TLI4801
Assignment 1 Semester 2 2026
Unique number: 366325
Due date: 24 August 2026
QUESTION 1
(a) Appropriate procedure
Mr Winner XT correctly instituted Mr Avril Mark’s claim for arrear rental by action
procedure. An action begins by summons and is suitable where the defendant
disputes liability and material factual disputes may have to be resolved through oral
evidence, cross-examination and a trial.1
Ms Sue Best has defended the claim, which indicates that the parties do not agree
on all the facts concerning the alleged arrear rental. The principal dispute should
therefore remain an action and should not be replaced by a substantive application.
The later discovery dispute must be separated from the procedure chosen for the
main claim. Discovery is a procedural stage within the pending action, and Rule 35
, QUESTION 1
(a) Appropriate procedure
Mr Winner XT correctly instituted Mr Avril Mark’s claim for arrear rental by action
procedure. An action begins by summons and is suitable where the defendant
disputes liability and material factual disputes may have to be resolved through oral
evidence, cross-examination and a trial.1
Ms Sue Best has defended the claim, which indicates that the parties do not agree
on all the facts concerning the alleged arrear rental. The principal dispute should
therefore remain an action and should not be replaced by a substantive application.
The later discovery dispute must be separated from the procedure chosen for the
main claim. Discovery is a procedural stage within the pending action, and Rule 35
requires parties to disclose relevant documents and recordings that are or have been
in their possession or control.2
Where a party fails to comply with a discovery obligation or with an order made
under Rule 35, Rule 35(7) allows the opposing party to approach the court for relief. 3
Mr XT should therefore use application procedure only to resolve the incidental
discovery default. The application is interlocutory because it seeks procedural relief
while the main rental action remains pending and does not finally determine whether
Ms Best owes the rental arrears.4
The court will ordinarily determine this discovery issue from the notice of motion and
affidavits, rather than by hearing the full oral evidence relevant to the rental dispute.5
Accordingly, the main claim properly proceeds by action, while the request to compel
Ms Best to disclose the documents must be brought by interlocutory application
under Rule 35(7).
(b) Pleading or process to be used
1
C G Marnewick, Litigation Skills for South African Lawyers (4th edn, LexisNexis 2019) 104.
2
Uniform Rules of Court r 35(1).
3
Uniform Rules of Court r 35(7).
4
C G Marnewick, Litigation Skills for South African Lawyers (4th edn, LexisNexis 2019) 372.
5
Herbstein and Van Winsen, The Civil Practice of the High Courts and the Supreme Court of Appeal
of South Africa (5th edn, Juta 2009) 431–432.
Assignment 1 Semester 2 2026
Unique number: 366325
Due date: 24 August 2026
QUESTION 1
(a) Appropriate procedure
Mr Winner XT correctly instituted Mr Avril Mark’s claim for arrear rental by action
procedure. An action begins by summons and is suitable where the defendant
disputes liability and material factual disputes may have to be resolved through oral
evidence, cross-examination and a trial.1
Ms Sue Best has defended the claim, which indicates that the parties do not agree
on all the facts concerning the alleged arrear rental. The principal dispute should
therefore remain an action and should not be replaced by a substantive application.
The later discovery dispute must be separated from the procedure chosen for the
main claim. Discovery is a procedural stage within the pending action, and Rule 35
, QUESTION 1
(a) Appropriate procedure
Mr Winner XT correctly instituted Mr Avril Mark’s claim for arrear rental by action
procedure. An action begins by summons and is suitable where the defendant
disputes liability and material factual disputes may have to be resolved through oral
evidence, cross-examination and a trial.1
Ms Sue Best has defended the claim, which indicates that the parties do not agree
on all the facts concerning the alleged arrear rental. The principal dispute should
therefore remain an action and should not be replaced by a substantive application.
The later discovery dispute must be separated from the procedure chosen for the
main claim. Discovery is a procedural stage within the pending action, and Rule 35
requires parties to disclose relevant documents and recordings that are or have been
in their possession or control.2
Where a party fails to comply with a discovery obligation or with an order made
under Rule 35, Rule 35(7) allows the opposing party to approach the court for relief. 3
Mr XT should therefore use application procedure only to resolve the incidental
discovery default. The application is interlocutory because it seeks procedural relief
while the main rental action remains pending and does not finally determine whether
Ms Best owes the rental arrears.4
The court will ordinarily determine this discovery issue from the notice of motion and
affidavits, rather than by hearing the full oral evidence relevant to the rental dispute.5
Accordingly, the main claim properly proceeds by action, while the request to compel
Ms Best to disclose the documents must be brought by interlocutory application
under Rule 35(7).
(b) Pleading or process to be used
1
C G Marnewick, Litigation Skills for South African Lawyers (4th edn, LexisNexis 2019) 104.
2
Uniform Rules of Court r 35(1).
3
Uniform Rules of Court r 35(7).
4
C G Marnewick, Litigation Skills for South African Lawyers (4th edn, LexisNexis 2019) 372.
5
Herbstein and Van Winsen, The Civil Practice of the High Courts and the Supreme Court of Appeal
of South Africa (5th edn, Juta 2009) 431–432.
