LECTURE NOTES

CPRA 041/040
FUNCTION, FORM AND STYLE OF PLEADINGS
CHAPTER 5 OF THE PRESCRIBED TEXTBOOK.
INTRODUCTION
Now that we have had a detailed discussion about pre-litigation steps including
writing of letters of demand and repudiation letters, we will now enter into the
realm of the next stage of the process, which is the litigation stage. This stage
involves the taking of formal action by one party against the other (Plaintiff
against the Defendant). You must remember that action procedure takes place
in four stages:-
1. The pleading stage;
2. The pre-trial stage;
3. The trial stage and;
4. The judgment stage.
In this section of our discussion we will be focussing on the first stage, which is
the pleading stage. This stage simply involves the exchange of pleadings
between litigants (Also referred to as parties), in an effort to spell out and
define the real issues that are in dispute between them. These issues are
reduced to writing in documents called pleadings. Before we venture into a
detailed discussion of the pleading stage, we need to deal with a few key
concepts in an effort to deconstruct this important stage of the litigation
process as it were.
Your basic understanding of these key concepts will invariably guarantee you a
better understanding of this critical stage and enable you to explain them
much easier to everyone including your own clients. To become a proficient
and effective lawyer you really need a good understanding of this critical stage
of the litigation process.
The pleading stage unlike the pre-litigation stage, is rule based. In other words,
a working knowledge of the relevant provisions of the Magistrate’s Court Rules
and the High Court Rules (The Uniform Rules of Court) together with the
respective regulating Acts i.e Magistrate’s Court Act 32 of 1944 as amended
from time to time and the Superior Courts Act 10 of 2013, is at the centre of
your transition to becoming an effective legal practitioner. (These will include
the various Practice Directives applicable in a particular High Court or Regional
Court)
WHAT ARE PLEADINGS.
In short, pleadings can be defined as a set of written documents exchanged
between parties (Litigants) to an action procedure, in which they set out the
material facts to support either their claim (The plaintiff) or defence (The
Defendant). It is important to remember that action procedure is instituted by
way of issuing and serving of a summons with particulars of claim (Called
Combined Summons) or without particulars of claim (Called Simple
Summons).
This, on the one hand means that the plaintiff will outline the material facts to
support his claim (Cause of action together with the legal elements or
material facts relied upon), whilst on the other hand the defendant will
outline his material facts to support or legal elements of his defence (Aimed at
providing legal justification in order to defeat the plaintiff’s claim)

Having said this, we need to expand on the meanings of the

following:-
1. Summons – A summons is a legal document (Written judicial demand)
prepared by the plaintiff’s attorney or counsel and issued by the
registrar of the High Court, registrar of the Regional Division of the
Magistrate’s Court or the clerk of the District Magistrate’s Court, calling
upon the defendant to attend before a judge or a magistrate to answer
the claim made in the summons. In the summons, the defendant is
called upon to answer in a specified manner, (i.e by filing a notice to
defend and eventually a plea). It is very important that the
consequences of not answering are also spelt out in the summons.
2. Cause of action – A cause of action is a set of facts giving rise to a claim
recognized by law. Those facts must be the material facts, in other
words the essential legal requirements of that particular claim, without
which the plaintiff will not have legal grounds to pursue the defendant.
It is important to note that these material facts must be proved at trial
to the required standard of proof in order for the plaintiff to be
successful against the defendant. (For example, A and B conclude a
 contract for the sale of a used BMW motor vehicle. A agrees to sell to B
at a sale price of R80 000. B pays the purchase price in cash on the
same day, however A does not deliver the BMW to A and chooses to
sell it to C). In this example, B will have a claim against A based on
breach of contract. NB: It is essential that all the legal elements of a
contractual claim must pleaded and proved at trial in order for the
plaintiff to be successful.
3. Claim- It is an assertion of a right to money, property or a remedy in
civil cases. It revolves around the facts upon which a party relies for his
entitlement to money or property or remedy in the matter. It is often
used synonymously with cause of action.
4. Defence- A defence is a legal answer to a claim in a civil case (or even in
criminal cases). Its aim is to defeat the claim or charge in criminal
proceedings.

Remember that: Many defences have their own specific legal elements
(Requirements) which must be set out in the plea.

5. A prayer- It is simply a request for judgment. The plaintiff will usually

pray for judgment for payment of money, property or remedy claimed.
On the other hand, the defendant will usually pray for dismissal of the
plaintiff’s claim and judgment in his favour. Both sides will usually pray
for their costs. A prayer will normally appear at the end of the pleading
concerned.
6. Material facts- They are the legal requirements or legal elements of the
cause of action as applied to the specific facts of a particular matter.
7. Issues- This refers to points of disagreement between the parties. For
example, when the plaintiff makes an allegation in the particulars of
claim and the defendant denies that allegation, an issue arises
between the parties. These issues can either be issues of fact, or law, or
mixed fact and law. ( An issue is said to be an issue of fact when it
concerns the existence of some fact or event ascertainable by our
senses. They are determined by reference to evidence and the logical
conclusions we can draw form them.) (An issue of law is determined by
reference to authoritative sources of the law, in other words by
application of some existing legal rule.) ( An issue of mixed fact and law
 arises when the decision to be made requires both facts and the legal
principles to taken into consideration/account.)

THE CENTRAL PURPOSES AND FUNCTIONS OF PLEADINGS.

 The first purpose pleadings is to allow each party in action proceedings,
to set out either their claim(Plaintiff) or defence (Defendant) together
with the relevant material facts for each of the claim of defence;
 To give advance notice of the case each party intends to set up and thus
prevent either of them from being taken by surprise at trial;
 To allow for issues to be defined between the parties;
 And to provide a brief summary of each parties’ case.
 They create a permanent record of the questions raised in the action
and of the issues decided in the case. (This is aimed at primarily
preventing future litigation on matters already decided between the
parties (A special plea of res judicata may be pleaded)
NB: Both plaintiff and defendant are allowed to set out their claims and
defences together with the material facts that they rely upon for their
respective cases. On the one hand the plaintiff will say I have a valid legal
claim against you(Defendant), and these are the material facts I rely on for
pursuing this claim against you. Whilst on the other hand, defendant will say,
“Hold on” I dispute liability, I am not legally liable and these are the material
facts I rely upon to refute liability.
WHAT WOULD A TYPICAL SET OF PLEADINGS LOOK LIKE? WHAT STEPS
OUGHT TO BE TAKEN IN A USUAL PROCESS OF EXCHANGING PLEADINGS
BETWEEN PARTIES?
1. The plaintiff sets out his claim together with the material facts relied
upon in the particulars of claim attached to the summons and sends
this to the defendant through the sheriff of the court. (Of course once
the summons and the particulars of claim have been duly issued by the
registrar or the clerk of court)
2. If the defendant has made a determination that he intends to defend
the action/claim made against him, he will first serve and file a notice of
intention to defend and thereafter his plea in which he will give details
of his defence to the plaintiff’s claim. (At this stage the issues are
identified between the parties. (This will allow the court to and the
 parties to be able to determine which evidence is relevant to the issues
identified ) A comparison needs to made between a plea explanation in
terms of sec 115 read with sec 220 of the Criminal Procedure Act 51 of
1977 with and a plea in civil proceedings,
3. The plaintiff may deliver a replication to the defendant’s plea, in order
to admit allegations in the plea or set up a confession and avoidance in
respect of a defence raised in the plea.
4. The replication may be followed by further pleadings, in order of their
appearance such as rejoinder, surrejoinder, rebutter and surrebutter
respectively.
5. Points of dispute or issues between the parties are outlined and then
pleadings close.
LEGAL OBJECTION TO THE PLEADING.
NB: However, the defendant has a procedural right to raise a question of law
as to the legal effect of the facts pleaded by the plaintiff before filing his plea.
This is done by way of an exception in terms of rule 23(1) of the High Court
Rules and rule 19(1) of the Magistrate’s Court Rules.
In other instances, where the defendant also has a valid legal claim against the
plaintiff who has sued him in the first place, he may choose to file what is
called a counterclaim against the plaintiff in the same proceedings. This has to
be delivered at the same time as the plea.
The plaintiff or the defendant may join further parties by making a third party
claim against them.
HOW SHOULD THESE PLEADINGS BE STRUCTURED IN TERMS OF FORMAT
AND STYLE?
In all cases where a claim or defence has to be set out in a pleading, all the
relevant material facts have to be set out in compliance with the specific rule
of the pleading concerned and the principles of law and practice which
determine how the particulars of claim or defence have to be set out in the
pleadings.
NOTE: If the particulars of claim or a plea does not contain all the relevant
material facts for the particular claim or defence, as the case may be, the
opposing party may note an exception, which, if successful, has the effect of
striking out the defective claim or defence.
 1. Each and every pleading (Take note, not a plea, but pleading), must
have the title of the action and the case number allocated by the
registrar or clerk of the court as the case may be, on its first page. This is
a requirement in terms of rule 18(2) (High Court Rules) and rule 6(2)
(Magistrate’s Court Rules.) The title of the action will contain the name
of the court in which the action is pending, the names of the parties
with their respective descriptions and the name of the pleading
concerned
Note: Below is an example of the title of the action. The description of the
pleading concerned will differ according to the type of pleading you are
drafting at any point in time.
IN THE MAGISTRATE’S COURT FOR THE DISTRICT OF MANKWENG HELD AT
MANKWENG.
Case no: 1234/2021
In the matter between:

Jackson Mohlaba Plaintiff

And

Phumi Mdlalose Defendant

DEFENDANT’S PLEA/ PLAINTIFF’S DECLARATION/PARTICULARS OF CLAIM

2. All the paragraphs of the pleading concerned must be numbered and

each paragraph should deal with one fact or allegation at a time. Of
course, sub-paragraphs may be used to keep related facts and
allegations together. Rule 18(3) (HCR) and rule 6(3) (MCR).
3. The language to be used in pleadings is always formal. Persons are
referred to in the third person (He, she, it, they) and by description
(Plaintiff and Defendant)
4. It is preferable that pleadings must be concise yet contain sufficient
particularity to inform the opposing party of the case he has to meet and
to be able to respond meaningfully. Rule 18 (4) (HCR) and rule 6(4)
(MCR). The opposing party must be placed in a position where he is able
 to make up his mind as to what the nature of the claim is or what the
nature of the defence is including the material facts relied upon. This
must then enable him to respond meaningfully.
5. Pleadings must not contain irrelevant, inadmissible or scandalous
matter.
6. No evidence which goes to the proving of facts or allegations must be
pleaded, only relevant material facts must be pleaded. (The facta
probanda and not the facta probantia)
7. All the relevant material facts must be pleaded, failing which, an
exception may be noted on the ground that either the cause of action is
not sufficiently disclosed or defence is not sufficiently disclosed as the
case may be.
8. It is permissible to plead allegations in the alternative, however,
allegations of fact made in the alternative should not be mutually
destructive of one another, as that would leave the opposing party in a
state of confusion, because, he would not know which of the two
conflicting versions should be responded to. (This would amount to a
vague and embarrassing pleading, susceptible to an exception)
9. The terminology used in the pleadings should be consistent in order to
avoid confusion. For example, once a choice is made to use a specific
word, that word must be consistently used throughout the body of the
pleading, a motor vehicle remains a motor vehicle and not a car at
some point in the body of the pleading.
10. The main facts upon which a legal conclusion is based must be set out
and avoid drawing abstract conclusions. Rule 18(4) (HCR) and rule 6(4)
(MCR).
11. The paragraphs in the pleading should deal with the content in a logical
sequence.
12. Every pleading must contain a prayer and must be signed by the
pleader, who could at times be the party personally. Of course in
practice generally, the lawyer representing the party concerned will sign
the pleading. Rule 18 (1) (HCR) and rule 6 (1) (MCR).
13. In addition to the signature, the pleading will contain the address of the
pleader and capacity together with the addresses of the registrar/clerk
of court and the person to whom it is addressed.
 14. A pleading which does not comply with the rules of pleading may be set
aside as an irregular pleading in terms of Rule 30 of the Uniform Rules of
Court and Rule 60A of the Magistrate Court Rules.
15. In content, the pleading must, (1) reflect the client’s instructions
accurately, (2) apply the law correctly and (3) comply with the
prescribed requirements of the rules.
16. In style, the pleading must (1) be clear, (2)concise, (3) complete and (4)
consistent in terminology.
17. A pleading should exclude, (1) the evidence to used, (2) irrelevant,
vexatious or scandalous matter and (3) argument.
CITATION OF THE PARTIES.
At the centre of drafting of the pleadings, rests your inherent ability to
properly cite the parties involved in the litigation process. There are different
examples of citation of the parties on page 94, at table 5.3 of the prescribed
text book. Please study these examples in order to familiarize yourself with
different modes of citations.
We will in the next chapter have a look at the actual drafting of specific
pleadings, starting with the particulars of claim or statement of claim.

Thank you.
____________________________
CJ Mokhudu