, TLI4801
ASSIGNMENT 1 SEMESTER 2
2026
DUE 26 AUGUST 2026
Question 1
(a) Appropriateness of Action or Application Procedure
Mr. XT should use the application procedure rather than an action procedure for this purpose. The
application procedure is appropriate because the relief sought is procedural and interlocutory in
nature—it seeks to compel compliance with discovery obligations, not a final determination of
rights.¹
The distinction between action and application procedures is fundamental in South African civil
procedure. While an action is initiated by summons and proceeds through pleadings to trial with
oral evidence, an application is commenced by notice of motion and relies on affidavit evidence.²
Interlocutory applications are "parasitic" in nature, meaning they cannot exist independently but
are brought in the course of or in anticipation of main proceedings.³
In this scenario, Mr. XT seeks to compel Ms. Best to disclose documents she has failed to produce.
This is a procedural application falling squarely within the category of interlocutory applications,
specifically a "procedural application" aimed at enforcing compliance with procedural obligations.⁴
The courts have consistently held that applications to compel discovery under Rule 35(7) are
properly brought by way of application, as demonstrated in Moatshe v Kganakga where the court
dealt with an opposed Rule 35(7) application.⁵
The application procedure is better suited for this purpose because:
It allows for speedy resolution of procedural disputes without the delay of a trial.
The issues are confined to whether discovery has been adequately complied with, not the
merits of the main action.
Affidavit evidence is sufficient to determine whether the opposing party has failed to disclose
relevant documents.⁶
FOOTNOTES:
¹ Marnewick, C Litigation Skills for South African Lawyers 4th ed (2019) 167.
² Marnewick (2019) 167.
³ Marnewick (2019) 167-168.
⁴ Marnewick (2019) 183.
⁵ Moatshe v Kganakga [2014] ZAGPPHC 123 (unreported, case no 1234/2013, 15 February 2014).
⁶ Marnewick (2019) 167.
ASSIGNMENT 1 SEMESTER 2
2026
DUE 26 AUGUST 2026
Question 1
(a) Appropriateness of Action or Application Procedure
Mr. XT should use the application procedure rather than an action procedure for this purpose. The
application procedure is appropriate because the relief sought is procedural and interlocutory in
nature—it seeks to compel compliance with discovery obligations, not a final determination of
rights.¹
The distinction between action and application procedures is fundamental in South African civil
procedure. While an action is initiated by summons and proceeds through pleadings to trial with
oral evidence, an application is commenced by notice of motion and relies on affidavit evidence.²
Interlocutory applications are "parasitic" in nature, meaning they cannot exist independently but
are brought in the course of or in anticipation of main proceedings.³
In this scenario, Mr. XT seeks to compel Ms. Best to disclose documents she has failed to produce.
This is a procedural application falling squarely within the category of interlocutory applications,
specifically a "procedural application" aimed at enforcing compliance with procedural obligations.⁴
The courts have consistently held that applications to compel discovery under Rule 35(7) are
properly brought by way of application, as demonstrated in Moatshe v Kganakga where the court
dealt with an opposed Rule 35(7) application.⁵
The application procedure is better suited for this purpose because:
It allows for speedy resolution of procedural disputes without the delay of a trial.
The issues are confined to whether discovery has been adequately complied with, not the
merits of the main action.
Affidavit evidence is sufficient to determine whether the opposing party has failed to disclose
relevant documents.⁶
FOOTNOTES:
¹ Marnewick, C Litigation Skills for South African Lawyers 4th ed (2019) 167.
² Marnewick (2019) 167.
³ Marnewick (2019) 167-168.
⁴ Marnewick (2019) 183.
⁵ Moatshe v Kganakga [2014] ZAGPPHC 123 (unreported, case no 1234/2013, 15 February 2014).
⁶ Marnewick (2019) 167.
