Drafting a Legal Opinion

1. MASTERING THE CRAFT: YOUR GUIDE TO DRAFTING LEGAL OPINIONS IN THE LAW
OF DELICT (AND BEYOND!)

All right, legal pathfinders, prepare to unfurl your logic maps and illuminate the labyrinthine legal
landscape! Today's adventure: crafting a legal opinion (also known as a legal memorandum), your
compass through the twists and turns of intricate legal problems. Think of it as your initiation into the
guild of legal architects, where precision and clarity pave the way towards justice.

Understanding the Beast

No mere cobweb-laden tome gathering dust, a legal opinion is a vibrant tapestry, woven with facts,
laws, and arguments. It dissects the case narrative like a meticulous archaeologist, unearthing the
truth to guide your clients through the legal jungle. In other words, it’s a more advanced application
of the elements of "IPAC".

Why Draft One?

It's not just document assembly; it's an intellectual expedition! By crafting an opinion, you'll:
• Become a legal alchemist: Transforming facts into a potent elixir of logic, separating truth from
fiction like a discerning chemist.
• Unleash your inner legal cartographer: Navigate the uncharted territory of legal issues, plotting a
clear course using relevant precedents and statutes as your guiding stars.
• Master the art of persuasion: Paint a compelling picture with your words, weaving evidence and
reasoning into a tapestry that captivates even the most seasoned legal minds.
• Hone your legal language: Craft your words with the precision of a sculptor, shaping complex legal
concepts into clear, concise, and persuasive prose.

Remember, legal pathfinders:

Drafting an opinion is a continuous journey, not a single destination. Embrace the learning curve,
refine your skills with each step, and soon your legal prose will rival the most eloquent legal tomes.

Venture forth, legal pathfinders! Conquer the legal opinion landscape, and remember, each
meticulously crafted document isn't just honing your skills; it's building the bridges of justice that will
shape the future of South African law.

P.S. Don't hesitate to seek guidance from your lecturers, mentors, and fellow legal explorers.
Collaboration is the compass that points towards legal excellence!

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2. AN EXAMPLE OF A LEGAL OPINION

Below we provide an example of a legal opinion as a point of reference (that draws some inspiration
from Exercise 2B in the textbook).

In re: Mary Jane Khumalo//Minister of Police

OPINION

1 March 2024

TO:
Prof Peter Jordi
Wits Law Clinic

FROM:
10053787X

INTRODUCTION
1. The consultant is Jane Khumalo, a major female student residing in Johannesburg.

SUMMARY OF THE MATERIAL FACTS

2. The material facts appear from the brief.

NATURE OF THE BRIEF

3. A legal opinion is sought on whether the consultant can claim constitutional damages against the
Minister of Police.

APPLICABLE LEGAL PRINCIPLES AND APPLICATION TO THE FACTS

The potential claim for constitutional damages

3. The relevant legal principles are:

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3.1 According to the Fose judgment, if a victim has an alternative monetary remedy available, the
victim cannot “top-up” with constitutional damages.
3.2 The RK judgment confirms the principle in the Fose judgment.
3.3 The Mboweni judgment makes it clear that a victim has to show that other sources such as
legislation and common law are not applicable before a victim can claim constitutional
damages as a remedy of last resort.

4. The law applies in this matter as follows:

4.1 The Police Brutality Act applies to the legal dispute between the victim and the wrongdoer.
This means that in statute, an alternative monetary remedy is available to the victim as the
Act provides remedies. Therefore, as the victim has an alternative monetary remedy in statute,
the victim cannot claim constitutional damages as a top-up.
4.2 The Police Brutality Act can be saved from a declaration of constitutional invalidity through a
process of reading out concerning section 1. This means that the victim's only recourse is not
limited to constitutional damages. Therefore, the victim will not be able to show that
legislation is not applicable justifying a reliance on constitutional damages.

5. Thus, the victim has no potential claim for constitutional damages in these circumstances.

CONCLUSION
Taking into consideration the facts available to me, together with the applicable legal framework, I
conclude that a court is likely to find that Jane Khumalo cannot claim constitutional damages against
the Minister of Police.

10053787X
Chambers, Braamfontein
1 March 2024

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3. EXPLAINING THE CONTENT, FORMAT, AND STRUCTURE OF A LEGAL OPINION

Below we provide comprehensive and detailed explanations regarding the content, format, and
structure of a legal opinion with the example provided above as a point of reference.

In re: Mary Jane Khumalo//Minister of Police [The name of the potential victim(s)//the name of the
potential wrongdoer(s) or an abstract summary of the subject matter where it is appropriate to do
so]

[Note on content: This part indicates what this legal document pertains to. Generally, in re means “in
the legal case between the parties". In other words, we are indicating who the potential litigants are.
This is one of many ways in which we can formulate this “subject line” of a legal opinion. Also, note
that the double dash is indicative of the word "versus”]

[Note on format and structure: Put spaces between items of a legal opinion and especially before a
new heading of separate paragraphs, but usually there is no space between a heading and a
paragraph]

OPINION

[Note on content, format, and structure: This part indicates the legal nature of this document. What
we have here are so-called two “tramlines” and the word “opinion” between them. We use these tram
lines with an appropriate description to label various legal documents. For our purposes, we will use
the word “Opinion” between the two tramlines]

[The date on which the legal opinion is drafted is placed on the right-hand side]
1 March 2024

[Note on content: It is important to date your legal opinion to show what the law was on that particular
date and that you are not negligent when legal developments have taken place after this date. Also,
this is preferable for purposes of record keeping and to demonstrate the timeline of the progression
of a civil case]

[Note on format and structure: The remaining information that will follow will be placed from left to
right as is the case with English sentence structure]

TO: [The first main heading which is not numbered – use capital letters to indicate this]
Prof Peter Jordi [The recipient: Usually the legal professional who instructed you to draft the legal
opinion]
Wits Law Clinic [The organisation to which the legal professional belongs]

[Note on content, format, and structure: Here you are not necessarily addressing a specific victim or
wrongdoer. Here you are addressing another legal professional as legal opinions are traditionally
shared between them. In the context of a legal opinion drafted by an advocate, instructions are
generally taken from lawyers and not the general public.]

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FROM: [The second main heading which is not numbered – use capital letters to indicate this]
10053787X [The person who is drafting the legal opinion. The best practice for an assessment is only
to place your student number here without other identifying information]

[Note on content, format, and structure: From here you will start to number the individual paragraphs
and not the headings]

[Beyond the classroom: In practice, this will look different from what we have provided here. You will
provide your name and the organisation to which you belong]

INTRODUCTION [The third main heading which is not numbered – use capital letters to indicate this]
1. The consultant is Jane Khumalo, a major female student residing in Johannesburg.

[Note on content, format, and structure: Here you are indicating who the potential client is; they may
either be a victim or wrongdoer. Here it is important to give the full names of the client, their status as
a major or not, their occupation or status as a student, etc., and where they are based or residing –
these details are important for purposes of determining legal capacity and jurisdiction. These writing
conventions will receive more attention in your procedural courses. Important to note, only fill in the
details that are provided from a specific exercise or assessment and leave the information out that is
not provided]

SUMMARY OF THE MATERIAL FACTS [The fourth main heading which is not numbered – use capital
letters to indicate this]
2. The material facts appear from the brief. [This phrase must be consistently used for the various
exercises and assessments]

[Note on content, format, and structure: As an exercise or assessment will contain all the material
facts, it is not necessary to repeat or summarise them here again. This will be different for practice
when you will have to extract and summarise facts from various sources e.g. clients, documents, etc.
However, for purposes of this course, you only need to write down the phrase indicated above to show
that you understand that the material facts have been summarised in an exercise or assessment. Also
remember, summarising and producing facts where it is not required to do so wastes time and may
hamper your ability to finish your legal opinion and provide substantive details where it is necessary
to do so]

[Beyond the classroom: When in practice you will provide a concise, impartial statement of the facts
that captures the heart of the legal matter, as well as current and past legal proceedings related to
the issue. The facts can be chronological or grouped thematically, whichever format presents the facts
in the clearest manner]

NATURE OF THE BRIEF [The fifth main heading which is not numbered – use capital letters to indicate
this]
3. A legal opinion is sought on whether the consultant can claim constitutional damages against the
Minister of Police. [Use this format when there is only a single issue to determine]

Alternative format and structure:

Use the following format and structure when you have to address multiple issues, for example:

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3. A legal opinion is sought on:
3.1 Whether the Police Brutality Act 1000 of 2019 applies to the consultant’s scenario; [Issue 1]
3.2 Whether constitutional damages can be claimed against the Minister of Police by the
consultant; and [Issue 2]
3.3 What remedies are available to the consultant. [Issue 3]

[Note on content, format, and structure: Here you are indicating what the legal issue(s) are arising
from the brief. With the examples provided above, you are indicating how broad or specific the legal
issue(s) are. For purposes of this course, you will essentially repeat or rephrase the specific questions
that are provided in an exercise or assessment question. You must not add additional issues that are
not covered by an exercise or assessment, and this speaks to relevance. Lastly, the issues function as
a roadmap for the rest of your legal opinion]

APPLICABLE LEGAL PRINCIPLES AND APPLICATION TO THE FACTS [The sixth main heading which is not
numbered – use capital letters to indicate this]

[Note on content: Here we are considering the substantive body of the legal opinion. In broad terms,
this is where you present principles, arguments (i.e. application), and conclusions as the three basic
content components. More specifically, here you provide detailed legal principles with reference to
authority and apply them to the facts by formulating well-reasoned arguments in order to reach a
conclusion on an issue or a component thereof. Very important here is that you demonstrate the
critical skill of being able to differentiate in your writing between legal principles, applications, and
conclusions. We can do so by focussing further on the format and structure of this part of a legal
opinion]

[Note on format and structure: Best practice here is to consider the following, (i) use sub-headings to
structure this part (this is especially relevant when you have to consider multiple issues or discuss
principles or concepts that have many layers and dimensions – in other words, break down the issues
and principles into smaller digestible bits), (ii), under each sub-heading, make sure that you have
separate numbered paragraphs dealing with principles, application, and conclusions (as you have
noticed that we are not employing an essay structure to write the opinion), (iii) in structuring your
body, always start first with general principles and then move to more specific principles (e.g. provide
the conditions of liability before discussing each condition in detail or provide a definition of an element
before venturing into the more specific legal principles or legal tests and explanations), (iv) ensure that
each paragraph contains a single idea (which can be conveyed through more than one sentence)
instead of paragraphs that contain multiple ideas like the essay format ,and (v) ensure that you
articulate your ideas, principles, and arguments briefly, clearly, simply, concisely, precisely, and
accurately. Below we will provide further examples and explanations]

The potential claim for constitutional damages [Use sub-headings to structure the body of your
opinion as mentioned above – use sentence case and underline the sub-heading without numbering
them. Thereafter, continue with your numbered paragraphs]
4. The relevant legal principles are:
4.1 According to the Fose judgment, if a victim has an alternative monetary remedy available, the
victim cannot “top-up” with constitutional damages.
4.2 The RK judgment confirms the principle in the Fose judgment.

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4.3 The Mboweni judgment makes it clear that a victim has to show that other sources such as
legislation and common law are not applicable before a victim can claim constitutional
damages as a remedy of last resort.

Alternative format and structure:

Instead of using sub-paragraphing, you can also structure your principles as follows:

4. If a victim has an alternative monetary remedy available, the victim cannot “top-up” with
constitutional damages (Fose and RK).

5. A victim has to show that other sources such as legislation and common law are not applicable
before a victim can claim constitutional damages as a remedy of last resort (Mboweni).

[Note on content: Ensure that you provide legal authority for each legal principle and do so consistently
throughout the legal opinion. It is best to provide concisely formulated legal principles. Also, remember
to provide details. For instance, it would not be sufficient to list the elements or conditions of liability
for a specific delict – you will have to further delve into these elements or conditions or liability.
Remember, if you provide insufficient detail, your application will suffer the same fate. Lastly, ensure
that from your drafting you clearly indicate when you are dealing with principles so that it can be
distinguished from their application and subsequent conclusions]

[Note on format and structure: Here you have a choice on how you want to structure paragraphs
dealing with legal principles. First, as we have done in our example, you can use a main paragraph
with sub-paragraphs with the numbering as indicated above. Secondly, as indicated in the alternative
format and structure box, you can use main paragraphs for each principle which must be separately
numbered. The complexity of principles and the grouping of various ideas to explain a principle ought
to guide you on whether you want to use paragraphs or sub-paragraphs. However, with sub-
paragraphing it is easier to indicate that you are writing legal principles]

[Beyond the classroom: In a handwritten test, you will cite the authority in the main text. In practice,
you will use footnotes unless instructed otherwise]

5. The law applies in this matter as follows:

5.1 The Police Brutality Act applies to the legal dispute between the victim and the wrongdoer.
This means that in statute, an alternative monetary remedy is available to the victim as the
Act provides remedies. Therefore, as the victim has an alternative monetary remedy in statute,
the victim cannot claim constitutional damages as a top-up.
5.2 The Police Brutality Act can be saved from a declaration of constitutional invalidity through a
process of reading out concerning section 1. This means that the victim's only recourse is not
limited to constitutional damages. Therefore, the victim will not be able to show that
legislation is not applicable justifying a reliance on constitutional damages.

Alternative format and structure:

Instead of using sub-paragraphing, you can also structure your application as follows:

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6. Following Fose and RK, the Police Brutality Act applies to the legal dispute between the victim and
the wrongdoer. This means that in statute, an alternative monetary remedy is available to the
victim as the Act provides remedies. Therefore, as the victim has an alternative monetary remedy
in statute, the victim cannot claim constitutional damages as a top-up.

7. Following Mboweni, the Police Brutality Act can be saved from a declaration of constitutional
invalidity through a process of reading out concerning section 1. This means that the victim's only
recourse is not limited to constitutional damages. Therefore, the victim will not be able to show
that legislation is not applicable justifying a reliance on constitutional damages.

[Note on content: After stating the legal principles in the format above, you must apply them. Here
you must demonstrate the ability you apply the facts to the law by developing a well-reasoned
argument. First, it is not sufficient to only restate the facts. Secondly, it is not sufficient to only reach
an argument or a conclusion. Thirdly, based on the two previous points, we suggest that you formulate
your arguments for purposes of application as follows: (i) identify a material fact(s) that is relevant to
a specific principle, (ii) explain the legal relevance of this fact, (iii) make an argument about the
relevant principle on whether the content of a legal principle is supported or rejected by this material
fact. We call these three application components the basic anatomy of a legal argument]

[Note on format and structure: Here it is important to ensure that your application matches the legal
principles. As you will have noticed, for the two main ideas provided in the legal principles we have
two sub-paragraphs that apply each of these principles (or two paragraphs for the alternative format
and structure). Also, we provided you with an alternative format and structure box where one can use
paragraphs as opposed to sub-paragraphs – the same considerations provided with the paragraphs
on principles apply mutatis mutandis here]

6. Thus, the victim has no potential claim for constitutional damages in these circumstances.

[Note on content, format, and structure: Based on the legal principles above, and their application to
the facts, we must reach a mini-conclusion in a separate paragraph. By a mini-conclusion we mean
that you reach a conclusion on a specific principle and here you do not answer the main questions –
we will do so in a later part of the legal opinion as will be demonstrated below. Also, please ensure
that the wording used in this paragraph clearly indicates that a conclusion is reached on a specific
principle as demonstrated above]

CONCLUSION [The sixth main heading which is not numbered – use capital letters to indicate this]
Taking into consideration the facts available to me, together with the applicable legal framework, I
conclude that a court is likely to find that Jane Khumalo cannot claim constitutional damages against
the Minister of Police. [Please note that this paragraph is not numbered]

Alternative format and structure:

Use the following format and structure when you have to conclude on multiple issues, for example:

Taking into consideration the facts available to me, together with the applicable legal framework, I
conclude that: [This part of the paragraph is not numbered]

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1. A court is likely to find that the Police Brutality Act 1000 of 2019 applies to the consultant's
scenario [Issue 1 and number appropriately – although do not continue the numbering from the
previous paragraphs]
2. A court is likely to find that constitutional damages cannot be claimed against the Minister of
Police by the consultant; and [Issue 2 and number appropriately]
3. A court is likely to find that a statutory monetary remedy is available to the consultant in terms of
the Police Brutality Act. [Issue 3 and number appropriately]

[Note on content, format, and structure: Here you must reach an overall summary of your detailed
analysis through a conclusion in your legal opinion. In effect, you must directly answer the legal issues
posed by the exercise or assessment (and as identified in the nature of the brief as indicated above).
Clone the wording of the issues as closely as possible. Write your conclusion in an advisory tone as you
cannot provide unwavering guarantees as to how a legal matter will unfold in the courts. However, at
the same time, you are still required to take a stance on the legal issues and cannot provide an
incomplete, ambiguous, or indecisive conclusion. For this reason, frame your conclusion with reference
to likelihoods. Also, as it is custom with any conclusion in legal writing, do not introduce "new
information" here (i.e. information that is supposed to be contained in the "body" of your legal opinion.
Lastly, as above, we have provided you with examples on how to deal with single issues and multiple
issues in your conclusion]

[Beyond the classroom: In practice, the recipient will likely read this section first. It predicts how the
court will apply the law, and how confident you are in your prediction based on the available
information. This provides the basis for identifying the next steps to be followed and an appropriate
legal strategy]

[Here you end off with your student number]

10053787X
[You further indicate that you are writing from your Chambers and where it is situated]
Chambers, Braamfontein
[You further end off by repeating the date on which you drafted the legal opinion]
1 March 2024

[Note on format and structure: This is the general way in which you sign off on a legal document,
especially the legal opinion. Please note that this information is placed on the right-hand side of the
document]

[Beyond the classroom: In practice, consider the following useful formatting tips when drafting a legal
opinion through Microsoft Word or a word processing programme: (i) ensure that your substantive
paragraphs are "justified" in terms of alignment (as oppose to left, right or centre aligned), (ii) ensure
that you use 1.5 line spacing with a "10 pt after" paragraph spacing, (iii) in numbering your
paragraphs, it may be useful to familiarise yourself with auto numbering and use this throughout your
legal opinion, and (iv) always use black font, preferably Arial]

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