Hearing of applications
Preparation
Competent and confident Motion Court advocacy is the product of systematic preparation. Preparation is the key to success!
The general principles and sources for preparation is found in –
- The rules of court
- The law (statutes, decided cases and textbooks)
- The practice directives of the different provincial divisions of the High Court and Regional Courts
Peruse every brief very carefully to make sure that all requirements are met. Know your case and be ready for any counter argument from your opponent, as well as questions from the bench.
Judges and Magistrates take an extremely technical approach in unopposed matters especially, due to the inherent dangers of the Respondent not appearing to question the matter.
Heads of Argument
Heads of Argument, or “Heads” for short, are a valuable tool in your litigation toolbox. If you prepare proper Heads making out a proper case and covering most of your opponent’s submissions, the Judge or Magistrate might not even need to hear oral argument from you. There is no greater satisfaction than when this happens!
Your Heads serve as a reminder of your argument and the Judge or Magistrate will sometimes even take an extract from the Heads and insert them in their written Judgment. This is a huge compliment to your skill as a litigator.
The most important thing to remember when drafting Heads is structure. The reason for this is that it assists the Judge or Magistrate in following your argument and assists you in setting out your argument.
- Start with a brief introduction of what the matter is about. This introduction provides the Judge or Magistrate with a snapshot of the case and also directs him/her on what issues to focus on when perusing the pleadings.
- Next you inform the Judge or Magistrate of the issues on which the application turns. These points will be addressed in your conclusion again since you have dealt with them in the body of your Heads.
- Then proceed to deal with the disputed facts, relevant law, application of the law to the facts and your conclusion.
- Keep your Heads concise. It serves no purpose to give a lengthy account of the information that is already before the court. It is best to keep your Heads of Argument concise. One can always elaborate on points during your oral argument.
It is preferable to deliver your Heads to the presiding officer well before the hearing in order for him or her to familiarise themselves with it. In most divisions of the High Court the filing of Heads are mandatory before matters will be enrolled. Delivering your head to your opponent is a tactical step in making your case known to the other side and shows your side’s intent and belief in your case.
The hearing
On the day of the hearing it is imperative that you are well prepared, dressed appropriately and ready to do your best for your client’s case.
- Unopposed matters
Make a point of introducing yourself to the presiding officer in chambers before the court starts. If you have been introduced before this is not necessary. However, it is polite to do so again if you have not appeared before the presiding officer in a while.
Be mindful that in Motion Court the more senior practitioners sit in the front row of the bar and junior members behind them. Cases are called as the presiding officer deems fit. Some call matters in order of the court roll, others call the matters of the more senior practitioners first. Some allow for the practitioners to call their matters themselves.
When your matter is called, raise from your seat and address the court in a polite yet determined manner. State your case and bring all relevant information under the court’s attention. Listen to any comments or questions from the court and answer honestly.
Remember that your duty as practitioner to make a full disclosure of adverse authorities and facts is higher in unopposed matters than in opposed matters.
- Opposed matters
On the day of the hearing it is advisable that you meet with your opponent beforehand and together go and greet the presiding officer in chambers. It is the mannerly and collegial way.
When your matter is called, raise from your seat and address the court in a polite yet determined manner. State your case and bring all relevant information under the court’s attention.
Sit down when your opponent rises, whether it be to object on some or other point, or it is to present their case. Refer to your opponent as “My learned friend” or “My colleague”. Remember that you are opponents, not enemies!
Address the court properly and speak clearly. Familiarise yourself with when to use the forms of address of “My Lord”, “My Lady”, “Your Worship”, etc.
Listen to any comments or questions from the court and answer honestly. If you are asked a question that you do not have an answer to, say so and ask for a short adjournment to establish the answer or obtain instructions from your client.
When the court makes a ruling, whether it be in your client’s favour or not, accept it and leave the courtroom or wait until the presiding officer adjourns the court. Do not argue any further!
For more go to Notes on application (motion) proceedings
