Online Reporter
Godknows Hofisi
Business Law
I have been asked by many readers to explain, in very simple terms, “heads of argument” in legal proceedings. I attempt to do so in this article.
I will explain the heads of arguments in relation to court applications and special pleas that may be raised in court applications or action (summons) proceedings.
Court applications
I have previously explained that the process of a court application is as follows:
An applicant (suing party) files a court application, accompanied by a founding affidavit and possibly a supporting affidavit, and relevant supporting documentary evidence.
The respondent (party being sued) files a notice of opposition, accompanied by an opposing affidavit and relevant supporting documentary evidence.
Applicant may file an answering affidavit.
Applicant files the heads of argument.
Respondent then files heads of argument.
Special pleas
It is common in both court applications and action (summons) proceedings for parties to raise special pleas as preliminary points or points in limine, which have to be considered before the merits in case they are dispositive of the matter. Such special pleas may include the following:
Lack of locus standi — alleging that the suing party has no right to be heard by the court.
Lack of jurisdiction — that the suing party has instituted legal proceedings in a court of law that lacks jurisdiction or has no right to hear the matter.
Prescription — that the claimant or plaintiff’s right to sue for the claim or debt has lapsed on account of the time allowed at law.
Special plea of arbitration— that there is an agreement requiring the parties to exhaust arbitration before approaching the courts.
Non – Non-joinder of a party — that a party which ought to be joined to the legal proceedings has been left out.
Misjoinder — that a party that has been cited ought not to be part of the proceedings.
Mis-citation — that a supposed party to legal proceedings has been cited incorrectly, for example, citing a non-existent person or an error in the name of a legal persona.
Res judicata — that the dispute has already been adjudicated on and decided on by a competent court and a final decision made.
Lis pendens — that other legal proceedings based on the same cause of action are pending in another court.
In the case of special pleas, the respondent or defendant usually alleges certain facts, which may not be apparent from the papers already filed on record. After stating the alleged facts, which are usually opposed, parties then file their heads of argument.
Heads of Arguments
I have looked at various sources with the intention of simplifying things for the readers. There are various definitions or attempts to define heads of arguments, including the following:
Clear and succinct points which are put across in a prescribed form by a litigant outlining his or her submissions he/she relies upon and setting out the authorities, if any, which he/she intends to cite in support of his case. In the same article, it is explained that “heads” means “points” and “argument” involves a process of reasoning, which must be set out in the heads. This is found in an internet article titled “A significant difference between Head of Argument and Written Arguments” by Kudakwashe Kambo.
Succinct written summaries- serve as roadmaps for the oral presentation of a case, guiding the court and opposing counsel through key issues, legal principles, and arguments to be advanced. This is according to an article by Dube and Associates Legal Practitioners titled “Drafting Effective Heads of Argument: A Comprehensive Guide”.-
In the context of South African law, “heads or argument” (also sometimes referred to as “heads”) refer/s to a written document that outlines the legal arguments, authorities (case law, statutes, regulations, etc) and key points that a legal representative intends to present during oral arguments in court proceedings”. This is according to an article titled “Heads of Argument: Explanation and Purpose in South Africa” (Civil Litigation) by Heidi Barter. In my view, heads of arguments represent a document that summarises a litigant’s key arguments in a matter, marrying/combining the applicable laws and the facts of the matter.
In most cases, a legal practitioner will be applying applicable laws (statutes, case law, etc) to the facts of the matter in an attempt to convince the court to decide in his client’s favour. The legal practitioner will highlight applicable laws and the standards or specific requirements, which have to be proved by the facts, and will argue whether those requirements have been satisfied or not, depending on which of the litigants he/she represents. Many readers are thrilled when they read legal arguments where legal practitioners will be arguing around applicable laws, for example, statutes and decided cases. In decided cases, some readers are excited or confused by some doctrines or even Latin words used by lawyers.
Future articles
Space permitting, I will write more articles on heads of arguments, including the key elements of heads of argument.
Conclusion
Heads of Argumenta are an important part of legal proceedings and a legal practitioner has to master how to draft and present them.
Disclaimer
This simplified article is for general information purposes only and does not constitute the writer’s professional advice.
Godknows (GK) Hofisi, LLB(UNISA), B.Acc(UZ), Hons B.Compt (UNISA), CA(Z), ACCA (Business Valuations), MBA(EBS, Heriot-Watt, UK) is the Managing Partner of Hofisi & Partners Commercial Attorneys, a chartered accountant, insolvency practitioner, commercial arbitrator, registered tax accountant and advises on deals and transactions. He has extensive experience from industry and commerce and is a former World Bank staffer in the Resource Management Unit. He was recently appointed to sit on the Council of Estate Administrators inZimbabwe. He writes in his personal capacity. He can be contacted on +263 772 246 900 or ghofisi@ hofisilaw.com or gohofisi@ gmail.com. Visit www//:hofisilaw.com for more articles.
Mathew Masinge