Applications to Compel in South Africa: Enforcing Procedural Compliance in Litigation

Civil litigation depends on procedural fairness and cooperation. When one party refuses or fails to comply with the Uniform Rules of Court, whether by ignoring discovery obligations or failing to respond to procedural requests, the opposing party is not without remedy.

An application to compel is the primary mechanism used in South African litigation to enforce compliance and keep matters moving efficiently. At Barter McKellar, we regularly advise clients on when an application to compel is both legally justified and strategically sound.

This article explains what an application to compel is, when it is relevant and how it is used effectively in South African courts.

What Is an Application to Compel?

An application to compel is a formal court application brought to force an opposing party to comply with a procedural obligation imposed by the Rules of Court.

In the High Court, applications to compel are typically brought under:

• Rule 30A: failure to comply with the Rules or a procedural request;

• Rule 35: failure to comply with discovery obligations.

In the Magistrates’ Courts, similar relief is available under Rule 60 and Rule 23, depending on the nature of the non-compliance.

An application to compel is not about the merits of the dispute, it is about procedural compliance.

Common Situations Where an Application to Compel Is Used

Applications to compel most commonly arise where a party fails to:

• Deliver discovery or a proper discovery affidavit;

• Produce documents after a Rule 35(3) or 35(12) notice;

• Respond to requests for further particulars;

• Comply with time periods prescribed by the Rules;

• Adhere to a procedural undertaking.

In commercial litigation, delay tactics through non-compliance are unfortunately common and courts are increasingly intolerant of them.

The Legal Threshold: Non-Compliance and Notice

Before approaching court, the applicant must usually show that:

1. The opposing party was obliged to act under the Rules;

2. They failed or refused to do so;

3. They were given formal notice to remedy the default.

What Relief Can the Court Grant?

A court hearing an application to compel may:

• Order the defaulting party to comply within a specified period;

• Grant costs, often on a punitive scale;

• Dismiss a claim or strike out a defence (in serious cases);

• Stay proceedings until compliance occurs.

Repeated or deliberate non-compliance significantly increases the risk of adverse cost orders.

When Is an Application to Compel Appropriate?

At Barter McKellar, we typically recommend an application to compel where:

• Non-compliance is deliberate or tactical;

• The missing information or documents are material to the case;

• Delay prejudices the client’s ability to prepare pleadings or trial;

• Informal engagement has failed.

Applications to compel are particularly relevant in:

• Commercial and shareholder disputes

• Contractual litigation

• Regulatory and compliance-related matters

• Financial services and fiduciary disputes

• High-value discovery-intensive litigation

When an Application to Compel May Be Ill-Advised

Not every procedural lapse justifies court intervention.

Courts discourage unnecessary interlocutory applications, especially where:

• The non-compliance is minor or technical;

• The documents sought are marginal or speculative;

• The application is being used to delay the main proceedings.

A failed application to compel may expose the applicant to adverse costs, sometimes on an attorney-and-client scale.

In some cases, strategic patience or targeted correspondence achieves better results.

Strategic Considerations: A Barter McKellar Perspective

Applications to compel are powerful, but blunt, tools. Used correctly, they restore procedural balance. Used poorly, they escalate costs and judicial frustration.

At Barter McKellar, we assess:

• The materiality of the outstanding compliance;

• The likelihood of success based on precedent and conduct;

• Whether the application advances the client’s commercial objectives;

• The risk of costs and delay.

Our focus is on practical, outcome-driven litigation strategy, not procedural theatrics.

Conclusion

Applications to compel are a vital enforcement mechanism in South African civil litigation. They exist to ensure that parties comply with the Rules and that disputes are resolved on their merits, not stalled through procedural obstruction.

If you are facing non-compliance from an opposing party, or have been threatened with an application to compel, early strategic advice is essential.

Need Help Enforcing Procedural Compliance?

Barter McKellar advises corporates, directors and high-net-worth clients on complex commercial litigation and procedural strategy across South Africa.

Contact us to assess whether an application to compel is appropriate or how best to respond if one is brought against you.