Pleadings

Ad litigation techniques:
See and if possible read:
CG Marnewick Litigation Skills for South African Lawyers.

H Daniels Morris Technique in Litigation.

Ad Heads of Argument:
Heads of Argument are used in the case of appeals as well as opposed applications in the High Court. It is nevertheless advisable to prepare your arguments in other matters, like opposed applications in the magistrate’s court, in the same format in order to give structure to your arguments.
HEADS OF ARGUMENT:
Drafting of heads of argument:

• 
  Begin by identifying the issues
  
• 
  Give a summary of the material facts
  
• 
  Set out the proposition of law with reference to authority
  
• 
  Apply the propositions to the facts
  
• 
  Conclude with a conclusion regarding the relief to which the litigant is entitled.
  

Examples based on the above application:
IN THE HIGH COURT OF SOUTH AFRICA
[TRANSVAAL PROVINCIAL DIVISION]
CASE NUMBER: 1/2008
In the matter between:
JOHN EAST APPLICANT

And

STANLEY WEST RESPONDENT

______________________________________________________________

APPLICANT’S HEADS OF ARGUMENT

______________________________________________________________

URGENCY:

1.

1.1 Applicant applies for an interdict against Respondent in terms whereof Respondent is prohibited to continue with excavations on Erf 207, Queenswood situated at 124 Smith Street, Queenswood.

1.2 The Notice of Motion and Founding Affidavit are not drafted on the basis thereof that the application will be brought as an urgent application.

1.3 However, Counsel for Applicant has been advised by his instructing attorney that the matter has been enrolled for hearing before the Honourable Court in view of the extreme urgency in this matter.

1.4 It is conceded that the Notice of Motion as well as the founding affidavit do not specifically deal with the question of urgency as is required by Rule 6[12][b].

1.5 However it is respectfully submitted that the Honourable Court always has a discretion to condone non-compliance with the Rules and Practice of the Honourable Court in circumstances where such condonation are warranted.

1.6 In this matter it is respectfully submitted that from the context of the papers it is abundantly clear that this is in fact a matter of extreme urgency:

1.6.1 Respondent refuses to desist from continuing with building operations.

1.6.2 The consequences for Applicant, should Respondent be allowed to continue with his building operations are extremely serious.

1.7 In these circumstances the Honourable Court is respectfully requested to condone the failure of Applicant to specifically deal with the question of urgency in the founding affidavit and Notice of Motion. In all respects this is a matter which comply with the requirements of an urgent application.

See in general: Luna Meubelvervaardigers (Edms) Bpk v Makin t/a Makin’s Furniture Manufacturers 1977[4] SA 135 [W].
THE MERITS:

2.

2.1 Applicant applies for a final interdict with costs.

2.2 The requisites for a final interdict are:

(a) a clear right;

(b) an injury actually committed or reasonably apprehended;

(c) absence of similar protection by any other ordinary remedy.

See: The Law of South Africa, 1^st re-issue Vol 11 p288 par 309.
3.

It is respectfully submitted that the excavations of Respondent are the cause of the cracks.

4.

Respondent merely alleged that his building procedures are in compliance with the usual City Council requirements, the National Building Regulations and are allegedly of a limited nature.

5.

It is respectfully submitted that despite the fact that in applications where fact arise, they are usually adjudicated upon the version of the Respondent, this is a case where the Honourable Court ought to follow a robust common sense approach and should dismiss the uncorroborated lay person’s allegations of Respondent and indeed make an order in terms of the Notice of Motion in favour of Applicant.

See: Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623 (A).

6.

Wherefore the Honourable Court is respectfully requested to grant an order in terms of the Notice of Motion.

Dated at PRETORIA on this 18^th day of APRIL 2008
________________________

AJ LOUW SC

COUNSEL FOR APPLICANT

IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
CASE NUMBER: 1/2008
In the matter between:
JOHN EAST APPLICANT

And

STANLEY WEST RESPONDENT

______________________________________________________________

RESPONDENT’S HEADS OF ARGUMENT

______________________________________________________________

1.

INTRODUCTION

This is an application for a final interdict, prohibiting the respondent “from continuing with excavations on Erf 207, Queenswood, situated in 124 Smith Street, Queenswood”, plus costs.⁹

2.

IN LIMINE

The attestation of the affidavit of both the applicant and the respondent is irregular. In both cases, the commissioner of oaths refers to the parties as being female, while that is clearly not the case. I submit that the error is, in the circumstances, a minor one and request, on behalf of the respondent, condonation for the error.

3.

URGENCY

1. 
   The application has been brought on the basis of urgency, in that the normal rules regarding times periods and service have not been complied with and the matter set down for hearing in the urgent court.
   
2. 
   However, there has been no attempt to follow the requirements of rule 6(12),¹⁰ in that the applicant has failed:-
   
   1. 
      to set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course;¹¹
      
   2. 
      to comply with the provisions of Part FB of the Practice Manual. As is correctly pointed out by Erasmus,¹² the provisions of the Practice Manual are strictly applied. There has also been no attempt to comply with the Memorandum issued by Justice South wood on 12 February 2007.¹³
      

3.3 In the premises, the respondent requests that the matter be struck from the roll.
4.

THE MERITS:

BACKGROUND

1. 
   Facts that are common cause
   
   1. 
      The applicant a teacher, and the respondent, a businessman, are neighbours, living in adjacent properties in Smith Street, Queenswood, Pretoria.
      
   2. 
      The full description of the respondent’s property is Erf 207, Queenswood, situated at 124 Smith Street, Queenswood and that of the applicant, Erf 208, Queenswood, situated at 123 Smith Street, Queenswood, Pretoria.
      
   3. 
      The Respondent has embarked on building operations on his property that entail excavations.
      
2. 
   The factual allegations by the applicant that are in issue
   
   1. 
      That the excavations are “elaborate”. The respondent avers that they are normal 30 x 50 cm excavations, as prescribed by the National Building Regulations.
      
   2. 
      That there is a crack on the outer wall of the applicant’s house and if there is indeed a crack, that it has been caused by the respondent’s excavations.
      
   3. 
      That if excavations continue, the alleged crack will deteriorate causing the wall to collapse. The respondent avers that the excavations are of a limited nature; they conform with the National Building Regulations and they are in line with approved building plans.
      
   4. 
      That by continuing the excavations the respondent is unlawfully infringing the applicant’s rights; and that the applicant will suffer irreparable harm.
      

5.

LEGAL ARGUMENT

5.1 As set out in subparagraph 4.2 above, there are real, genuine and bona fide disputes of fact in this matter, as contemplated in the Room Hire case.¹⁴ Therefore, the court should take the approach set out by the then Appellate Division in the Plascon Evans matter.¹⁵

5.2 Taking the undisputed facts from the applicant’s version and, where there is a dispute as to the facts, the respondent’s version, the applicant is clearly not entitled to the relief sought.

5.3 Regarding the evidence of the builder, it is not at all clear that he is an expert in anything other than, possibly, building. He has not properly qualified himself as an expert as to the cause of the alleged crack. It is also not clear what the extent of his examination was; for all we know, it could have been a neighbourly look over the wall. The court should, in the premises, disregard his evidence.

5.4 It is also significant that the applicant has not chosen to put any evidence before the court regarding the extent of the crack. Once again, we are forced to speculate. However, the mere fact that the applicant has brought this application cannot of itself supply any clue as to the seriousness of the crack, on the one hand, and, on the other, of the causal relationship, if any, between the respondent’s excavations and the cracks.

5.5 The respondent’s action are, on the face of it, lawful. He has obtained the necessary planning approval.

5.6 In any event, there is no evidence that the respondent has breached any duty of lateral support.¹⁶

5.7 A further aspect that deserves mention is the fact that the applicant has chosen, in an urgent application, in a matter in which a dispute of fact was clearly foreseeable, to pray for a final interdict. He has not chosen to ask for interim relief pending the institution of any action.
6.

In the premises, the respondent prays that the applicant be dismissed with costs.

______________________

LP DICKER

COUNSEL FOR THE RESPONDENT

1517 HIGH COURT CHAMBERS, PRETORIA, 18 APRIL 2008

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)
IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
CASE NUMBER: 1/2008

In the matter between:

JOHN EAST APPLICANT

And

STANLEY WEST RESPONDENT

________________________________________________________________

PRACTICE NOTE: COUNSEL FOR RESPONDENT

______________________________________________________________

1. Number on role: 1
2. Counsel for Applicant: A J LOUW SC Tel [phone]
3. Counsel for Respondent: L P Dicker Tel [phone]
4. Nature of application: Urgent application for interdict.
5. Order sought: Final interdict prohibiting respondent from performing

certain excavations on his property; and costs.

5.1 By applicant: Probably an order in terms of Prayers 1 to 2 of Notice of

Motion.

5.2 By respondent: That the application be dismissed with costs.
6. Estimated duration: 1 hour
7. Urgency: None stated by applicant; applicant of view matter is urgent; respondent disputes urgency.
8. Reading of papers: Required
9. Heads of argument: Attached hereto, on behalf of respondent.

L P DICKER

COUNSEL FOR THE RESPONDENT

1517 HIGH COURT CHAMBERS

PRETORIA

ANNEXURE/ AANHANGSEL “D”
THE LAW OF OBLIGATIONS AND CAUSES OF ACTION
[Acknowledgement: Adapted for teaching purposes only, from excerpts from Hosten et al Introduction to SA Law (1977); Herbstein and van Winsen The Civil Practice of the Supreme Court of SA (1997); Prest Interlocutory Interdicts; Becks: Theory and Principles of Pleading in Civil Actions (1973))]
1 GENERAL
The word obligation is derived from the Latin word obligare meaning to bind. Hence the definition in the Digest of an obligation as a juristic bond between two persons in terms of which the one is legally bound as against the other to perform something. It is therefore a relationship which entails on the one hand a person’s right to a performance by someone else, ie a personal right;’ and on the other hand another party’s duty to perform. The performance which forms the object of the right and the corresponding duty may consist in giving something, in doing something or in not doing something. The holder of the right is called the creditor and the other the debtor. In most cases, the personal right or claim may be directly enforced in law, in which case we speak of a civil obligation. Sometimes however the law, although recognizing the validity of an obligation in certain respects, is not prepared to make it enforceable in which case it is designated as a natural obligation.

Obligations arise mainly from three sources:

• 
  Contract;
  
• 
  Delict; and
  
• 
  Various other sources arising ex lege like:
  

• 
  Unjustified enrichment;
  
• 
  Unauthorised management of affairs(negotiorum gestum, which is also a kind of enrichment);
  
• 
  Family and blood related relationships like a parent’s duty to maintain his child, and the right of the child to claim maintenance from his parent;
  
• 
  Statute.
  

2 UNJUSTIFIED ENRICHMENT
Under certain circumstances unjustified enrichment gives rise to an obligation in terms of which the enriched party, for convenience called the enrichee, incurs a duty to restore the extent of his enrichment to the impoverished party, for convenience called the impoverishee, and the latter acquires a corresponding right to claim that the extent of the enrichment be restored to him.

However, unjustified enrichment is not a general source of obligations; in other words an obligation will not always arise when the general requirements of unjustified enrichment are present because, as we shall see, our law does not recognize all-embracing enrichment action. These general requirements exist when one person is enriched, and another is impoverished, the enrichment of the former being at the expense of the latter and there has been no legal ground or cause for the transfer of the asset concerned from the impoverishee’s estate to that of the enrichee (in other words, transfer has taken place sine causa). But we repeat: our law does not recognize that enrichment liability ensues whenever these requirements are present, but acknowledges liability only in certain specific circumstances. South African law can therefore be said to have a law of enrichment actions. Most of these actions stem from Roman law and have come down via Roman-Dutch law to South African law where their names, requirements and scope are very often still unaltered.

Before 1966 the weight of contemporary South African legal opinion was in favour of the view that the law with regard to enrichment liability had reached its ultimate development and that it could be said that a general enrichment action existed. In that year, however, the appellate division in Pool en ‘n Ander v Nortje NO held that no such general enrichment action exists in South African law but only such specific actions and ad hoc extensions thereof as have already been recognized or may still be recognized. This decision left the law of enrichment liability in a state of uncertainty because further extensions and even the future development of a general action were not ruled out.

There is thus no general action in South African law based on enrichment. An essential element in such an action is that the enrichment is unjust (Nortje en ‘n Ander v Pool, N.O., 1966 (3) SA 96 (A.D.)). See also Odendaal v van Oudtshoorn, 1968 (3) SA 433 (T); Gouws v Jester Pools (Pty) Ltd., 1968 (3) SA 563 (T).

The condictio indebiti (note there are other types of actions in this regard as well.)

This is the action used to recover money or property which was paid or delivered by the plaintiff to another in the mistaken belief that it was due to such person. Thus if I buy something and pay too much as a result of an error with regard to the price, I am entitled to reclaim the amount in excess with the condictio indebiti. (The action is however not available if the money paid was due under an obligation naturalis since in that case the debt, although not claimable, was not indebitum.)

Example:

(1) Parties. (It must be shown that plaintiff sues in his capacity as executor of the estate John Jones.)

(3) The estate of John Jones was indebted to defendant in the sum of R2 400 and no more.

(4) On or about the …………………. Plaintiff in ignorance of that fact and bona fide and reasonably believing that a certain sum of R800 was also due to defendant paid him the sum of R3 200.

(5) Defendant owes to plaintiff the sum of R800 overpaid by mistake but notwithstanding demand defendant refuses to pay it or any part thereof.
Wherefore plaintiff claims……………………………..
Negotiorum gestio or unauthorized administration
Negotiorum gestio is another source of obligations which was classified by the Romans as a quasi-contract and it is to be clearly distinguished from the cases of unjustified enrichment discussed above.

Negotiorum gestio occurs where a person, called the gestor, with the intention of acting to the advantage or benefit of another called the cominus, takes control of the dominus’ interests in a reasonable manner and to the dominus’ advantage and benefit, without any intention to act free of charge and without having been forbidden to do so by the dominus. Thus the requirements for liability are that the gestor must act without instruction, utiliter coeptum ie reasonably in the interests of the dominus, with the animus negotia aliena gerendi ie with the intention of benefiting the dominus, not animo donandi ie not with the intention to donate his performance, and not against the express prohibition of the dominus.

A claim based on statute:
The notion of voidable dispositions in the insolvency law will serve as a good example in this respect. See for instance sections 26 – 30 of the Insolvency Act of 1936 that provides statutory grounds for the trustee to attack certain dispositions made by an insolvent prior to sequestration.
3 INTERDICTS
REQUIREMENTS FOR AN INTERDICT
In order to succeed in obtaining a final interdict, whether it be prohibitory or mandatory, an applicant must establish:

(a) a clear right;

(b) an injury actually committed or reasonably apprehended; and

(c) the absence of similar protection by any other ordinary remedy.

An applicant for a temporary interdict will obviously succeed if he is able to satisfy the above three requirements, but the court has a discretion to grant a temporary interdict even when a clear right has not been proved. This the court will do if:

(a) the right that forms the subject matter of the main action and that the applicant seeks to protect is prima facie established, even though open to some doubt;

(b) there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right;

(c) the balance of convenience favours the granting of interim relief; and

(d) the applicant has no other satisfactory remedy.
As damages are claimed as well as an interdict a combined summons must be used. If an interdict only is claimed an ordinary summons may be used.

In deciding whether the interdict sought is temporary or final, the court will look at substance rather than form.

The main principles on which the court decides whether or not to grant an interdict pendente lite are the probabilities of success in the main action and the loss of inconvenience caused by the granting or the refusal of the interdict. Thus if the loss or inconvenience would be serious to the applicant if refused, but of little consequence to the respondent if granted, the interdict would be granted; but if the loss or inconvenience if granted would be of great consequence to the respondent and of less consequence to the applicant, the interdict should be refused.

A permanent interdict will seldom be granted on application. An action is the proper procedure and plaintiff must allege and prove a clear right, a well-founded fear that an injury, committed against him, will continue to be committed or that an injury is about to be committed against him and there is no other adequate remedy available to him. If plaintiff cannot show that an action for damages is not an adequate remedy, an interdict is likely to be refused (cf. Lubbe v Die Administrateur Oranje-Vrystaat, 1968 (1) SA 110 (O)).

A mandamus may sometimes be a remedy for a continuing wrong. This is an order requiring the performance of an act. Thus if plaintiff alleges that a building is encroaching on his property he may sue for an order that the owner of the building remove the encroachment.
INTERDICT: CLAIM FOR REMOVAL OF ENCROACHMENT ON LAND

Example:

(1) Plaintiff is ………………………………….

(2) Defendant is ………………………………..

(3) Plaintiff is the registered owner of Stand No. …………………… Johannesburg

(4) Defendant is the registered owner of Stand No. …………………. Johannesburg, which stand adjoins plaintiff’s stand aforesaid.

(5) Defendant has built a residence on his stand aforesaid and portion of the said residence, namely a verandah thereof, encroaches upon the plaintiff’s stand aforesaid.

(6) The plaintiff has called upon defendant to remove the encroachment aforesaid but the defendant has wrongfully and in breach of plaintiff’s rights refused to remove the said encroachment.

Wherefore the plaintiff claims (a) an order that defendant remove all portions of the building encroaching on plaintiff’s stand; (b) costs of suit; (c) alternative relief.

SPECIAL INTERDICTS:
Anton Piller Orders

An Anton Piller order is usually brought on an ex parte basis without notice and in camera to the respondent based on interlocutory and urgent relief. The applicant usually asks for the authority to search for and attach property and/or documents in the possession of the respondent. This application finds application where there is a fear that material may disappear and might thus not be available as evidence during the trial. The application is thus for the attachment of documents or things to be preserved as evidence. Sometimes the application is for the disclosure of information. The Anton Piller order is of an interlocutory nature but care must be taken to execute such orders strictly in accordance with the order since it may be extremely detrimental to the respondent.

It is to be noted that this type of order first developed in English law and the name has been derived from the English case Anton Piller KG v Manufacturing Processes Ltd & Others [1976] 1 All ER 779 (CA). With regard to its development in South African law, it is to be noted that Roamer Watch Co SA & another v African Textile Distributors also t/a MK Patel Wholesale Merchants & Direct Importers 1980 (2) SA 254 (W) was the first reported case on this procedure. Although thereafter rejected as part of the South African law this remedy was finally recognised as part of our law in Universal City Studios Inc & Others v Network Video (Pty)Ltd 1986 (2) SA 734 (A) and Shoba v Officer Commanding, Temporary Police Camp, Wagendrift Dam, & Another; Maphanga v Officer Commanding, SA Police Murder & Robbery Unit, Pietermaritzburg, & Others 1995 (4) SA 1 (A).