The power of Heads of Argument
In this article I will briefly address the importance of Heads of Argument and will also guide you in drafting your own. My hope is that you will have a better understanding of what Heads of Argument entail and that you would also feel confident to draft your own, once you have read this article.
I completed my articles at a large firm which was not involved in much Magistrate Court litigation. As a result I can only remember attempting to draft heads of argument once during this time, which proved to be an extremely daunting task. The only heads of argument that I had seen at that stage, were those drafted by Senior Counsel, which were rather lengthy and dealt with complicated legal issues.
Until I came to the Bar I never realised that a Judge might not even need to hear oral argument from you if you have made out a proper case and covered most of your opponent’s submissions in your Heads of Argument. This happened to me recently when I received a brief to bring an Urgent Application to stay a sale in execution. My opponent was more senior than I am, but never drafted Heads of Argument. By the time I stood up to address the Court, the Judge informed me that he did not need to hear from me and proceeded to address my opponent for the next 30 minutes.
In opposed matters, unless they are Urgent Applications, Judges usually state they will reserve Judgment after both parties have argued. What this means is that they want time to consider both arguments and will draft a written Judgment at a later stage. Often months will pass before you receive Judgment, and since Judges are busy and hear many opposed matters, Heads of Argument serve as a reminder of your argument. The Judge will sometimes even take an extract from the Heads of Argument and insert them in their written Judgment.
The most important thing to remember when drafting Heads of Argument is structure. The reason for this is that it assists the Judge in following your argument and assists you in setting out your argument.
We all have different styles of drafting and it takes time to find the style that works best for you so be patient with yourself. I will now proceed to set out how I approach drafting Heads of Argument to assist those of you who seek guidance.
At the risk of stating the obvious it is best to start with a brief introduction of what the matter is about. This introduction provides the Judge with a snapshot of the case and also directs him/her on what issues to focus on when perusing the pleadings.
After the introduction I inform the Judge of the issues on which the Application turns. These points will be addressed in my conclusion again since I have dealt with them in the body of my heads of argument.
I then proceed to set out a type of index for the Judge by stating that my heads of argument will address for example the disputed facts; relevant authority; application of the authority to the facts and my conclusion.
It is best to keep your Heads of Argument concise. One can always elaborate on points during your oral argument.
All the best!
Lauren Bosman
Advocate of the High Court of South Africa
Member of the Cape Bar
