, TLI4801 Assignment 1 (COMPLETE ANSWERS) Semester
2 2026 (366325) - DUE 24 August 2026; 100% Correct
solutions and explanations.
QUESTION 1
(a) Discuss whether it is appropriate for Mr XT to use an action or application
procedure.
The first issue is whether Mr Winner XT should use action proceedings or
application proceedings when seeking an order compelling Ms Sue Best to disclose
documents that she has failed to discover during litigation.
South African civil procedure recognises two principal methods of instituting
proceedings in the High Court, namely action proceedings and application
proceedings. The choice between these procedures depends on the nature of the
dispute and the relief sought.
Action proceedings are generally used where there are material disputes of fact that
require the court to hear oral evidence from witnesses. They commence with the
issuing of a summons and continue through the exchange of pleadings until the
matter proceeds to trial. Witnesses testify under oath and are subject to cross-
examination before the court reaches a decision. Action proceedings are therefore
the appropriate procedure where factual disputes cannot be resolved on the papers
alone.
Application proceedings, on the other hand, are used where disputes can be
determined on affidavit without the need for oral evidence. They commence with a
notice of motion supported by affidavits and are particularly suitable for
interlocutory matters, procedural applications and situations where there is no
substantial dispute of fact.
In the present case, Mr Mark instituted a claim against Ms Best for arrear rental
arising from a lease agreement. Since a contractual dispute regarding unpaid rental
may involve factual issues relating to the lease agreement, the amount owing,
payment, cancellation or breach of contract, the main claim was correctly instituted
by way of action proceedings through the issuing of a summons in the High Court.
The issue that subsequently arose concerns discovery during the preparation for
trial. Discovery is a pre-trial procedure that requires each party to disclose
2 2026 (366325) - DUE 24 August 2026; 100% Correct
solutions and explanations.
QUESTION 1
(a) Discuss whether it is appropriate for Mr XT to use an action or application
procedure.
The first issue is whether Mr Winner XT should use action proceedings or
application proceedings when seeking an order compelling Ms Sue Best to disclose
documents that she has failed to discover during litigation.
South African civil procedure recognises two principal methods of instituting
proceedings in the High Court, namely action proceedings and application
proceedings. The choice between these procedures depends on the nature of the
dispute and the relief sought.
Action proceedings are generally used where there are material disputes of fact that
require the court to hear oral evidence from witnesses. They commence with the
issuing of a summons and continue through the exchange of pleadings until the
matter proceeds to trial. Witnesses testify under oath and are subject to cross-
examination before the court reaches a decision. Action proceedings are therefore
the appropriate procedure where factual disputes cannot be resolved on the papers
alone.
Application proceedings, on the other hand, are used where disputes can be
determined on affidavit without the need for oral evidence. They commence with a
notice of motion supported by affidavits and are particularly suitable for
interlocutory matters, procedural applications and situations where there is no
substantial dispute of fact.
In the present case, Mr Mark instituted a claim against Ms Best for arrear rental
arising from a lease agreement. Since a contractual dispute regarding unpaid rental
may involve factual issues relating to the lease agreement, the amount owing,
payment, cancellation or breach of contract, the main claim was correctly instituted
by way of action proceedings through the issuing of a summons in the High Court.
The issue that subsequently arose concerns discovery during the preparation for
trial. Discovery is a pre-trial procedure that requires each party to disclose
