TLI4801
Assignment 1
Semester 2 2022
, Stuvia.com - The study-notes marketplace
QUESTION 1
Mrs. Jones instructs her attorney, Mr. A to sue her former tenant, Ms. Liz Taylor
for arrear rentals in respect of an apartment. The matter is defended. The parties
prepare for the trial and Dolly Young fails to disclose some documents. Mr. A
believes that his client’s case preparation is prejudiced by this failure and he
approaches the court in terms of Rule 35(7) for an order to force Liz Taylor to
disclose the documents.
Answer the following questions. You may supplement the given facts, provided
that your own rendition does not detract from the core issues.
a) Discuss whether it is appropriate for Mr. A to use an action or application
procedure.
It should be noted that an action procedure involves the exchange of pleadings or the
summons procedure and evidence is presented by oral evidence. This procedure is
not applicable here. An application procedure is initiated by the issue of a notice of
motion or application, and evidence is presented in the form of affidavits.
Rule 35(7) involves the process whereby, a party giving notice to discover, may apply
to the court for an order for compliance from the other party, and failing such
compliance, dismiss the claim or strike out the defence. An application to compel
discovery is an example of an interlocutory or procedural application. An interlocutory
application involves an interim or procedural relief made during the course of or in
anticipation of an action or substantive application.
Application to facts: In the light of the above, it is recommended that it is more
appropriate for Mr X to use an application procedure rather than the action procedure.
b) Depending on your answer in (a) above, name and discuss the pleading
or process that will be used by Mr. A.
A pleading refers to a written document containing averments by the parties to an
action. The material facts supporting the claim or defence are clearly and concisely
set out in the pleading. On the other hand, a process refers to a step proceeding from
the court such as inter alia, a subpoena or notice.
Assignment 1
Semester 2 2022
, Stuvia.com - The study-notes marketplace
QUESTION 1
Mrs. Jones instructs her attorney, Mr. A to sue her former tenant, Ms. Liz Taylor
for arrear rentals in respect of an apartment. The matter is defended. The parties
prepare for the trial and Dolly Young fails to disclose some documents. Mr. A
believes that his client’s case preparation is prejudiced by this failure and he
approaches the court in terms of Rule 35(7) for an order to force Liz Taylor to
disclose the documents.
Answer the following questions. You may supplement the given facts, provided
that your own rendition does not detract from the core issues.
a) Discuss whether it is appropriate for Mr. A to use an action or application
procedure.
It should be noted that an action procedure involves the exchange of pleadings or the
summons procedure and evidence is presented by oral evidence. This procedure is
not applicable here. An application procedure is initiated by the issue of a notice of
motion or application, and evidence is presented in the form of affidavits.
Rule 35(7) involves the process whereby, a party giving notice to discover, may apply
to the court for an order for compliance from the other party, and failing such
compliance, dismiss the claim or strike out the defence. An application to compel
discovery is an example of an interlocutory or procedural application. An interlocutory
application involves an interim or procedural relief made during the course of or in
anticipation of an action or substantive application.
Application to facts: In the light of the above, it is recommended that it is more
appropriate for Mr X to use an application procedure rather than the action procedure.
b) Depending on your answer in (a) above, name and discuss the pleading
or process that will be used by Mr. A.
A pleading refers to a written document containing averments by the parties to an
action. The material facts supporting the claim or defence are clearly and concisely
set out in the pleading. On the other hand, a process refers to a step proceeding from
the court such as inter alia, a subpoena or notice.
