NEHOWA v BAREP INVESTMENTS (PVT) LTD 2012 (2) ZLR 176 (H)

Flynote

Practice and procedure — heads of argument — purpose of — what they should contain — evidence annexed to or contained in heads of argument — not properly before the court and will be disregarded

Headnote

In motion proceedings, the parties proceed by way of filing affidavits, namely the founding affidavit, the opposing affidavit and the answering affidavit. These are the foundation papers in which the parties lay the basis upon which they seek to rely. In terms of r 235 of the High Court Rules 1971, after the answering affidavit has been filed, no further affidavits may be filed without leave. Thereafter, if a party is to be represented by a legal practitioner, he files heads of argument in terms of r 238. The heads of argument must clearly outline the submissions the practitioner intends to rely on and set out the authorities, if any, which he intends to cite. Heads of argument constitute persuasive argument, making reference to issues and evidence already placed before the court by the parties at the founding stage.

The courts are increasingly coming across heads of argument which fall short of the definition prescribed in the rules of court. This issue should be well established and trite, but the courts are increasingly being confronted with heads of argument where annexures, which should have been part of the pleadings, are attached to the heads. In some instances new issues in the form of facts, as distinct from points of law, are raised in heads of argument.

Any process filed in violation of the rules will not take the party's case any further. It constitutes deceit on the part of any party seeking to introduce further pleadings or evidence through the back door. A legal practitioner who pursues such a course of action prejudices his client, both by failing

to present evidence before the court at the appropriate stage and by failing to use effectively the opportunity to present to the court heads of argument which will assist the client in its cause. Annexures attached to heads of argument and containing evidence will be disregarded as they are improperly before the court.