SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL LOCAL DIVISION, DURBAN
Case no: D6036/2023
In the matter between:
A[...] K[...] APPLICANT
and
R[...] N[...] RESPONDENT
Coram : Mossop J
Heard : 23 April 2025
Delivered : 30 April 2025
ORDER
The following order is granted :
1. Condonation is granted to the respondent for the late delivery of her heads of
argument and practice note and there shall be no order as to costs .
2. The application for a separation of issues in terms of Uniform rule 33(4) is
dismissed.
3. The applicant shall pay the respondent’s costs, to be taxed on scale A.
JUDGMENT
2
MOSSOP J :
Introduction
[1] This application involves the application of the prosaic effects of Uniform rule
33(4). The applicant and respondent are husband and wife and are involved in a
contested divorce action (the action) in which the a pplicant is the plaintiff, and the
respondent is the defendant . In the action, t he respondent has delivered a plea to
the applicant’s particulars of claim and has also delivered a claim in reconvention to
which the applicant has pleaded . More about the pleadings shortly.
[2] The applicant envisions that the action will not be capable of settlement and
that consequently , it will only be set down for determination several years from now.
He has now commenced a relationship with another woman and wishes to ‘get on
with his life ’, as he puts it . He therefore desires to separate the issue of the
termination of his marriage from the proprietary consequences thereof . To achieve
this aim, he turns for assistance to Uniform rule 33(4) . The respondent opposes this
relief .
Condonation
[3] The respondent delivered her heads of argument and practice note out of
time. The delay was not egregious and occasioned neither the court nor the
applicant’s legal representatives any inconvenience. The application for c ondonation
was consequently not opposed by the applicant, and it is accordingly granted and an
order as to costs is accordingly unnecessary.
The pleadings
[4] The competing claims in the divorce action have some relevance to this
application for they constitute the factual matrix against which it is to be considered.
[5] The pleadings reveal that the parties are married to each other out of
community of property with the exclusion of the accrual system. The applicant pleads
in his particulars of claim that the marriage relationship has irretrievably broken
down. He pleads further that t he parties jointly own an immovable property, and he
3
tenders to transfer his half share there in to a trust to be created by him , in respect of
which the respondent and his son will be the sole beneficiaries. The issues, on the
applicant’s version , are thus relatively narrow.
[6] That is not a view shared by the respondent. She denies in her plea that the
marriage has broken down irretrievably and asserts that the parties may become
reconciled ‘by way of counselling or negotiations ’, whatever the latter may mean .
Immediately after stating that the marriage has not broken down, the following
appears in her plea:
‘ALTERNATIVELY and in the event that the above Honourable Court finds that the
marriage has indeed irretrievably broken down then in such event the Defendant
pleads that the Plaintiff1 refers the above Honourable Court to the true causes for the
breakdown in the marriage relationship between the parties as detailed in her claim
in reconvention filed evenly herewith.’
[7] The prayer to the plea reads, in part, as follows:
‘WHEREFORE the Defendant prays for judgement against the Plaintiff as follows:
1. An order that the marriage has not broken down, otherwise dismissing the
Plaintiff’s application for divorce and/or alternatively a decree of divorce is to be
moved by the Plaintiff on an uncontested basis.
2. An order in terms of the Defendant’s claim in reconvention delivered evenly
herewith.
3. An order otherwise dismissing the Plaintiff’s claim with costs. ’
[8] The extracts of the plea just narrated are not models of clarity. But, in my
view, it is reasonably certain that the principal defence raised by the respondent is
that the marriage relationship might yet be saved. It is only if that is found by the
court not to be the case, that she admits that the marriage has failed and seeks the
relief that is set out in her claim in reconvention. She also seeks maintenance from
the applicant.
1 It appears to me that perhaps what was intended here was not a reference to the plaintiff but a
reference to the defendant.
4
[9] Before argument commenced, Mr Humphrey, counsel for the applicant,
handed up a copy of a notice of an intended amendment delivered that morning by
the respondent’s legal representatives to the applicant’s legal representatives . In the
notice in terms of Uniform rule 28 , it is revealed that the respondent abandons her
claim for the declaration of a universal partnership contained in her claim in
reconvention, and, instead, seeks to amend it to incorporate a claim in terms of s
7(3) of the Divorce Act 70 of 1979 (the Act) . Both counsel agreed that none of this
was relevant to the issue to be determined in this application and the recent delivery
of the notice of amendment would not constitute an impediment to the application
being heard and determined.
Uniform rule 33(4)
[10] Uniform rule 33(4) read s as follows:
‘If, in any pending action, it appears to the court mero motu that there is a question of
law or fact which may conveniently be decided either before any evidence is led or
separately from any other question, the court may make an order directing the
disposal of such question in such manner as it may deem fit and may order that all
further proceedings be stayed until such question has been disposed of, and the
court shall on the application of any party make such order unless it appears that the
questions cannot conveniently be decided separately.’
The correct approach
[11] The general approach to the separati on of issues is the following:
‘The general principle in law would appear to be that notwithstanding the wide
powers conferred on a court under rule 33(4) of the Uniform Rules of Court it is
ordinarily desirable, in the interests of expedition and finality of litigation, to have one
hearing only at which all issues are canvassed so that the court, at the conclusion of
the case, may dispose of the entire matter. Minister of Agriculture v Tongaat Group
Ltd 1976 (2) SA 357 (D) at 362G -H, and Denel (Edms) Bpk v Vorster 2004 (4) SA
481 (SCA) ((2004) 25 ILJ 659) at 485B -C have reference. In some instances,
however, the interests of the parties and the ends of justice are better served by
5
disposing of a particular issue or issues before considering other issues which,
depending on the result of the issue singled out, may fall away. ’2
[12] In weighing up the competing considerations which exist when an application
for separation is opposed , this court has previously remarked that:
‘...the function of the Court in an application of this nature is to gauge to the best of
its ability the nature and extent of the advantages which would flow from the grant of
the order sought and of the disadvantages. If, overall, and with due regard to
the divergent interests and considerations of convenience (in the wide sense I have
indicated) affecting the parties, it appears that such advantages would outweigh the
disadvantages, it would normally grant the application. ’3
Convenience
[13] The key consideration in Uniform rule 33(4) is the issue of convenience.
‘Convenience ’ in its ordinary meaning refers to ‘a quality or situation that makes
something easy or useful for someone by reducing the amount of work or time
required to do something ’.4 In the context of Uniform rule 33(4), convenience means
not only facility or ease or expedience but also the concept of appropriateness.5
Separation will thus be convenient if it is fitting and fair to the parties.
[14] An order for the separation of issues must be generally convenient and not
merely convenient to one , or some, of the parties. It appears to me that the
convenience referred to in the rule means convenience to the court in the first
instance and to the litigants in the second instance .6 While it is tempting to be
seduced by the notion that a separation of issues always simplifies and hastens the
resolution of matters, experience reveals that this is not always the case.7 Thus, the
convenience claimed must be clearly demonstrated by the party claiming the
separation.8 Where it appears to a court that one of the parties may be prejudiced by
2 African Bank Ltd v Covmark Marketing CC; African Bank Ltd v Soodhoo and others 2008 (6) SA 46
(D) at 51B-D.
3 Minister of Agriculture v Tongaat Group Ltd 1976 (2) SA 357 (D) at 364D -E.
4 Britannica Online Dictionary : https://www.britannica.com/dictionary/convenience .
5 Tudoric -Ghemo v Tudoric -Ghemo 1997 (2) SA 246 (W) at 251B .
6 Braaf v Fedgen Insurance Ltd 1995 (3) SA 938 (C) at 939H ; W v W [2016] ZAGPPHC 812 para 20.
7 Consolidated News Agencies (Pty) Ltd (in liquidation) v Mobile Telephone Networks (Pty) Ltd and
another [2009] ZASCA 130; 2010 (3) SA 382 (SCA) para 90.
8 Internatio (Pty) Ltd v Lovemore Brothers Transport CC 2000 (2) SA 408 (SE) at 411A-C.
6
an order of separation, the court will be entitled to exercise its discretion against
granting the separation claimed.9
[15] What does the applicant say about such convenience? Not much, as it turns
out. In fact, the respondent assert s that so little is said by the applicant in his
founding affidavit in this regard that it appears that he has not considered it at all,
and his application must accordingly fail , as he may not make out his case in reply .10
[16] The respondent’s trenchant criticism of the applicant’s founding affidavit is not
without merit. There is no specific mention of convenience in the applicant’s founding
affidavit . Viewed generously, there appears to be but a single paragraph in the
founding affidavit that could possibly be viewed as tangentially dealing with the issue
of convenience. At paragraph 9 thereof , the applicant states the following :
‘It therefore appears that the two of us of are both intent on a divorce and we want to
get on with our lives. I have subsequently met someone else with whom I am now
involved and I do not want to remain shackled to the respondent whilst we are
completely estranged and live entirely separate lives.’
[17] The content of this paragraph is singularly revealing in two respects :
(a) The first is that it commences with a n inaccuracy . The respondent is not intent
on divorce , for she declined in her plea to accept that her marriage has irretrievably
broken down. Divorce , and the further relief to be claimed in terms of the Act, is
simply her plan B in the event of her failing to establish her primary defence .
Whether the marriage has irretrievably broken down is therefore an issue to be
determined by the court hearing the trial. I do not believe that I am entitled to
approach this application on the basis that the respondent cannot succeed with her
primary defence and therefore find that the only issue between the parties is a
patrimonial issue. The respondent may well have difficulties in convincing the trial
court that her marriage has not irretrievably broken down , given the state of our law
on divorce and the fact that the applica nt has apparently commenced a relationship
with another woman and that she and the applicant have lived apart for a
considerable period , but she is certainly entitled to attempt to persuade th e trial court
9 Molotlegi and another v Mokwalase [2010] ZASCA 59; [2010] 4 All SA 258 (SCA) para 20.
10 Bashe v Meyer and another [2008] ZAECHC 187 para 11.
7
of the soundness of her principal defence . Contrary to what is stated in paragraph 9
of the founding affidavit, t he state of the marriage is thus not commonly viewed by
the parties as being at an end . To simply view the respondent’s plea as
unsustainable in an interlocutory application would be to do an injustice to her ;
(b) Insofar as there is a consideration of convenience to be found in the wording
of paragraph 9 narrated above, it appears to me to be only the convenience of the
applicant himself that is considered . The applicant has indeed pleaded in the
founding affidavit that ‘we want to get on with our lives’, but i t appears to me that he
is not able to speak on behalf of the respondent and that he is, in fact, only referring
to himself in making that statement . The applicant makes it plain that he does not
want to remain ‘shackled’ to the respondent when he now has someone more
interesting in his life. He may have honourable intentions as far as the new woman in
his life is concerned , but he can only formally advance that relationship once the
relationship between himself and the respondent has be en resolved , either by an
agreement between himself and the respondent and an order of this court or, in the
absence of such an agreement, by an order of this court after a contested hearing .
Analysis
[18] Why it should be convenient for the respondent to do as the applicant
proposes is not revealed in the founding affidavit and no heed at all appears to have
been paid to the convenience of the court.
[19] Mr Humphrey , in an articulate and considered address, identified eight
considerations that may constitute the required convenience. I shall not go through
each of them but shall confine myself to mentioning but two of them.
[20] The first ground advanced was that it is common cause that the marriage has
irretrievably broken down. I have already considered this issue and found that I
cannot arrive at that conclusion in these proceedings.
[21] The second ground that I wish to mention is Mr Humphrey’s submission that
any financial claim that the respondent may have would not be prejudiced by the
granting of the relief sought. This is an issue of some importance to the respondent
and was canvassed by her in her answering affidavit. The respondent is fearful that if
8
she is divorced before the patrimonial issues have been resolved , the applicant will
cease making the payments that he presently makes to her . She will then no longer
have the security of being able to bring a Uniform rule 43 application to protect her
immediate financial requirements , because she will be divorced and will no longer be
a ‘spouse’ as contemplated by Uniform rule 43. The respondent’s fears in this regard
may have been capable of being assuaged by an undertaking given by the applicant
that he will continue to make the payments that he is currently making but no such
undertaking has been made.
[22] As Ms Law, who appears for the respondent, states in her heads of argument,
there is presently no certainty on whether the respondent will retain her ability to
seek relief in terms of Uniform rule 43 if the divorce were to be finalised first. Mr
Humphrey referred me to CP v GP ,11 a judgment of this division, in support of the
proposition that the respondent would not be deprived of her right to bring a Uniform
rule 43 application , should separation be ordered, and the divorce taken first.
Ironically, in that matter, the court declined to grant the separation order sought.
There are, as Mr Humphrey correctly pointed out, decisions in other divisions,
helpfully collected and referred to by Ms Law in her heads of argument, where it was
found that Uniform rule 43 can still be invoked , despite the issues being separated
and the divorce being granted before the proprietary consequences of the marriage
have been finalised.12
[23] I, however, do not believe that I need to enter this debate because the
applicant has not satisfied me that he has established the requisite convenience that
would permit me to grant the relief that he seeks. His convenience only is simply
insufficient. In coming to this conclusion, I accept that no utility arises from requiring
a person to remain trapped in a loveless relationship that has failed. But marriage is
a special form of relationship that is exalted by society. It cannot simply be shrugged
off to pursue better prospects. The formalities that society prescribes for the
dissolution of such an elevated relationship must be followed and i f an agreement
11 CP v GP [2024] ZAKZDHC 10.
12 A case in which the right to proceed in terms of Uniform rule 43 was refused consequent upon an
order separating the issues being granted and the divorce order being granted , is Beckley v Beckley
(GJ), unreported case number 01098/2015 (6 May 2015 ). Cases in which an order separating the
issues was refused for fear that the right to invoke Uniform rule 43 would be lost include NK v KM
2019 (3) SA 571 (GJ) and TKG v MN [2023] ZAGPJHC 418.
9
cannot be reached on the terms of the dissolution of the marriage relationship , then
patience must be the order of the day while the matter inches its way through the
prescribed legal process.
[24] I have largely, but not solely, concluded that because of the dispute over
whether the marriage has broken down and because the convenience of the
applicant alone is insufficient , the threshold for the establishment of the requisite
convenience has not been met . The g ranting of an order of separation will not, in my
view, lead to a shortening of the trial itself but will simply lead to two hearings when
only one is necessary . The preferred approach is to only have one hearing, and t wo
contested hearings will impose a n unnecessary burden on the court and upon its
resources . As a general proposition, piecemeal adjudication of disputes is not to be
encouraged.13
[25] On the scant facts disclosed by the applicant, I do not believe that he has
established that it will be convenient for all the actors involved in the drama if the
order that he seeks were to be issue d, and, in my view, the respondent has
demonstrated that no advantage is to be gained from separating the issues. I also do
not believe that it would be fitting and fair to the respondent to grant such an order. I
am fortified in coming to this conclusion by the following dicta from Denel (Edms)
Bpk v Vorster ,14 where the Supreme Court of Appeal observed that:
‘Rule 33(4) of the Uniform Rules - which entitles a Court to try issues separately in
appropriate circumstances - is aimed at facilitating the convenient and expeditious
disposal of litigation. It should not be assumed that that result is always achieved by
separating the issues. In many cases, once properly considered, the issues will be
found to be inextricably linked, even though, at first sight, they might appear to be
discrete. And even where the issues are discrete, the expeditious disposal of the
litigation is often best served by ventilating all the issues at one hearing, particularly
where there is more than one issue that might be readily dispositive of the matter. It
is only after careful thought has been given to the anticipated course of the
litigation as a whole that it will be possible properly to determine whether it is
convenient to try an issue separately. ’
13 SATAWU v Garvis and others [2011] ZASCA 152; 2011 (6) SA 382 (SCA) para 45.
14 Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA) para 3 .
10
[26] The application must thus fail.
Costs
[27] There is no reason why costs should not follow the result. The matter was not
complex, and the costs should therefore be taxed on scale A.
Order
[28] I therefore grant the following order:
1. Condonation is granted to the respondent for the late delivery of her heads of
argument and practice note and there shall be no order as to costs .
2. The application for a separation of issues in terms of Uniform rule 33(4) is
dismissed.
3. The applicant shall pay the respondent’s costs, to be taxed on scale A.
MOSSOP J
APPEARANCES
Counsel for the app licant: Mr S Humphrey
Instructed by: Anand Pillay Incorporated
Suite 11, First Floor
The Palms
14 Palm Boulevard
Umhlanga
Counsel for the respondent : Ms E S Law
11
Instructed by: Dabideen Attorneys
1 Hopedene Grove
Morningside
Durban