, TLI4801 ASSIGNMENT 1 SEMESTER 2 ANSWERS
DUE DATE: 2026
Question 1
(a) Discuss whether it is appropriate for Mr XT to use an action or application procedure for
this purpose. (4 marks)
The dispute between Avril Mark and Ms Sue Best concerns the recovery of arrear rental in
respect of commercial office premises situated in Menlyn, Pretoria. Mr XT correctly
instituted the matter by way of action proceedings in the High Court because a claim for
arrear rental is one where disputes of fact are reasonably foreseeable. Since Ms Best
defended the action, the litigation proceeded through the normal stages of pleadings,
discovery and preparation for trial.1
However, the issue before the court is not the claim for arrear rental itself, but rather Ms
Best's failure to disclose documents during the discovery process. This is an interlocutory
matter, meaning it arises during the course of pending litigation and is intended to regulate
the conduct of the proceedings rather than determine the merits of the case.2
Mr XT should therefore proceed by way of an application in terms of Rule 35(7) of the
Uniform Rules of Court, rather than institute a fresh action. Rule 35(7) specifically authorises
a party to approach the court where another party has failed to make proper discovery after
receiving the necessary notice. The court may then compel compliance with the discovery
rules.3
In the present case, the application procedure is appropriate for the following reasons:
1
DE van Loggerenberg (ed), Erasmus: Superior Court Practice (3 ed, Juta Service Issue 29, 2024) D1-469.
2
AC Cilliers et al, Herbstein and Van Winsen: The Civil Practice of the High Courts and the Supreme Court
of Appeal of South Africa 5 ed (Juta 2009) 553–555.
3
Uniform Rules of Court r 35(7).
DUE DATE: 2026
Question 1
(a) Discuss whether it is appropriate for Mr XT to use an action or application procedure for
this purpose. (4 marks)
The dispute between Avril Mark and Ms Sue Best concerns the recovery of arrear rental in
respect of commercial office premises situated in Menlyn, Pretoria. Mr XT correctly
instituted the matter by way of action proceedings in the High Court because a claim for
arrear rental is one where disputes of fact are reasonably foreseeable. Since Ms Best
defended the action, the litigation proceeded through the normal stages of pleadings,
discovery and preparation for trial.1
However, the issue before the court is not the claim for arrear rental itself, but rather Ms
Best's failure to disclose documents during the discovery process. This is an interlocutory
matter, meaning it arises during the course of pending litigation and is intended to regulate
the conduct of the proceedings rather than determine the merits of the case.2
Mr XT should therefore proceed by way of an application in terms of Rule 35(7) of the
Uniform Rules of Court, rather than institute a fresh action. Rule 35(7) specifically authorises
a party to approach the court where another party has failed to make proper discovery after
receiving the necessary notice. The court may then compel compliance with the discovery
rules.3
In the present case, the application procedure is appropriate for the following reasons:
1
DE van Loggerenberg (ed), Erasmus: Superior Court Practice (3 ed, Juta Service Issue 29, 2024) D1-469.
2
AC Cilliers et al, Herbstein and Van Winsen: The Civil Practice of the High Courts and the Supreme Court
of Appeal of South Africa 5 ed (Juta 2009) 553–555.
3
Uniform Rules of Court r 35(7).
