpensive and more responsive to
the underlying problems of the parties. It provides an opportunity to resolve dis-
putes and conflicts through a process that is best suited to a particular dispute or
conflict.2 It also tends to relieve congested court rolls, enhances community
involvement in the dispute process and facilitates social justice.
In a clinical context, ADR could be most useful.
Not only does ADR often prove to be more cost- ADR tends to preserve
effective and less time-consuming than litigation, relationships between
but it also tends to preserve relationships between disputing parties.
disputing parties. In a clinical context in particular,
one is often confronted with situations where it is important to resolve disputes
amicably for the long-term benefit of all the parties. For example, in divorce mat-
ters where minor children are involved, it is fundamentally important for the par-
ents to maintain an amicable relationship post-divorce. ADR could be used
effectively to reach an amicable settlement between the parties, which will ulti-
mately benefit the children. In South Africa where access to housing remains a
critical issue, one is often faced with disputes amongst family members over the
occupation of a house. Typically in such instances, one family member (who
holds title to the property) attempts to evict other family members. Although an
eviction under such circumstances may be legally sound, the socio-economic
________________________
1 In Pretorius (1993) Dispute Resolution at 1, the author submits that ‘ADR is most generally
[accepted] as the acronym for alternative dispute resolution’. However, many academics
prefer to use the acronym to denote the words ‘Appropriate Dispute Resolution’. ‘The in-
creasing tendency to abandon the title Alternative Dispute Resolution in favour of the title
Appropriate Dispute Resolution represents a distinct change of emphasis and recent devel-
opments in the field. ADR has become more the application of one or more alternative[s] to
litigation. It involves too the selection or design of a process which is best suited to a par-
ticular dispute and to the parties in dispute’.
2 Supra fn 1.
289
impact of an eviction on the family could be disastrous. ADR could in these cir-
cumstances be used to create solutions that are far more beneficial to the parties
than trying to resolve it through litigation.
14.2 Types of dispute resolution processes
There are many different types of dispute resolution processes. As a practitioner,
you must decide which one (or more) of these processes are most appropriate in
resolving your client’s particular dispute. Below is a list of the main types of dispute
resolution processes and a short description of the primary characteristics of each.
14.2.1 Negotiation
Negotiation is a bargaining relationship between parties in an effort to reach an
agreement, either to pre-empt a dispute or to resolve it once it has occurred. It is
a voluntary process. The parties have total control over the procedures, the settle-
ment and its contents.
14.2.2 Mediation
Mediation ‘is a voluntary process in which the services of an acceptable third
party are used in a dispute as a means of helping the disputing parties to arrive at
an agreed solution.’3 The mediator controls the procedure and the parties control
the settlement and it contents.
14.2.3 Conciliation
Conciliation is a process whereby a third party brings the disputing parties to-
gether to assist in solving their issues in dispute. The conciliator can make formal
recommendations as a basis for settlement, but parties control the settlement.
14.2.4 Facilitation
‘Facilitation is a process whereby a facilitator assists two or more parties in their
communications concerning a dispute or conflict.’4 The facilitator controls the
procedure but the parties control the outcome.
14.2.5 Arbitration
The parties choose the arbitration process and they could control the proceed-
ings. Arbitration proceedings could be binding on the parties either through
agreement or by operation of law. Decisions cannot be appealed, but are subject
to review. Decisions could be non-binding in that the decision is only advisory.
14.2.6 Mediation-arbitration (Med-arb)
A mediation process precedes the arbitration process. If the mediation process
fails to settle the dispute, the arbitration phase immediately follows. The arbitra-
tion phase involves a full hearing with evidence and the arbitrator then makes the
decision. This procedure is currently the statutorily prescribed procedure for
certain labour disputes.
________________________
3 Brand and Steadman (1998) in IMSSA’s ‘Black Lawyers Training Programme’ at 4.

4 Pretorius at 4.
290
Alternative dispute resolution
14.2.7 Litigation
A judge is appointed by the State. Procedures are formal and strictly controlled. The
process is initiated on a unilateral basis. Decisions could be appealed or reviewed.
14.3 Negotiation
14.3.1 Introduction
Negotiation is back-and-forth communication
designed to reach an agreement when you and The objective of any
the other side have some interests that are negotiation process is to
shared and others that are opposed.5 The
objective of any negotiation process is to
reach a settlement agreement
reach a settlement agreement that is worka- that is workable for all
ble for all parties concerned. Practitioners parties concerned.
considering this process need to understand
that it would be of no use entering into this process if your clients’ instructions are to
make no concessions whatsoever.6
Everyone negotiates over, at the very least, small matters on a daily basis.
People negotiate with colleagues, employers, employees, friends, families, cus-
tomers and providers.
Negotiation is normally the first step in the process of reaching some form of
agreement or contract. There is almost no area of life where negotiation skills do
not find some form of practical application. For example, plea bargaining, settle-
ment agreements, fees and commercial contracts all entail negotiations. You
have to either negotiate, or accept whatever is offered to you.
Possibly even more so than in everyday life, negotiating is a routine part of the
professional life of virtually all lawyers and critical to the success of most. Litiga-
tors invoke the negotiation process in virtually every case, with the adjudication
process almost as a ‘back-up’. The overwhelming majority of disputes are
resolved between the parties, rather than by court. Lawyers are, in a very real
sense, professional negotiators.
14.3.2 The nature of negotiation

Negotiation is a complex and inherently interdisciplinary subject, drawing on
insights from, amongst others, psychology (especially social psychology), sociol-
ogy and economics. There are no hard and fast rules as human behaviour plays a
strong part in any negotiation process.
‘One size fits all’, and ‘how to’ approaches to the subject of negotiation are un-
likely to yield much success – negotiation is too context-dependent for any such
approach to be universally effective. Everything depends on the specific
________________________
5 Fisher and Ury (1992) Getting to Yes at xiii.

6 Hyams, Campbell and Evans (2004) Practical legal skills at 77.
291
situation and the approach of the other negotiator, as well as on your own or your
client’s goals and personalities.
Yet, despite this, there are underlying and recognisable patterns. The negotia-
tor must be equipped with an understanding of such fundamental elements of
negotiation and its process in order to be flexible enough to continually develop
situation-specific approaches. Despite the complexity of negotiations, the basic
structure of negotiation is relatively simple to understand.
14.3.2.1 Goals
When dealing with disputes, it is very important to distinguish between positions
and interests, means-goals and end-goals. Very often it is the difference between
the two that, particularly in negotiations, allows for the ‘expanding of the pie’ or for
mutually beneficial and satisfying agreements to be reached in matters where that
initially seemed impossible.
‘Positions’ or ‘means-goals’ are basically what the party is asking for – often
this is an amount of money but it can be almost anything. This is also often what
one would find in the prayers in pleadings.
‘Interests’ or ‘end-goals’ are what the party really wants. Very often this is an
emotion or some other intangible such as a sense of security, dignity, validation
or vindication.
Stated differently, means-goals are what people believe will allow them to reach
their end-goals. As an example: if someone claims money for maintenance for
children, his/her position is the amount of money needed, and money itself is a
means-goal. Let us say the person wants to use this money to pay for medical
insurance for his/her children. What this person really wants (his/her end-goal or
interest) is to make sure that the children have access to good medical services if
required. The reason why the distinction between the two is so important is that
parties to a dispute will often only state their means-goals or positions, but there
might be better or more efficient ways in which they can, with the assistance of
the other party, meet their end-goals or interests.
14.3.2.2 Negotiation styles
There are two basic types of negotiation styles that differ fundamentally in their
approach:
The first type is called the integrative or win/win approach. In these negotiations,
the prospects for both side’s gains are promoted. Both sides attempt to reconcile
their positions so that the end-goal is an agreement from which both will benefit.
Parties tend to focus on end-goals or interests rather than means-goals or posi-
tions. Such interest- or end-goal based negotiation, when combined with an integra-
tive approach, has been referred to as ‘principled negotiation’. This approach is
flexible and parties work together to achieve an agreement that is fair. Fisher and
Ury submit that the process underlying this method includes the following:
l Separate the people from the problem: This initial process requires that issues
of personality, emotions, anger or even friendship be kept at a distance from
the problem. Parties will recognise that emotion exists but will direct their at-
tention to the problem at hand and aim at working side-by-side when attacking
the problem and not each other.
292
l Focus on the interests, not the positions: The focus should be on considering
each party’s goals, needs, concerns, hopes and fears, and not on their
positions.
l Generate a variety of options before deciding on a solution: Generating a
range of options gets both parties involved in exploring possible solutions. It
also helps them to take joint-ownership of the problem.
l Insist that the result be based on some objective standard: Insisting that the
agreement reached by the parties reflects some fair and objective standard
(such as market value, expert opinion, custom or law) provides a basis for both
parties to accept the solution as reasonable.
The second negotiation style is called the distributive or win/lose approach. A
party employing this approach often sees the negotiation as a fixed-sum game.
Often (though not always) this is the result of focusing on positions or means-
goals without considering interests or end-goals. A party employing this approach
seeks maximum gains and therefore usually seeks to impose maximum losses on
the other side. This approach can easily lead to unstable agreements, where one
party feels cheated and tries to undermine the agreement.
In reality, during negotiations, both approaches tend to be at work together.
Therefore, rather than two negotiators adopting one or other of the approaches,
negotiations tend to involve a tension between the two. In principle, though, it is
far better to adopt an integrative an approach as may be reasonably possible.
14.3.3 Preparations for negotiations

Preparation involves information-gathering. Information is the key to success.
Therefore, you should ensure that your information is at least as good as, if not
better than the other side’s.
You must consider all the areas of the negotiation during the preparation
phase, with as much detail as possible, ensuring that you are clear about your
objectives. Where possible, you should research the opposing party, the individual
that you will be negotiating with and, of course, the case and file itself. Specifically,
you are trying to develop an idea of what they would be looking for and what they
actually value, how they would prioritise matters, how you expect them to ap-
proach the negotiation, what their alternatives to negotiation are, etc. It should be
noted that it is unlikely that you will have a complete or completely accurate
picture of these, so you should also be flexible, curious and adaptive during the
process, within the boundaries of your mandate.
In any negotiation, the maximum that a party will settle on is called his/her ‘res-
ervation point’ or, if the deal being negotiated is a monetary transaction, his/her
‘reservation price’ (RP). The minimum amount that the other party would accept
for that item is his/her RP. If the first party’s RP is higher than the second’s, the
distance between the two points is called the ‘bargaining zone’. Reaching agree-
ment for any amount that lies within the bargaining zone is superior to not reach-
ing an agreement at all.
293
14.3.3.1 The legal practitioner’s RP

Make a list of all of the things you would like to achieve. For each item, decide
what would be the worst position that you would be prepared to accept. It is
important that you are clear in your own mind about exactly what you would be
prepared to give up. Then consider how you would build up a package that will
allow your concessions to be exchanged for concessions from the other side.
Put your ideal list of results in priority order, in accordance with your overall
success criteria. List all of the possible concessions on each issue and evaluate
the impact of each one. During the negotiations, when the burden falls on you to
offer a concession, you should check over your list and make a counter-offer that
reduces your demands as little as possible. When a lawyer negotiates, of course,
it is usually on behalf of a client. In this situation, the negotiator needs to under-
stand the client's preferences rather than his own.
Several factors affect a negotiator's RP: the alternatives to agreement, his/her
preferences for reaching agreement, his/her estimate of the probability of future
events, his/her tolerance for risk, the value he/she places on time, transaction costs,
and the effect on future relationships or opportunities of reaching agreement.
Determining an accurate RP often requires substantial research and analysis. A
well-prepared negotiator will consider what information he/she lacks that the
opposing negotiator might provide that could change his/her evaluation. Much of
this analysis can and should be done prior to any negotiation sessions, but the
analysis can and should be updated if new and relevant information becomes
available during the bargaining process or outside of the bargaining process but
after negotiations have commenced. The negotiator must take into account not
only the relative desirability of the subject of negotiation and his /her BATNA,
(Best Alternative to a Negotiated Agreement) but also the relative transaction
costs associated with pursuing a negotiated agreement and pursuing that BATNA
14.3.3.2 The opposing party’s RP

Preparation also requires the negotiator to assess the other party’s likely RP.
Naturally, there will be some assumptions and estimates that you will have to
make, as you will have less information available than in the case of your own
client’s RP. Nonetheless, you should try to put yourself in the opposing party’s
position and estimate his/her RP as best you can with the information available to
you.
14.3.3.3 Aspiration points

While negotiators will usually accept a deal at the RP rather than reach a bargain-
ing impasse, they most often hope to negotiate an agreement that leaves them
better off than a minimally acceptable agreement would. The terms of an agree-
ment that the negotiator hopes to achieve – as distinguished from the RP– can be
called the negotiator's ‘goal’ or ‘aspiration’.
It is generally advisable to consciously select an aspiration point, rather than
just adopting a ‘do your best’ approach.
294
14.4.3 The negotiation process

Some of the ground rules for successful negotiation include the following:
l Prepare effectively: Obtain all the facts and relevant documentation; establish
how much authority one has to negotiate; discuss negotiation methods with
the client as well as acceptable outcomes and the strategy to be used; and
prepare an agenda in consultation with the other side, including venue
arrangements, choice of chairperson and the procedure to be followed.
l Follow procedure at a meeting: Establish ground rules; define issues in dispute;
identify both parties’ interests; search for common ground; generate options;
narrow the options; achieve consensus on all issues or on as many as possi-
ble; and summarise consensus and obtaining acceptance.
l Do not succumb to the following: Poor planning; poor listening; provide too
much information at once; explain the issues badly; confuse negotiation with
debate; or reject alternatives proposed.7
Be willing to make small concessions. Identify what is important to you and focus
on achieving gains from the other side on these issues. By making small conces-
sions on a number of minor points, a spirit of co-operation can be fostered, whilst
enabling you to keep referring back to your main issues and seeking accommoda-
tion on them.
It is advisable to do as much or more ‘asking’ than ‘telling’. Significant negotiat-
ing time is spent with one party asking the other questions, seeking information.
Negotiators do this primarily to generate more accurate estimates of their own
and the opponent's RP and therefore of the bargaining zone than they can gener-
ate from pre-negotiation preparation alone.
Do not talk too much yourself, as it is likely to reduce your ability to hear the
other side. Wherever you can, ask the other side to justify its interest on an item-
by-item basis and make sure that you understand the reasoning clearly. If another
party puts an amount on the table, for example, ask him/her how he/she reached
or calculated that amount. Listen for areas where the parties disagree as well as
areas where the parties agree. Listen for interests rather than just positions.
Do not overstate your case. The use of emotive words and metaphors can add
interest and aid understanding. However, if taken too far, it can reduce the credi-
bility of your submission.
Do not highlight your own shortcomings, but don't deny obvious weaknesses in
your position either.
Do not be afraid to ask for a break to discuss the negotiation and way forward
with your client and/or colleagues, or to just think things over.
If a settlement is reached, it is good practice to reduce it to writing and have the
parties sign it for future reference. The settlement agreement is really a contract
between the parties.
________________________
7 Brand and Steadman at 34.
295
14.4 Mediation
14.4.1 Introduction
Mediation8 has been defined as an extension of the structured negotiation pro-
cess involving the services of an acceptable, impartial and neutral third party to
assist the parties in dealing with their dispute and where possible, to reach an
agreement. The main characteristics of mediation are that: it is conducted by an
independent and neutral third party; the mediator facilitates communication and
uses the process of principled negotiation between the parties; and the mediator
assists the parties to reach an agreement but the mediator does not determine
the outcome as the process is controlled by the parties themselves.
14.4.2 An example
The following table illustrates the differences in approach between legal practi-
tioners and mediators in conducting the same interview:9
Table 14.1 The difference in the approaches of legal practitioners and mediators
Practitioner-Client Interview Mediator-Client Interview

The interaction between the client and the The interaction between the client and the
practitioner is as follows: mediator is as follows:
Client: My neighbour’s son got into my gar- Client: My neighbour’s son got into my
age when I was away. He got on my bike and garage when I was away. He got on my
crashed into a tree at the bottom of the hill. bike and crashed into a tree at the bottom of
He wrote the damn thing off. the hill. He wrote the damn thing off.
Practitioner: Were there any witnesses? Mediator: Is there anything else?
Client: Not that I know about. Client: No, that was enough. What a cheek!
Practitioner: Was it a forced entry? Mediator: How would you like to see this
thing settled?
Client: No, I left the garage open. Client: What I want is an apology and I want
the boy to do it with his parents.
Practitioner: Were there any other damages? Mediator: Is there anything else?
Client: No, that was all. Client: Yeah, I want him to promise not to
do it again.
continued
________________________
8 In Pretorius at 114, Albertyn submits that ‘The term is derived from the American usage.
The term used in the UK for the same process is ‘conciliation’’. Conciliation is like media-
tion, a structured negotiation process involving the services of an impartial third party. The
conciliator’s role is to assist the parties in reaching their own negotiated settlement and fur-
ther to make formal recommendations if necessary.
9 Adapted from a table devised by Salem (1991) Conflict Management Initiatives.
296
Practitioner-Client Interview Mediator-Client Interview

Practitioner: What were the damages? Mediator: What about the bike?
Client: The bike cost me R100 in 1990 Client: I do not care about the bike. It has
not been used for five years since my kids
moved out.
Practitioner: Was it insured?
Client: No.
The above table illustrates the advantages of open-ended questions in a media-

tion process. It is obvious that the legal practitioner’s questions in this question
are all aimed at a litigious process, involving matters such as proof and amount.
At the end of this line of questioning, the practitioner is left with numerous obstacles,
such as the lack of witnesses and difficulty in determining the amount. The media-
tor, on the other hand, is left with a clear and (seemingly easily) attainable goal.
14.4.3 When mediation is appropriate

Mediation is appropriate when there is an ongoing relationship between the parties,
for example in divorce matters where an adversarial process generally results in a
win-lose scenario. Family mediation aims to reach a settlement agreement that
recognises the needs of all family members.10 Through a process of mediation, an
ongoing relationship between the spouses could be created, thereby preserving
their parenting roles.11 Mediation is not family therapy, although mediation may
result in less conflict between the parties. The main purpose of mediation is to
resolve concrete problems.12 The Children’s Act13 contains provisions that specify
that a problem-solving approach that leads to conciliation should be followed and
a confrontational approach should be avoided in matters concerning children.14 In
certain instances, the Children’s Act specifies that mediation is mandatory. For
example, where there is a dispute as to whether an unmarried father fulfilled the
conditions specified in section 21(1) of the Children’s Act and where co-holders of
parental responsibilities and rights ‘are experiencing difficulties in exercising their
responsibilities and rights’.15 Parties may also make use of mediation when draw-
ing up a parenting plan.16 The Child Justice Act17 stipulates that family group
________________________
10 Boniface (2015) ‘Family mediation in South Africa: Developments and Recommendations’

THRHR 397.
11 McCrory ‘Confidentiality in Mediation of Matrimonial Disputes’ (1988 Jul) Modern Law
Review 442 459 expresses the following: ‘Experience in the United Kingdom and elsewhere
confirms [that] mediation is an effective method of resolving matrimonial disputes and is
likely to produce agreements that are more acceptable and durable than resolutions
reached through adversarial processes.’
12 Boniface (2015) 398.
13 38 of 2005.
14 S 6(4).
15 S 33 (2). Boniface (2015) 400.
16 S 33(5).
17 75 of 2008.
297
conferencing can be used for child offenders. Family group conferencing may
also be used beneficially during the mediation process in divorce and family
matters.18
The Rules Regulating the Conduct of Proceedings of the Magistrate’s Courts of
South Africa were amended in 2014.19 The rules now provide for the voluntary
submission of parties to mediation in disputes that occur both before the com-
mencement of litigation as well as once litigation has already started.20 The court
may also ‘enquire into the possibility of mediation’.21 The court will refer the dis-
pute to the clerk of the court who facilitates the mediation. A schedule of available
mediators is provided.22 Both of the parties to the mediation must pay the fee of
the mediator, in equal shares, unless the mediator provides a free service or one
of the parties offers to pay in full for the mediation.23 It is questionable whether
court-annexed mediation is the best approach to mediation as it still places the
courts and legal practitioners in the centre of issues. A solution may be the crea-
tion of centres that are similar to the Family Relationship Centres that are found in
Australia.24 These mediation centres could possibly be established at Legal Aid
clinics in South Africa and fulfill the role of providing an affordable mediation
centre for lower income groups as well as being a training centre for mediators.
These centres could also fulfill an educational role for the public.25
Examples of when mediation can be useful

Children have the right to be heard in matters that affect them. Children should be
heard and where possible should participate in divorce mediation in South Africa.26
The extent to which a child should be included in mediation depends on various
factors, such as the age and maturity of the child. In certain instances, children
should not be involved directly in mediation, for example where they are very
young, but wherever possible their views should be heard. Sometimes it is neces-
sary to use a trained intermediary to determine the views of the child.27 The
paramount consideration remains the best interests of the child.28
________________________
18 Boniface (2012) ‘African-styled Mediation and Western-styled Divorce and Family Media-
tion: Reflections for the South African Context’ PELJ 387/638.
19 The Rules Board for Courts of Law (Act 107 of 1985) Amendment of Rules Regulating
the Conduct of Proceedings of the Magistrate’s Courts of South Africa, GG 37448 of
18 March 2014.
20 Rule 74. Boniface (2015) 401.
21 Rule 79.
22 Rule 86. Boniface (2015) 401.
23 Rule 84. Boniface (2015) 401.
24 Boniface (2015) 405.
25 Boniface (2015) 406.
26 Boniface (2013) ‘Resolving Disputes with Regards to Child Participation in Divorce Media-
tion’ Speculum Juris 130 142.
27 Boniface (2013) 143.
28 Boniface (2013) 147. For the advantages and concerns regarding participation of children in
mediation see Boniface (2013) 143–145.
298
Another example where mediation would be appropriate is in the employment

sector.
Disputes in the workplace are often best resolved through a process of media-
tion as it tends to be less destructive to relationships than litigation.
Mediation will generally be appropriate when: the parties want to retain control
over the outcome of their dispute; time is of the essence; confidentiality is im-
portant; and cost is a factor. Mediation may not be appropriate when: either party
is determined to have their day in court; the courts have exclusive jurisdiction over
the matters; and neither party is willing to settle.
14.4.4 The role of the mediator

The mediator should try to defuse tensions between
Mediators need to be the parties. ‘A mediator’s primary duty is to ensure
active listeners. that the mediation process is fair for example the
mediator must ensure that each party has a chance
to present their views and that things told in confidence remain confidential’.29 As
a neutral third party, the mediator attempts to persuade the parties to focus on
their interests and move away from their fixed positions, which often obscure the
real issue. Mediators need to be active listeners, able to empathise with the parties,
and think creatively. Essentially they should build a relationship of trust between
themselves and the parties and maintain their impartial status at all times.30 The
mediator cannot impose a settlement on parties but instead assists parties to
reach an agreement.31 Western mediation occurs in a formal setting and the
mediator usually has no former relationship with the parties. The main objective of
Western mediation is to assist the parties to reach consensus and for the parties
to then enter into a settlement agreement. In contrast, African-style mediation is
facilitated by elders and the objective of the mediation is to restore social equilib-
rium.32 African-style mediation may be used to improve the way in which Western-
style mediation is practiced, by using transformative and family-inclusive media-
tion and including Ubuntu-style values in mediation.33
14.4.5 The mediation process

The following is a list of the typical steps followed in the mediation process. This
is not to say that the mediation process consists purely of a series of predictable
steps which, if followed, will produce the desired result. Often, the process re-
quires the ‘inspirational intervention and guidance of the mediator’.34
________________________
29 Hyams, Campbell and Evans at 95.

30 Helpen (1992) Negotiation Skills at 70.
31 Boniface (2015) 398.
32 Boniface (2015) 402.
33 Boniface (2015) 403. See also Boniface (2012) 378 638 and in general, Malan (1997)
Conflict Resolution: Wisdom from Africa.
34 See Pretorius at 41, where the author debates whether mediation is a science or an art. The
author concludes that mediation is something of both and reasons that although mediation is
continued
299
l Introduction and housekeeping: The purpose of this phase is to meet the

parties and deal with essential preliminary and housekeeping matters. Issues
relating to the venue, seating arrangements, stationery requirements, lan-
guage requirements, the discovery of documents and the mediation process to
be followed will be dealt with.
l Opening statements/Identifying interests of the parties: The parties explain and
identify their issues with respect to the dispute independently. Debates or ar-
guments should be discouraged at this stage because it tends to hinder the
flow of information about the dispute. In statutory conciliation, technical points
such as jurisdiction and condonation issues could be raised. However, one
should avoid becoming embroiled in technical arguments at this early stage.
l Analysing the dispute/Generating options: The mediator attempts to identify
issues that are common to the parties. Issues that are in dispute will then be
clarified. The mediator will then attempt to ascertain the outcomes each party
would like to attain in respect of each issue in dispute. This means that the
focus will be drawn to the parties’ interests and not to their positions.
l Identifying possible solutions: A mediator should encourage the parties to
analyse their ‘best alternative to a negotiated agreement’ (BATNA). The medi-
ator should then revise possible solutions and attempt to identify a solution to
which both parties can agree. Once again, the solution should be designed to
meet the interests of the parties.
l Finalising the agreement or confirming deadlock: The purpose of this is to
assist the parties to reach an agreement and effectively implement it, or to
confirm a deadlock and define the differences for the parties. Should there be
an agreement, such an agreement should be reduced to writing and recorded
as a ‘memorandum of understanding’. In statutory conciliation, a certificate de-
claring the dispute resolved should be completed.
14.5 Arbitration
14.5.1 Introduction
Arbitration is defined as a method of settling a
dispute after an impartial third party hears both The arbitrator’s decision
sides of the matter and thereafter makes a deci- is final and binding on
sion.35 Such decision is sometimes referred to as the parties concerned.
a ruling or arbitration award. The arbitrator’s
decision is final and binding on the parties concerned. Essentially, there must be a
‘dispute’ between one or more parties into which an ‘impartial third can intervene’.
________________________
often characterised by various phases, the effectiveness of those phases often depends on:
the context; the issues on the table; the relationship between the parties; level of trust; ne-
gotiating experience; commitment to a positive outcome; and the power realities that are
operative as between the parties.
35 Patelia & Chicktay (2014) Mediation, Negotiation & Arbitration at 70. Butler & Finsen (1993)
Arbitration in South Africa Law and Practice.
300
‘Like a judge, an arbitrator hears both disputants. Each party is given an oppor-
tunity to present evidence, to challenge its opponents’ evidence and to seek to
persuade the arbitrator of the merits of its case’.36
An arbitrator has decision-making powers which are typically binding on the
parties, although, in certain instances, parties could request a non-binding rec-
ommendation. Should a binding decision be granted, there is no right of appeal
against the decision of an arbitrator. There is, however, a right of review.37
14.5.2 When arbitration is appropriate
Arbitration is appropriate under the following circumstances:38
l When parties want to save costs, time and require flexibility. Arbitration pro-
ceedings are generally not as long as court proceeding, thus saving time and
costs.39
l When parties want to maintain confidentiality. Unlike judicial proceedings,
arbitrations are not public proceeding.
l When parties want finality to their disputes. Arbitration awards can only be
taken on review and cannot be appealed.
l When parties require that their matter be heard by an expert. Some arbitrators
are trained to be experts in particular areas of law, for example, commercial or
environmental law. 40
14.5.3 When arbitration is discouraged41
l When complex arbitration rules are used. This may result in the arbitration
been expensive and a rather long drawn out process.
l When parties want to set judicial precedent. Arbitration awards are not consid-
ered judicial precedent.
l When parties want the matter to be heard publically.
l When the nature of the dispute requires that
The Arbitration Act
litigation proceedings be used instead of arbitra- prohibits the referral
tion, for example in matrimonial matters. to arbitration of
Note that legal aid is not available in arbitration pro- matrimonial matters.
ceedings.
14.5.4 The arbitration process
In the absence of a statutory obligation to refer matters to arbitration, parties
could agree to refer their disputes to arbitration on a private basis. This can be
done in terms of an arbitration agreement entered into between the parties.
________________________
36 Pretorius at 94.
37 See s 33 of the Arbitration Act 42 of 1965, ss 145 and 158(1)(g) of the Labour Relations Act
66 of 1995.
38 Patelia & Chicktay at 70.
39 Butler & Finsen (1993) Arbitration in South Africa Law and Practice at 20.
40 Supra.
41 Patelia & Chicktay at 71.
301
The Arbitration Act of 1965 was enacted to facilitate the implementation of Arbitration
agreements and to make it easier for disputants to enforce arbitration awards. In order to
ensure that the provisions of the Act do apply, the arbitration agreement must be in writ-
42
ing in terms of the Arbitration Act.
The arbitration agreement should include the names of the parties, the name of
the arbitrator if it is known, the venue and time and the powers of the arbitrator. It
could also include a discussion on the arbitration procedure that the parties
choose to follow. Included under this provision could be the determination of costs
for the arbitrator and arbitration, the use of legal representation and the recording
of the proceeding. Finally the agreement must indicate when and how the award
will be presented to the parties. 43
The following are the typical stages in the arbitration process:
l Introduction and housekeeping: A relatively informal atmosphere has to be
established. The arbitrator should ensure that the correct parties are present.
In instances of private arbitration, the arbitrator should ensure that the arbitra-
tion agreement has been signed by the parties. The arbitrator should explain
the arbitration process to the parties.
l Opening and narrowing of the issues: Each party is to present their opening
statement. The arbitrator will distinguish between those issues that are in dis-
pute and those that are not. The arbitrator must ensure that both parties are
informed of the rules of evidence that will be applied.
l Evidence of both parties will be presented independently: Evidence in chief
will be led. Witnesses will then be cross-examined. Re-examination will be
conducted.
l Closing statements will be presented by both parties: A summary of the case
and references to relevant case law will be presented. Each party will submit
the remedy that they wish the arbitrator to order.
l The award: Once all the evidence has been presented, the proceedings are
adjourned for the arbitrator to present his/her decision. A typical award starts
with the description of the parties. It then sets out the terms of the agreement
to arbitrate. This is followed by a summary of the relevant facts and a brief
explanation of the applicable law. Thereafter, the arguments of the disputants
are summarised and findings of fact and law are made. In conclusion, the
award should set out the arbitrator’s determination and, when necessary, a
remedy.44
________________________
43 Patelia & Chicktay at 71–72.
302
Comparing the characteristics of private arbitration to statutory arbitration45
Private arbitration Statutory arbitration

Arbitration Act 42 of 1965 Labour Relations Act 66 of 1995
It is voluntary in its initiation and compulsory It is compulsory in its initiation and in its
in its continuation continuation
The adjudicator determines the outcome The adjudicator determines the outcome
The parties choose the arbitrator The parties have limited right to choose the
arbitrator
The parties define the issue in any manner The issue must be one contemplated in
they choose, prior to the arbitration, and it accordance with the Act and is defined by
may be varied by agreement during the the referring party but it may be varied by
arbitration agreement during the arbitration process
The procedure is determined by the parties The procedure is defined by the Act and the
and is often relatively informal and flexible arbitration is formal but flexible
The parties determine the range of possible There is a limited range of remedies pre-
remedies that the arbitrator may apply scribed by the Act that the arbitrator must
apply
Arbitration is held in private Proceedings may be held in public
The parties establish the forum The Act establishes the forum
The parties agree the time and place of the The CCMA will fix the time and place of the
arbitration arbitration
The parties pay for the arbitration Arbitration is generally free
Parties may be represented by lawyers Parties may, with certain exceptions, be
represented by lawyers
14.6 Conclusion
The application of any of the above processes will depend on the particular facts
of each case. It is important to note that this chapter provides only the basics in
terms of understanding how ADR processes operate. Through practice and
experience, you will develop the skill and insight to master these processes
effectively.
________________________
45 Contents of the table formulated by Brand and Steadman at 60–63.
303
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Index
Para Para
A Adjective law ...................................... 8.3.1
Academics Admission requirements
lecturing as career option ............. 2.8.13 advocate pre 2014 ................ 2.5.2, 2.5.3
writings on legal ethics ................... 3.3.5 attorney pre 2015 .................... 2.4.2, 7.9
Accepting instructions .............. 3.6.2, 7.7.7 unified requirements under
LPA .......................................... 2.7.2.1
Access to justice
legal aid work .................................. 3.9.1 Admissions ................................... 10.4.5.3
Legal Practice Act 28 of 2014 ......... 2.7.2 Advertising ............................................ 7.4
Legal Practice Bill ........................... 2.7.1 Advising client ............................. 4.4.4, 7.4
practitioners’ duty to the poor ............ 3.9
Advocate
pro bono work ....................... 2.6.5, 3.9.2 admission requirements ...... 2.5.2, 2.5.3,
university law clinics see Law clinic 2.7.2.1
Accounting duties see Financial attorney distinguished .................... 2.3.3
management attributes ......................................... 2.5.1
Accrual system bar, the ........................................... 2.5.3
position of surviving spouse ......... 11.4.3 briefing ............................................ 3.8.4
business structure .......................... 7.2.1
Acting against former client ................ 3.6.5
career options ................................. 2.8.2
Acting for both parties to early history .................................... 2.3.1
transaction ...................................... 3.6.5 Family Advocate ........................... 2.8.10
Acting in accordance with group of advocates ......................... 7.2.1
instructions...................................... 3.6.3 liability for fees ................................ 3.8.6
National Bar Exam ......................... 2.5.3
Action/trial proceedings
nature of work performed ............... 2.5.1
application/motion proceedings
origin of term .................................. 2.3.1
distinguished ............................. 10.3.5
practice management see Practice
choice of procedure ...................... 10.3.5
management
commencement ............................ 10.3.5
private practice ............................... 2.8.2
pleadings see Pleadings
professional association .... 2.5.3, 2.7.2.3
Active listening ................................... 4.4.2 pupillage ......................................... 2.5.3
Active voice ...................................... 12.3.5 referral rule ................. 2.3.3, 2.5.1, 3.8.3
relationship with attorneys ................. 3.8
Activity record..................................... 5.4.4
right of appearance ........... 2.5.1, 2.7.2.1
Addition ................................................. 6.4 robing ........................................... 3.10.3
Addressing the court ............ 3.10.2, 3.10.4 senior and junior counsel ............. 3.10.1
315
Para Para
Advocate – continued Arbitration – continued
South African profession ................ 2.3.3 process ......................................... 14.5.4
State advocate ................................ 2.8.5 right of review ............................... 14.5.1
training and mentoring .................... 2.6.4 when appropriate .......................... 14.5.2
Affidavit ................................ 10.6.1, 10.6.4 when inappropriate ....................... 14.5.3
Afrikaans ............................................. 9.6n Arbitration agreement ...................... 14.5.4
Algebraic logic ....................................... 6.2 Arbitration clause ........................... 12.4.15
Alternative dispute resolution Arithmetic .............................................. 6.1
definition .......................................... 14.1 Arithmetic logic ..................................... 6.2
arbitration ......................................... 14.5 Articles of clerkship ............................ 2.4.2
mediation ......................................... 14.4
Assisting client in breaking law .......... 3.4.4
negotiation ....................................... 14.3
overview........................................... 14.1 Association ........................................ 7.2.1
types of dispute resolution Attire in court .................................... 3.10.3
process ......................................... 14.2 Attorney
usefulness........................................ 14.1 admission requirements ................ 2.4.2,
And/or............................................... 12.3.5 2.7.2.1, 7.9
Answering affidavit ........................... 10.6.4 advocate distinguished ................... 2.3.3
business structure .......................... 7.2.1
Anton Pillar application ............... 10.6.2.1n
career options ....................... 2.8.1, 7.2.1
Appeal case management see Case
incomplete record ........................... 3.6.9 management
Application/motion proceedings exclusivity of work .......................... 3.8.2
action/trial proceedings fidelity fund certificate ........................ 7.9
distinguished ............................. 10.3.5 file management see File management
affidavits............................ 10.6.1, 10.6.4 early history .................................... 2.3.1
annexures ..................................... 10.6.1 nature of work performed ............... 2.4.1
application on notice .................. 10.6.2.2 practice management see Practice
bilateral application .................... 10.6.2.2 management
choice of procedure ...................... 10.3.5 private practice ............................... 2.8.1
commencement ............................ 10.3.5 professional association ................ 2.4.3,
documents to be attached ............ 10.6.1 2.7.2.3, 7.9
ex parte application ................... 10.6.2.1 relationship with advocates ............... 3.8
interim or final relief ...................... 10.6.1 right of appearance ........... 2.4.1, 2.7.2.1
interim or interlocutory robing ........................................... 3.10.3
application .............................. 10.6.2.3 seniority ........................................ 3.10.1
notice of motion ................ 10.6.1, 10.6.3 South African profession ................ 2.3.3
types of application ....................... 10.6.2 State attorney ................................. 2.8.6
urgent application ......................... 10.6.1 trust funds see Trust funds
Apportionment of damages Attorney-and-client costs ................... 7.5.5
calculation ........................................ 6.16 Attorney-and-own-client costs ........... 7.5.5
Arbitration Attorneys Fidelity Fund ..... 2.4.4, 7.6.3, 7.9
definition .............................. 14.2.5, 14.5 Auditing of trust accounts .................. 7.6.4
award ................................ 14.5.1, 14.5.4
Averages ............................................... 6.8
Labour Relations Act
66 of 1995 ................................. 14.5.4 B
overview........................................ 14.5.1
private and statutory arbitration Balance sheet .................................... 7.5.2
distinguished ............................. 14.5.4 Bar ..................................................... 2.5.3
316
Index
Para Para
Beneficiary Case file – continued
bequest of business ...................... 11.6.5 law clinic file ................................... 5.3.2
categories ..................................... 11.6.3 overview ......................................... 5.3.1
disqualifications ............................ 11.4.6 reading order .................................. 5.4.2
distribution in terms of list ............. 11.6.5 records of trust funds ...................... 5.4.6
drafter’s liability ................... 3.6.7, 11.2.1 sub-folders ...................................... 5.4.3
legatee .......................................... 11.6.3 trust deposit .................................... 5.3.2
minor ............................................. 11.4.5 typical file structure ............................ 5.4
residuary heir ................................ 11.6.3 Case law ............................................ 8.3.5
substitution........................ 11.4.7, 11.6.4
testamentary trust ............. 11.4.9, 11.6.7 Case management
voluntary division between ........... 11.6.5 closing file .......................................... 5.6
diary system ................................... 5.5.2
Behaviour in court ............................ 3.10.4 file summaries ................................ 5.5.4
Bequest see Will incoming/outgoing mail................... 5.5.3
Bewind trust ......................... 11.4.9, 11.6.7 overview .................................. 5.1, 5.5.1
reminder forms ............................... 5.5.5
Bill of costs ......................................... 7.5.5
Black Lawyers Association ................ 2.4.3 Cash bequest to minor ..................... 11.4.5
Blind testator .................................... 11.7.3 Cash flow report ................................. 7.5.2
Boolean search options ..................... 8.3.7 Cause of action .................... 10.3.1, 10.4.4
Breach of contract Checklist
draft clause ................................. 12.4.12 client interview ................................ 4.7.1
essential elements ........................ 10.4.4 delictual claim ................................. 4.6.1
divorce matter ................................. 4.6.2
Briefing ............................................... 3.8.4 drafting contract ............................ 12.3.1
Budget ................................................ 7.5.3 drafting will ...................................... 11.5
Business bequest ................. 11.3.2, 11.6.5 use of ................................................. 4.6
Business cards ...................................... 7.4 Child
bequest to minor beneficiary ........ 11.4.5
Business plan ............................. 7.11, 7-12
guardianship ............................... 11.4.10
C identification in will ........................ 11.3.2
maintenance out of deceased
Calculator .............................................. 6.2
estate ..................................... 11.4.2.5
Capacity to contract ......................... 12.2.1 mediation in matters
Capacity to make will ....................... 11.4.1 concerning ................................ 14.4.3
Cape Law Society .............................. 2.4.3 party to contract ............................ 12.2.5
pension fund benefits ................ 11.4.2.3
Career options....................................... 2.8 testamentary trust ............. 11.4.9, 11.6.7
Case file Citation of parties to dispute ............ 10.3.3
activity record.................................. 5.4.4
client particulars form or instruction Civil law system ................................. 2.3.2
sheet............................................ 5.3.2 Client
closing file .......................................... 5.6 accepting instructions ........... 3.6.2, 7.7.7
file number ...................................... 5.3.4 acting against former client ............ 3.6.5
file notes ......................................... 5.4.5 acting for both parties to
file registers .................................... 5.3.4 transaction .................................. 3.6.5
file summary ................................... 5.5.4 acting in accordance with
filing system see File management instructions .................................. 3.6.3
front cover ....................................... 5.3.3 advising ................................... 4.4.4, 7.4
317
Para Para
Client – continued Cohabitees ....................................... 11.4.3
assisting in breaking law ................. 3.4.4 Combined summons ........................ 10.4.3
case file see Case file
Commercial contract see Contract
complaints by ........................... 7.4, 7.5.4
confidentiality and privilege ............ 3.6.6 Commission for Gender Equality
conflict of interest ............................ 3.6.5 report .............................................. 2.6.2
consultation with see Consultation Common denominators ................... 6.10.1
dealing directly with ........................ 3.6.9 Community service .................. 1.5, 2.7.2.2
dealing with more than one party ... 3.6.9
discussing fees with ....... 4.4.1, 7.4, 7.5.4 Company
effective client care ............................ 7.4 authority to conclude contracts..... 12.2.2
FICA requirements ............................ 7.9 business structure .......................... 7.2.1
general duty towards ...................... 3.6.1 Complaint by client
guilty client, defending .................... 3.5.4 handling mechanism ......................... 7.4
keeping informed ............................... 7.4 overcharging ................................... 7.5.4
letters to .......................................... 9.4.1 Conciliation ........................ 14.2.3, 14.4.1n
locus standi ................................... 10.3.3
Conditional bequests ........... 11.4.8, 11.6.6
maintaining contact with ................. 7.7.5
mandate ................................ 3.6.3, 5.3.2 Confession and avoidance ........... 10.4.5.5
negligence towards ......................... 3.6.7 Confidentiality .................................... 3.6.6
responding to letters ....................... 3.6.9 Conflict of interest .............................. 3.6.5
settlement negotiations ................... 3.6.4
taking instructions ........................... 4.4.5 Conflicting versions ............................ 3.6.5
telephone etiquette ............................ 7.4 Consultation
trust funds see Trust funds addressing client ............................ 4.4.1
welcoming .......................................... 7.4 advising stage ................................ 4.4.4
will, drafting see Will aims of ............................................... 4.2
withdrawing from case .................... 3.6.9 assessing skills .................................. 4.7
Clinical law checklists/client instruction sheets .... 4.6
definition ............................................ 1.1 fees/cost implications ..................... 4.4.1
introductory/meet and greet
Clinical legal education stage ........................................... 4.4.1
community service ............................. 1.5 listening stage ................................ 4.4.2
conclusions ........................................ 1.6 overview ............................................ 4.1
law lecturers.................................. 2.8.13 preparation for ................................... 4.3
learning pyramid ................................ 1.2 procedure following ........................... 4.5
overview............................................. 1.1 questioning stage ........................... 4.4.3
personal odyssey of stages ................................................ 4.4
David McQuoid-Mason ................... 1.4 taking instructions stage ................. 4.4.5
social justice element ................. 1.1, 1.5 wills consultation .............. 11.2.1, 11.2.2
teaching methods .............................. 1.2
types of clinical law programmes ....... 1.3 Contempt of court .............................. 3.5.2
Closed question ............................... 13.3.3 Contingency fee agreement............... 7.5.4
Closing address Contract

limitations on ................................. 13.8.2 definition .......................................... 12.1
overview........................................... 13.8 alternatives for sophisticated
words ........................................ 12.3.5
structure ........................................ 13.8.1
arbitration clause ........................ 12.4.15
Closing file............................................. 5.6 authority to conclude .................... 12.2.2
Cloud computing ................................ 5.2.2 breach clause ............................. 12.4.12
318
Index
Para Para
Contract – continued Cross-examination
brevity ........................................... 12.3.4 definition ....................................... 13.4.1
capacity to contract ....................... 12.2.1 closing off routes of retreat ........... 13.6.5
clarity ............................................ 12.3.5 confronting .................................... 13.6.2
company contract ......................... 12.2.2 contradictory testimony ................ 13.5.4
competencies required to draft ........ 12.1 courteous treatment of witness .... 13.5.9
conclusion/ending ......................... 12.3.2 demanding simple ‘yes’ or ‘no’
consent of spouse ........................ 12.2.6 answer ...................................... 13.5.8
consideration clause ..................... 12.4.5 failure to cross-examine ............... 13.6.7
description of parties ........ 12.3.2, 12.4.3 inadmissible evidence .................. 13.5.7
domicilium clause ....................... 12.4.16 insinuating .................................... 13.6.2
draft clauses .................................... 12.4 knowing when to stop ................... 13.6.4
drafting checklist ........................... 12.3.1 leading questions ......................... 13.6.3
employment contract .................... 12.2.3 limitations on ................................... 13.5
formalities ..................................... 12.2.4 mood/style .................................... 13.6.2
general principles of contract ........... 12.2 planning for ................................... 13.4.3
heading ............................. 12.3.2, 12.4.1 pointless questioning .................... 13.5.2
interest clause............................. 12.4.13 presenting distorted version ......... 13.5.5
jurisdiction clause ....................... 12.4.14 probing ......................................... 13.6.2
language ....................................... 12.3.3 purposes ....................................... 13.4.2
legality of purposes/terms ............. 12.2.3 putting client’s version ...... 13.4.2, 13.6.6
main body ..................................... 12.3.2 rebutting evidence ........................ 13.5.1
main clause................................... 12.4.4 relevance ...................................... 13.5.1
method of payment ........... 12.4.6, 12.4.7 selection of subject matter............ 13.6.1
minor party .................................... 12.2.5 technique ......................................... 13.6
non-variation clause ................... 12.4.18 undermining .................................. 13.6.2
organisation of contents ............... 12.3.2 witness already discredited .......... 13.5.3
overview........................................... 12.1 witness character ......................... 13.5.6
precedents .................................... 12.3.1 witness credibility ......................... 13.5.1
recital clause ..................... 12.3.2, 12.4.2 Customary marriage ........................ 11.4.4
sale contract ................................. 12.2.3
structure ........................................ 12.3.2 D
subsidiary clause in lease ............. 12.4.8 De Rebus ................................. 2.4.4, 7.6.3
suspensive condition .................. 12.4.10 Debt collection ................................. 6.14.2
VAT clause ................................. 12.4.11
voetstoots clause .............. 12.2.3, 12.4.9 Debtors’ age analysis report .............. 7.5.2
written contract ................................ 12.1 Decimal fractions ................................ 6.11
types of commercial contracts ...... 12.2.3 Declaration ....................................... 10.4.4
Conveyancer ...................................... 2.4.1 Defence
Corporate legal advisor .................... 2.8.12 guilty client ...................................... 3.5.4
pleading see Plea; Pleadings
Costs
clause in commercial contract .... 12.4.17 Delegating .......................................... 7.8.1
de bonis propriis ................... 3.5.5, 7.5.5 Delictual claim
general principles............................ 7.5.5 checklist .......................................... 4.6.1
types of cost orders ........................ 7.5.5 written opinion ................................ 8.4.2
Counterclaim .................................... 10.4.7 Denials .......................................... 10.4.5.4
Cox, Graham ...................................... 1.4.2 Deponent ......................................... 10.6.4
Criminal conduct/conviction ..... 3.2.3, 3.4.3 Deposits ................................... 5.3.2, 7.5.7
319
Para Para
Dewey Decimal Classification Eviction notice .................................... 9.4.4
system ............................................ 8.3.1 Ex parte application ...................... 10.6.2.1
Diary system ...................................... 5.5.2 Examination in chief
Directory of Open Journals ................ 8.3.4 controlling witness ........................ 13.3.3
Disclaimer notice ................................ 8.4.2 leading questions ............. 13.3.2, 13.3.3
preparation for .............................. 13.3.1
Dispute of fact .................................. 10.3.5 purpose ........................................... 13.3
Divided profession.......... 2.3.3, 2.7.1, 3.8.1 relevance, materiality and
Division.................................................. 6.7 admissibility ............................... 13.3.2
technique ...................................... 13.3.3
Divorce
witness sheet ................................ 13.3.1
calculations ...................................... 6.18
checklist .......................................... 4.6.2 Exceptions ....................................... 10.4.8
inheritance from former spouse .... 11.4.4 Executor
mediation ...................................... 14.4.3 appointment ...... 11.4.11, 11.5.5, 11.6.11
Domicilium clause .......................... 12.4.16 fees ................................................. 7.5.4
power of assumption .................. 11.4.11
Donation of mortal
remains ............................. 11.5.7, 11.6.8 Exponents ............................................. 6.9
Double negatives ............................. 12.3.5
F
Drafting
Facilitation ........................................ 14.2.4
applications see Application/motion
proceedings Facta probanda ................................ 10.2.7
contracts see Contract Facta probantia ................................ 10.2.7
heads of argument ........................ 10.7.1 ‘Family’, 11.3.2
letters see Letter
Family Advocate .............................. 2.8.10
notices ............................................. 10.5
opinions see Opinion Family Court
pleadings see Pleadings form of address ............................ 3.10.2
pre-trial minutes ............................ 10.7.2 Family mediation .............................. 14.4.3
wills see Will Fax ..................................................... 9.5.3
Duty of disclosure............................... 3.5.3 Fee debit report ................................. 7.5.2
Fees
E
advocate’s fees, liability for ............ 3.8.6
Electronic filing system................ 5.1, 5.2.2 complaint by client .......................... 7.5.4
Electronic signature............................... 9.2 contingency fee agreement ............ 7.5.4
discussing with client ..... 4.4.1, 7.4, 7.5.4
Ellum, Patrick ..................................... 1.4.1
executor’s fee ................................. 7.5.4
Email .................................... 9.1, 9.2, 9.5.3 fee target ........................................ 7.5.4
Employment contract ....................... 12.2.3 invoicing ......................................... 7.5.4
English .................................................. 9.6 rates and guidelines ....................... 7.5.4
Entering or leaving court .................. 3.10.4 FICA requirements ................................ 7.9
Equivalent fractions .......................... 6.10.1 Fideicommissum .............. 11.4.2.4, 11.4.8,
11.6.4, 11.6.6
Estate planning ................................ 11.2.3
File management
Ethics see Professional and ethical electronic filing system ............ 5.1, 5.2.2
conduct evaluation of filing system .............. 5.2.3
Etiquette .............................................. 3.10 file registers .................................... 5.3.4
320
Index
Para Para
File management – continued H
general requirements ...................... 5.2.1 Heads of argument ................ 3.6.9, 10.7.1
internet-based technologies ........... 5.2.2
High Court
lost files ........................................... 7.7.4
form of address ............................ 3.10.2
opening new case file
right of appearance ............. 2.4.1, 2.5.1,
see Case file
2.7.2.1
overview................................... 5.1, 7.7.4
storage of files ...................... 5.2.1, 5.2.2 Hortors Legal Diary ............................... 7.4
types of filing systems .................... 5.2.2
I
File registers....................................... 5.3.4
Illiterate testator ............................... 11.7.3
Financial management
In duplum rule ................................ 6.14.2n
definition ......................................... 7.5.1
actual performance and budgeted Income statement .............................. 7.5.2
performance ................................ 7.5.3 Income tax ............................................ 7.9
assets and liabilities ........................ 7.5.1 Incoming mail ..................................... 5.5.3
costs orders .................................... 7.5.5
Incorrect advice ................................. 3.6.7
financial plan .................................... 7.12
financial reports .............................. 7.5.2 Independent Association of
ignorance of accounting duties ....... 3.6.8 Advocates ....................................... 2.5.3
income and expenses ..................... 7.5.1 Indexes to law reports ........................ 8.3.5
legal fees ........................................ 7.5.4 Instructions
overview.......................................... 7.5.1 accepting .............................. 3.6.2, 7.7.7
recovery of disbursements ............. 7.5.6 acting in accordance with ............... 3.6.3
trust account management ................ 7.6 client’s mandate ................... 3.6.3, 5.3.2
trust deposits .................................. 7.5.7 instruction sheet ............................. 5.3.2
Fit and proper person ......................... 3.2.3 taking .............................................. 4.4.5
Founding affidavit ............................. 10.6.4 written confirmation ........................ 7.7.8
Fractions ............................................. 6.10 Interest
clause in commercial contract .... 12.4.13
Free State Law Society ...................... 2.4.3 compound interest ........................ 6.14.2
Freedom of testation ........................ 11.4.2 debt collection example ................ 6.14.2
Funeral arrangements .......... 11.5.7, 11.6.8 nominal interest ............................... 6.14
real interest ...................................... 6.14
Fusion of legal profession
simple interest .............................. 6.14.1
other countries ................................ 2.3.2
trust funds ....................................... 7.6.3
South Africa ....................... 2.7.1, 2.7.2.1
Interim or interlocutory
G application ................................. 10.6.2.3
Gender imbalance .............................. 2.6.2 Internet-based technologies in legal
practice ........................................... 5.2.2
General Council of the Bar of
Internet research ................................ 8.3.7
South Africa .................................... 2.5.3
Investment of trust funds ......... 3.6.8, 7.6.2
Graveyard files ................................... 7.8.2
iSalpi .................................................. 8.3.4
Guardian
appointment in will ..................... 11.4.10, J
11.5.6, 11.6.10
Judge
Guardian’s Fund............................... 11.4.5 appointment .................................... 2.8.7
Guilty client......................................... 3.5.4 form of address ............................ 3.10.2
321
Para Para
Judge – continued Legal aid clinic see also Law clinic
gender imbalance ........................... 2.6.2 growing acceptance ....................... 1.4.3
transformation of judiciary .............. 2.6.3 history ............................................. 1.4.1
Judicial officer .................................... 2.8.7 social justice element ........................ 1.1
Jurisdiction Legal Aid Conference 1973 .................. 1.4
clause in commercial contract .... 12.4.14 Legal aid work .................................... 3.9.1
general principles.......................... 10.3.4 Legal fees see Fees
pleadings .......................... 10.3.4, 10.4.4
Legal Practice Act 28 of 2014
Juristic person (LPA) .............................................. 2.7.2
authority to conclude contracts ..... 12.2.2
Legal Practice Bill .............................. 2.7.1
Justice College ................................... 2.8.9
Legal Practice Council .................... 2.7.2.3
Jutastat............................................... 8.3.7
‘Legal practitioner’ ................ 2.7.2.1, 3.2.2,
7.2.1, 13.1
K
Legal profession
KwaZulu-Natal Law Society ............... 2.4.3 definition ............................................ 2.2
attributes of practitioners ................... 2.2
L career options .................................... 2.8
Labour Court divided profession ...... 2.3.3, 2.7.1, 3.8.1
form of address ............................. 3.10.2 English legal profession ................. 2.3.2
Land Claims Court fused profession ...... 2.3.2, 2.7.1, 2.7.2.1
form of address ............................. 3.10.2 history ............................................. 2.3.1
influence of civil and English
Law clinic systems ....................................... 2.3.2
case file........................................... 5.3.2 overview ............................................ 2.1
consultation process see Consultation paralegals ....................................... 2.7.1
deposits .......................................... 5.3.2 professional associations
drafting letters .................................... 9.1 see Professional associations
history ................................................ 1.4 professional conduct see Professional
legal research .................................... 8.2 and ethical conduct
live client clinics .............................. 1.5.1 restructuring ................................ 2.7.2.1
Street law-type clinics ..................... 1.5.2 Roman-Dutch law ........................... 2.3.1
student activities ......... 1.5.1, 1.5.2, 2.8.3 Roman law ..................................... 2.3.1
types of .............................................. 1.3 South Africa pre 2014..................... 2.3.3
Law directory ......................................... 7.4 transformational challenges
Law journal ......................................... 8.3.4 gender imbalance ....................... 2.6.2
judiciary ....................................... 2.6.3
Law of South Africa ............................ 8.3.2
overview ...................................... 2.6.1
Law Society of South Africa ............... 2.4.3 public access to legal services.... 2.6.5
Law Society of the Northern training and mentoring ................ 2.6.4
Provinces ........................................ 2.4.3 Legal professional privilege ............... 3.6.6
LAWSA............................................... 8.3.2 Legal research
Lawyers for Human Rights ................. 2.8.3 case law ......................................... 8.3.5
Leading question ................. 13.3.2, 13.3.3, computers and internet................... 8.3.7
13.6.3, 13.7 drafting pleadings ......................... 10.2.3
identifying subject area................... 8.3.1
Lease ............................................... 12.4.8 Jutastat ........................................... 8.3.7
Legal Aid Board Justice Centres ........ 2.8.3 law clinic context ............................... 8.2
322
Index
Para Para
Legal research – continued Letter – continued
law journals ..................................... 8.3.4 urgent correspondence ..................... 9.2
Law of South Africa (LAWSA) ....... 8.3.2 ‘without prejudice’ ........................... 9.4.5
legislation ........................................ 8.3.6 Letter of demand
LexisNexis website ......................... 8.3.7 format ............................................. 9.4.3
overview............................................. 8.1 statutory letter ................................. 9.4.4
Sabinet............................................ 8.3.7
LexisNexis website ............................ 8.3.7
suggested method ............................. 8.3
textbooks ........................................ 8.3.3 Listening skills .................................... 4.4.2
useful websites ............................... 8.3.7 Litigation see also Trial
Legal Resources Centre .................... 2.8.3 definition ....................................... 14.2.7
Legal Services Ombud .................... 2.7.2.4 Live client clinic
current clinical law programmes ........ 1.3
Legislation .......................................... 8.3.6 history ............................................. 1.4.1
Letter student activities ............................. 1.5.1
addressing recipient .......................... 9.2 Locus standi ..................................... 10.3.3
body ................................................... 9.3
‘by hand’, 9.5.4 M
clarity .............................................. 9.3.2
‘Dear Sir/Madam’ or ‘Dear Sirs’ ........ 9.2 Magistrates’ court
delivery methods................................ 9.5 form of address ............................ 3.10.2
‘dictated by . . . and signed in his/her magistrates ..................................... 2.8.7
absence’ ......................................... 9.2 mediation ...................................... 14.4.3
email ................................. 9.1, 9.2, 9.5.3 Mail handling system ......................... 5.5.3
faxing .............................................. 9.5.3 Maintenance of surviving
format................................................. 9.2 spouse ....................................... 11.4.2.5
hard copy format ................................ 9.2 Management of practice see Practice
heading .............................................. 9.2 management
introductory phrases .......................... 9.2
language ..................................... 9.3, 9.6 Mandate of client ..................... 3.6.3, 5.3.2
law clinic context ................................ 9.1 Marijuana ........................................... 3.4.1
letter of demand .............................. 9.4.3 Marketing .............................................. 7.4
mail handling system ...................... 5.5.3 Marriage in community of property
‘off the record’ ................................. 9.4.5 consent to sale of land or suretyship
ordinary mail ................................... 9.5.1 contract ..................................... 12.2.6
organisation of contents ................. 9.3.1 exclusion in will ............... 11.4.12, 11.6.9
overview............................................. 9.1 position of surviving spouse ......... 11.4.3
presentation and image .................. 9.3.3
purposes ............................................ 9.1 Marriage out of community of property
position of surviving spouse ......... 11.4.3
reference number .............................. 9.2
Regards or Kind regards ................... 9.2 Master of the High Court .................... 2.8.8
registered mail ......................... 9.2, 9.5.2 Mediation
responding to .................................. 3.6.9 definition ........................... 14.2.2, 14.4.1
signature ............................................ 9.2 African-style mediation ................. 14.4.4
statutory letter ................................. 9.4.4 characteristics .............................. 14.4.1
to client ........................................... 9.4.1 example ........................................ 14.4.2
to opponent ..................................... 9.4.2 family mediation ........................... 14.4.3
‘Yours faithfully’ or magistrates’ court proceedings .... 14.4.3
‘Yours sincerely’ ............................. 9.2 mediator’s rule .............................. 14.4.4
323
Para Para
Mediation – continued Nominal interest .................................. 6.14
practitioner-client interview Non-admissions ............................ 10.4.5.6
distinguished ............................. 14.4.2
process ......................................... 14.4.5 Notary ................................................ 2.4.1
Western mediation ........................ 14.4.4 Notice
when appropriate .......................... 14.4.3 drafting ............................................ 10.5
Mediation-arbitration ........................ 14.2.6 pleading distinguished ..................... 10.5
Mental capacity of testator ............... 11.4.1 Notice of motion ................... 10.6.1, 10.6.3
Mentoring ........................................... 2.6.4 Nude prohibition ............................... 11.4.8
Minor see Child Numeracy skills
definition ............................................ 6.1
Misappropriation of trust funds ........... 3.6.8 addition .............................................. 6.4
Misconduct ......................................... 3.2.4 apportionment of damages.............. 6.16
Misleading the court ........................... 3.5.3 averages ............................................ 6.8
basic numerical reading and
‘Money’, 11.3.2
writing ............................................. 6.3
Motion proceedings calculators ......................................... 6.2
see Application/motion proceedings combining calculations .................... 6.18
Multiplication ......................................... 6.6 conversions
decimal to percentage............... 6.13.1
N fraction to decimal ..................... 6.13.2
National Association of Democratic fraction to percentage ............... 6.13.3
Lawyers .......................................... 2.4.3 percentage to decimal............... 6.13.1
percentage to fraction ............... 6.13.3
National Forum on the Legal
whole number to fraction........... 6.13.4
Profession .................................... 2.7.2.3
division .............................................. 6.7
Negligence divorce example .............................. 6.17
drafting will .......................... 3.6.7, 11.2.1 exponents .......................................... 6.9
liability for ........................................ 3.6.7 fractions
professional negligence .................. 3.2.5 decimal fractions .......................... 6.11
Negotiation equivalent fractions and common
definition ........................... 14.2.1, 14.3.1 denominators ......................... 6.10.1
aspiration points......................... 14.3.3.3 multiplying fractions .................. 6.10.2
bargaining zone ............................ 14.3.3 overview ....................................... 6.10
distributive approach ................. 14.3.2.2 rounding decimal fractions ........ 6.11.2
ground rules .................................. 14.4.3 interest ............................................. 6.14
integrative approach .................. 14.3.2.2 multiplication ...................................... 6.6
legal practitioner’s RP ................ 14.3.3.1 overview ............................................ 6.1
means-goals and end-goals ...... 14.3.2.1 percentages ..................................... 6.12
nature of........................................ 14.3.2 ratios and rates ................................ 6.15
objective........................................ 14.3.1 subtraction ......................................... 6.5
opposing party’s RP .................. 14.3.3.2 VAT calculations .............................. 6.17
overview........................................ 14.3.1 when required .................................... 6.1
positions and interests ............... 14.3.2.1
preparation for .............................. 14.3.3 O
process ......................................... 14.4.3 O’Brien, Ed ........................................ 1.4.2
reservation point/price (RP) .......... 14.3.3
settlement agreement ................... 14.4.3 Objections ........................................ 3.10.4
styles.......................................... 14.3.2.2 Obscene language in court .............. 3.10.4
324
Index
Para Para
‘Off the record’.................................... 9.4.5 Pleadings – continued
Office management ............................ 7.2.2 defence see Plea
documents constituting................. 10.4.1
Office memorandum........................... 8.4.1 drafting process
Onus of proof ................................... 10.4.4 apply law to facts ...................... 10.2.4
Open question .................................. 13.3.3 ascertain facts of dispute .......... 10.2.2
overview .................................... 10.4.1
Opening address ................................. 13.2
research applicable law ............ 10.2.3
Opinion exceptions .................................... 10.4.8
example .......................................... 8.4.2 facta probanda and facta
formats ............................................... 8.4 probantia ................................... 10.2.7
office memorandum ........................ 8.4.1 format ........................................... 10.2.1
Opponent heading ......................................... 10.4.2
duty of care towards ....................... 3.7.3 jurisdiction ........................ 10.3.4, 10.4.4
position of trust ............................... 3.7.4 locus standi .................................. 10.3.3
unrepresented party ....................... 3.7.2 onus of proof ................................ 10.4.4
overview .......................................... 10.1
Organ of State
particulars of claim ....................... 10.4.4
written demand ............................... 9.4.4
plea ............................................... 10.4.5
practice directions ........................ 10.2.1
P precedents .................................... 10.2.8
Paralegal ............................................ 2.7.1 precision ....................................... 10.2.5
Particulars of claim ........................... 10.4.4 prescription ................................... 10.3.2
provable allegations ..................... 10.2.6
Partnership ......................................... 7.2.1
purpose .................................. 10.1, 10.8
Party-and-party costs ......................... 7.5.5 rectification ................................... 10.4.8
Passive voice ................................... 12.3.5 relevance ...................................... 10.2.7
Pension fund benefits ................... 11.4.2.3 replication ..................................... 10.4.6
rules of court ................................. 10.2.1
Percentages ........................................ 6.12 summons ...................................... 10.4.2
Plea vague or embarrassing.............. 10.2.5n,
definition .................................... 10.4.5.1 10.2.7, 10.4.8
admissions ................................. 10.4.5.3 Political dissent .................................. 3.4.2
confession and avoidance ......... 10.4.5.5
denials ....................................... 10.4.5.4 Poor people
general guidelines ..................... 10.4.5.1 access to justice see Access to justice
multiple and alternative Power of assumption ..................... 11.4.11
defences ................................. 10.4.5.7 Practice directions
non-admissions.......................... 10.4.5.6 nature of ......................................... 3.3.2
stating defence .......................... 10.4.5.2 pleadings ...................................... 10.2.1
Pleadings Practice management
definition ....................................... 10.4.1 definition ............................................ 7.2
action or application ...................... 10.3.5 admission to profession..................... 7.9
allegations of fact .......................... 10.2.7 advice from colleagues etc ............. 7.7.6
case number ................................. 10.4.2 business plan ......................... 7.11, 7.12
cause of action or defence ........... 10.3.1 business structure .......................... 7.2.1
citation of parties to dispute .......... 10.3.3 client care .......................................... 7.4
conclusions of law ........................ 10.2.7 elements of legal practice............... 7.2.1
counterclaim ................................. 10.4.7 FICA requirements ............................ 7.9
declaration .................................... 10.4.4 fidelity fund certificate ........................ 7.9
325
Para Para
Practice management – continued Professional and ethical conduct –
filing system see File management continued
financial management ....................... 7.5 duty of disclosure ........................... 3.5.3
maintain contact with clients ........... 7.7.5 duty to the poor ................................. 3.9
management process ..................... 7.2.2 etiquette ........................................... 3.10
marketing ........................................... 7.4 failure to comply with rules ............. 3.2.1
membership of professional body ...... 7.9 fit and proper person ...................... 3.2.3
overview............................................. 7.1 foreign influences ........................... 3.3.6
personal management ....................... 7.8 forms of address ........................... 3.10.2
Prescription Alert .................. 7.7.3, 7.7.4 ‘legal practitioner’ ........................... 3.2.2
professional development ............... 7.7.2 legislation ....................................... 3.3.1
professional ethics and ...................... 7.3 liability for negligence ..................... 3.6.7
risk management ............................... 7.7 mandate of client ............................ 3.6.3
starting out ....................................... 7.10 miscellaneous client matters .......... 3.6.9
strategic plan ................................... 7.12
overview ............................................ 3.1
stress management ........................ 7.8.2
political dissent ............................... 3.4.2
tax ...................................................... 7.9
practice management and ................. 7.3
time management ........................... 7.8.1
professional misconduct ................. 3.2.4
trust account management ................ 7.6
workplace requirements .................... 7.9 professional negligence.................. 3.2.5
relationship between attorneys and
Precedents ....................................... 10.2.8 advocates ....................................... 3.8
Prescription Alert ...................... 7.7.3, 7.7.4 relationship with client .................... 3.6.1
Prescription of claim ................ 3.6.7, 7.7.3, relationship with court..................... 3.5.1
7.7.4, 10.3.2 relationship with other
Pre-trial minutes ............................... 10.7.2 practitioners ................................ 3.7.1
relationship with opponent.... 3.7.2–3.7.4
Primary facts .................................... 10.6.4 respect for legal order .................... 3.4.1
Private law.......................................... 8.3.1 robing ........................................... 3.10.3
Privilege ............................................. 3.6.6 rules, regulations and practice
Pro bono work .......................... 2.6.5, 3.9.2 directions ..................................... 3.3.2
seniority ........................................ 3.10.1
Profession see also Legal profession settlements ..................................... 3.6.4
definition ............................................ 2.2 sources of rules ................................. 3.3
Professional and ethical conduct transformation of legal profession
abusing rules of court ..................... 3.5.5 and ................................................. 3.1
academic writings ........................... 3.3.5 trust funds ....................................... 3.6.8
accepting instructions ..................... 3.6.2 unrepresented party ....................... 3.7.2
acting in accordance with withdrawal from case ...................... 3.6.9
instructions .................................. 3.6.3
assisting client in breaking law ....... 3.4.4 Professional association
attributes of ideal jurist ..................... 3.11 advocates pre 2014 ........................ 2.5.3
behaviour in court ......................... 3.10.4 attorneys pre 2014 .................. 2.4.3, 7.9
common law.................................... 3.3.4 Legal Practice Council ................. 2.7.2.3
confidentiality and privilege ............ 3.6.6 Professional development ................. 7.7.2
conflict of interest ............................ 3.6.5 Professional misconduct .................... 3.2.4
contempt of court ............................ 3.5.2
court decisions ................................ 3.3.3 Professional negligence........... 3.2.5, 3.6.7
criminal conduct .............................. 3.4.3 Public access to legal services
defending guilty client ..................... 3.5.4 see Access to justice
326
Index
Para Para
Public interest law Restructuring of legal profession .... 2.7.2.1
definition ......................................... 2.8.3 Right of appearance
career options ................................. 2.8.3 advocate pre 2014 .......................... 2.5.1
Public law ........................................... 8.3.1 attorney pre 2014 ........................... 2.4.1
Public prosecutor ............................... 2.8.4 Legal Practice Act 28 of 2014 ..... 2.7.2.1
Punctuality................................. 3.10.4, 7.4 Risk management ................................. 7.7
Pupillage ............................................ 2.5.3 Road Accident Fund claims ............... 3.6.5
Robing ............................................. 3.10.3
Q Rule nisi ........................................... 10.6.1
Questioning skills Rules and Code of Conduct
client interview ................................ 4.4.3 Committee ................................... 2.7.2.3
cross-examination................... 13.4–13.6
Rules of court
examination in chief ......................... 13.3
abuse of .......................................... 3.5.5
re-examination ................................. 13.7
pleadings ...................................... 10.2.1
R
S
Rastafarian ......................................... 3.4.1
Sabinet ............................................... 8.3.7
Ratios and rates .................................. 6.15
Saflii ................................................... 8.3.4
Real interest ........................................ 6.14
Sale contract .................................... 12.2.3
Recital clause ....................... 12.3.2, 12.4.2
Scandalising the court ....................... 3.5.2
Record-keeping see also Case file; File
Secondary facts ............................... 10.6.4
management
records on appeal ........................... 3.6.9 Secret commission ............................ 3.6.5
trust funds ................... 3.6.8, 5.4.6, 7.6.1 Semi-open question ......................... 13.3.3
Recovery of disbursements ............... 7.5.6 Seniority ........................................... 3.10.1
Re-examination ................................... 13.7 Settlement of claim ............................ 3.6.4
Referral rule ................... 2.3.3, 2.5.1, 3.8.3 Signature of contract ........................ 12.2.2
Regional services council levy .............. 7.9 Signature of will ................... 11.7.1, 11.7.2
Registered mail ........................... 9.2, 9.5.2 Silk ................................................... 3.10.1
Relationship between attorneys and Simple interest ................................. 6.14.1
advocates
Simple summons ............................. 10.4.3
briefing ............................................ 3.8.4
control over case ............................ 3.8.5 Small Claims Court
divided bar .................. 2.3.3, 2.7.1, 3.8.1 letter of demand ............................. 9.4.4
exclusivity of certain work ............... 3.8.2 pro bono work ................................. 3.9.2
liability for fees ................................ 3.8.6 Social justice .................................. 1.1, 1.5
referral rule ................. 2.3.3, 2.5.1, 3.8.3 Sole proprietorship ............................. 7.2.1
Reminder system ............................... 5.5.5 South African Women Lawyers
Replication ....................................... 10.4.6 Association ..................................... 2.6.2
Replying affidavit .............................. 10.6.4 Sponsorship .......................................... 7.4
Research see Legal research Starting out ......................................... 7.10
Resolutive condition ......................... 11.4.8 State advocate ................................... 2.8.5
Respect for legal order ....................... 3.4.1 State attorney .................................... 2.8.6
327
Para Para
State law advisor .............................. 2.8.11 Transformational challenges – continued
Statutory arbitration .......................... 14.5.4 public access to justice................... 2.6.5
training and mentoring.................... 2.6.4
Statutory letter .................................... 9.4.4
Trial
Storage of files ......................... 5.2.1, 5.2.2
advocacy see Trial advocacy
Strategic plan ...................................... 7.12 choice of procedure ...................... 10.3.5
Street law civil trial ............................................ 13.1
definition ......................................... 1.5.2 criminal trial ..................................... 13.1
Street law-type clinic see also Law clinic pleadings see Pleadings
history ............................................. 1.4.2 pre-trial minutes ............................ 10.7.2
student activities ............................. 1.5.2 Trial advocacy
Stress management ........................... 7.8.2 definition .......................................... 13.1
closing address ............................... 13.8
Subrogation ........................................ 8.3.3 cross-examination .................. 13.4–13.6
Substantive law .................................. 8.3.1 examination in chief ......................... 13.3
Substitution of opening address .............................. 13.2
beneficiaries...................... 11.4.7, 11.6.4 overview .......................................... 13.1
re-examination ................................. 13.7
Subtraction ............................................ 6.5
respect for court .............................. 13.1
Summons ......................................... 10.4.2 speaking voice ................................. 13.1
Supporting affidavit .............. 10.6.1, 10.6.4 stance and posture .......................... 13.1
Surviving spouse Trust funds
maintenance .............................. 11.4.2.5 acting recklessly ............................. 3.6.8
rights re deceased estate ............. 11.4.3 advising client of options ................ 3.6.8
substitution in joint will ...... 11.4.7, 11.6.4 attorneys’ duties ................... 3.6.8, 7.6.1
Suspensive condition ......... 11.4.8, 12.4.10 auditing requirements ..................... 7.6.4
ignorance of accounting duties....... 3.6.8
interest on ....................................... 7.6.3
T
investment ............................ 3.6.8, 7.6.2
Taking instructions ............................. 4.4.5 records ....................... 3.6.8, 5.4.6, 7.6.1
Taxation of bill of costs ...................... 7.5.5 statutory provisions ........................ 3.6.8
Telephone directories ........................... 7.4 trust account management ............. 7.6.1
trust deposits ........................ 5.3.2, 7.5.7
Telephone etiquette .............................. 7.4
types of trust investment
Testamentary trust accounts ...................................... 7.6.2
duration ......................................... 11.4.9
Trust surplus report ............................ 7.5.2
examples ...................................... 11.6.7
termination ........................ 11.4.9, 11.6.7 Trustees
trustees see Trustees appointment .................... 11.4.9, 11.6.12
types of ......................................... 11.4.9 powers .............................. 11.4.9, 11.6.7
Textbooks........................................... 8.3.3
U
Time management ............................. 7.8.1
Unemployment Insurance Fund............ 7.9
Touting ............................................... 3.2.4
University law clinic see Law clinic
Transformational challenges
Unrepresented party, duty towards.... 3.7.2
gender imbalance ........................... 2.6.2
judiciary........................................... 2.6.3 Urgent application ............................ 10.6.1
overview.......................................... 2.6.1 Usufruct ............................... 11.4.8, 11.6.6
328
Index
Para Para
V Will – continued
Vague and uncertain conditions ....... 11.4.8 divorced spouse ........................... 11.4.4
donation of mortal remains and funeral
Vague or embarrassing
arrangements ................ 11.5.7, 11.6.8
pleadings ............ 10.2.5n, 10.2.7, 10.4.8
draft clauses .................................... 11.6
Value Added Tax drafter’s role/duty ................. 11.2, 11.2.1
calculation ........................................ 6.17 drunkenness, effect of .................. 11.4.1
clause in commercial contract .... 12.4.11 estate planning ............................. 11.2.3
legal practitioners .............................. 7.9 examples of sample wills................. 11.8
Voetstoots clause ................. 12.2.3, 12.4.9 exclusion of community of
Volenti non fit injuria ........................... 8.4.2 property ....................... 11.4.12, 11.6.9
‘family’ .......................................... 11.3.2
fideicommissum ............ 11.4.2.4, 11.4.8,
W
11.6.4, 11.6.6
Websites ............................................ 8.3.7 forgery .......................................... 11.4.6
Will formalities for execution .............. 11.2.1,
accrual system .............................. 11.4.3 11.2.4, 11.7
age of testator ............................... 11.4.1 freedom of testation ...................... 11.4.2
amendment ................................... 11.7.6 identifying classes of people ........ 11.3.2
appointment of executor ............ 11.4.11, importance ....................................... 11.2
11.5.5, 11.6.11 interview checklist ........................... 11.5
appointment of guardian ............ 11.4.10, language ........................... 11.2.1, 11.3.1
11.5.6, 11.6.10 late disclosure of existence ........ 11.2.2n
appointment of trustee ................ 11.6.12 liabilities of estate ......................... 11.5.3
assets in estate ............................. 11.5.2 liability to beneficiaries for economic
attestation clause ........................ 11.6.13 loss .................................. 3.6.7, 11.2.1
bequest contrary to public maintenance claims ................... 11.4.2.5
policy ...................................... 11.4.2.1 marriage in community of
bequest to minor ........................... 11.4.5 property ........... 11.4.3, 11.4.12, 11.6.9
bequests checklist ........................ 11.5.4 marriage out of community of
blind or illiterate testator ............... 11.7.3 property ..................................... 11.4.3
‘business’ .......................... 11.3.2, 11.6.5 ‘money’, 11.3.2
capacity to make will ..................... 11.4.1 non-compliance with
categories of assets ...................... 11.6.5 formalities .................................. 11.7.5
categories of beneficiaries ............ 11.6.3 organisation of contents ...... 11.2.1, 11.6
‘children’........................................ 11.3.2 ousting jurisdiction of court ........ 11.4.2.1
cohabitee ...................................... 11.4.3 overview .......................................... 11.1
communication/consultation with pension fund benefits ................ 11.4.2.3
client ..................... 11.2.1, 11.2.2, 11.5 personal details of testator ........... 11.5.1
competencies required to draft ..... 11.2.1 precedents and templates ............ 11.2.1
conditional bequest ........... 11.4.8, 11.6.6 remarriage, restraining .............. 11.4.2.1
confidentiality ................................ 11.2.2 revocation clause ......................... 11.6.2
custody of original ......................... 11.2.2 signature by mark or by another
customary marriage ...................... 11.4.4 person ....................................... 11.7.2
declaration of testamentary signature by testator ..................... 11.7.1
intent.......................................... 11.6.1 special directions .............. 11.5.7, 11.6.8
destruction with intention of substitution ....................... 11.4.7, 11.6.4
revoking ..................................... 11.7.7 terminology ................................... 11.3.2
directions of testator ......... 11.3.2, 11.5.7 testamentary trust ............. 11.4.9, 11.6.7
disqualified beneficiaries .............. 11.4.6 unconstitutional bequest............ 11.4.2.2
329
Para Para
Will – continued Witness – continued
usufruct ............................. 11.4.8, 11.6.6 credibility ..................................... 13.5.1
wishes of testator .......................... 11.3.2 cross-examination .................. 13.4–13.6
witnesses examination in chief ......................... 13.3
disqualification as order in which called..................... 13.3.1
beneficiary/executor etc ......... 11.4.6 re-examination ................................. 13.7
requirement ............................... 11.7.4 signing of will .................... 11.4.6, 11.7.4
Withdrawal from case......................... 3.6.9 Witness sheet .................................. 13.3.1
‘Without prejudice’ .............................. 9.4.5 Women .............................................. 2.6.2
Witness
Workplace Compensation
bad character ................................ 13.5.6
briefing .......................................... 13.3.1 Commissioner ................................... 7.9
conflict of interest ............................ 3.6.5 Written opinion see Opinion
330

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Clinical Law in South Africa

With an introduction by Professor David McQuoid-Mason

First Edition 2004, Reprinted 2005

Editor: Beryl Kirsten

Printed in South Africa by Interpak Books Pietermaritzburg

CHAPTER 1: INTRODUCTION ................................................................... 1

CHAPTER 2: THE LEGAL PROFESSION IN SOUTH AFRICA ................. 9

CHAPTER 3: PROFESSIONAL AND ETHICAL CONDUCT ...................... 33

CHAPTER 5: FILE AND CASE MANAGEMENT ........................................ 79

CHAPTER 6: NUMERACY SKILLS ............................................................ 91

CHAPTER 7: PRACTICE MANAGEMENT ................................................. 111

12.2 The law ............................................................................................... 254

CHAPTER 14: ALTERNATIVE DISPUTE RESOLUTION .......................... 289

1 Cf McQuoid-Mason and Palmer (2013) African Law Clinicians Manual at 1.

1.2 Rationale for clinical teaching methods

1.3 Types of clinical law programmes

1.4 Clinical law in South Africa – a personal odyssey

the developments concerning law clinics in South Africa,26 and a number of

1.4.2 Street law-type clinics

1.4.3 The growing acceptance of clinical law programmes

26 McQuoid-Mason (1982) at 139–163.

(now the University of Johannesburg) on the organisation, administration and

1.5 Community service in clinical law programmes and social

1.5.1 Live client clinics

33 McQuoid-Mason ‘The Organisation, Administration and Funding of Legal Aid Clinics in

1.5.2 Street law-type clinical programmes

2.2 The term ‘legal profession’

2.3 History of the legal profession

2.3.2 The English legal profession

it is no longer of practical importance. In Latin America the fused profession is

2.3.3 The South African legal profession – pre 2014

2.4 The attorneys’ profession

2.4.3 Professional Association

26 Ss 12 and 14 of Act 53 of 1979.

2.4.4 The Attorneys’ Fidelity Fund

28 Hoffman (2005) at 18.

2.5 The advocates’ profession

2.5.2 Admission requirements

2.5.3 Professional association

41 2001 (3) SA 750 (SCA) 757C–D.

2.6 Transformation challenges

51 See Joubert at 251–255 for an in depth discussion of this aspect.

2.6.2 Gender imbalance

55 Whittle ‘Women in the profession’ 1999 (Mar) De Rebus 10.

2.6.3 The judiciary

57 See article entitled ‘Government to process report on judiciary transformation’ in

2.6.4 Training and mentoring

2.6.5 Access to justice

2.7 Transforming the legal profession

As discussed earlier, South Africa had a divided profession consisting of advo-

2.7.2 The Legal Practice Act 28 of 2014

2.7.2.1 Restructuring of the legal profession

69 Eg in maintenance enquiries, CCMA hearings and domestic violence applications.

2.7.2.2 Community service

2.7.2.3 Legal Practice Council

70 S 3(c) of the Legal Practice Act 28 of 2014.

2.7.2.4 Legal Services Ombud

2.8 Career options

2.8.1 Attorney in private practice

2.8.2 Advocate in private practice

2.8.3 Public interest lawyer

71 Defined as such in Act 53 of 1979.

2.8.4 Public prosecutor