, PLEASE USE THIS DOCUMENT AS A GUIDE TO ANSWER YOUR ASSIGNMENT
1. Avril Mark, a commercial property owner, is in the business of leasing office space in Menlyn,
Pretoria. Mr. Mark instructs his attorney, Mr. Winner XT, to sue his former tenant, Ms. Sue
Best, a psychologist, running her business as a sole proprietor at the Menlyn property of Avril
Mark for arrear rentals in respect of the office space. Mr XT proceeds with a summons issued
out of the High Court division, Pretoria. The matter is defended. The parties prepare for the
trial and Ms. Best fails to disclose some documents. Mr. XT 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 Sue Best to disclose the documents. Answer the following questions. You may
supplement the given facts, provided that y our own rendition does not detract from the core
issues.
A) Discuss whether it is appropriate for Mr. XT to use an action or application procedure.
In this scenario, Mr. XT is seeking the disclosure of documents by Ms. Best, as she failed to disclose
them during the pre-trial phase. Since there is an existing dispute and the issue pertains to the
disclosure of documents after the pleadings have closed, the proper procedure to adopt would be an
application.
This is because an application is more suited for interlocutory relief such as compelling a party to
comply with procedural obligations, including the disclosure of documents, rather than a full action.
In terms of Rule 35(7), where a party fails to comply with a request to disclose documents, the other
party can apply to the court for an order to compel disclosure. Therefore, it is appropriate for Mr. XT
to use the application procedure rather than initiating an action. The application procedure allows the
issue to be dealt with promptly without the need for a full trial1 .
B) Depending on your answer in (a) above, name and discuss the pleading or process that will
be used by Mr. XT on behalf of his client, Mr. Avril Mark.
Given that the issue involves the failure to disclose documents after the close of pleadings, Mr. XT
will need to bring an interlocutory application before the court to compel disclosure in accordance
with Rule 35(7). This application would seek an order compelling Ms. Best to disclose the relevant
documents and, in the event of non-compliance, to dismiss her defense or strike out her claim. The
relevant pleading for this application is a notice of motion supported by an affidavit explaining the
failure to disclose and the prejudice caused by this non-compliance2 . This will be an interlocutory
application, as it seeks procedural relief rather than final relief, and it must be brought during the
course of the litigation, before the trial can proceed fully.
In summary, Mr. XT should proceed by filing an interlocutory application under Rule 35(7),
requesting an order compelling the disclosure of documents and addressing any potential prejudice to
the trial preparation of Mr. Mark.
1: (Marnewick, 2024, p. 167)
2: (Marnewick, 2024, p. 185)
1. Avril Mark, a commercial property owner, is in the business of leasing office space in Menlyn,
Pretoria. Mr. Mark instructs his attorney, Mr. Winner XT, to sue his former tenant, Ms. Sue
Best, a psychologist, running her business as a sole proprietor at the Menlyn property of Avril
Mark for arrear rentals in respect of the office space. Mr XT proceeds with a summons issued
out of the High Court division, Pretoria. The matter is defended. The parties prepare for the
trial and Ms. Best fails to disclose some documents. Mr. XT 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 Sue Best to disclose the documents. Answer the following questions. You may
supplement the given facts, provided that y our own rendition does not detract from the core
issues.
A) Discuss whether it is appropriate for Mr. XT to use an action or application procedure.
In this scenario, Mr. XT is seeking the disclosure of documents by Ms. Best, as she failed to disclose
them during the pre-trial phase. Since there is an existing dispute and the issue pertains to the
disclosure of documents after the pleadings have closed, the proper procedure to adopt would be an
application.
This is because an application is more suited for interlocutory relief such as compelling a party to
comply with procedural obligations, including the disclosure of documents, rather than a full action.
In terms of Rule 35(7), where a party fails to comply with a request to disclose documents, the other
party can apply to the court for an order to compel disclosure. Therefore, it is appropriate for Mr. XT
to use the application procedure rather than initiating an action. The application procedure allows the
issue to be dealt with promptly without the need for a full trial1 .
B) Depending on your answer in (a) above, name and discuss the pleading or process that will
be used by Mr. XT on behalf of his client, Mr. Avril Mark.
Given that the issue involves the failure to disclose documents after the close of pleadings, Mr. XT
will need to bring an interlocutory application before the court to compel disclosure in accordance
with Rule 35(7). This application would seek an order compelling Ms. Best to disclose the relevant
documents and, in the event of non-compliance, to dismiss her defense or strike out her claim. The
relevant pleading for this application is a notice of motion supported by an affidavit explaining the
failure to disclose and the prejudice caused by this non-compliance2 . This will be an interlocutory
application, as it seeks procedural relief rather than final relief, and it must be brought during the
course of the litigation, before the trial can proceed fully.
In summary, Mr. XT should proceed by filing an interlocutory application under Rule 35(7),
requesting an order compelling the disclosure of documents and addressing any potential prejudice to
the trial preparation of Mr. Mark.
1: (Marnewick, 2024, p. 167)
2: (Marnewick, 2024, p. 185)
