A SIGNIFICANT DIFFERENCE BETWEEN HEADS OF ARGUMENT AND WRITTEN ARGUMENTS

INTRODUCTION

Author – Kudakwashe Kambo

Let me start with a disclaimer. I do not hold myself as proficient in legal writing. I do however confirm that through research, I now have general views on improving written work that comes before our courts in Zimbabwe.  I strongly believe that there is nothing sui generis about legal writing: legal practitioners should just write well.

In this article, I will briefly address the distinction between “Heads of Argument” and “Written Arguments”. There seems to be a misconception about the function and form of heads of argument. It is disturbing to note that on various occasions, litigants and their legal practitioners, file with the court, written arguments on the mistaken belief that they are heads of argument. For instance, the Supreme Court of Zimbabwe perhaps for the first time took the pains to emphasize the distinction between the two in the case of ZIMBABWE HOMELESS PEOPLES FEDERATION AND 2 ORS V MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING AND 3 ORS SC-78-21. Therefore, I hope that one will appreciate the difference between the two and have a better understanding, once they have read this article.

Whilst the High Court Rules and rules of other inferior courts are silent on the issue of written arguments, written arguments are different from heads of arguments and the two should not be confused. The Supreme Court Rules, 2018 have deliberately made a distinction between, on the one hand, heads of argument and written arguments, on the other. In terms of these rules, written arguments are filed in terms of rule 50 of the Supreme Court Rules by either the Appellant or the Respondent who does not intend to be present in person or to be represented by a legal practitioner at the hearing of the appeal. It follows that an appellant who is called upon by the Registrar to file heads of argument in terms of rule 52(2) of the Supreme Court Rules may not file written arguments.

WHAT ARE HEADS OF ARGUMENT?

It is submitted that Heads of Argument are clear and succinct points which are put across in a prescribed form by a litigant outlining his or her submissions he or she relies upon and setting out the authorities, if any, which he or she intends to cite in support of his or her own case.[1]In this regard, the reminder from the dicta of Harms JA in CATERHAM CAR SALES & COACHWORKS LTD V BIRKIN CARS (PTY) LTD AND ANOTHER 1998 (3) SA 938 (SCA) is apposite. At 955 B-F of the judgment, the learned judge had this to say: –

“[37] There also appears to be a misconception about the function and form of heads of argument. The Rules of this Court require the filing of main heads of argument. The operative words are ‘main’, ‘heads’ and ‘argument’. ‘Main’ refers to the most important part of the argument. ‘Heads’ means ‘points’, not a dissertation. Lastly, ‘argument’ involves a process of reasoning which must be set out in the heads. A recital of the facts and quotations from authorities do not amount to an argument.

By way of a reminder, I wish to quote FROM VAN DER WESTHUIZEN NO V UNITED DEMOCRATIC FRONT 1989 (2) SA 242 (A) at 252B–G:

“There is a growing tendency in this Court for counsel to incorporate quotations from the evidence, from the Court a quo’s judgment and from the authorities on which they rely, in their heads of argument. I have no doubt that these quotations are intended for the convenience of the Court, but they seldom serve that purpose and usually only add to the Court’s burden. What is more important is the effect which this practice has on the costs in civil cases. . . . Superfluous matter should therefore be omitted and, although all quotations can obviously not be eliminated, they should be kept within reasonable bounds. Counsel will be well advised to bear in mind that Rule 8 of the Rules of this Court requires no more that the main heads of argument…. The heads abound with unnecessary quotations from the record and from the authorities. They reveal, moreover, another disturbing feature which is that the typing on many pages does not cover the full page…. Had the heads been properly drawn and typed I do not think more than 20 pages would have been required. The costs cannot be permitted to be increased in this manner and an order will therefore be made to ensure that the respondent does not become liable for more than what was reasonably necessary.”

[38] Practitioners should note that a failure to give proper attention to the requirements of the practice note and the heads might result in the disallowance of part of their fees.”

THE PURPOSE OF HEADS OF ARGUMENT

The purpose of heads of argument is to convince the Court. In ZIMBABWE HOMELESS PEOPLES FEDERATION AND 2 ORS V MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING AND 3 ORS supra, the court pointed out that heads of the argument are intended to set out, without elaboration, a relatively concise statement of the main points intended to be argued in court by, or on behalf of, the respective parties and represent the starting point of the debate which follows. The Court also stated that Heads of Argument constitute the background against which the actual debate during the argument of the case merges, but the parties may and often do depart from such heads and the debate can range beyond the bare submissions contained in the heads which, in the hearing process, are supplemented or amplified, as the debate continues.

In MILTON GARDENS ASSOCIATION & ANOR V MVEMBE & ORS HH 94/16 the High Court of Zimbabwe, obviously exasperated, had this to say on page 5 of the judgment:-

“I must make observations concerning the heads of argument filed on behalf of the applicants in this matter. These stretch up to 127 pages. Heads of argument are meant to be simply that. The purpose of heads of argument is to set out fully one’s arguments. Heads of argument are required to be drawn up in a clear and concise manner. It is inappropriate to file voluminous papers and expect the other party as well as the court to plough through such a voluminous pile of papers and still be able to make sense out of them. What these heads contain is basically every fact and argument concerning this matter. This is most inappropriate. In fact, this is an abuse of court process. This style of drafting heads of argument and conduct ought to be discouraged. The eventual consequence of such conduct results in delays in delivery of the judgment concerned. Litigants who bombard the court with voluminous papers and information deserve to be penalised even if they are eventually successful in the litigation. This sort of conduct deserves censure by this Court….” (Emphasis added.)

REQUIREMENTS AS TO CONTENTS OF HEADS OF ARGUMENT

It is common amongst the Judges of superior courts to have a habit of reading the record of proceedings and heads of argument before the hearing. In the process, Judges sometimes would read a lot; mostly irrelevant material and it does not do a case well if the Heads of Argument are difficult to digest. It has been once stated:

“One cannot write clearly and well unless one’s thoughts are clear. That entails thinking before writing. This may seem obvious, but the impression often gained when reading heads of argument and even judgments is that the writer has started at the keyboard (or put pen to paper) before being sure what is to be written, in the hope that the pen will lead to the answer. Invariably that approach will lead to an excess of words and to muddled writing.”^[2]

In another quote, it is often said:

“It takes longer to write a short argument or judgment than a long one. That is because the shorter work requires more thought. And culling or editing a piece makes one think again. The obvious truth is that the shorter work is better because it has been more carefully considered and structured….”[3]

In consideration of the foregoing, proper heads of argument must: –

• identify the real issues for determination;
• give a summary of the material facts in chronological order;
• set out the legal basis on which the court may apply when dealing with the matter;
• set out the proposition of law with reference to authority;
• apply the propositions of law to the facts;
• be clear, succinct and without unnecessary elaboration;[4]
• not contain length quotations from the record or authorities;
• also, be accompanied by a list of authorities (if any) to be quoted in support of the argument and should indicate the authorities to which particular reference will be made during the course of the argument;
• state whether any material dispute of fact exists and list of such disputed facts;
• reflect those parts of the papers, in the opinion of counsel, are necessary for the determination of the matter;
• avoid the clutter of the argument with unnecessary references;
•  in appropriate cases, give a brief background of the case;
• the final part contains the relief sought.

WHAT ARE WRITTEN ARGUMENTS?

Whilst Heads of Argument are clear and succinct, written arguments on the other hand are intended to be a lot more comprehensive because the party will not be present before the court to motivate his or her case. It suffices to note that written arguments are presented in lieu of heads of argument and are intended to be so comprehensive and complete so as not to require any supplementing.[5]  It also presupposes that such an argument adequately addresses all possible points which may arise while considering the matter.

It is interesting to note that the option of filing written arguments is one that is by no means common in our jurisdiction. Invariably an appellant or applicant files heads of argument in compliance with a directive from the Registrar and failure to do so will result in the matter being deemed abandoned and dismissed. His lordship, GARWE JA stated in ZIMBABWE HOMELESS PEOPLES FEDERATION AND 2 ORS case supra that from his own experience on the Supreme Court bench, the option available to file written arguments is one that has not, to date, been utilised by litigants.

THE EFFECT OF FAILURE TO FILE HEADS OF ARGUMENT

Heads of argument which do not comply with the rules may constitute written arguments. Where litigants are required to file heads of argument but instead, file what appear to be written arguments, a question of consequences thereto eventually arises. Ordinarily, the failure to file heads of argument would have consequences. In ZIMBABWE HOMELESS PEOPLES FEDERATION AND 2 ORS supra, the court held that heads of argument that do not comply with the rules may well be struck out, the result being that the party guilty of such non-compliance may well be regarded as being barred with the concomitant results that would normally flow from such a determination.

CONCLUSION

In conclusion, this article has managed to outline the requirements of Heads of Argument and demonstrate the key difference between “Heads of Argument” and “Written Arguments”. Considering the foregoing, I urge litigants and their legal practitioners to pay heed to the distinction in the rules of Heads of Argument and Written arguments. I sum up by quoting the following interesting remarks of Jeremy Gauntlett SC, a Member of Cape, Johannesburg, and London Bars. Senior Counsel and Queen’s Counsel, and a Bencher of the Middle Temple:

“These are voices reaching down the years. What they teach is that when the blank pages stares at you, think first the clear thought and only then the word. When all is done, reread critically and think of the tired judge at whom it is aimed.

 If all this seems hard, remember Robert Browning:

‘A man’s reach may exceed his grasp or what’s heaven for?’”[6]

REFERENCES

BOOKS

1. Herbstein and Van Winsen: The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa/Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5^th Edition, 2009.
2. W. Strunk & EB. White, The Elements of Style, 3^rd Edition, 1979.

COURT RULES

• High Court Rules, 2021.
• Supreme Court Rules, 2018.

ARTICLES

• LTC Harms, Deputy President of the Supreme Court of Appeal, Heads of argument in courts of appeal,

Click to access harms-heads-of-argument.pdf

• Carole Lewis, Judge of the Supreme Court of Appeal, Good legal writing.
• https://www.gcbsa.co.za/law-journals/2009/december/2009-december-vol022-no3-pp24-25.pdf

CASES

• Mandlakhe Khehla Shinga v The Society of Advocates (Pietermaritzburg Bar) (Intervening as Amicus Curiae) & Anor Appeal No. AR 969/2004.
• Zimbabwe Homeless Peoples Federation and 2 ORS v Minister of Local Government and National Housing and 3 Ors SC-78-21
• From Van Der Westhuizen No v United Democratic Front 1989 (2) SA 242 (A).
• Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd and Another 1998 (3) SA 938.
• Milton Gardens Association & Anor V Mvembe & Ors HH 94/16.

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[1] See, Rule 59(20) of the High Court Rules, 2021.

[2] W. Strunk & EB. White, The Elements of Style, 3^rd Edition, 1979.

[3] Carole Lewis, Judge of the Supreme Court of Appeal, Good legal writing.

[4] See, Mandlakhe Khehla Shinga v The Society of Advocates (Pietermaritzburg Bar) (Intervening as Amicus Curiae) & Anor Appeal No. AR 969/2004.

[5] Zimbabwe Homeless Peoples Federation and 2 ORS v Minister of Local Government and National Housing and 3 Ors SC-78-21

[6] https://www.gcbsa.co.za/law-journals/2009/december/2009-december-vol022-no3-pp24-25.pdf.