Summary of Judgment

1. Introduction

The matter concerned an interlocutory application for separation of issues brought by the defendants in pending action proceedings, purportedly in terms of Uniform Rule 33(4). The application was launched late on the afternoon before the first day of trial and was heard during the three-day trial allocation.

The parties were RNT Management Services CC as plaintiff in the main action (and respondent in the Rule 33(4) application) and Maluti-A-Phofung Local Municipality together with its Municipal Manager as first and second defendants respectively (and applicants in the separation application).

Procedurally, the plaintiff had instituted an action arising from contracts concluded with the municipality. In response, the defendants delivered two special pleas. Shortly before the trial was to commence, the defendants sought an order that these special pleas be heard and determined separately from the remaining merits of the action, with a stay of the balance of the proceedings pending that determination.

The general subject-matter of the dispute in the interlocutory application was whether, having regard to the history of the litigation and the interests of fairness and practicality, it was convenient (as contemplated in Rule 33(4)) to determine the special pleas separately from the remainder of the case.

2. Material Facts

It was common cause that the plaintiff’s claim in the main action arose from contracts concluded between the plaintiff and the first defendant (the municipality). It was also common cause that the defendants had raised two special pleas to the particulars of claim. The first special plea alleged non-compliance with the six-month notice requirement applicable to proceedings against an organ of state under the Legal Proceedings Against Certain Organs of State Act 40 of 2002. The second special plea relied on an arbitration clause in the relevant agreements, contending that the disputes were required to be referred to arbitration rather than pursued by action in court.

The court placed weight on the litigation history reflected in the papers. After the filing of the special pleas, the plaintiff’s attorneys repeatedly sought the defendants’ cooperation to finalise a pre-trial minute from 12 September 2022 onwards, without success. Eventually, a notice of set-down for a judicial pre-trial on 26 June 2023 was served. The defendants’ attorneys then withdrew, and the matter was certified trial-ready on 26 June 2023 in the defendants’ absence.

The plaintiff served a notice of set-down for trial on 12 July 2023. During that same month, the defendants’ attorneys again withdrew and the defendants’ current attorneys came on record. Notwithstanding the passage of time, the issue of separating the special pleas was not raised during the preceding months. The court noted that the first time a postponement was sought by the defendants’ current attorneys was during a virtual meeting on 23 October 2023, five days before trial, and that this request was refused by the plaintiff’s attorneys.

Against that background, the defendants filed the Rule 33(4) application at the last minute, namely late on the afternoon before the first trial day. The plaintiff, by contrast, was ready to proceed with trial and had arranged for witnesses to testify, and asserted that costs had already been incurred in preparation for the trial.

3. Legal Issues

The central legal question was whether the defendants had shown that the two special pleas (statutory notice and arbitration) could conveniently be decided separately from the remaining issues in the action, as required by Uniform Rule 33(4).

The dispute primarily concerned the application of a legal standard (“convenience”) to the litigation history and procedural circumstances of the case, and thus involved a discretionary, evaluative judgment. While Rule 33(4) permits separate determination of issues of law or fact, the court was required to determine whether, in the circumstances, it appeared that the issues could not conveniently be decided separately, bearing in mind that the rule is framed in mandatory terms unless inconvenience is shown.

4. Court’s Reasoning

The court approached the matter by emphasising the structure of Rule 33(4). It noted that, once an application for separation is made, the court “shall” grant it unless it appears that the questions cannot conveniently be decided separately. The decisive enquiry was therefore narrowed to whether separate adjudication would lack the requisite convenience.

In interpreting “convenience”, the court applied the principle that it is not limited to mere expedition or procedural facility. Relying on appellate and provincial authority, the court stated that convenience also embraces appropriateness and fairness, and includes considerations of fairness, justice, and reasonableness, not only efficiency.

Applying that standard, the court considered the broad history giving rise to the application. The defendants contended that separation would not prejudice the plaintiff because, if a special plea succeeded, the matter would be disposed of and the plaintiff would only incur approximately one day of costs. The plaintiff opposed separation on the basis that the matter had already been substantially delayed and that a piecemeal approach would further prejudice him.

The court evaluated the defendants’ conduct in the lead-up to trial, including the plaintiff’s repeated, unsuccessful attempts to obtain cooperation in finalising pre-trial procedures, the certification of trial readiness without the defendants’ participation, and the late request for a postponement five days before trial. The court drew the inference from the timeline that the separation application, filed at the eleventh hour, was aimed at forcing a postponement that the defendants had unsuccessfully sought shortly before trial.

The court acknowledged that, even without separation, special pleas would typically be determined first in the ordinary course. However, it reasoned that refusing separation would avoid the further delay inherent in a formally bifurcated process: if the special pleas failed, the trial could immediately proceed to the remaining issues without the interruption and postponement that would follow from a separated hearing.

On this basis, the court concluded that separation would not be convenient, particularly from the perspective of fairness to the plaintiff, who was ready to proceed and had already waited a significant time for his claims to be heard. The application accordingly lacked the required convenience and fell to be dismissed.

On costs, the court considered the scale and timing of the application and the consequences for the trial allocation. It held that the defendants should bear not only the costs of the application but also the plaintiff’s wasted costs of the lost trial days, and that these costs should be awarded on a punitive scale, including the costs of employing two counsel.

5. Outcome and Relief

The court dismissed the defendants’ application for separation of issues under Rule 33(4).

It ordered that the application be dismissed with costs on the attorney-and-client scale, and that such costs include the plaintiff’s wasted costs for the lost trial days and the costs of two counsel. The defendants were ordered to pay the costs jointly and severally, the one paying the other to be absolved.

The trial was postponed to a date to be arranged between the parties before close of business on the day of the order.

Cases Cited

Tshwane City v Blair Athol Home Owners Association 2019 (3) SA 398 (SCA)

Absa Bank Bpk v Botha 1997 (3) SA 510 (O)

Legislation Cited

Legal Proceedings Against Certain Organs of State Act 40 of 2002

Rules of Court Cited

Uniform Rule 33(4)

Held

The court held that, although Rule 33(4) is framed in mandatory terms, the defendants’ application had to be refused because, in the circumstances and having regard to the litigation history and fairness to the plaintiff, it appeared that the special pleas could not conveniently be decided separately from the remaining issues.

It further held that the defendants’ late application resulted in the loss of the allocated trial days and warranted a punitive costs order, including wasted costs and the costs of two counsel, payable jointly and severally.

LEGAL PRINCIPLES

The judgment applied the principle that the “convenience” requirement in Uniform Rule 33(4) is not confined to procedural efficiency or expedition. It includes broader considerations of appropriateness, fairness, justice, and reasonableness, which must be evaluated in the context of the case’s procedural history.

It also applied the principle that, notwithstanding Rule 33(4)’s mandatory formulation in favour of separation upon application, a court must refuse separation where it appears that the issues cannot conveniently be decided separately, including where separation would operate unfairly, cause undue delay, or promote piecemeal adjudication that is unjustified on the facts.