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TLI4801 Assignment 1 Semester 1 2026 - DUE 16 March 2026 [complete answers]
Assignment 01 – Semester 1
16 March 2026 265331
QUESTION 1
a)
Question 1(a)
Whether it is appropriate for Mr XT to use an action or application procedure
(4 marks)
In South African civil procedure, the choice between action proceedings and application
proceedings depends mainly on whether material disputes of fact are present or can
reasonably be anticipated. Action proceedings are used where disputes of fact exist and
where evidence may need to be led orally at a trial, whereas application proceedings are
generally suitable where the facts are common cause and can be decided on affidavit
evidence alone. In the present matter, Mr Avril Mark’s claim against Ms Sue Best is for arrear
rental arising from a lease agreement. Such claims usually involve factual issues relating to
the existence and terms of the lease, the alleged breach, and the amount of rental owed.
The fact that the matter is defended clearly indicates that disputes of fact exist. It was
therefore appropriate for Mr XT to proceed by way of action proceedings, which are initiated
by the issuing of a summons from the High Court. The application brought in terms of Rule
35(7) does not change the nature of the main proceedings, as it is merely an interlocutory
application aimed at compelling discovery and ensuring proper trial preparation. Mr XT is
thus correct in using action proceedings while relying on an interlocutory application to
address the failure to disclose documents.¹²
Footnotes
1. Herbstein & Van Winsen The Civil Practice of the High Courts and the Supreme Court
of Appeal of South Africa 5 ed (2009) 444–445.
2. Rule 35(7) of the Uniform Rules of Court; Erasmus Superior Court Practice RS 2024
D1–546.
Question 1(b)
Pleading or process to be used by Mr XT on behalf of Mr Avril Mark
(6 marks)
Because action proceedings are appropriate in this matter, Mr XT must institute the claim on
behalf of Mr Avril Mark by issuing a summons, and more specifically a combined
TLI4801 Assignment 1 Semester 1 2026 - DUE 16 March 2026 [complete answers]
Assignment 01 – Semester 1
16 March 2026 265331
QUESTION 1
a)
Question 1(a)
Whether it is appropriate for Mr XT to use an action or application procedure
(4 marks)
In South African civil procedure, the choice between action proceedings and application
proceedings depends mainly on whether material disputes of fact are present or can
reasonably be anticipated. Action proceedings are used where disputes of fact exist and
where evidence may need to be led orally at a trial, whereas application proceedings are
generally suitable where the facts are common cause and can be decided on affidavit
evidence alone. In the present matter, Mr Avril Mark’s claim against Ms Sue Best is for arrear
rental arising from a lease agreement. Such claims usually involve factual issues relating to
the existence and terms of the lease, the alleged breach, and the amount of rental owed.
The fact that the matter is defended clearly indicates that disputes of fact exist. It was
therefore appropriate for Mr XT to proceed by way of action proceedings, which are initiated
by the issuing of a summons from the High Court. The application brought in terms of Rule
35(7) does not change the nature of the main proceedings, as it is merely an interlocutory
application aimed at compelling discovery and ensuring proper trial preparation. Mr XT is
thus correct in using action proceedings while relying on an interlocutory application to
address the failure to disclose documents.¹²
Footnotes
1. Herbstein & Van Winsen The Civil Practice of the High Courts and the Supreme Court
of Appeal of South Africa 5 ed (2009) 444–445.
2. Rule 35(7) of the Uniform Rules of Court; Erasmus Superior Court Practice RS 2024
D1–546.
Question 1(b)
Pleading or process to be used by Mr XT on behalf of Mr Avril Mark
(6 marks)
Because action proceedings are appropriate in this matter, Mr XT must institute the claim on
behalf of Mr Avril Mark by issuing a summons, and more specifically a combined
