Study Unit 4 – eLearning RPK 214 TYPES OF PERSUASIVE WRITING: LETTER OF DEMAND & ARGUMENTS

PRIOR TO LITIGATION Before summons issued to prospective defendant: Issue LETTER OF DEMAND o Defendant may pay / perform / negotiate  Settle o Defendant may raise valid defence o Tactical advantage o Placing defendant in mora (contracts without performance date) o Where combined with an election o Where unliquidated damages to be claimed o Required by statute (Mandatory – Small Claims Court; governmental organ) LETTER OF DEMAND

REQUIREMENTS FOR LETTER OF DEMAND Inform defendant:  What is being claimed  Basis for claim  Result of failure to meet claim in time Claim stated accurately Basis defined clearly & accurately Be clear on what plaintiff intends doing if demands not met

CONTENTS OF LETTER OF DEMAND Particulars of plaintiff’s lawyer….mandate Name of plaintiff Particulars of claim & basis of claim Jurisdiction State facts briefly & concisely Draw conclusion in law from facts What defendant is required to do & time for performance Make demand Consequences if demand is not met Nice to know information

MOST IMPORTANTLY… A LETTER OF DEMAND MUST BE… PERSUASIVE

“…will be vigorously pursued…” “…would be vigorously defended…” Unnecessary! It is legal practitioner’s duty to pursue all actions vigorously Spend time on pointing out why the claim / defence is good

WHEN DRAFTING A LETTER OF DEMAND… ID OBJECTIVES STRATEGY & TACTICS  Elements of delict committed  Formal tone throughout letter  Provide sufficient information - But not too much REPOV

Letter of demand – SMALL CLAIMS COURT  Small Claims Court Act 61/1984  Section 29

GENERAL LETTER OF DEMAND

Indicating your mandate Client’s name Basis of claim – concise! Demand Consequences of inaction

Class exercise 6… CHANCE FAVOURS ONLY THE PREPARED MIND Louis Pasteur

HEADS OF ARGUMENTS PREPARING FOR TRIAL Heads of argument = Argument FOR your client Contains SUMMARY of main points of counsel’s argument & authorities relied on. Is NOT an thorough exposition of case… SKELETON argument for closing arguments! Summarizes evidence & requests particular order from court

HEADER – HEADS OF ARGUMENT

…charge…

STRUCTURE: HEADS OF ARGUMENT THOUGH FIRAC-METHOD IS USED, DO NOT “FIRAC” THE HEADS! Introduction (Background, charge, etc.) Facts (Undisputed / disputed, etc.) Identification of the issue Application of law to facts Keep issues separate; answer each question Answer question of law Argue persuasively! (NOT objectively) Conclusion Bibliography

STRUCTURE: HEADS OF ARGUMENT Introduction (Background, charge, parties, etc.) Facts (Undisputed / disputed, etc.)  Advance facts favourable to your client! Identification of the issue Law & Application of law to facts Keep issues separate; answer each question Answer question of law Argue persuasively! (NOT objectively) Conclusion Bibliography

END OF HEADS

FORMAT (SCA): SCA RULE 10(3) 1.Argument: Clear, brief & without unnecessary elaboration 2.Points (paragraphs) should be numbered 3.No lengthy quotations from authorities 4.References to authorities  specific pages / paragraphs! 5.List of authorities to be included 6.If relied on subordinate legislation, a copy of such legislation shall accompany heads of argument (??)

FORMAT: SCA RULE 10(3) 1.Argument: Clear, brief & without unnecessary elaboration 2.Points (paragraphs) should be numbered 3.No lengthy quotations from authorities 4.References to authorities  specific pages / paragraphs 5.List of authorities to be included, specifying those that will be referred to in the argument (??) 6.If relied on subordinate legislation, a copy of such legislation shall accompany heads of argument (??)

BE THOROUGH!! CANNOT ARGUE WIDER THAN CONTENTS OF HEADS OF ARGUMENT

FORMAT OF HoA  EACH DIVISION  OWN FORMAT  SCA  OWN FORMAT (Rule 10(3))  REFERENCING...  Practice – in text  Exception – SCA