Module TLI4801
Author Morris, E.
Year of !'ublication 2010
Title Morris TechniqL'e in Litigation
Publisher Juta
-
Chapte,· number Chapter 1
Chapter title Morris Technique in Litigation
Page numbers 1-59
This mate1ial has been reproduced in thee-
Reserves on behalf ofthe UNIVERSITY GF SOUTH
AFRICA (UNISA)
The material may be subject to copyright under
the Copyright Act no. 98 of 1978. Any further
reproduction or distribution of this material by you
may be a viviation of the Copyright Ac'::.
A single copy (printed or electronic) of ~he
material may be kept for academic use only.
, CHAPTER 1
An Introduction
The primary aim o f thi s bo ok is to se rve as a m ento r to young lawye rs as they
embark o n th eir ca ree rs in liti ga ti o n.
The young lawye r qu alifi es after attending university and th erea fter
completin g eith er his' ca ndidate attorneyship w ithin a firm o f attorn eys o r his
pupilbge at on e o f th e B ars foll o wed, in eith er eve nt, by passin g th e releva nt
professio nal exa min ations. Yet that is but th e comm ence m ent of the vo ya ge .
H e is now launched upon th e world , th eo reti cally qualifi ed to appeJr in the
appropriate court and perh aps to plea d fo r the li be rty o f an acc used o r th e
finan cial survival o f a liti ga nt. H e ma y (and, if an advocate, will ) co m e to stand
up in th e Hi gh Co urt befo re a judge, th an w ho m (to mi squ o te th e poe t) 'no
Austrian arm y was ever m o re awfulJ y arrayed' .2 H e m ay mumb\ e in co\1 erenrly
and be u na\ are ' hether hi Lordship ' o r he r Ladys hip 's fo rbidding
co untenance is ca used by di spleas ure o r dyspep sia.
But how doe · he learn the art o f advocacy? Th e kn o wled ge of th e law which.
i acq uired at lectures is o nly a starting p o int. H e wo n 't lear n mu ch fro n 1
" atching f1\ms o r te\e is)on . eria\s, an d an)'th\ng h e does \earn from that som ce
is as li k el y as no t to ea rn him th e j ud icial rebuk thar h e is addressing a j udge and
not a jury. Lea rnin g by wa tching o th ers nli ght h a e its h arm s, b ut it h as its
distinct limitati ons as we Ll. Hi tte r experience is, of co urse, o n e o f th e bes t
teachers, b u t bitte r experi ence is ap t to leave in its w ake a trail of d estru cti o n, or
a clutch of ghosts that eve r and ano n will return to haunt th e ir crea tor. N ature
in the raw, it is said , is seld om mild, but th e prac ti ce o f th e law ca n m ake raw
nature seem in co mp ari so n lik e a day in spring to o n e w ith a lo ng m em o ry and
a keen co nscie nce.
If! ca n help th e fl edgling to avo id swea rin g o f:fliti ga ti o n fo rever in reJction
to his firSt case in co urt (a kaleidoscopi c affair w here witn esses rush into and out
of th e witn e s- box w ith a rapidi ty th at leaves o ne breJ thl ess, perh aps to th e
point o f in coh erence), I shall have at least do n e som ethin g to aton e fo r m y
multitudin o us sin s. Also it may poss ibl y benefi t cli ents and courts if thi s w o rk
ca n help yo un ge r prac titi o ners to present their cases with a littl e m ore d exterity
and po Li sh , and if som e o f th eir tumblin g and fumb lin g ca n be elitninated.
H oweve r, no boo k will produ ce a ge niu s; no tom e is a substitute fo r hard
w o rk and no w ords w ill eve r co nvey aU that ca n be lea rn ed fro m perso nal
exp eri ence. With th at chastenin g th o ught in mind and with a painfull y
1
ee the prcf:1ce, where th e usc of the one gend er in th is book is exp lained , with apo logies.
2
T he misqu o te is fi·o m the first line o f rh c po em The Si~QC of He(Qrade by Alaric Alexande r Wam
( 1820).
l
,2 Techuique iu Litigatiou
acq uired consciousness of my own li mit::ttions, I ven ture to offer assistance to
the yo un g prac titioner.
It is my sin ce re hope that even my more expe rien ced co ll eagu es wi ll find
some thin g of value in th ese pages. l am not so presumptu o us as to beli eve th at
l ca n eith er teac h o r advi e them but rather l wo uld sugges t th at they w ill look
up on w hat I ay- if the y look up o n it at all - as ::tn offering of ideas. To th e
extent that I have learnt from them I thank th em; to th e extent th at they h ave
suffered at my hands I apo logise. Howeve r, I feel that th ey, too, m.ay profit fi·om
the co ll ated w isdom of others w hi ch w ill be found in the follow ing pages.
This does not pretend to be a ge neral textbook upo n civil procedure, nor
up on the ru les of co urt no r, indeed, upon any aspec t of prac ti ce. Yet inevitabl y,
in dealing with th e development and co ndu ct of cases, it becom es necessa ry to
make brief incursions into those fie lds, with a few fo rays into th e law of
evidence . Such incursions and forays sho uld no t b e regarded as pretendin g to
greater di gnity than t hey ac tu a!J y possess. They are made with the sole purpose
of ass istin g th e yo ung practitio ner by direc tin g his attenti on, w h ere it is
pertinen t, to decided cases upon an y point. Thus, perh aps, th e p rocess co uld be
called the distillati o n of experien ce rath er th an th e citation of authority. When
auth o ri ty is needed recourse sho uld be had to th e recognised textbooks on
whatever problem is plaguing the prac titi oner at th e mom ent. 1 have made an
attempt, ho wever, to analyse those ::tspec ts of th e law wh ich tou ch upon th e
prac titioner in hi s co ndu ct of cases beca use l beli eve that the books on pra ctice,
procedure, evidence and various branc hes of substantive law do not deal with
all th e matte rs w hi ch may ari se, both in and o ut of co urt, in the co urse of one's
da y- by-day practice.
M y purpose is to provide a. sistance, guidance, illu stration and exa mpl e to
prac titioners in the work of co mm encing cases, drawing pleadings, preparing
for tri al and co ndu cti ng cases in co urt. Everything w hi ch I suggest is designed
as part of th e appli ca ti o n of th e techni q ue in volved in persuading a co urt
ultimately to give judgment fo r yo ur client.
The issu es are ap proach ed with th e emphasis more o n the Bar th an the
Side-Bar. This is only natural give n m y bac kground. Beca use advocates
ge nerally appear in the High Co urt, the stress must in evitably be o n 'co unsel'
rather th an o n 'a tto rn ey'. I wo uld sugge t thou gh, that there ca n be no
diffi cul ty in appl ying th e suggesti ons mad e in th e following chapters to th e
work of atto rn eys. As fa r as chapter 2 is co nce rn ed , w here f deal with the law
affecting th e practitio ner, r h:we don e m y best to dea l as fully w ith the position
of attorn eys as wi th th at of co un sel. Thus, th e word ' prac tition er ' is used to
deno te bo th co unsel and attorn eys .
Th ere i one more thin g to say, so mething bo rn , perhaps, o f experience,
regret o r cy ni ci m. It is thi s: th e day m ay well con1e, in yo ur life, as it has in the
li ves of so many prac titi oners, w hen a decision goes against yo u, and yo u think
that th e judge has erred so grievo usly that either there is no justice in the wo rld
or yo u are a co mplete failure and should look fo r anoth er job. M y word of
enco urage m ent is that judges are human beings. Human beings err.
, A 11 Iutrodu ctiou 3
Sometimes, when hum an beings wear judicial rob es, they m ay err beyond
human compre hension and beyond the practicability of an appcaP
If I must illustrate let me refer to a case decided by th e Appellate Division in
1970 ."·5 This started as an ordina1y application brou ght to enfo rce what was
alleged to be a binding co ntra ct givin g th e app li can t the sole di stributo rship of
th e respo ndent's sy nthetic ferti li ser in the then Orange Free State. The
respondent, Sentrale Kunsmis, took th e point that th e co ntra ct was not binding
beca use it had been entered into before th e appli ca nt had been incorporated
and the ap plica nt had not bro ught itself within the provisio ns of the Co mpani es
Act of the time. To this the appli can t repl ied th at, eve n if this were so , th e
co ntract was a stipulnrio a/ten·, the benefit of which it had dul y accepted after
in co rporation. The matter was hea rd by a sin gle judge in the Transvaa l
Pro vin cial D ivision /' and then on appeal by a Full Bench of three judges. 7
Finally, th e m atter was decided by fiv e judges in the AppelJ ate Division, with a
n1ajori ty of three to two. In the res ult, o f all th e nine judges who were troubled
with the matter, six held in favour o f th e respondent. Yet it fai led in the final
instance because the minority three judges o ut of th e nin e who dec ided against
it happened to represent the majority in th e Appell ate Division! l f Sentrale
Kunsmi s has eve r troubled to analyse th e judgm e nts as l have done here it
mi g ht be forgiven a measure offru trati o n at th e result.
See also Kessoopersadh aud A uotl1 er 11 Essop aud Another 8 where the Appell ate
Division allowed th e appeal, also by a maj ority of three to two . The respondent
lost, although he was successful in the initi al proceedings'> and a subsequent
ap pea l to th e Full Bench 10 ln the final eve nt six judges held in his favour and
three against, yet he lost.
So it m ay be with you. Pe rhaps , to take another m etaphor, as you r
perspec tive lengthens your angle of vision wiiJ chan ge so that yo u will see
w here you fa iled, and why yo u fail ed. For Gil yo u w ill. Or yet it may be that
you will have the joy of rea din g another judgm ent in another co urt - perhaps
of high er jurisdi ction- where your eve1y argum ent is vindicated, where you
now say : ' I was ri ght, the judge was wrong!' And then yo u wil l ask yourself:
Wh y was he w rong? Who was at fault- the judge or l? N o r wi ll you eve r
know. C'es t Ia vie; c'est le droit.
J See chapter 18 in fra.
4
Sentralc K1111S111is Korporasie (Ed111s) Bpk "NKP /(uJ /SIIIistJersprcidcrs (Ed111.<) Bpk 197 0 (3) SA 367
(A).
5
Where , as here, examples of some vin tage have been retain ed in the bo ok, this is becau se
notw ithstanding their age they reta in th eir forc e. T his is exp lained in the pre lace.
'' 1969 ( 1) SA362 (T ) .
7
1969 (3) SA 82 (T ) .
H 1970 (1) SA265 (A ) .
9
196H (+) SA 6 10 (N ).
10
Unreported, but confirmed on appea l on 7 Marc h I<J69.
Author Morris, E.
Year of !'ublication 2010
Title Morris TechniqL'e in Litigation
Publisher Juta
-
Chapte,· number Chapter 1
Chapter title Morris Technique in Litigation
Page numbers 1-59
This mate1ial has been reproduced in thee-
Reserves on behalf ofthe UNIVERSITY GF SOUTH
AFRICA (UNISA)
The material may be subject to copyright under
the Copyright Act no. 98 of 1978. Any further
reproduction or distribution of this material by you
may be a viviation of the Copyright Ac'::.
A single copy (printed or electronic) of ~he
material may be kept for academic use only.
, CHAPTER 1
An Introduction
The primary aim o f thi s bo ok is to se rve as a m ento r to young lawye rs as they
embark o n th eir ca ree rs in liti ga ti o n.
The young lawye r qu alifi es after attending university and th erea fter
completin g eith er his' ca ndidate attorneyship w ithin a firm o f attorn eys o r his
pupilbge at on e o f th e B ars foll o wed, in eith er eve nt, by passin g th e releva nt
professio nal exa min ations. Yet that is but th e comm ence m ent of the vo ya ge .
H e is now launched upon th e world , th eo reti cally qualifi ed to appeJr in the
appropriate court and perh aps to plea d fo r the li be rty o f an acc used o r th e
finan cial survival o f a liti ga nt. H e ma y (and, if an advocate, will ) co m e to stand
up in th e Hi gh Co urt befo re a judge, th an w ho m (to mi squ o te th e poe t) 'no
Austrian arm y was ever m o re awfulJ y arrayed' .2 H e m ay mumb\ e in co\1 erenrly
and be u na\ are ' hether hi Lordship ' o r he r Ladys hip 's fo rbidding
co untenance is ca used by di spleas ure o r dyspep sia.
But how doe · he learn the art o f advocacy? Th e kn o wled ge of th e law which.
i acq uired at lectures is o nly a starting p o int. H e wo n 't lear n mu ch fro n 1
" atching f1\ms o r te\e is)on . eria\s, an d an)'th\ng h e does \earn from that som ce
is as li k el y as no t to ea rn him th e j ud icial rebuk thar h e is addressing a j udge and
not a jury. Lea rnin g by wa tching o th ers nli ght h a e its h arm s, b ut it h as its
distinct limitati ons as we Ll. Hi tte r experience is, of co urse, o n e o f th e bes t
teachers, b u t bitte r experi ence is ap t to leave in its w ake a trail of d estru cti o n, or
a clutch of ghosts that eve r and ano n will return to haunt th e ir crea tor. N ature
in the raw, it is said , is seld om mild, but th e prac ti ce o f th e law ca n m ake raw
nature seem in co mp ari so n lik e a day in spring to o n e w ith a lo ng m em o ry and
a keen co nscie nce.
If! ca n help th e fl edgling to avo id swea rin g o f:fliti ga ti o n fo rever in reJction
to his firSt case in co urt (a kaleidoscopi c affair w here witn esses rush into and out
of th e witn e s- box w ith a rapidi ty th at leaves o ne breJ thl ess, perh aps to th e
point o f in coh erence), I shall have at least do n e som ethin g to aton e fo r m y
multitudin o us sin s. Also it may poss ibl y benefi t cli ents and courts if thi s w o rk
ca n help yo un ge r prac titi o ners to present their cases with a littl e m ore d exterity
and po Li sh , and if som e o f th eir tumblin g and fumb lin g ca n be elitninated.
H oweve r, no boo k will produ ce a ge niu s; no tom e is a substitute fo r hard
w o rk and no w ords w ill eve r co nvey aU that ca n be lea rn ed fro m perso nal
exp eri ence. With th at chastenin g th o ught in mind and with a painfull y
1
ee the prcf:1ce, where th e usc of the one gend er in th is book is exp lained , with apo logies.
2
T he misqu o te is fi·o m the first line o f rh c po em The Si~QC of He(Qrade by Alaric Alexande r Wam
( 1820).
l
,2 Techuique iu Litigatiou
acq uired consciousness of my own li mit::ttions, I ven ture to offer assistance to
the yo un g prac titioner.
It is my sin ce re hope that even my more expe rien ced co ll eagu es wi ll find
some thin g of value in th ese pages. l am not so presumptu o us as to beli eve th at
l ca n eith er teac h o r advi e them but rather l wo uld sugges t th at they w ill look
up on w hat I ay- if the y look up o n it at all - as ::tn offering of ideas. To th e
extent that I have learnt from them I thank th em; to th e extent th at they h ave
suffered at my hands I apo logise. Howeve r, I feel that th ey, too, m.ay profit fi·om
the co ll ated w isdom of others w hi ch w ill be found in the follow ing pages.
This does not pretend to be a ge neral textbook upo n civil procedure, nor
up on the ru les of co urt no r, indeed, upon any aspec t of prac ti ce. Yet inevitabl y,
in dealing with th e development and co ndu ct of cases, it becom es necessa ry to
make brief incursions into those fie lds, with a few fo rays into th e law of
evidence . Such incursions and forays sho uld no t b e regarded as pretendin g to
greater di gnity than t hey ac tu a!J y possess. They are made with the sole purpose
of ass istin g th e yo ung practitio ner by direc tin g his attenti on, w h ere it is
pertinen t, to decided cases upon an y point. Thus, perh aps, th e p rocess co uld be
called the distillati o n of experien ce rath er th an th e citation of authority. When
auth o ri ty is needed recourse sho uld be had to th e recognised textbooks on
whatever problem is plaguing the prac titi oner at th e mom ent. 1 have made an
attempt, ho wever, to analyse those ::tspec ts of th e law wh ich tou ch upon th e
prac titioner in hi s co ndu ct of cases beca use l beli eve that the books on pra ctice,
procedure, evidence and various branc hes of substantive law do not deal with
all th e matte rs w hi ch may ari se, both in and o ut of co urt, in the co urse of one's
da y- by-day practice.
M y purpose is to provide a. sistance, guidance, illu stration and exa mpl e to
prac titioners in the work of co mm encing cases, drawing pleadings, preparing
for tri al and co ndu cti ng cases in co urt. Everything w hi ch I suggest is designed
as part of th e appli ca ti o n of th e techni q ue in volved in persuading a co urt
ultimately to give judgment fo r yo ur client.
The issu es are ap proach ed with th e emphasis more o n the Bar th an the
Side-Bar. This is only natural give n m y bac kground. Beca use advocates
ge nerally appear in the High Co urt, the stress must in evitably be o n 'co unsel'
rather th an o n 'a tto rn ey'. I wo uld sugge t thou gh, that there ca n be no
diffi cul ty in appl ying th e suggesti ons mad e in th e following chapters to th e
work of atto rn eys. As fa r as chapter 2 is co nce rn ed , w here f deal with the law
affecting th e practitio ner, r h:we don e m y best to dea l as fully w ith the position
of attorn eys as wi th th at of co un sel. Thus, th e word ' prac tition er ' is used to
deno te bo th co unsel and attorn eys .
Th ere i one more thin g to say, so mething bo rn , perhaps, o f experience,
regret o r cy ni ci m. It is thi s: th e day m ay well con1e, in yo ur life, as it has in the
li ves of so many prac titi oners, w hen a decision goes against yo u, and yo u think
that th e judge has erred so grievo usly that either there is no justice in the wo rld
or yo u are a co mplete failure and should look fo r anoth er job. M y word of
enco urage m ent is that judges are human beings. Human beings err.
, A 11 Iutrodu ctiou 3
Sometimes, when hum an beings wear judicial rob es, they m ay err beyond
human compre hension and beyond the practicability of an appcaP
If I must illustrate let me refer to a case decided by th e Appellate Division in
1970 ."·5 This started as an ordina1y application brou ght to enfo rce what was
alleged to be a binding co ntra ct givin g th e app li can t the sole di stributo rship of
th e respo ndent's sy nthetic ferti li ser in the then Orange Free State. The
respondent, Sentrale Kunsmis, took th e point that th e co ntra ct was not binding
beca use it had been entered into before th e appli ca nt had been incorporated
and the ap plica nt had not bro ught itself within the provisio ns of the Co mpani es
Act of the time. To this the appli can t repl ied th at, eve n if this were so , th e
co ntract was a stipulnrio a/ten·, the benefit of which it had dul y accepted after
in co rporation. The matter was hea rd by a sin gle judge in the Transvaa l
Pro vin cial D ivision /' and then on appeal by a Full Bench of three judges. 7
Finally, th e m atter was decided by fiv e judges in the AppelJ ate Division, with a
n1ajori ty of three to two. In the res ult, o f all th e nine judges who were troubled
with the matter, six held in favour o f th e respondent. Yet it fai led in the final
instance because the minority three judges o ut of th e nin e who dec ided against
it happened to represent the majority in th e Appell ate Division! l f Sentrale
Kunsmi s has eve r troubled to analyse th e judgm e nts as l have done here it
mi g ht be forgiven a measure offru trati o n at th e result.
See also Kessoopersadh aud A uotl1 er 11 Essop aud Another 8 where the Appell ate
Division allowed th e appeal, also by a maj ority of three to two . The respondent
lost, although he was successful in the initi al proceedings'> and a subsequent
ap pea l to th e Full Bench 10 ln the final eve nt six judges held in his favour and
three against, yet he lost.
So it m ay be with you. Pe rhaps , to take another m etaphor, as you r
perspec tive lengthens your angle of vision wiiJ chan ge so that yo u will see
w here you fa iled, and why yo u fail ed. For Gil yo u w ill. Or yet it may be that
you will have the joy of rea din g another judgm ent in another co urt - perhaps
of high er jurisdi ction- where your eve1y argum ent is vindicated, where you
now say : ' I was ri ght, the judge was wrong!' And then yo u wil l ask yourself:
Wh y was he w rong? Who was at fault- the judge or l? N o r wi ll you eve r
know. C'es t Ia vie; c'est le droit.
J See chapter 18 in fra.
4
Sentralc K1111S111is Korporasie (Ed111s) Bpk "NKP /(uJ /SIIIistJersprcidcrs (Ed111.<) Bpk 197 0 (3) SA 367
(A).
5
Where , as here, examples of some vin tage have been retain ed in the bo ok, this is becau se
notw ithstanding their age they reta in th eir forc e. T his is exp lained in the pre lace.
'' 1969 ( 1) SA362 (T ) .
7
1969 (3) SA 82 (T ) .
H 1970 (1) SA265 (A ) .
9
196H (+) SA 6 10 (N ).
10
Unreported, but confirmed on appea l on 7 Marc h I<J69.
