TLI4801
Assignment 1
Semester 1
Unique No: 265331
DUE: 16 March 2026
, UNIVERSITY OF SOUTH AFRICA
TLI4801 – CIVIL LITIGATION
ASSIGNMENT 01 – SEMESTER 1
STUDENT NAME: [Insert Your Name]
STUDENT NUMBER: [Insert Your Student Number]
DUE DATE: 16 March 2026
UNIQUE NUMBER: 265331
, QUESTION 1
(a) Discussion of whether Mr. XT should use an action or application
procedure
In the present matter, Mr. Winner XT is seeking an order in terms of Rule 35(7) of the
Uniform Rules of Court to compel Ms. Sue Best to disclose documents that have not
been provided during the discovery process. The appropriate procedure for this relief is
an application procedure, not an action.
The distinction between actions and applications is fundamental in South African civil
procedure.¹ An action is instituted by summons and is the appropriate procedure when
there is a factual dispute that requires oral evidence and the resolution of disputed facts
through the trial process.² In contrast, an application is initiated by notice of motion and
is suitable when the court can decide the matter on the papers without hearing oral
evidence, or when the relief sought is interlocutory in nature. ³
In this case, the main claim for arrear rentals has already been instituted by way of
summons (action procedure), and the matter is defended and being prepared for trial.
However, Mr. XT now seeks an ancillary or interlocutory order to compel discovery of
documents under Rule 35(7). ⁴ Such interlocutory applications are expressly provided for
in the Uniform Rules and are brought by way of notice of motion, not by action. ⁵
Rule 35(7) specifically provides that where a party fails to comply with a request for
discovery or inspection of documents, the requesting party may apply to court for an
order compelling such discovery.⁶ The use of the word “apply” in the rule itself indicates
that application procedure is the appropriate mechanism. Furthermore, the nature of the
relief sought an order directing compliance with discovery obligations is procedural and
interlocutory, not a final determination of substantive rights requiring oral evidence. ⁷
Conclusion: It is appropriate and indeed necessary for Mr. XT to use application
procedure to seek an order in terms of Rule 35(7) to compel Ms. Best to disclose the
documents.
(b) The pleading or process that will be used by Mr. XT
Assignment 1
Semester 1
Unique No: 265331
DUE: 16 March 2026
, UNIVERSITY OF SOUTH AFRICA
TLI4801 – CIVIL LITIGATION
ASSIGNMENT 01 – SEMESTER 1
STUDENT NAME: [Insert Your Name]
STUDENT NUMBER: [Insert Your Student Number]
DUE DATE: 16 March 2026
UNIQUE NUMBER: 265331
, QUESTION 1
(a) Discussion of whether Mr. XT should use an action or application
procedure
In the present matter, Mr. Winner XT is seeking an order in terms of Rule 35(7) of the
Uniform Rules of Court to compel Ms. Sue Best to disclose documents that have not
been provided during the discovery process. The appropriate procedure for this relief is
an application procedure, not an action.
The distinction between actions and applications is fundamental in South African civil
procedure.¹ An action is instituted by summons and is the appropriate procedure when
there is a factual dispute that requires oral evidence and the resolution of disputed facts
through the trial process.² In contrast, an application is initiated by notice of motion and
is suitable when the court can decide the matter on the papers without hearing oral
evidence, or when the relief sought is interlocutory in nature. ³
In this case, the main claim for arrear rentals has already been instituted by way of
summons (action procedure), and the matter is defended and being prepared for trial.
However, Mr. XT now seeks an ancillary or interlocutory order to compel discovery of
documents under Rule 35(7). ⁴ Such interlocutory applications are expressly provided for
in the Uniform Rules and are brought by way of notice of motion, not by action. ⁵
Rule 35(7) specifically provides that where a party fails to comply with a request for
discovery or inspection of documents, the requesting party may apply to court for an
order compelling such discovery.⁶ The use of the word “apply” in the rule itself indicates
that application procedure is the appropriate mechanism. Furthermore, the nature of the
relief sought an order directing compliance with discovery obligations is procedural and
interlocutory, not a final determination of substantive rights requiring oral evidence. ⁷
Conclusion: It is appropriate and indeed necessary for Mr. XT to use application
procedure to seek an order in terms of Rule 35(7) to compel Ms. Best to disclose the
documents.
(b) The pleading or process that will be used by Mr. XT
