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Study Unit 4 – eLearning RPK 214
TYPES OF PERSUASIVE WRITING:
LETTER OF DEMAND &
ARGUMENTS
PRIOR TO LITIGATIONBefore 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
Let
ter
of
dem
and
– S
MA
LL
CL
AIM
S C
OU
RT
Sm
all
Cla
ims
Co
urt
Act
61/
1984
Sec
tio
n 2
9
GE
NE
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L L
ET
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R O
F D
EM
AN
D
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