, PLEASE USE THIS DOCUMENT AS A GUIDE ONLY
1. Answer the following questions. You may supplement the given facts, provided that your 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 for
this purpose.
It is appropriate for Mr. XT to use an application procedure for this purpose.¹ The purpose of this
step is to obtain an interlocutory order to compel compliance with the rules of court, not to finally
determine the rights of the parties in the main dispute.²
Mr. XT is not seeking a final judgment on the merits of the arrears rental claim. Instead, he seeks a
procedural remedy to address Ms. Best's failure to make full discovery, which is prejudicing his
client's trial preparation. Such procedural relief is typically sought via an interlocutory application.³
Marnewick distinguishes between substantive applications for final relief and interlocutory
applications for interim or procedural relief, placing this situation firmly in the latter category.⁴ The
prescribed textbook confirms that a Rule 35(7) application is an example of an interlocutory
application.⁵
(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.
The process to be used is an application to compel discovery in terms of Rule 35(7) of the Uniform
Rules of Court.⁶ The pleading or process that Mr. XT will use on behalf of his client, Mr. Avril Mark,
is an interlocutory application, which is commenced by way of a Notice of Application (since it is
not a substantive motion) supported by a Founding Affidavit.⁷
The procedural steps and documents involved are as follows:
Notice of Application: Mr. XT will draft and file a Notice of Application, which sets out the
relief sought, namely an order compelling Ms. Best to comply with Rule 35(2) by making
discovery on oath within a specified period, and further directing that should she fail to comply,
the plaintiff be granted leave to approach the court for an order striking out her defence.⁸ The
notice must also state the date and time of the hearing and identify the affidavit that will be
used in support.⁹
Founding Affidavit: This affidavit must be deposed to by a person with personal knowledge of
the facts, likely Mr. XT himself, as the attorney handling the matter.¹⁰ The affidavit must set
out the material facts for the application, which include:
The existence of the pending action between the parties.
The close of pleadings (litis contestatio).
That a notice to discover was served on Ms. Best in terms of Rule 35(1) after the pleadings
closed.
That 20 court days have elapsed since service of the notice without compliance.
The prejudice suffered by the plaintiff as a result of the failure to discover.¹¹
1. Answer the following questions. You may supplement the given facts, provided that your 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 for
this purpose.
It is appropriate for Mr. XT to use an application procedure for this purpose.¹ The purpose of this
step is to obtain an interlocutory order to compel compliance with the rules of court, not to finally
determine the rights of the parties in the main dispute.²
Mr. XT is not seeking a final judgment on the merits of the arrears rental claim. Instead, he seeks a
procedural remedy to address Ms. Best's failure to make full discovery, which is prejudicing his
client's trial preparation. Such procedural relief is typically sought via an interlocutory application.³
Marnewick distinguishes between substantive applications for final relief and interlocutory
applications for interim or procedural relief, placing this situation firmly in the latter category.⁴ The
prescribed textbook confirms that a Rule 35(7) application is an example of an interlocutory
application.⁵
(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.
The process to be used is an application to compel discovery in terms of Rule 35(7) of the Uniform
Rules of Court.⁶ The pleading or process that Mr. XT will use on behalf of his client, Mr. Avril Mark,
is an interlocutory application, which is commenced by way of a Notice of Application (since it is
not a substantive motion) supported by a Founding Affidavit.⁷
The procedural steps and documents involved are as follows:
Notice of Application: Mr. XT will draft and file a Notice of Application, which sets out the
relief sought, namely an order compelling Ms. Best to comply with Rule 35(2) by making
discovery on oath within a specified period, and further directing that should she fail to comply,
the plaintiff be granted leave to approach the court for an order striking out her defence.⁸ The
notice must also state the date and time of the hearing and identify the affidavit that will be
used in support.⁹
Founding Affidavit: This affidavit must be deposed to by a person with personal knowledge of
the facts, likely Mr. XT himself, as the attorney handling the matter.¹⁰ The affidavit must set
out the material facts for the application, which include:
The existence of the pending action between the parties.
The close of pleadings (litis contestatio).
That a notice to discover was served on Ms. Best in terms of Rule 35(1) after the pleadings
closed.
That 20 court days have elapsed since service of the notice without compliance.
The prejudice suffered by the plaintiff as a result of the failure to discover.¹¹
