Description
TLI4801 Assignment 1 2026 Due 16 March 2026
Question 1
(a) Discuss whether it is appropriate for Mr XT to use an action or application
procedure.
An action procedure is initiated by the issuing of a summons and is appropriate where
there are material disputes of fact, which are resolved by the leading of oral evidence at
trial.¹ This procedure involves a full exchange of pleadings and culminates in a trial
where witnesses are cross-examined.²
An application procedure, on the other hand, is initiated by way of a notice of motion
supported by affidavits, and is appropriate where no real dispute of fact exists, or where
procedural or interlocutory relief is sought.³ Evidence in application proceedings is
placed before the court in written form.
Rule 35(7) of the Uniform Rules of Court provides that where a party fails to comply with
a notice to discover documents, the aggrieved party may apply to court for an order
compelling compliance, failing which the claim or defence may be dismissed or struck
out.⁴ An application to compel discovery constitutes an interlocutory application, as it is
procedural in nature and arises during the course of pending action proceedings.⁵
1
CG Marnewick Litigation Skills for South African Lawyers 4 ed (LexisNexis 2019) 153.
2
Herbstein & Van Winsen The Civil Practice of the High Courts of South Africa 5 ed (Juta 2009) 683.
3
Uniform Rule of Court 6; Marnewick (n 1) 155.
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