TLI4801
ASSIGNMENT 1 (SEMESTER 1)
DUE 16 MARCH 2026
QUESTION 1
(a) Discuss whether it is appropriate for Mr. XT to use an action or application
procedure.
ANSWER:
In the present matter, it is appropriate for Mr XT to proceed by action and not by
application. The dispute between Mr Mark and Ms Best concerns arrear rental arising
from a lease agreement, which is a typical contractual dispute likely to involve material
disputes of fact, including issues relating to breach, quantum and compliance with
contractual obligations. South African civil procedure requires that matters involving
foreseeable disputes of fact be instituted by way of action proceedings and not motion
proceedings.1
The fact that the matter is already defended confirms that the correct procedure was
followed by issuing a summons out of the High Court. Although Mr XT now seeks relief
in terms of Rule 35(7) due to the defendant’s failure to make proper discovery, this does
not convert the matter into an application. Rule 35(7) provides for an interlocutory
application within action proceedings, aimed at compelling compliance with procedural
rules rather than resolving the substantive dispute.2
Accordingly, while an application procedure is used incidentally to enforce discovery, the
main proceedings remain action proceedings, and it would be inappropriate to attempt
to resolve the main dispute by application.3
1
Marnewick CG Litigation Skills for South African Lawyers 5 ed (2024) LexisNexis ch 10.
2
Uniform Rule of Court 35(7).
3
Marnewick (2024) ch 10.
ASSIGNMENT 1 (SEMESTER 1)
DUE 16 MARCH 2026
QUESTION 1
(a) Discuss whether it is appropriate for Mr. XT to use an action or application
procedure.
ANSWER:
In the present matter, it is appropriate for Mr XT to proceed by action and not by
application. The dispute between Mr Mark and Ms Best concerns arrear rental arising
from a lease agreement, which is a typical contractual dispute likely to involve material
disputes of fact, including issues relating to breach, quantum and compliance with
contractual obligations. South African civil procedure requires that matters involving
foreseeable disputes of fact be instituted by way of action proceedings and not motion
proceedings.1
The fact that the matter is already defended confirms that the correct procedure was
followed by issuing a summons out of the High Court. Although Mr XT now seeks relief
in terms of Rule 35(7) due to the defendant’s failure to make proper discovery, this does
not convert the matter into an application. Rule 35(7) provides for an interlocutory
application within action proceedings, aimed at compelling compliance with procedural
rules rather than resolving the substantive dispute.2
Accordingly, while an application procedure is used incidentally to enforce discovery, the
main proceedings remain action proceedings, and it would be inappropriate to attempt
to resolve the main dispute by application.3
1
Marnewick CG Litigation Skills for South African Lawyers 5 ed (2024) LexisNexis ch 10.
2
Uniform Rule of Court 35(7).
3
Marnewick (2024) ch 10.
