Original Author: Ismail Hussain S.C.

, Advocate of the High Court of South Africa

Drafting heads of argument

General principles

If you want to conduct a successful litigation practice, the ability to write effective heads of argument is an essential skill.

You will be called upon to write heads of argument in all courts you appear in, from the opposed motion court to trials,
and appeals in the Supreme Court of Appeal.

Heads of argument are useful for the following:

drafting heads of argument is the best way to prepare yourself for argument;

drafting heads of argument focuses your mind on the strengths and weaknesses of your case;

it assists during argument in court;

it helps you to get the judge or magistrate to listen; and

it acts as important reference points for the judge or magistrate when he/she is considering judgment.

Practical tips on drafting heads of argument

The following practical tips will assist you in becoming better at this most coveted of skills.

Tip 1

Before you put pen to paper, irrespective of what type of case you are dealing with, make certain that you know your
case concept or theory of the case. See Guidance note: The case concept

In plain language you must know what happened, according to your client’s version of the disputed facts. This means that
before you embark on drafting heads of argument, you must have absolutely mastered the facts of your case. It is
important to remember that your purpose is to tell the judge or magistrate what happened and why your client’s case must
be accepted as persuasive.

You will then need to write down what you see as your case concept. You are expected to write down the material facts
of your client’s version of what happened. Your case concept will provide you with your central theme.

Practical suggestion:

At this stage it is a good method to write down all the undisputed facts between the parties. Then determine your
version of the disputed facts, making certain that the undisputed facts support your client’s version of what
happened. Ask the question, what valid inferences can one draw from these facts? This is the logical reasoning to
apply when writing heads of argument.

It is worth being reminded that writing heads of argument involves thinking, applying logic and formulating submissions that
are supported by the evidence (the facts) and the applicable law. Therefore, you should not use a precedent for this.

Tip 2

When you draft heads of argument use the “point first” writing technique. Always tell the judge or magistrate what your
point is, up front, before you expand and provide detailed submissions. This is explained below in more detail.

Tip 3

Make use of the technique “write as you research”, or “write as you think”. It is not a good method to write heads from
“Introduction” to “Conclusion” in one go, as it is difficult.
Therefore, you should try writing as you research the facts and the law. When you think of a point to make in a
submission, write it down. When you find relevant authority, do not merely note the reference or flag it for later. Write
down, in your own words, what you say is the point in the judgement and why it supports your case. Save each
paragraphs as you can later copy and paste them into your first draft. This saves time and it beats going back to reread the
cases you flagged. Sometimes you cannot remember why you flagged it in the first place, which becomes a waste of time
having to go back and relook it up.

The main benefit of writing as you go is that you will be forced to think. That is, you will be more critical about what you
write and you will have a better understanding of the point you want to make.

Tip 4

Judges and magistrates hate lengthy heads of argument. This is one of the reasons that courts now impose page limitations.
It is therefore not advisable to write lengthy heads of argument replete with copying and pasting from evidence and
authorities.

When drafting heads of argument it is advisable to:

keep it clear;

keep it short;

keep it relevant; and

keep it logical.

Formulating your submissions

Argument or submissions require an application of logical thinking. For purposes of drafting, the basic logic to follow is set
out below:

Step 1 – Absorb all the facts of your case.

Step 2 – Ask, what valid inferences can be drawn from these facts?

Step 3 – Find the applicable law.

Step 4 – Apply the law to the facts.

Step 5 – Make submissions, why you should win, based on the facts and the law.

The facts

You must be familiar with the facts of your case. See Guidance note: The case concept for information on how to carry
out a fact analysis on your case.

It will be extremely difficult to write effective heads of argument without a through knowledge of the facts of your case.

The law

You are a legal practitioner, not an academic lawyer, therefore, you research the law to find answers to a problem
(applied research). Therefore, you must, as far as possible, find the relevant law in primary sources, that is in legislation
and case law.

In South Africa, we employ the common law system supported by the principle of binding precedent. Therefore, the most
persuasive authority is to be found in the most recent decision of the highest court.

An important point to remember is when you find a decision you think is helpful, check the annotations before you include
it in your submissions. The annotations provide you with a history of the case. In particular, you want to check if it was not
set aside by a higher court or even the same court.
The next step

You now know the material facts of your case and you researched the law. This is the next step:

Consider and decide precisely what issues the court will have to determine.

Decide precisely what legal principle/s you consider may be applied to each issue.

Determine whether your opponent is likely to argue either, that these legal principles do not apply, or that the court
should determine differently what the legal principles are.

Apply the precise legal principles to the facts on each issue separately.

Set out your view on the conclusion the court is likely to reach:

on the facts; and

on the legal issue.

Concise vs comprehensive heads of argument in the High Court

In Gauteng, where a continuing roll is used on a weekly basis, you are expected to file concise heads of argument
(preferably no more than two pages). The other divisions will set down an opposed motion before a judge on a
predetermined date. You are then expected to file comprehensive heads.

Your concise heads of argument must state the following:

the issues that fall for determination;

your contentions in respect of those issues; and

the authorities relied upon.

In Gauteng you are also expected to file, with your concise heads, a chronology document and practice note. See Forms
and precedents: Chronology document

It has become common practice that at the hearing of an opposed motion, full or comprehensive heads are handed up in
court.