Notes on drafting a plea

April 1st, 2024
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This article has been prepared with the intention to serve as a quick and ready guide in drafting a plea. They do not have, as LTC Harms puts it in Amler’s Precedents of Pleadings 9ed (Durban: LexisNexis 2018) (Amler’s), any jurisprudential pretensions.

These notes have been compiled using the following resources: DE van Loggerenberg, Erasmus Superior Court Practice 2ed (Cape Town: Juta 2015), J Mullins and C Da Silva Morris Technique in Litigation, 6 ed (Cape Town: Juta 2010) and P van Blerk ‘Pleading a denial: Some ideas for junior practitioners’ (2000) 13 Advocate 21, and Amler’s.

Pleadings generally

In Robinson v Randfontein Estates GM Co Ltd 1925 AD 173 at 198 the court held that: ‘The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full inquiry. But within those limits the court has a wide discretion’ – for pleadings are made for the court, not the court for pleadings.

  • Identifying the issues informs the other party of the case they must meet, or the relief sought. The duty of the court is to adjudicate on those disputes.
  • A pleading is the foundation of the case a party intends to make on trial. If the foundation is weak, the case is going to be weak.
  • The aim in drafting a pleading is: Your pleading must be concise, the allegations made must be pertinent, and the object must be to state issues succinctly and effectively.
  • Two matters form the basis of litigation: Facts and law. When the essence of the facts and the essence of law have been determined for purposes of pleading, the two must be collated to decide what facts are to be alleged in the pleadings, and how they are to be alleged.
  • Differentiate between primary facts and secondary facts. Primary facts are those facts on which a claim or plea is based. Primary facts are capable of being used to draw inferences about the existence or non-existence of other (secondary) facts. Secondary facts are conclusions of law on which the primary facts are based.
  • A pleading should ordinarily set forth neither law nor evidence. Facta probanda should be pleaded and not facta probantia. Conclusions of law, and not the law, should be pleaded.
  • Where items are referred to repeatedly in a pleading, a definition should be used rather than words such as ‘the aforementioned contract’ or ‘the aforesaid motor vehicle’.
Drafting a plea

Before drafting a plea, three analyses should be made –

  • the plaintiff’s particulars of claim;
  • the issues of law pertaining to the defendant’s case; and
  • the issues of fact constituting the defendant’s case.

A claim must set out the following:

  • The nature of the claim.
  • A clear and concise statement of the material facts on which the plaintiff relies for the claim.
  • The conclusions of law which the plaintiff is entitled to deduce from the facts stated.
  • A prayer for the relief claimed.

After the first analysis and before drafting a plea, consider whether to except, whether sufficient allegations of fact have been made to justify the conclusion of law set out in the particulars of claim. If an exception is to be raised based on the particulars of claim being contradictory or vague and embarrassing, note must be taken of the following:

  • Rule 23(1)(a) of the High Court Rules states that where a party intends to take an exception that a pleading is vague and embarrassing such party shall, by notice, within 10 days of receipt of the pleading, afford the party delivering the pleading, an opportunity to remove the cause of complaint within 15 days of such notice. This means that if an exception is to be raised in the High Court on the basis of the POC being contradictory or vague and embarrassing, the Rule 23(1)(b) notice must be delivered within 10 days of the summons having been received.
  • Rule 19(1)(b) of the Magistrates’ Court Rules has similar provisions. The Rule states that a party who intends to take an exception shall, by notice, within 10 days of receipt of the pleading, afford the party delivering the pleading an opportunity of removing the cause of complaint within 15 days of such notice.
  • Rule 22(2) determines that a plea may contain answers falling into one of four categories:

– Admissions.

– Denials.

– Non-admissions.

– Avoidances.

Remember that a defence must not only be pleaded, but also proved.

Admissions

Rule 22(3) provides that ‘every allegation of fact … which is not stated in the plea to be denied or to be not admitted, shall be deemed to be admitted’.

Admissions are easy and require no thought. However, they are easily made in error and the problem then arises how to avoid their consequences. If they are to be withdrawn, you will have to explain how they came about and satisfy the court that there will be no prejudice to the other side if the admissions are withdrawn. Therefore, do not admit unless you are certain of the facts pertaining to the admission.

If you want to admit an allegation but feel uncomfortable about the broadness of the plaintiff’s allegation, that your admission will go further than you would like, the process to follow is ‘admitting and denying’. You state the facts with which you feel comfortable in a first paragraph, and then insert a second paragraph denying everything else. An example of ‘admitting and denying’ is:

As owner of the supermarket, the defendant owed to patrons making use of the supermarket a duty to take reasonable care for the safety of such patrons.

Save as aforesaid, these allegations are denied.

Denials

At the time a plea is drawn, one may not have all the facts at hand and the opportunities for mistakes are far greater. The golden rule in drafting a plea is accordingly: ‘If in doubt, deny’ (Van Blerk SC (op cit) at 34). ‘Although there are dangers in inappropriate denials, the harm of an incorrect admission is often worse’ (Van Blerk SC (op cit) at 34). Remember that the plea must disclose a defence and that one cannot resort to merely denying everything the plaintiff has pleaded in the claim.

Sometimes a denial may be pleaded if the defendant thinks the plaintiff may be unable to prove a material allegation in his case, or where the defendant knows the plaintiff will be able to prove the allegation but prefers to deny it in order to force the plaintiff to testify. Such denials are referred to as ‘tactical denials’. Do not resort to tactical denials unless you are confident that the plaintiff will be unable to frustrate their purpose.

‘One of the classic ways in which one pleads a denial is:

“The defendant denies each and every allegation herein contained as if specifically traversed”’ (Van Blerk SC (op cit) at 21).

‘Where a defendant does not have knowledge of the factual matter pleaded by the plaintiff and wishes to deny it, but at the same time to record that it does so on the basis of absence of knowledge, it can resort to what is sometimes referred to as a “non-admission”’ denial (not to be confused with a ‘non-admission’ simpliciter):

‘The defendant has no knowledge as to the allegations herein contained and accordingly denies them’ (Van Blerk SC (op cit) at 21).

Where one must address a paragraph containing several ‘factual averments, or a series of paragraphs that can conveniently be dealt with together’, the recommended technique is as follows:

  • ‘Commence the paragraph identifying specifically all that the defendant is prepared to admit’, and ‘then conclude with a statement that:
  • “Save as aforesaid, the defendant denies each and every allegation herein contained as if specifically traversed”’ (Van Blerk SC (op cit) at 21).

‘A single paragraph in particulars of claim can contain two or more averments, which cannot be met by a simple denial of all of the allegations. Take, for example the formulation of a claim based on the condictio indebiti’ (Van Blerk SC (op cit) at 21). A plea based on denial would be ambiguous as the plaintiff would not know whether the defendant denies there was a payment or admits payment but denies it was a mistaken one, or admits payment and that it was mistaken, but denies it was bona fide and reasonable (Van Blerk SC (op cit) at 22). The way to frame the plea is in a cascading manner, as follows:

‘1.1 The defendant has no knowledge as to the alleged payment … and accordingly denies it.

1.2 Alternatively to 1.1, and in the event that the plaintiff made the payment, the defendant has no knowledge as to whether:

1.2.1 the plaintiff did not owe the amount to the defendant, and accordingly denies that the payment was a mistaken one;

1.2.2 alternatively to 1.2.1, in the event that the payment was not a mistaken one, the defendant has no knowledge as to whether it was made reasonably and bona fide and denies the plaintiff’s allegations in this regard’ (Van Blerk SC (op cit) at 22).

  • Be careful not to plead in a contradictory manner, such as denying that a purchase has occurred but then pleading that payment was made.
  • ‘In general, a denial relieves one of the obligation to prove the assertion made in the opposing pleading. But, there are exceptions. Certain denials imply positive facts. Take, for example, … a denial of a failure to pay necessarily implies that payment was made’, which attracts a burden of proof (Van Blerk SC (op cit) at 22). Other examples are a denial of failing to report for work or a denial (in a matter where an insurance policy covered accidental death) that the death was not accidental.
  • ‘Ignoring the effect, if any, on the onus of proof, a denial that implies a positive allegation would, however, often give rise to a duty to provide information in the form of further particulars’ (Van Blerk SC (op cit) at 22).
Confession and avoidance

Examples of pleading a confession and avoidance are specific defences such as fraud, waiver, payment, agency, estoppel, set-off, contributory negligence, and ultra vires.

In such instances the rule that the pleader must ‘clearly and concisely state all material facts on which he relies’, becomes particularly applicable. A pleader cannot for example simply state: ‘The plaintiff is not entitled to judgment because he has waived his right’. It will be necessary to plead when, where and how a waiver was effected.

Non-admissions

A non-admission must be accompanied by an explanation, usually an absence of knowledge.

The distinction between a positive denial and a non-admission is the following: ‘A plaintiff faced with a positive denial must anticipate and prepare for the leading by defendant of rebutting evidence which contradicts the allegations he has made. A plaintiff faced with a non-admission need not anticipate and prepare to meet contradictory evidence’ (Standard Bank Factors Ltd v Furncor Agencies (Pty) Ltd and Others 1985 (3) SA 410 (C)).

With a non-admission a defendant is entitled to test the plaintiff’s case by cross-examining it, but not by leading contradictory evidence.

A non-admission is pleaded as follows:

The defendant has no knowledge of the allegations contained in this paragraph, and consequently neither admits nor denies these allegations and puts the plaintiff to the proof thereof’.

General considerations relating to pleas

It will not avail you to make an allegation in your plea if evidence would not be admissible to support it. An example is pleading an oral agreement in respect of a contract that contains the Shifren principle. It is not possible to do so.

Defences may be pleaded in the alternative. It would then be appropriate to employ alternative paragraphs. The answers do not have to be consistent with one another, provided they are specifically pleaded in the alternative.

Conclusion

A pleading is like a love letter, except that it is aimed at a counterparty. It says something of the author and their approach to the dispute. It reveals more of the author and their approach to a matter, than would meet the eye.

Take care that your plea rests on solid foundations. Take care to state issues succinctly and effectively. If not, the author may find themselves to have ‘married in haste, but repenting at leisure’

Marius van Staden BIur LLB LLM (UP) is a legal practitioner at Savage, Jooste and Adams.

This article was first published in De Rebus in 2024 (April) DR 6.

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