TLI4801
ASSIGNMENT 1
DUE DATE: 28 AUGUST 2026
,TLI4801 ASSIGNMENT 1 2026
DUE 26 AUGUST 2026
Question 1
(a) Whether it is appropriate for Mr XT to use an action or application procedure
for the purpose of compelling disclosure under Rule 35(7)
It is appropriate for Mr XT to use the application procedure (motion proceedings) rather
than action proceedings.¹
Rule 35(7) of the Uniform Rules of Court provides that if a party fails to comply with a
notice to discover, the other party may apply to court for an order compelling
compliance. The relief sought is procedural and interlocutory in nature, it seeks to
compel the opposing party to perform a procedural obligation (discovery) rather than to
determine the substantive merits of the case.
The application procedure is the appropriate mechanism because:
The purpose is to obtain an order compelling compliance with a rule of court, which
is a classic example of an interlocutory application.
There is no genuine dispute of fact that requires oral evidence; the question is
simply whether the defendant has failed to make discovery after proper notice.
Application proceedings are quicker and more cost-effective for procedural relief,
which aligns with the purpose of Rule 35(7) to expedite the discovery process.
¹ Marnewick CG Litigation Skills for South African Lawyers 4th ed (2019/2024) LexisNexis, Chapter 10 at
167–168.
, The court can grant the order on affidavit evidence without the need for a trial, as the
matter involves a procedural default rather than a substantive dispute.
The legal elements for an application to compel discovery under Rule 35(7) are: (i) an
existing action between the parties; (ii) pleadings have closed; (iii) a notice to discover
has been served; (iv) the prescribed period has elapsed; and (v) the other party has
failed to make discovery.
Therefore, Mr XT should proceed by way of an application (notice of motion) rather than
an action (summons).
(b) The pleading or process that Mr XT will use
The pleading or process that Mr XT will use is an interlocutory application, which
consists of the following documents:
1. Notice of Application (Notice of Motion)
The notice of application must be in the form prescribed by Rule 6 and must:
Be addressed to the Registrar and the defendant's attorneys
State the date and time when the application will be heard
Set out the precise orders sought, namely:
An order compelling the defendant to comply with Rule 35(2) by making discovery
within a specified period
Leave to approach the court for an order striking out the defendant's defence in the
event of non-compliance
ASSIGNMENT 1
DUE DATE: 28 AUGUST 2026
,TLI4801 ASSIGNMENT 1 2026
DUE 26 AUGUST 2026
Question 1
(a) Whether it is appropriate for Mr XT to use an action or application procedure
for the purpose of compelling disclosure under Rule 35(7)
It is appropriate for Mr XT to use the application procedure (motion proceedings) rather
than action proceedings.¹
Rule 35(7) of the Uniform Rules of Court provides that if a party fails to comply with a
notice to discover, the other party may apply to court for an order compelling
compliance. The relief sought is procedural and interlocutory in nature, it seeks to
compel the opposing party to perform a procedural obligation (discovery) rather than to
determine the substantive merits of the case.
The application procedure is the appropriate mechanism because:
The purpose is to obtain an order compelling compliance with a rule of court, which
is a classic example of an interlocutory application.
There is no genuine dispute of fact that requires oral evidence; the question is
simply whether the defendant has failed to make discovery after proper notice.
Application proceedings are quicker and more cost-effective for procedural relief,
which aligns with the purpose of Rule 35(7) to expedite the discovery process.
¹ Marnewick CG Litigation Skills for South African Lawyers 4th ed (2019/2024) LexisNexis, Chapter 10 at
167–168.
, The court can grant the order on affidavit evidence without the need for a trial, as the
matter involves a procedural default rather than a substantive dispute.
The legal elements for an application to compel discovery under Rule 35(7) are: (i) an
existing action between the parties; (ii) pleadings have closed; (iii) a notice to discover
has been served; (iv) the prescribed period has elapsed; and (v) the other party has
failed to make discovery.
Therefore, Mr XT should proceed by way of an application (notice of motion) rather than
an action (summons).
(b) The pleading or process that Mr XT will use
The pleading or process that Mr XT will use is an interlocutory application, which
consists of the following documents:
1. Notice of Application (Notice of Motion)
The notice of application must be in the form prescribed by Rule 6 and must:
Be addressed to the Registrar and the defendant's attorneys
State the date and time when the application will be heard
Set out the precise orders sought, namely:
An order compelling the defendant to comply with Rule 35(2) by making discovery
within a specified period
Leave to approach the court for an order striking out the defendant's defence in the
event of non-compliance
