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Chapter 2

LEGAL DRAFTING
Lawyers have two common failings. One is that they do not write well
and the other is that they think they do. [C Felsenfeld, The Plain
English Movement In the United States]

Use of plain English .............................................................................. 2/2

List of words and phrases ................................................................ 2/3
Repetitious phrases ............................................................... 2/5
Techniques of drafting ........................................................................... 2/5
Aims of drafting ................................................................................ 2/5
Layout of documents ........................................................................ 2/5
Basic rules of drafting ....................................................................... 2/6
Aids to clearness and accuracy ....................................................... 2/8
Sources of mistakes ......................................................................... 2/8
Use of shall ...................................................................................... 2/9
And/or .............................................................................................. 2/9
Time ................................................................................................. 2/9
Drafting of agreements ........................................................................ 2/10
Taking instructions .......................................................................... 2/10
Consideration of applicable law ..................................................... 2/10
Consumer Contracts Act ................................................................ 2/11
Contractual Penalties Act ............................................................... 2/11
Rules on interpretation of contracts ............................................... 2/11
Use of paragraphs and numbering ................................................. 2/12
Structure of an agreement ............................................................. 2/12
Title and parties .............................................................................. 2/12
Preamble ........................................................................................ 2/13
Index .............................................................................................. 2/14
Headings ........................................................................................ 2/14
Definitions ...................................................................................... 2/14
Text of an agreement ..................................................................... 2/15
Signatory page ............................................................................... 2/15
Annexures ...................................................................................... 2/16
Standard form agreements and consumer contracts ..................... 2/16
Drafting of pleadings ........................................................................... 2/17
Object of pleadings ........................................................................ 2/17
Dangers of faulty pleadings ............................................................ 2/17
Formal requirements set out in court rules ..................................... 2/17
Analysis of the case ....................................................................... 2/18
Principles of drafting pleadings ...................................................... 2/18
Claims and defences ...................................................................... 2/19
Drafting of summons and declaration ............................................. 2/19
Drafting of plea ............................................................................... 2/20
Drawing affidavits for applications .................................................. 2/21
Drafting of letters ................................................................................. 2/22
Appearance .................................................................................... 2/23
A4 letter .......................................................................................... 2/23
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A5 letter .......................................................................................... 2/23

Style and tone ................................................................................ 2/23
Third Constituency ....................................................................... 2/23
Contents ......................................................................................... 2/24
Drafting of opinions ............................................................................. 2/24
Appendix 2: A4 letter ........................................................................... 2/26
Appendix 3: A5 letter ........................................................................... 2/27

This chapter on legal drafting is divided into six parts: the use of plain English,
drafting techniques, drafting of pleadings, drafting of agreements, drafting of letters,
and drafting of opinions.

Use of plain English

The modern trend is to move away from archaic phrasing and complex drafting to
much simpler drafting. The wordy phrases of legal documents conjure up images of
dusty Victorian lawyers and this is not good for the image of the profession. It is now
recognized that it is essential for a lawyer to be able to communicate effectively. This
is particularly important in a country such as Zimbabwe where most of the people are
not only operating in an alien legal system and are unfamiliar with it but are also not
using their mother tongue.
There is a trend in legislation requiring the simplification of language. For example,
section 5(f) of the Consumer Contracts Act [Chapter 8:04] provides that a court may
find a consumer contract to be unfair for the purposes of the Act in the case of a
written consumer contract if the contract is expressed in language not readily
understood by a party.
Unfortunately, many lawyers still tend to use unnecessary complexity and dupli-
cations. It is argued that certain phrases have been tried and tested in the courts and
that, therefore, their meaning is certain. While there is some merit in this argument, it
should not be seen as a justification for perpetuating unnecessary archaic forms.
The following tips are suggested when drafting.
1. To whom is the communication addressed? Is the recipient sophisticated or
unsophisticated? If the latter, it is extremely important to simplify the language
used and to explain legal concepts particularly clearly.
2. If you were speaking to someone how would you express yourself? Try and use the
same simple structure when writing.
3. Is it really necessary to use a long word or a legal phrase?
4. Are you saying the same thing several times over, eg the use in a will of the
expression I nominate and appoint as executor. This is an unnecessary
duplication.
5. Where drafting appears complex in a precedent of an agreement, you should
analyse the meaning first and decide whether the complex drafting takes the matter
any further or whether it could be simplified.
6. Avoid superfluous adjectives and adverbs, eg real facts, actual age and dead
murder victim.
A list of phrases and words and suggested substitutes is set out below. The substitutes
may not always be applicable but they do point out simpler words which could be
used in appropriate circumstances.
Legal drafting 2/3

List of words and phrases

Traditional phrases Simpler alternatives
Adjacent to ------------------------------------------------ next to
Afforded with --------------------------------------------- given
Approximately -------------------------------------------- about
Are you in a position to furnish me with -------------- can you provide
As a consequence of -------------------------------------- because
Attains the age of ----------------------------------------- becomes ...
At the time when ------------------------------------------ when
At this point in time -------------------------------------- now
At your earliest convenience ---------------------------- soon
Because of the fact that ---------------------------------- because
Beneficial -------------------------------------------------- useful
By means of ----------------------------------------------- by
By reason of ----------------------------------------------- because
By virtue of ------------------------------------------------ by/under
Commence ------------------------------------------------- begin
Despite the fact that -------------------------------------- despite
Determine -------------------------------------------------- end
During the course of -------------------------------------- during
Effect/effectuate ------------------------------------------ carry out
Elucidate --------------------------------------------------- explain
Endeavour ------------------------------------------------- try
Expend ----------------------------------------------------- spend
Expiration of ---------------------------------------------- end of
For the reason that ---------------------------------------- because
For the simplification of --------------------------------- to simplify
He was aware of the fact that --------------------------- he knew
I enclose herewith ---------------------------------------- I enclose
I reached an agreement ---------------------------------- I agreed
Implement ------------------------------------------------- carry out
In accordance with---------------------------------------- by/under
In connection with ---------------------------------------- with/about/concerning
In his capacity as trustee --------------------------------- as trustee
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In many cases --------------------------------------------- often

In order to -------------------------------------------------- to
In relation to ----------------------------------------------- about/concerning
In some instances ----------------------------------------- sometimes
In terms of ------------------------------------------------- under
In the event that ------------------------------------------- if
In the majority of cases ---------------------------------- usually
In the nature of -------------------------------------------- like
In witness whereof the parties have hereto
set their hands ----------------------------------------- witnessed by
It is not the case that it ----------------------------------- it did not
It would appear that -------------------------------------- apparently
My client is desirous of reaching a compromise ----- my client wishes to reach a
compromise
Notwithstanding the fact that --------------------------- although
Occasioned ------------------------------------------------ brought about by
On a weekly/regular basis ------------------------------- weekly/regularly
On the part of ---------------------------------------------- by
Please would you take into consideration ------------- please consider
Prior to ----------------------------------------------------- before
Remuneration --------------------------------------------- pay
Retain ------------------------------------------------------- keep
Subsequent to --------------------------------------------- after
Submit ------------------------------------------------------ send
Terminate -------------------------------------------------- end
The contract imposes on you the obligation to ------- under the contract you must
The fact that she had died ------------------------------- her death
The majority of -------------------------------------------- most
The question as to whether ------------------------------ whether
This agreement does not operate to -------------------- the agreement does not
Transpire --------------------------------------------------- happen
Until such time as ----------------------------------------- until
We have come to the conclusion ----------------------- we conclude
With reference to ----------------------------------------- about/concerning
Legal drafting 2/5

You are requested to -------------------------------------- please would you

You shall be entitled but not obliged to ---------------- you may
You shall be obliged to ----------------------------------- you must
You shall be prohibited from ---------------------------- you must not
You shall not be entitled to ------------------------------ you may not

Repetitious phrases
authorise and empower
cease and desist
final and conclusive
fit and proper person
furnish and supply
good order, condition, state and repair
made and entered into
no legal force and effect
nominate, constitute and appoint
null and void
revoke, cancel and annul

The following articles deal with use of simple English in greater detail.
Plain Speaking in Law R H Christie 1967 (2) RLJ 134
Plain and Simple G Feltoe and P Nherere 1993 Legal Forum Vol 5 No 1
Legalese Why lawyers use it; how to avoid it S Cant (1991) 21 Businessmans
Law 73 and 107

Techniques of drafting

Aims of drafting
When drafting any document the lawyer should aim at exactitude, clarity and brevity
but brevity should not be achieved at the sacrifice of exactitude and clarity.

Layout of documents
It is important to ensure that a document is easily read. The following factors may
affect the readers ability to understand a document and should be borne in mind when
drafting.
1. Type size a larger type is generally easier to read than a smaller one. Samples of
type size are as follows.
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This is 12 characters per inch

This is 10 characters per inch

This is 8 characters per inch
2. Type style italic type is often difficult to read. Compare the following.
This is Roman serif style
This is italic serif style
This is Sans serif style
This is italic Sans serif style
3. Line length a shorter line is less intimidating than a long one so margins should
be adjusted accordingly.
4. Sentence length long sentences are often most confusing. It is generally better to
have shorter sentences or to break a long sentence up by the use of numbered
paragraphs. Many people find colons and semicolons distracting.
5. Word length a simpler word is generally better than a longer synonym.

Basic rules of drafting

1. Before commencing drafting, it is necessary to consider the purpose of the
document. Generally, a person will read a document and ask himself the following
questions.
Does this document apply to me?
Why is it important to me?
What do I have to do?
How do I do it?
When must I do it?
What happens if I do not do it?
When drafting a document one should ensure that the readers questions are answered.
2. The next point for the draftsman to consider is the audience. He should ask himself
the following questions.
What is the audience to whom the document is directed?
What does the audience know about the subject and what attitudes and beliefs have
been expressed towards the subject?
How fluently does the audience read and where and under what circumstances will
the document be read? For example, a form which is to be completed in a queue
must be simpler than a document which can be completed in peace and quiet.
3. Plan the whole design of the document before commencing drafting using the
following guide.
Why is the document being drawn?
What is the intention of the parties? This must be clearly stated.
Legal drafting 2/7

How will the desired intention be achieved?

What is most important to the client? The document must be shaped according to
his specifications.
What is essential to the document? Everything else should be analysed and only
included if it is necessary. This is particularly important when using precedents or
computer-generated agreements.
It is most important when drafting that the order of clauses used is logical. It is often
useful to prepare a list of points to be covered at the outset to ensure that the document
does follow a logical pattern.
At all times precise and accurate language should be used: every phrase should have
a clear meaning, and ... all the phrases should be so connected together as to give rise
to no ambiguity. [Davidson, Precedents and Forms in Conveyancing Vol I Chap II
page 15 et seq.] Where possible, ordinary and accustomed forms of language should
be employed. However, if it is necessary technical language may be used for a
particular document but only where its meaning is commonly understood in that
particular context.
Avoid unnecessary repetition and tautology and intricacy of expression. For example,
rather than it shall be lawful for any of the parties it is preferable to say any of the
parties may . Similarly, one should avoid verbosity. An example is the phrase
heirs, executors, administrators and assigns. This is not really necessary. Another
example is the expression person or persons, corporation or corporations. It would
be better to define the meaning of person at the outset and avoid both the repetition
and verbosity in the rest of the document.
Antique words such as the said, the aforesaid, hereinafter, etc have no place in a
modern document.
In order to avoid the vagueness of expression which may result from the use of the
passive or impersonal form, it is better to use the active form. For example, rather than
notice shall be given use A shall give notice. This results in a positive impression
and is more easily understood by the ordinary person.
Avoid airy, abstract words. They are seductively vague but do little more than shroud
your meaning. [De Rebus, February 1987 page 69.] Stick where possible to familiar
words.
Think of every possible combination of the facts to which the words chosen may
apply. This may be done by using the phrase what if and then listing the various
likely combinations of facts.
Admit or omit nothing at random. Do not add verbiage or state necessary results. For
example, it is unnecessary to make a provision bequeathing to an heir, him
surviving. The heir could not be the heir if he did not survive the testator. Similarly,
one should avoid making statements of negatives such as x but not y as this may
lead to ambiguity and is frequently superfluous.
It is necessary to consider sentence structure when drafting. It was common in the past
to use long complex sentences in agreements. This does not aid clarity and usually
requires complicated punctuation. One should always consider whether rephrasing a
sentence may make it clearer to the reader.
2/8 The Civil Practice Handbook

Avoid changing language unless you wish to change the meaning. For example, in a
lease, the leased premises might be described as both the property and the leased
premises. Only one of these terms should be used and the other terms, if used, should
refer to something entirely different. In interpreting legislation and contracts a change
in the use of words is a signal that a different meaning is intended. The concept of
elegant variation which requires a writer not to repeat a word in a sentence can create
difficulties. If is better to repeat a word if by doing so confusion will be avoided.
Although one should always aim at intelligibility, there may be times when the
document will not be readily understood by the layman, particularly where the matter
is complex. The need for such complexity should not, however, be taken as an excuse
to make ordinary documents unnecessarily complex.

Aids to clearness and accuracy

The proper use of punctuation can help in the interpretation of documents. Many
insurance companies have a curious habit of omitting punctuation which makes the
interpretation of policies more difficult.
The use of schedules helps avoid cluttering a document. If the information is technical
or in list form it can be changed more easily in a schedule than if it had been included
in the main body of the document.
It is essential to check every document very carefully, not only to ensure that it is
properly drafted, but also to eliminate typing and other errors. If possible, check the
draft of the document the following day. The slight delay will help to clarify ones
thoughts and will make errors more obvious.

Sources of mistakes
It is very easy to overlook mistakes and it is wise when checking a document to
remember that similar-sounding words can become confused, eg employer and
employee, while typing errors of similar words are often overlooked eg any/may, not/
now.
The alteration of numbering frequently causes problems, particularly where clauses
are cross-referenced. It is often wise to mark on an early draft all clauses where there
is a cross reference and to check them in the final draft.
Confusion may arise with the use of cumulative negatives and less and more. The
present and past tense may become confused while the repetition of prepositions may
give rise to problems. For example, to the children of A and B means to the
children of A and to B.
Enumerating of particulars may give rise to an application of the ejusdem generis rule
because it is difficult to include everything and essential matters may be overlooked. A
common way of dealing with this problem is to use a general term followed by the
phrase notwithstanding the particularity of the aforegoing the following shall be
included. A possible substitute for this term is without limiting this ....
The slavish use of precedents leads to many mistakes. Precedents are invaluable but
they must be used with discretion.
Legal drafting 2/9

Use of shall
The use of the word shall often renders the language complicated and difficult to
understand. Compare the following:
If the purchaser shall fail to pay any instalment, the whole capital shall
immediately become payable.
If the purchaser fails to pay any instalment the whole capital shall immediately
become payable.
In the first example the first shall is unnecessary while in the second shall is used
properly to indicate the future tense.
Frequently, it is possible to substitute must for shall when creating an obligation.

And/or
And has a conjunctive effect unless the context indicates otherwise. Or has a
disjunctive effect.
An example of and used in a conjunctive way is attorneys and advocates are now
called legal practitioners. An example of or used properly in a disjunctive sense is
you may wear either a jacket or a jersey but not both.
It is, therefore, important to understand exactly what is intended when using and and
or. The incorrect use is common and there is a great deal of case law on the
interpretation of and and or. Sometimes the expression and/or is used in the
hope that it will eliminate the problem. However, there has been judicial criticism of
the term. It is clumsy and may lead to ambiguity so it is probably better to avoid it.

Time
Loose descriptions of time give rise to ambiguity in documents. It is better to be
precise and to state exactly what is meant. The following may assist in interpretation
of time clauses.
1. Where something must be done after, the time runs from the day after that date.
When the terms before and after are used the time of day should be included.
2. At a date or a time means from the period when the date time begins to run. For
example, We must have your letter at 11:00 am means that delivery at 11:01 am
would be too late.
3. At least 10 days before means 10 clear days without including the date specified.
For example, if something is to be done at least 10 days before 14 February it must
be done by midnight on 13 February.
4. By refers to the whole of the day in question.
5. On means that the event referred to will commence on that day. When something
must happen on a specific day, it may happen at any time within the entire 24
hours of that day.
6. Immediately means exactly that as opposed to as soon as possible.
7. Avoid within a reasonable time. It gives rise to ambiguity and may require a
court to decide what the parties meant and what would be considered objectively to
be a reasonable time.
2/10 The Civil Practice Handbook

8. Avoid the use of from. It gives rise to ambiguity.

9. When periods, eg day, month, etc are used one should specify whether they are
calendar or not.
10.Not less than means the full period.
11.Within 7 days means that the time begins to run at the start of the following day
and continues to the end of the 7th day.

Drafting of agreements
(T)he function of an agreement is to express the agreed rights and liabilities of the
parties with such precision that there can be no doubt at a future date as to what they
are. [Harding Boulton, The Making of Business Contracts page 185.]

Taking instructions
The basic principle set out in the quotation above must be remembered at all times.
Occasionally, clients are impatient with lawyers who seek clarification of matters but
if this occurs, the client should be advised that the critical attention of an independent
person is necessary to ensure clarity. Clients should also be advised that the lawyer is
responsible for the form and the legality of the agreement but the client is responsible
for the substance of the agreement. A lawyer may, however, have to assist the parties
to negotiate and crystallise the agreement by asking appropriate questions.
A legal practitioner must strive to understand the business implications of the
proposed agreement so that he can advise his client on the possible legal problems. He
should establish what is essential to his client and what is merely desirable. The final
agreement must reflect the parties intentions in readily understood language.
It is also important to establish the clients time limits so that the legal practitioner can
draw the agreement to accommodate the client. If it is agreed that the agreement will
be drawn by a certain date, it is essential for good client relations that the agreement is
ready on that date.

Consideration of applicable law

Before commencing drafting any agreement, it is necessary to review the statute law,
including tax laws, and any common law applicable to the agreement to be drafted.
This will help to ensure that the legal practitioner is familiar with any favourable and
unfavourable statutory and common law principles and he may be able to provide for
them in the agreement.
If the common law or statutes give rise to implied terms, they may be omitted from the
agreement but it is probably better to spell them out for clarity. The parties may also
wish to vary such implied terms. For example, it is common in agreements of sale of
immovable property to vary the common law incidence of risk and provide that risk
will pass not on the conclusion of the agreement of sale but on transfer of the property.
If appropriate, one should also consider the implications of the Consumer Contracts
Act [Chapter 8:03] and the Contractual Penalties Act [Chapter 8:04].
Legal drafting 2/11

Consumer Contracts Act

The Consumer Contracts Act is intended to provide relief to parties prejudiced by
unfair contracts. It applies to consumer contracts which are defined as those for the
sale or supply of goods or services or both, in which the seller or supplier is dealing in
the course of business and the purchaser or user is not, but does not include
(a) a contract for the sale, letting or hire of immovable property; or
(b) a contract of employment [section 2].
Section 5(1) provides that a contract is unfair if the cost of goods or services is
excessive, it is unreasonably oppressive and either imposes or limits the obligations
of any party unreasonably. If it is not readily understandable or is contrary to
commonly accepted standards of fair dealing it may also be deemed to be unfair.
The court is given a wide discretion to decide whether or not a contract is unfair,
which means that many decisions will be made purely on the grounds of public policy
and not law. The implications for the law of contract are thus very significant. The
court is also given wide powers of correction of unfair contracts.
The Schedule to the Act sets out a number of provisions which prima facie constitute
unfair practice. Thus, when drafting contracts, the following provisions will require
careful consideration before they are included.
1. voetstoots clauses;
2. limitation of liability for negligence;
3. prescription clauses;
4. limitation of liability where goods do not comply with a description or sample;
5. warranty clauses where goods are not fit for the purpose for which they were
supplied;
6. onus of proof clauses.

Contractual Penalties Act

The Contractual Penalties Act deals with two main areas, penalty stipulations and
sales of land by instalments. The latter aspect will be dealt with in Chapter 18 on sales
of property.
Section 4 provides that a penalty stipulation will be enforceable unless a court
considers that it is out of proportion to the prejudice suffered by a party. In this case,
the court may reduce the penalty.
A party is not entitled to both a penalty and damages nor may he have damages in lieu
of a penalty unless the agreement provides for this.

Rules on interpretation of contracts

It is essential to be familiar with the rules on interpretation of contracts. Christies Law
of Contract in South Africa has a useful section on interpretation.
2/12 The Civil Practice Handbook

Use of paragraphs and numbering

It is essential that agreements are broken down into numbered paragraphs so that the
agreement can be easily understood and that particular sections of the agreement can
be easily located. The use of headings is also an important way of making an
agreement more accessible.
There are a number of styles of numbering used in agreements. Examples are legal
numbering as used in this book, alphabetical numbering, a combination of numbers
and alphabetical numbering, and roman numerals. The simplest and most generally
used is legal numbering. This is due not only to the ease of understanding but also
because it is a preferred method of many computer programs.
Where there is a preamble in the agreement, it is better to have it numbered in a
different way to that used in the main body of the document to avoid confusion.
Where possible, paragraphs should be broken down into numbered sub-paragraphs.
This is particularly important where lists occur. For example, the provision that X
warrants that the goods will be clean, will have no defects and will be packaged in
strong cartons could be broken down to individual paragraphs as follows.

X warrants that the goods will:

1.1 be clean;
1.2 have no defects;
1.3 be packaged in strong cartons.

Structure of an agreement
Save for notarial agreements which are largely outside the ambit of this book, most
agreements conform to the structure which is discussed below. However, standard
form agreements may be set out differently to ensure that they may be completed
easily. These will be discussed subsequently.

Title and parties

It is a good idea to name the agreement, eg Lease Agreement and not merely state
that it is an agreement. This will ensure that the reader knows the type of agreement
immediately without having to read the preamble or principal clauses first.
The parties may be described in a simple agreement as follows.

Agreement of Lease
between
ABC
of P O Box 1, Harare
(the Lessor)
and
DEF
of P O Box 2, Harare
(the Lessee)
Legal drafting 2/13

A more complex description of the parties may be necessary in more complex

agreements. For example, it may be necessary to show the authority of the person
signing the agreement. An example follows in which two companies have entered into
an agreement of sale. The sellers representative is authorised by a shareholders
resolution while the purchasers representative is authorised by a directors resolution
only.

Sale of Shares Agreement

between
ABC COMPANY (PRIVATE) LIMITED
Represented by John Smith
authorised in terms of a shareholders resolution
dated 1 January 1994
of P O Box 1, Harare
(the Seller)
and
DEF COMPANY (PRIVATE) LIMITED
Represented by Farai Moyo
authorised in terms of a directors resolution
dated 1 January 1994
of P O Box 2, Harare
(the Purchaser)

Some draftsmen prefer to omit the addresses from the headings and insert them in the
domicilium clause. Either form is acceptable.

Preamble
The purpose of the preamble is to set out briefly the intentions of the parties in
entering into the agreement. It many also be used to record that there is a prior verbal
agreement, the terms of which are now being recorded in writing. If the latter is the
case, the final recital should state Now the parties wish to record their agreement.
When drafting preambles, it is essential to ensure that the correct position is set out.
Either there is a prior verbal agreement or the written agreement is to be the sole
agreement between the parties. There must be no confusion as this could result in a
party arguing that an unsigned written agreement is merely a record of a prior verbal
agreement. Thus, it would be unwise to state in the final recital that the parties have
agreed as follows ... if the intention is that the written agreement once signed is the
only agreement between the parties.
A preamble may not be necessary in simple agreements but can be extremely helpful
in complicated agreements. The usual form where the written agreement is the sole
agreement is set out below. In this example, there will be both a sale of shares and a
shareholders agreement to govern the rights of the shareholders after the sale takes
place.
2/14 The Civil Practice Handbook

WHEREAS
A The Seller wishes to sell some of its shares in XYZ Company
(Private) Limited to the Purchaser.
B The purchase price is to be paid partly in cash and partly by the
transfer of the purchasers shares in PQR Company (Private)
Limited.
C The parties wish to enter into a shareholders agreement
regarding their respective rights and liabilities once the transfers
of the shares in XYZ Company (Private) Limited and PQR
Company (Private) Limited have been made.

IT IS AGREED ...

Index
In longer and more complex agreements it is essential to have an index to make it
easier for the parties to find their way around the agreement. While the clauses should
be listed at an early stage in drafting, the page numbers should only be inserted once
the agreement is in final draft. This will reduce the number of amendments which may
need to be made to the index.

Headings
Headings are useful to assist the parties to find their way around the agreement
quickly. Sometimes there is an express clause that the headings are for guidance only
and do not form part of the agreement itself. If the headings are carefully stated, the
limitation should be unnecessary.

Definitions
Most lawyers recognise the advantages of defining terms used in the agreement. The
benefits are that the document is usually shorter as it is possible to avoid repetition and
the possibility of errors is reduced as there is uniformity in the use of crucial terms.
However, there is some disagreement as to the method used. In some agreements,
definitions may be given throughout the document. However, it is preferred that in all
but the simplest agreements, a definitions clause is included. The principal reason for
this is that the definitions can be found easily.
In appropriate circumstances statutory definitions may be used. For example,
definitions used in the Companies Act are useful in agreements relating to companies.
Capital letters may be used to designate defined words in the text. This draws attention
to the use of the defined word. However, the too frequent use of capital letters
interrupts the flow of reading and may make the document more difficult to
understand.
In order to avoid ambiguity, it may be useful to insert the following clauses in a
definition clause.
Legal drafting 2/15

1. In this agreement, unless inconsistent with the context, the following

words or expressions shall have the meanings given to them.
2. Headings, underlining and numbering are for convenience only and
do not affect the interpretation of this agreement.
3. Words importing the singular include the plural and vice versa.
4. Words importing a gender include both genders.
5. An expression importing a natural person includes a company,
partnership, joint venture, association, corporation or other body
corporate.
6. Where a day on or by which a thing is to be done is not a business day
that thing must be done by the following business day.

Text of an agreement
The text of the agreement sets out the terms which have been agreed by the parties. It
is important to ensure that the structure is logical and that the text follows the rules
already stated.
Every agreement must have a promissory clause in which is set out what the parties
promise to each other. The subject matter of the agreement must also be described and
the consideration or price stated. The remaining terms and conditions will depend on
the nature of the agreement being drafted.

Signatory page
This may be placed either at the beginning or the end of the agreement. The usual
form is set out below.

SIGNED at on day of 19...

AS WITNESSES:

1. .....................
................
Lessor
2. .....................

SIGNED at on day of 19...

AS WITNESSES:

1. .....................
................
Lessee
2. .....................

When arranging for signature of an agreement, it is desirable that the parties initial
each page and at least two copies should be signed, one for each party. If there are
more parties then additional copies should be signed.
2/16 The Civil Practice Handbook

Annexures
Annexures to an agreement are very useful as they can contain the detail which would
complicate the main agreement, but they must be properly described. They may be
called schedules or annexures and the description will depend on the number. For
example, it would not be sensible to describe the annexures alphabetically if there are
more than twenty-six unless it is anticipated that descriptions such as AA, BB, etc will
be used.

Standard form agreements and consumer contracts

Standard form agreements as those used when large numbers of agreements are
needed for different people. They are typical where an organisation provides services
such as the provision of telephone services. The agreements are usually non-
negotiable, the customer being obliged to sign an agreement if he requires the service.
When drawing a standard form agreement, a number of factors must be considered.
Many people do not read well and are unfamiliar with written documents. Thus, it is
wrong to assume that documents will be easily understood.
By their nature, standard form agreements tend to be very general and to cover every
possible eventuality. Before drawing the agreement, it is wise to obtain detailed
instructions from the client on every possible circumstance in which the agreement is
likely to be used and to ensure that it is general enough to cover such circumstances.
The agreement is likely to be used unamended for a considerable length of time. It is
essential, therefore, that it is carefully considered and drafted.
The client would probably like the information which must be inserted in the
agreement to be simple and preferably all on one page. Thus, it is common for a
standard form agreement to be drawn with a schedule in which all the specific
information is contained and to which is annexed the standard conditions. Reference is
made in the standard conditions to such things as the rent set out in the schedule.
Adequate space should be left to insert any information.
Where possible, reduce the amount of information to be inserted. It is preferable to
phrase questions in consumer contracts, such as insurance policy applications, in such
a way that minimises the amount of writing needed to respond. For example,
questions which lead to a Yes or No answer are preferable to those which require
detailed comments.
If the standard form contract is to be printed, it is wise to ask the client to allow you to
check the galley proof so that any errors which may have crept in can be eliminated
before final printing.
An example of an equipment lease schedule follows. Only that information which is
specific to the customer appears in the schedule. The rest is in the standard conditions.
Legal drafting 2/17

AGREEMENT TO LEASE EQUIPMENT

between
X
and
Y
of ......................
(the customer)

X has agreed to lease the equipment listed below to the customer on the
annexed standard conditions.

Schedule

1. Period of lease

2. Equipment leased

3. Rent

4. Place at which equipment will be kept

It is agreed that this agreement is subject to the annexed standard

conditions.

............................. ...........................

Signed on behalf of the Customer Signed on behalf of X

Date: Date:

Drafting of pleadings

Object of pleadings
The object of pleadings is to summarise the parties cases and to define the issues.
[See Robinson v Randfontein Estates GM Co Ltd 1925 AD 173/198]. It is necessary to
define the issues, not only so that the limits of the action are clear, but also to ensure
that once judgment is given, the parties may not litigate again on the same issues. [See
Becks Theory and Principles of Pleading in Civil Actions page 32.]

Dangers of faulty pleadings

The dangers of faulty pleadings are as follows.
1. Defective pleading and the need for amendment will involve the client in additional
costs.
2. Defective pleading may lead to the failure of the action.
2/18 The Civil Practice Handbook

3. An amendment may give grounds for cross examination or prejudice the case. For
example, it could give rise to questions of credibility.

Formal requirements set out in court rules

Rules 99 and 100 of the High Court Rules set out the formal requirements of all
pleadings in the High Court.
All pleadings must:
1. be legibly typed or written on A4 paper on one side only;
2. state the title of the action, the case number and the description of the pleading;
3. contain a statement in a summary form of the material facts on which the party
pleading relies for his claim or defence, ... but not the evidence by which those
facts are to be proved;
4. be divided into paragraphs, consecutively numbered, each containing a separate
allegation;
5. have each page numbered;
6. be signed by a legal practitioner;
7. give the parties addresses for service;
8. be filed with the Registrar and a copy served on the other party.

Analysis of the case

Before actually drafting a pleading it is essential to analyse the case. Firstly, all the
facts should be listed. They should then be analysed carefully in three stages.
1. What is the case all about?
2. What does the client want?
3. How do I achieve what the client wants?
Professor R H Christie used to tell his students to worry the facts. This is a graphic
description of the importance of the factual analysis.
After the facts have been established, it is necessary to consider the law and to apply
the law to the facts. At this stage, it is essential to decide the appropriate area of law,
the essential legal requirements, and whether there is a case based on the facts.

Principles of drafting pleadings

There are two main concepts in pleading. The first is the necessary allegations of facts
and the second is the conclusions of law flowing from those facts. The two concepts
should be kept entirely separate from each other.
No law or evidence should be pleaded, although the latter may be pleaded if it is
necessary to draw inferences from such evidence. The distinction between fact and
evidence was set out in Jones v Hamilton & Haw (1886) 5 EDC 222 at 228 as follows.
Stating that a thing was done is stating a fact; giving the details of how it was
done would be giving evidence of it.
Legal drafting 2/19

It is important not to give too much detail in a pleading but not so little that further
particulars are requested. Only relevant facts should be stated and they should be
stated with precision.
Use simple language and avoid legalese such as said Plaintiff, hereinafter etc.
Precedents of pleadings such as those in Amlers Precedents of Pleadings and Becks
Theory and Principles of Pleading in Civil Actions are extremely useful. However, the
use of precedents requires caution. It is essential to check the relevant law and the
legal requirements and not merely rely on the precedents without further research.
Pleadings are binding on the parties so they must be carefully drafted. A court has a
wide discretion to allow amendment but the need for an amendment may reflect badly
on the legal practitioner or prejudice the clients case. The reputation of a legal
practitioner who practices litigation may well stand or fall by his pleadings so it is
particularly important that they are well drafted.

Claims and defences

Legal practitioners draft pleadings either to make a claim or to defend a claim and
most pleadings will fall into one or other category. Accordingly, the drafting of a
declaration and a plea will be dealt with in some detail.
Whether making a claim or defending one, it is necessary to consider jurisdiction and
prescription. Reference should be made to the relevant legislation and common law in
this regard.

Drafting of summons and declaration

The following information must appear in a summons or declaration.

1. The full names, occupation and address of the plaintiff. If he is acting in a

representative capacity details must be given.

2. The full names of the defendant, his representative capacity, if this is appropriate,
and his occupation, if known to the plaintiff, and his address.

Both magistrates and judges state that adequate information regarding the parties is
frequently omitted from pleadings.

3. Details of the nature of the claim. Where the summons stands alone, the statement
of the plaintiffs case must be given in sufficient detail to found the basis of a claim
or it will be excipiable. Naturally, the particulars of claim or declaration must set
out the full details of the claim.

4. The conclusions of law deduced from the facts alleged.

5. Whether interest is claimable and, if so, from what date. If the defendant has not
been placed in mora, interest will only be claimable from the date of service of the
summons.

6. It is usual to claim party and party costs from a defendant but, if an agreement so
provides, a claim may be made for legal practitioner/client costs. Agreements
should always be checked for their costs clauses.
2/20 The Civil Practice Handbook

7. The prayer (which must be a specific statement of the relief requested) concludes
the pleading [rule 111 of the High Court Rules].
The usual form of a prayer is as follows.

Wherefore the plaintiff prays:

1. for judgment ...;
2. for interest thereon at the prescribed rate from ... to payment in full;
(if appropriate)
3. costs of suit.

Where there is more than one party, it is necessary to consider the liability of the
parties. Is it joint or joint and several?
Where there are alternative claims the bases for them must be set out. It is important to
remember that inconsistent allegations could render the claim excipiable. [See United
Dominion Corp Rhodesia Ltd v Van Eyssen 1961 (1) SA 53 (SR) and Lloyds & Co
(SA) Ltd v Aucamp 1961 (3) SA 879 at pp 881-2.]

Drafting of plea
When drafting a plea, in addition to the analysis of the defendants case, it is also
necessary to analyse the plaintiffs declaration to ensure that there are sufficient facts
to justify the conclusions of law made by the plaintiff. If a material allegation is
missing this will found an exception.
Rule 104(1) of the High Court Rules is relevant to the drafting of a plea.
The defendant or the plaintiff, as the case may be, shall raise in his pleading all
matter which show the action or claim in reconvention not to be maintainable,
or that the transaction is either void or voidable in point of law, and all such
grounds of defence or reply, as the case may be, as if not raised would be likely
to take the opposite party by surprise, or would raise issues of fact not arising
out of the preceding pleadings, as, for instance, fraud, prescription, release,
payment, performance or facts showing illegality, either by statute or common
law.
The plea must set out the defence in sufficient detail for the plaintiff to know the
nature of the defence. [See E K Green & Co v Adkins 1930 CPD 253.] A bare denial is
unacceptable and will lead to an excipiable plea.
In the High Court the plea must deal with every allegation of fact made by the
plaintiff. An omission will mean that the fact is admitted. [See rule 104(2).]
It is essential to avoid ambiguity in denials. Failure to do so is considered
embarrassing. It is acceptable to state that the defendant has no knowledge of the
facts alleged, does not admit them and puts the plaintiff to the proof of them. Some
legal practitioners consider that it is redundant to state that the party is put to the proof
of the allegation. This is an essential implication from the previous denial.
Occasionally, legal practitioners make tactical denials. These may be dangerous as a
judge may object to them so caution should be exercised in this regard.
Legal drafting 2/21

It is important to consider carefully any admissions and avoid unnecessary or unwise

admissions. At the same time, it is foolish not to make necessary admissions.
Where there is more than one defence each should be kept separate.
Confession and avoidance applies where the defendant admits the facts alleged
(confesses) and then sets out further facts which show some justification for the acts
complained of (avoidance). It is necessary to plead confession and avoidance
specifically and to state the material facts on which the defendant relies. Examples are
prescription, estoppel, novation, discharge, and contributory negligence. [See Becks
Theory and Principles of Pleading in Civil Actions pp 7578.]
Once the plea has been drafted, the following questions should be asked.
1. Is the plea evasive?
2. Are all the issues dealt with?
3. Does it contain the necessary allegations of fact and no irrelevant allegations to
support the defence?
4. Are any of the allegations made inconsistent save where they may properly be
pleaded in the alternative?

Drawing affidavits for applications

In drawing affidavits for the purposes of applications, it is necessary to remember the
following rules.
1. Applications and all subsequent documents must be consecutively numbered and
where there are more than 5 pages must be indexed.
2. No statements of law should be made.
3. The facts should be stated succinctly and clearly. It is particularly important to have
separate paragraphs for each allegation. Failure to do this makes it unnecessarily
complicated for the other side to deal properly with the allegations.
4. As far as possible, the whole of the case should be set out in the founding affidavit,
and supporting affidavits used to prove additional facts.
5. As far as possible, hearsay should not be included in affidavits. Separate affidavits
should be obtained from actual witnesses.
6. It is essential to avoid inaccuracies and misrepresentations.
7. The signature of the affidavit must comply with the Justices of Peace and
Commissioners of Oaths Act and High Court (Authentication of Documents) Rules
RGN 995/71. In the case of Phillips in re PTC & Ors HB-109-93 it was held that
an affidavit could not be signed before a partner of the firm representing the party.
8. The correct ending to an affidavit is Signed and sworn to at ... but omission of
this ending is not fatal provided that it is clear that the affidavit is sworn correctly
[PTC v Kintock HH-222-93].
9. There has been a recent trend for the courts to deplore voluminous affidavits.
Where there is a dispute of fact, it is preferable for the respondent to indicate the
disputes and seek that the matter be held over for trial [Horizon Investments (Pvt)
2/22 The Civil Practice Handbook

Ltd v Ford & Ors HH-156-93]. Costs have been awarded against an applicant who
embarked on a trial by affidavit [OG & M A Tselentis v SDA Trading Co (Pvt)
Ltd HH-176-91].
The first step in drawing affidavits for an application is to decide what issues are
material to your case. Having done this it will be necessary to ensure that all the
evidence is available to prove the issues.
When drawing the opposing affidavits, it is necessary to analyse the founding
affidavits to see whether a case has been made. As far as possible you should then deal
with each allegation setting out your clients reply to it.
It is often difficult to prepare a reply to poorly drafted affidavits due to irrelevant,
argumentative or inadmissible allegations. It is suggested that such allegations should
be ignored save for a statement that no response will be given because of their nature.
If the founding affidavit is illogical, it may be easier to set out your clients version
without following the order adopted by the applicant. However, if this is done, it is
essential to ensure that no points are overlooked and it is probably wise to explain why
this approach is being adopted.
A founding affidavit for an application should follow the formula set out.

HEADINGS

APPLICANTS AFFIDAVIT

1. I, ..., in my capacity as ..., of ..., make oath and swear that the facts of
this matter are within my knowledge and I am authorised to make this
affidavit.
2. The Applicant is ....
3. The Respondent is ....
4. The Applicant seeks an order that ... as set out in the draft order
which is annexed as Annexure ....
5. The facts upon which the Applicant relies are:
5.1 ...
5.2 ...
6. In the circumstances, the Applicant respectfully seeks an order in
terms of the draft order.

Signed and sworn to at ... this ... day of ... etc.

Drafting of letters
Lawyers write numerous letters and it is important that consideration is given to the
manner in which they are presented and drafted. The appearance of a letter may be as
important as its contents: a scruffy and poorly typed letter with spelling mistakes is
unlikely to have much impact, however good its contents.
Legal drafting 2/23

Appearance
In Zimbabwe, letters are usually typed on A4 or A5 sized paper. The latter is half the
A4 size. A good typist should know the layout requirements but many do not and so
they are set out here.
The style of typing in the letter should be consistent throughout. The most usual is a
blocked style which means that there is no paragraph indentation. The spacing of the
typed information is important.
It is essential that both the writers and the recipients references are inserted and that
the date is included.
If there are any enclosures this should be noted at the foot of the letter below the
signature.

A4 letter
There should be 3 carriage returns between the date, the reference, the address and
Dear Sir. Thereafter, there should be two carriage returns save between Yours
faithfully and the name of the firm. This space will depend on the size of the
signature of the writer.
If a letter covers more than one page, the page number, the addressee and the date
should be typed at the top of the second page. This is to ensure that if the pages
become detached, it will be easy to collate them again.
A sample of an A4 letter is attached as Appendix 2.

A5 letter
There should be 2 carriage returns between the date, the reference, the address and
Dear Sir and all paragraphs. The number of carriage returns between Yours
faithfully and the name of the firm will depend on the size of the signature of the
writer. A sample of an A5 letter is attached as Appendix 3.

Style and tone

It is important that the style should be confident and that no legal verbiage is used. The
tone is very important. An aggressive tone may alienate the recipient and thus have an
adverse effect. Sarcasm and insults must be avoided in all legal letters. The tone and
the content must also be appropriate. There is no point writing a letter in which the
contents are conciliatory if the tone is combative. The writer must always consider the
effect that his letter is likely to have on the reader.
In his book The Complete Plain Words Gower makes the following suggestions.
(I)n your letters to the public be sympathetic if your correspondent is troubled; be
particularly polite if he is rude; be lucid and helpful if he is muddled; be patient if he is
stubborn; be appreciative if he is helpful; and never be patronising.

Third Constituency
In his book Client Interviewing for Lawyers Avrom Sherr says at page 137 that
lawyers should always remember that their letters may be read by someone else other
2/24 The Civil Practice Handbook

than the recipient, eg a court. It is essential, therefore, that great care is taken in
drafting all letters. The lawyer should understand his objectives in writing the letter
and keep to them. The letter must be well planned and analysed to ensure that there are
no ambiguities or errors.

Contents
When a letter is used to explain to a client procedures to be adopted, it may be useful
to have standard forms which set these out. For example, the procedures on the sale of
a house could be set out in a standard form which would be annexed to the initial letter
to the client. This would avoid the necessity of each lawyer repeating the information
in respect of every sale and would also reduce the possibility of errors being made.
The public relations aspect of letters is also important. A lawyer should avoid the
impression that he is personally involved in a matter. For example, in a letter of
demand it is probably preferable to say that the client has instructed the lawyer to
issue summons not that the lawyer will issue summons if payment is not made.
Gower suggests that once the letter is written, the following questions should be asked
by the draftsman.
1. Can the language be easily understood by the recipient?
2. Is it free from slang?
3. Are the words the simplest that can carry the thought?
4. Is the sentence structure clear?
5. Does it give only the essential facts?
6. Does it include only essential words and phrases?
7. Is the information correct?
8. ...
9. Is the writing free from errors in grammar, spelling and punctuation?
10. ...
11. Does it answer all the questions?
12. Is the writing free from antagonistic words and phrases?
13. Is it, where appropriate, tactful, helpful, courteous, sympathetic, frank, forceful?
14. Will the tone bring the desired response?
[See page 39.]

Drafting of opinions
The purpose of an opinion is to advise the client on his case. To achieve this end, it
should be as lucid and as simple as possible in the circumstances. Many opinions,
however, bear a marked resemblance to a university essay. After all the work which
goes into the research, many lawyers are reluctant to omit anything, while they tend
also to set out their own doubts about the answer rather than give their opinion.
Legal drafting 2/25

Generally, opinions are quite lengthy and the conclusion is set out in the last
paragraph. What a client usually wants is the conclusion at the beginning and the
reasons later. Thus, it is often preferable to state the problem and follow this with a
summary of the advice at the beginning of the opinion.
The summary should be followed by a recitation of the essential facts. This has two
benefits. It ensures that the client knows the lawyers understanding of the facts and is
useful at a later stage, when the facts may not be so familiar, to set the scene for the
rest of the opinion.
Once the facts have been stated, the issues should be stated and then the legal
practitioner should set out the law and how the law is applied to the facts. The citation
of large numbers of cases is not generally needed by the client. It is better to cite only
the most important cases and, while an apt quotation may neatly summarise the law,
one should avoid numerous lengthy quotations.
Where the law is uncertain or the legal practitioner has doubts, this should be stated
but the legal practitioner has a duty to advise his client properly and this means that he
must commit himself to the best alternative. If a client comes to the end of an opinion
and does not have a reasonable guide as to what to do, the opinion is poor.
Where appropriate, the various options open to the client should be stated and the
advantages and disadvantages of each analysed. The lawyer should also indicate
which he considers the best with his reasons for his opinion.
The opinion should be concluded with the lawyers view of the matter and a reasoned
argument showing how he reached that view.

SOURCES

Harms LTC, Amlers Precedents of Pleadings, 4th Edition, Butterworths & Co (SA) (Pty) Ltd
Gowers E, The Complete Plain Words, Pelican
Harding Boulton B, The Making of Business Contracts, 2nd Edition, Sweet & Maxwell
Newman E & McQuoid Mason DJ, Lee and Honor South African Law of Obligations, 2nd
Edition, Butterworths & Co (SA) (Pty) Ltd
Isaacs I, Becks Theory and Principles of Pleading in Civil Actions, 5th Edition, Butterworths
& Co (SA) (Pty) Ltd
Morris E, Technique in Litigation, 2nd Edition, Juta & Co Ltd
Piesse E L and Gilchrist Smith J, The Elements of Drafting, 3rd Edition, Stevens & Sons
2/26 The Civil Practice Handbook

APPENDIX 2: A4 LETTER

LETTERHEAD
....
....
....

Our ref : ...

Your ref : ...

4 April 1995

X and Y (Pvt) Ltd

P O Box 123
HARARE
Attention : Mr F Moyo

Dear Sirs

Collection from AA $15 000

Thank you for your letter of ....

We have sent a letter of demand to AA giving him 7 days to make payment and if he
fails to do so, we will issue a summons and instruct the deputy sheriff to serve it on
him.

We enclose a pamphlet which details the procedures in a High Court collection. You
may find this useful. Should you have any queries, please contact us.

Yours faithfully

ABC

Enc
Legal drafting 2/27

APPENDIX 3: A5 LETTER

LETTERHEAD
....
....

Our ref : ...

Your ref : ...

4 April 1995

X and Y (Pvt) Ltd

P O Box 123
HARARE
Att : Mr F Moyo

Dear Sirs

Collection from AA $15 000

Thank you for your letter of ....

We have sent a letter of demand to AA giving him 7 days to

make payment and if he fails to do so, we will issue a summons
and instruct the deputy sheriff to serve it on him.

We enclose a pamphlet which details the procedures in a High

Court collection. You may find this useful. Should you have any
queries, please contact us.

Yours faithfully

ABC

Enc
2/28 The Civil Practice Handbook