Legal Practice Act — LPC Practical Vocational Training Guide: LPC Guide for Drafting of Contracts (Regulation 6(10)(m)) (source: https://lpc.org.za/wp-content/uploads/2026/03/m-LPC-Guide-for-Drafting-of-Contracts-ito-Regulation-610m.pdf) PRACTICAL VOCATIONAL TRAINING (PVT) STRUCTURED COURSEWORK PROGRAMME FOR CANDIDATE LEGAL PRACTITIONERS (CANDIDATE ATTORNEYS) Drafting of contracts, in terms of Regulation 6(10)(m) Author acknowledgement Ismail Hussain SC 2026/2027 PVT Structured Coursework Programme Publication and Copyright information © 2026/2027 The South African Legal Practice Council. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the South African Legal Practice Council. This intellectual property is strictly for the education and training of candidate legal practitioners as mandated by the Legal Practice Act 28 of 2014 and are not for commercial resale Acknowledgements The Legal Practice Council extends its gratitude to the Evaluator for his/her rigorous review, quality assurance, and contributions to the pedagogical effectiveness of this study guide: Reviewer: Mrs., Shivani Moodley (Pillay) ( Practising Legal Practitioner) Published by: The South African Legal Practice Council National Office, Building 10, Riverview Office Park 100 River View Park Street, Halfway Gardens Midrand, 1686 GUIDE FOR DRAFTING OF CONTRACTS Regulation 6 (10)(m) FIFTEEN GUIDES There are fifteen guides for practical vocational training of candidate attorneys. This guide deals with the Drafting of Contracts module in regulation 6(10)(m). OVERVIEW On 20 September 2014 Parliament assented to the Legal Practice Act 28 of 2014 (LPA). In terms of section 4 of the LPA, the Legal Practice Council (LPC) was established on 31 October 2018. The following day, on 1 November 2018 the bulk of the rest of the LPA came into effect. The Legal Practice Act regulates all legal practitioners whether on the practising roll or the non-practising roll. There are three forms of legal practice. They are an attorney, an advocate and an advocate with a Fidelity Fund certificate: see section 34 of the LPA. Under section 109(1)(a) of the LPA, the LPC published GN R921 in GG 41879 of 31 August 2018, as amended by GN R3779 in GG 49104 of 11 August 2023. The compulsory course work required in the regulations for candidate attorneys was standardised by the LPC in terms of the Norms and Standards. Regulation 6(10) reads: “(10) The programme of structured course work referred to in sub-regulation (1)(a) and (b) must be standardised and uniform throughout the Republic and comprise the following modules: (a) constitutional practice; (b) professional legal ethics; (c) personal injury claims; (d) high court practice; (e) magistrate’s court practice; (f) criminal court practice; (g) labour dispute resolution; (h) alternative dispute resolution; (i) attorneys’ bookkeeping; (j) wills and estates; (k) matrimonial law; (l) legal costs; (m) drafting of contracts; (n) information and communication technology for practice, and associated aspects of cyber law; and (o) introduction to practice management.” The LPC published the Norms and Standards on 11 December 2020 in Government Gazette 43981 under section 3 (g)(i) read with section 6(1)(b)(i) and section 95(1)(n) of the LPA. Regulation 6(10) requires candidate attorneys to be trained in the modules listed above. The similarity between regulation 6(10) for candidate attorneys and regulation 7(9) for pupils is not an accident. Section 32 of the LPA permits legal practitioners at any time, as determined in the rules and upon payment of the fee determined by the LPC, to apply to the LPC to convert their enrolment as attorneys to that of advocates and vice versa. Consequently, the training of candidate legal practitioners must allow for seamless section 32 conversions. Each guide per module deals with the requirements in regulation 6(10). Examiners are required to set questions drawn only from the latest LPC candidate attorneys’ curriculum and reading list. The combined curriculum and reading list is referred to as the “syllabus”. Each of the fifteen guides will assist training supervisors, mentors, busy legal practitioners and candidate attorneys to navigate the syllabus. The focus of the syllabus is on practical vocational training. INTRODUCTION TO EACH GUIDE Each guide per module in Regulation 6(10) is designed to assist candidate attorneys to understand, in real time, the minimum necessary under practical vocational training to become effective attorneys in practice. The essence of effective legal practitioners is the ability to read, to assimilate legal principles from that reading and to apply those principles to the facts of your client’s case and in argument before courts, tribunals, disciplinary bodies, and any other forms of formal gatherings and meetings. The guides avoid prolixity. However each guide requires dedicated concentration. For the examinations, candidate legal practitioners (candidate attorneys and pupils) must be up to date with the latest Constitutional Court and Supreme Court of Appeal cases to within one week before the date of each exam. The guides do not rehash what you studied at University. Your LLB proves your capability. This guide will assist you to prepare for the LPC admission examinations. More importantly, this guide will also equip you to be an effective, competent, calm and (reasonably) confident attorney when you enter the legal profession. REQUEST TO CANDIDATE ATTORNEYS FOR DUE DILIGENCE Please read this guide attentively. Please carry out all recommended court attendances. Please carry out all the recommended practical exercises. Please complete reading all the material in the LPC reading list. Please note the notional hours to complete all 15 guides are 400 hours. Please note this guide, like the other fourteen guides, is sufficient for self-study. Please remember, the exams are based on the LPC’s most up to date reading list. • Currently the most up to date syllabus dates from 28 March 2025: Notice 3086 of 2025 published in Government Gazette 52388. • Matters omitted from the LPC reading list will not be in the examinations unless the statute, case or article under question is included in your exam paper and you are allowed extra reading time to consider that statute, case or article. • Matters mentioned in the LPC reading list are the subject of exam questions. • You will be required to answer the exam questions from the perspective of: o Facts first o Law later • The LPC exams, also referred to as assessments, are practical in nature. • The questions will proceed from the following perspectives: – o What would you, as attorney of record, advise your client to consider? o What would you, as attorney of record, advise your client to do? o When and why would you refer a matter to another attorney or to counsel? o And similar practical questions. REFERENCES One of the products of Juta & Co Ltd is Jutastat. Most of the notes to this guide are downloaded from Jutastat. Please read the notes with care and diligence. This guide also relies on the Southern African Legal Information Institute (SAFLII). SAFLII is free and open access on the Internet. NOTE WELL The sequence of this guide follows the sequence in the most recent LPC PVT syllabus of 28 March 2025 for candidate attorneys. The fifteen guides are designed to be updated when the LPC so requires. Bullet points below are drafted to assist you to grasp the material in the reading list. You must decide whether to accept or to amend the bullet points to suit your understanding. When there are no bullet points, you need nonetheless to read the rule or case to prepare for your exams. LPC SYLLABUS AND THE OFFICIAL SOURCE FOR ALL EXAMINATION QUESTIONS AT THE LPC ATTORNEYS’ ADMISSION EXAMS CURRICULUM READING LISTS AND COURSE CONTENT Introduction to contract law and principles of Candidates are NOT required to memorise precedents drafting contracts of the contracts. Candidates must understand the Principles of drafting contracts are similar to principles of drafting and how to use precedents. drafting pleadings, except: Natal Joint Municipal Pension Fund v Endumeni Must know the difference between essential, Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA material and natural elements of a contract; 262; [2012] ZASCA 13) at para [18] Concentrate on advice re the underlying KPMG Chartered Accountants (SA) v Securefin Ltd transaction. Due diligence is important. Focus on 2009 (4) SA 399 (SCA) at para [39]. this. Types of contracts to consider: Christie’s Law of Contract in South Africa 8th Edition Sale of business; Sale of shares; Pacta sunt servanda Lease of immovable property; Beadica 231 CC v Trustees, Oregon Trust 2020 (5) SA Lease of movable property, like motor vehicles; 247 (CC) at paras [41] and [58] Partnership; Barkhuizen v Napier 2007 (5) SA 323 (CC) at paras Joint venture; [28] to [35] read with para [70] Employment of an independent contractor. Mohamed’s Leisure Holdings v Southern Sun Hotel Cession (rights); Interests (Pty) Ltd 2018 (2) SA 314 (SCA) at para [30] Delegation (duties); and Liberty Group Ltd and Others v Mall Space Assignment (obligations). Management CC 2020 (1) SA 30 (SCA) at paras [27] Service Level Agreement to [31] Boilerplate clauses The impact of technology on contract drafting and the available software currently being used by attorneys. INDEX Overview – Fifteen Guides pages 1 to 3 LPC syllabus and the official source page 4 for all examination questions at the LPC attorneys’ admission exams Index page 5 Drafting of Contracts Introduction page 6 The Law pages 6 to 7 The layout pages 7 to 9 Some Important Judgments page 9 The Responsible Use of Precedents page 10 The Available Software page 11 Further Vocational Training page 12 The Integration Rule (Parol evidence) page 12 Riley vs Seligson 1977 (1) SA 626 (A) pages 12 to 13 Express Terms page 13 Implied provisions pages 13 to 14 Residual Provisions page 14 DRAFTING OF CONTRACTS Introduction You are not required to memorise various contracts for purposes of the assessment. Swotting from various precedents serves no vocational purpose. You are required to have an understanding of the process that goes into drafting a commercial contract for a client. The clients can range from a small business to a multi-national corporate. For purposes of Regulation 6 (10) (m) you are expected to acquire, inter alia, the following skills: • Taking instructions from client; • Having a thorough understanding of the underlying transaction; • Exactly what is the nature of the transaction and what area of the law is applicable; • What are client’s objectives and how can you assist client to reach those objectives; • Understand that before client signs any document, an effective due diligence must be carried out; • As part of due diligence, you have to carry out a risk/reward assessment; • You may have to carry out an independent valuation of assets and inventory; • Find out how the transaction is to be funded; will it include debt; how much cash will be exchanged; • Understand the business model; • If the business is location sensitive, then check that the location is suitable; • Consider carefully the applicable legislation for purposes of compliance; • You may have to look at licensing requirements, taxation, labour relations and environmental compliance; • Consider if there will be reporting requirements in terms of the Competition Act; • You may then have to apply your mind as to what software or AI tools you will require to produce the first draft. The above is not an exhaustive list, it is an indication of the basic steps you have to take in the process of drafting a contract. Every contract is unique, therefore take instructions carefully and always apply your mind to due diligence. Note that it will be a disaster if you do not take full instructions and you merely go looking for a precedent to prepare your first draft. Note that drafting contracts is about managing legal risk. The Law Every contract you draft will involve the law. This is why client comes to you and does not prepare the contract themselves from a convenient precedent. Remember, that part of drafting a contract involves the provision of relevant legal advice. You have to consider legislation, regulations, notices and guidelines. This is especially so where the contract involves a highly regulated industry, like financial services, communications and manufacturing. There may be licensing requirements and environmental compliance. Find out and get your client ready to comply. All commercial contracts involve some level of legal compliance. Also apply your mind to basic governmental compliance, such as tax, Compensation for work place injuries, unemployment fund, FICA, POPIA etc. Depending on the area of commerce that is involved, you must consult the common law. This requires you to read the most recent decisions of our courts on the type of contract you are working on. Find out what is the latest decision of the highest court. Judgments are crucial because they deal with contractual disputes and interpretation and often decisions are made that require an amendment to your precedents. An excellent example of this is the judgment in the Spring forest case, where the judgment resulted in all attorneys revising the “Shifrin” or non-variation clause in their contracts. The reference to this case is in the ICT reading list, read the judgment and see if you can work out what caused the amendment. Read a recent text book about the transaction you are engaged in. Textbooks are useful for establishing the essentialia of a contract and are therefore useful for the purposes of accurate drafting. Where the text book sets out the essential averments you will require, the authors will also support what they say with reference to a judgment/s. You have to read that judgment/s. The layout All contracts are unique in their transaction definition. However, much of commercial contracts have a similar layout. Broadly, the anatomy of a contract can be separated into three parts: Firstly, the identification of the parties, who represented the parties and when and where the contract was entered into. For juristic persons, you must look for the client’s representative’s authority to act. Secondly, an accurate description of the transaction that the contract records for the parties and that the parties agree to be bound by such terms. Thirdly, the boiler plate clauses, or the standard clauses. Consider the following basic instructions when drafting a contract: • Clearly identify each party to the contract. Get full names, addresses and identity numbers. Where the one or more parties are juristic persons, conduct a CIPC search to verify the details, check if the company’s registration is valid and effective. Always check on the contracting party’s authority to enter into the contract; look for company resolutions and delegations. This is a very basic process, but you must get this right. • Duties and obligations Set out a detailed description of each party’s duties and obligations under the contract. Give a detailed description of goods and services; you must deal with the agreed timetable for delivery or completion. Carefully set out the agreed contract price. This is part of the essentialia of the contract. • Termination clause You must set out clearly what event will trigger termination. You will deal with what amounts to a breach and how each party will react to a breach. Also set out any requirement to give notice to remedy a breach. The contract must also state the consequences of breach. • The entire agreement There must be a provision that states that the contract represents the entire agreement. This prevents a party from later claiming that the contract does not represent the whole agreement between the parties. You have to provide for mechanisms to amend the contract. Please read the ECT Act and see if you can explain how you would write the “non variation” clause in the light of the Act and the Spring forest decision. Try and write this yourself, without consulting a precedent. • Define important terms Do not make the assumption that the parties share a common understanding of important terms. Deal with these words and phrases in the definition section of the contract. You will avoid conflict. • Dispute resolution Anticipate that the parties may become embroiled in a dispute. Deal with the various options available for resolving disputes. This will depend on the nature of the contract. However, all disputes are expected to be resolved quickly and cheaply. There are enormous advantages in keeping disputes away from high court and even magistrates court litigation. Commercial contracts cannot tolerate lengthy delays and disproportionate costs associated with high court litigation. For example, an engineering contract, a building contract or a service level agreement, requires swift dispute resolution. Always apply your mind to Alternative Dispute Resolution, such as discussion, negotiation, mediation and arbitration. In this clause deal with choice of law, jurisdiction and choice of court and the question of costs. • Place to effect service Provide for an address where the parties will receive service of notices and court processes. Apply your mind to the method of service, consider the uniform rules and the available options for electronic service. • Where? The contract must state where it was entered into. Also remember to state who entered into the contract on behalf of all the parties. • Severability If one provision is found to be unenforceable, this clause ensures that the rest of the contract will remain in force. • Page numbers Make it a habit to number the pages and to provide for initials at the bottom of each page. This prevents sharp practises such as inserting altered pages post signature. Modern drafting requires you to produce user-friendly documents. Use numbered paragraphs and headings. • Contra Proferentem This is a rule of interpretation where the contract will be construed against the drafter. There are a number of ways of drafting this clause. Consult your principal and ask to see a precedent. Here is a question for you, can you exclude the operation of this rule in the contract? • The entire document When you draft, remember that the entire document counts; not isolated provisions. Look at the judgments mentioned in your reading list. Can you say how our courts interpret contracts, what are the rules of interpretation? • General provisions Here are some provisions that are common, you are expected to draft them where applicable: remedies for non-payment or late performance; time clauses (where time is of the essence) and how the time is calculated; copyright ownership; assignability (can obligations under the contract be assigned to a third party); renewal terms or options; return of property on expiring of the contract; confidentiality; limitation of liability; indemnification and restraint of trade. Some Important Judgments A useful judgment is the Natal Joint Municipal Pension Fund case, in your reading list, please read chapter [18], it deals with interpretation, but also contains some useful lessons on drafting. Can you list, in your own words, the main points in this paragraph? Also read paragraph [39] of the judgment in KPMG v Securifin, in your reading list. Deals with errors made by practitioners in dealing with a dispute over interpretation and the use of expert evidence. What are the lessons for drafters in this judgment? How will this judgment assist you where you become engaged in a dispute over interpretation of a contract? It is important for you as drafters of contracts to understand the debate that engaged our highest courts on the issue of the role of equity in contract. The debate took place post Constitution and the issue was about what role ubuntu plays in interpreting contract and how does this impact on the established principle of pacta sunt servanda? Read Beadica v Trustees, Oregon Trust (in your reading list) read paragraphs [41] to [43]. You are expected to read the other cases in the reading list, i.e. Barkhuizen, Mohameds Leasure and Liberty Group. Barkhuizen is particularly important and deals with the issue of just how far can one take notions of good faith or fairness in applying substantive rules of contract law? Can you state in your own words, what Barkhuizen decided and how this impacts drafting? The Responsible Use of Precedents You will learn that when drafting documents in litigation, such as pleadings, affidavits and heads of argument, you are not to use precedents, as each case is based on a unique set of facts. When drafting contracts, you are expected to use precedents. Although every transaction is unique in its terms, objectives and desired outcome, the contract will contain a number of standard clauses and or boiler-plate clauses. Using precedents save time as most contracts have been developed over many years and it would be inefficient for you to try and draft every contract from scratch. There are some contracts that are highly technical by nature, you must consult the precedents developed within the industry. A good example are engineering contracts which have evolved and developed over many decades and are readily available as precedents to the legal profession. These are known as FIDIC contracts, developed by the International Federation of Consulting Engineers, they publish Standard Forms of Contract. Today you will have access to templates and precedents that are available for all types of contracts in the form of software services. This can range from local practice management platforms to specialised document automation systems and AI-assisted contract drafting tools. Go and ask your principal about the systems available in the firm. As much as we say you must use precedents as well as AI assisted tools, you never forget your role as a lawyer and your duty towards your client. Using precedents slavishly and without applying your mind to it, is a dangerous practice. From finding the correct or appropriate precedent and software assistance to your first draft, you have to think like a lawyer and analyse and verify every clause that you draft. You are not to become a copy and paste idiot. In particular, try and draft the rights and obligations in the particular transaction you are dealing with, then use the precedent to fill in the rest. You have to absolutely master the nature, scope and objectives of the transaction your client wants to enter into. You will evaluate the risks and advise client, before you start with your first draft. Remember: even if you use a template that is familiar to you, always read each and every clause in your first draft and establish that it is relevant to the transaction your client intends entering into. Also, your analysis of the first draft is directed towards establishing what you may have left out. You can even use an AI tool to carry out this analysis. The available Software Here we give you an idea of what assistance is available to attorneys, when drafting contracts. We know that document assembly systems have been in use for a long time. The current AI assisted software is even more helpful. This is not a comprehensive list; you will have to consult the person in charge of IT at your law firm and find out what the partners are currently using. This is currently in use in South African law firms: ➢ ContractWise It aims to reduce manual drafting by using structured templates that generate contracts based on input answers. It is relevant to local legal practice and provides tailored contract templates. ➢ Legal Interact Part of a broader legal practice and contract management suite available in South Africa. It includes contract lifecycle and helps from drafting to signing, with automated reminders and post-signature management. ➢ Lawly An AI-powered document generator that creates legally tailored business contracts guided by a questionnaire. It is used by attorneys and business clients to generate drafts quickly that can be refined into a final document. It provides quick AI-generated draft documents based on South African legal frameworks. ➢ Contract Express (Thomson Reuters) A leading document automation platform used widely by law firms globally, including in South Africa. It works from pre-approved templates (built in Word) with structured questionnaires to generate consistent, compliant contracts and legal documents efficiently. ➢ Lexis+ AI / Westlaw Edge / Practical Law/CoCounsel AI-enhanced research and drafting tools tailored for legal professionals. This is an AI tool trained by LexisNexis using South African law. A version is currently available from LexisNexis. You will find more law firms are combining template automation + AI assistance to accelerate drafting while managing risk. Please go onto the websites of these providers and read more about their products. If you use ChatGPT it will give you an analysis of the various products available to lawyers and it will provide comparisons of functionality and price. Further Vocational Training In the reading list we recommended Christie’s Law of Contract in South Africa 8th Edition. You are required to be familiar with the following: • Invariable provisions • Express provisions • Implied provisions • Residual provisions • Terms, conditions and warranties • Variation and waiver • Breach and dispute resolution • Boilerplate clauses These are typically the types of clauses you will come across. Read the discussion in Christie. It is also important for you to read the most recent decisions of the highest court in respect of these clauses. Below we deal with some of these clauses, note that there are case references mentioned that are not in your reading list. Please read them, however these cases will not be part of your assessment. The integration rule (Parol evidence) When a contact has been reduced to writing, the writing is, in general, regarded as the exclusive memorial of the transaction and in a dispute between the parties no evidence to prove its terms may be given save the document or secondary evidence of its contents, nor may the contents of the document be contradicted, altered, added to or varied by parol evidence. Riley vs Seligson 1977 (1) SA 626 (A) The process of embodying the terms of a jural act in a single memorial may be termed the integration of the act, that is its formation from scattered parts into an integral documentary unity. The practical consequence being that their former scattered parts are no longer of effect and are replaced by a single embodiment of what the parties intended. This is done in the interests of certainty and assists the parties in the event of a breach. Consider the effect of the ETC Act on the process of negotiations. Negotiations over the internet, emails, may result in parties claiming there was a contract. Make certain that when you engage in electronic negotiations, make it clear that this is mere negotiation and was not intended to be binding (because of an electronic signature) and the parties will, if agreement is reached, enter into a written agreement, to be signed by hand, and it is only such agreement that will be considered binding. Express Terms The terms of a contract upon which the parties agree are of two kinds: Express or Implied. Express terms are provisions which the parties have expressed in words, oral or written. Express terms are terms that have been specifically mentioned and agreed by both parties at the time the contract is made. A written agreement signed by the parties will contain express terms. In a tailor made once off contract, the provisions will be expressed in words in writing and are intended to form part of the contract and are binding. Here bring in the integration rule above. In the absence of express provision to the contrary, headings in contracts can be taken into account in interpreting the contract. Where a heading conflicts with the body of the contract, it must be the body of the contract which prevails because the parties' intention is more likely to appear from the provisions they have spelt out, than from an abbreviation they have chosen to identify the effect of those provisions. But where the heading and the detailed provisions can be read together, that should be done. Sentinel Mining Industry Retirement Fund and Another v Waz Props (Pty) Ltd and Another 2013 (3) SA 132 (SCA) Implied provisions However, sometimes a term which has not been mentioned by either party will nonetheless be ‘included’ in the contract, often because the contract doesn’t make commercial sense without that term. Terms like this are called implied terms. Business contracts are often very lengthy. A contract drafter normally attempts to cover all of the terms and provisions of the agreement. Implied terms are words or provisions that a court assumes were intended to be included in a contract. This means that the terms aren't expressly stated in the contract. Generally, the drafter of the contract wants to avoid the use of implied terms. Most parties don't want to rely on a court's interpretation of the contract terms. However, it's usually not possible to cover every detail of an agreement. In these cases, the court will assume that some terms are implied. This allows the court to enforce the contract and follow through with the parties' intent. It also protects parties from fraud by omission and misrepresentation. In our law implied provisions are founded on the intention of the parties. The court will consider the express terms of the contract. The court will also consider that if the express terms are detailed and the implied provision is claimed to be important, the court will question why the alleged implied provision was not expressed. The court will also consider evidence of the surrounding circumstances; such as what was said during negotiation. Residual Provisions These are contractual provisions which the law provides and imposes in the absence of express or implied agreement of the parties (in a sale; absent agreement on delivery, the law is that delivery must be made within a reasonable time). This often depends on the nature of the contract and the extent of the parties’ agreement. We do not treat residual provisions the same as implied provisions. The test is different. The one is based on the intention of the parties (implied) while the other is an application of law. Ismail Hussain SC January 2026

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