IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

JUDGMENT

Not Reportable
Case No. 3644/22

In the matter between:

LIFESTYLE HOSPITALITY CC Applicant

and

VESPERDENE MEWS BODY CORPORATE Respondent

Heard: 23 April 2025
Delivered: 5 August 2025
_____________________________________________________________________

JUDGMENT DELIVERED ELECTRONICALLY ON 5 AUGUST 2025
______________________________________________________________________
BOSCH, AJ

Introduction

[1] The relevant issues in dispute between the parties are as follows:

1.1. Claim A: whether the renovations undertaken by the applicant (the defendant in
the main action), together with certain roots that were planted at the time,
caused (and continue to cause) the respondent (the plaintiff in the main action)
damage (“the nuisance”). In particular, it is claimed that the nuisance has caused
significant water damage to units [...] and [...]2 of the respondent’s corporate
body and if left unabated will likely cause further damage to these units and the
outer wall of the property;
1.2. Whether the respondent’s claim/s has prescribed (first special plea);
1.3. Whether the respondent’s claim/s was previously settled between the parties in
2019 (second special plea);
1.4. Whether the respondent has standing to institute the claim/s on the basis that
the walls complained of are not common property but individually owned (third
special plea);
1.5. Claim B: is an action for the damages caused by the nuisance. The material
issue in dispute is whether the respondent has suffered loss as alleged and as a
consequence of the applicant’s nuisance.

[2] The applicant seeks to have the first and second special pleas separated from the
main action in terms of Uniform Rule 33(4) of the Rules of Court.

Grounds on which the separation is sought

[3] The applicant alleges that the order of separation should be granted for the following
reasons:

3.1. The t wo special pleas are deci sive of the main action and will require very
limited evidence to be led and can conveniently be separated from the issues
arising in the main action;
3.2. The evidence relating to the issues of prescription and settlement is distinct from
the evidence required to determine the merits. The former concerns evidence

relating to when the alleged nuisance arose and whether the dispute was
settled, whereas the latter involves extensive technical evidence concerning the
position of boundaries, the cause and source of the alleged damp and the
engineering possibilities for its resolution;
3.3. The evidence relating to the settlement will entail two or three factual witnesses
whose evidence will be extremely narrow and limited. The dispute was allegedly
settled on the basis th at the applicant would contribute an amount of money for
the problem identified by the respondent on the applicant’s property to be
repaired by the respondent’s appointed contractor . That contractor would
provide the respondent with the necessary guidance. The applicant allegedly
complied with the terms of the settlement agreement in full;
3.4. If the special pleas are upheld, the main action will fall away at an early and
comparatively inexpensive stage without the need for an inspection in loco on
the first day of the trial (as agreed to by the parties in the pretrial minute), calling
three expert witnesses and leading expert testimony in relation to the wide
ranging issues in the main action;
3.5. The separation would be convenient because it would allow the parties to
concentrate their efforts on the issues raised by the special pleas and would
avoid using up valuable court time for matters that would otherwise be dealt with
at an early stage of the main action;
3.6. Even if the special pleas are dismissed, the main action would proceed with the
issues in the action having been narrowed considerably by the issues
canvassed and decided in the separated hearing. That would save time and
costs.’

Grounds of opposition

[4] The respondent opposes the application for separation as follows:

4.1. The issues that will be canvassed in the special plea proceedings will overlap
considerably with those to be canvassed in relation to the merits if the special

pleas do not succeed. The separation may result in the need to recall witnesses,
particularly the respondent’s expert which will lead to a waste of costs, potential
conflicting findings of fact (and credibility of witnesses). The evidence regarding
the alleged settlement and the claim of prescription will be largely identical to
evidence at the trial;
4.2. The issue of prescription is clearly appealable and there would be a
considerable delay in reaching a final decision due to an interim appeal against
a separation finding an d a consequent finding that prescription is dispositive of
the main action;
4.3. Even if the special plea of prescription is upheld in respect of the claim for
payment of damages, the respondent’s core complaint concerns a live and
ongoing nuisance which cannot prescribe;
4.4. The so -called settlement discussions related to a narrow concern regarding
fixtures affixed to the wall and the respondent expressly reserved its right to take
further action against the applicant. Resolving the settlement issue will require
extensive evidence detailing efforts to resolve the respondent’s concerns
regarding the damp caused to units 5 and 6. This evidence is central to the
merits of the action and it therefore makes no sense to separate it out;
4.5. The disadvantages of a separation outweigh any of the advantages claimed by
the applicant;
4.6. This is a case where the issues may prima facie seem to be discret e, but upon
proper consideration may be found to be inextricably linked;
4.7. Even if the issues raised by the special pleas can be said to be discret e, the
expeditious disposal of the litigation will best be served by ventilating all the
issues at one hearing, particularly because there is more than one issue that
might readily dispose of the matter;
4.8. The applicant has not abandoned its thi rd special plea which will still have to be
determined even if the first and second special pleas are dismissed. This will

determined even if the first and second special pleas are dismissed. This will
result in piecemeal litigation which will be stretched over an extended period of
time.

Separation of issues: the legal principles

[5] Rule 33(4) provides that:

“Special cases and adjudication upon points of law. —
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 a nd 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.”

[6] The purpose o f this rule is to determine the plaintiff’s claim without the costs of
delays of a trial and it facilitates convenient and expeditious disposal of litigation. 1
Against this background, th e Supreme Court of Appeal has warned on many
occasions that a decisi on under Rule 33(4) must be considered carefully. 2 The
issue(s) which are to be decided separately must be clearly defined. This is because
in many cases, at first sight, there might appear to be discrete issues that may be
considered separately. However, when properly considered, the issues will be found
to be inextricably linked with the rest of the issues that arise in a particular case.3

[7] Further:

“even where the issues are discrete the expeditious disposal of the litigation is often
served by ventila ting 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

1 Denel (Pty) Ltd v Vorster 2004 (4) SA 481 (SCA) at para 3
2 Molotlegi and Another v Mokwalase [2010] 4 All SA 258 (SCA) at para 20; The City of Tshwane
Metropolitan Municipality v Blair Atholl Homeowners Association [2019] 1 All SA 291 (SCA) at para 51

3 Denel (Pty) Ltd v Vorster (supra) at para 3

will be poss ible properly to determine whether it is convenient to try the issue
separately’.”4

[8] In Copperzone 108 (Pty) Ltd and Another v Gold Port Estates (Pty) Ltd and Another 5
this court described the principles guiding the application of Rule 33(4) as follows:

“25.1 Whether the hearing on the separated issues will materially shorten the
proceedings: if not, this militates against a separation. In Braaf (supra) it was said
that despite the wording of the subrule, it remains axiomatic that the interests of
expedition and finality are better served by disposal of the whole matter in one
hearing;
25.2 Whether the separation may result in a significant delay in the ultimate
finalisation of the matter: such a delay is a strong indication that separation ought
to be refused. The granting of the application, although it may result in the saving
of many days of evidence in court, may nevertheless cause considerable delay in
reaching a final decision in the case because of the possibility of a lengthy
interval between the first hearing at which the special questions are canvassed
and the commencement of the trial proper;
26.3 Whether there are prospects of an appeal on the separated issues,
particularly if the issues sought to be separated are controversial and ap pear to
be of importance: if so, an appeal will only exacerbate any delay and negate the
rationale for a separation;
25.4 Whether the issues in respect of which a separation is sought are discrete,
or inextricably linked to the remaining issues: if after careful consideration of the
pleadings, the relevant issues are found to be linked, even though at first sight
they might appear to be discrete, it would be undesirable to order a separation;
and
25.5 Whether the evidence required to prove any of the issues in respect of
which a separation is sought will overlap with the evidence required to prove any

4 Ibid
5 (7234/2013) [2019] ZAWCHC 34 (27 March 2019) at para 25

of the remaining iss ues: a court will not grant a separation where it is apparent
that such an overlap will occur. Such a situation will result in witnesses having to
be recalled to cover issues which they had already testified about. Where there is
such a duplication of evid ence, a court will not grant a separation because it will
result in the lengthening of the trial, the wasting of costs, potential conflicting
findings of fact and credibility of witnesses, and it will also hinder the opposing
party in cross-examination.” (footnotes omitted)

Analysis

[9] Applying the aforementioned principles to the matter before me, I am not persuaded
that it would be appropriate to order that the two special pleas be heard separately.

[10] The applicant argued that the evidence necessary to dispose of the special pleas
could be heard over two days. This allegation is not made in its founding papers. It
also argued that the trial on the merits will run over two weeks. That allegation is
also not made in the pape rs. Nor is it consistent with the pre-trial minute annexed to
the founding affidavit in which the parties agree that the trial will run for
approximately four to five days.

[11] It is not clear whether it is envisaged that those four to five days incorporates the
evidence that would be led in support of the issues covered by the special pleas. If
so, even if the special pleas were heard separately and were successful that would
not amount to a significant saving of court time or costs. But even if they do not , the
saving is relatively limited. That must also be weighed with the potential delay in the
commencement of the trial should the special pleas fail. And , while the applicant
submitted that this is irrelevant, it must be a valid consideration that the matter is trial
ready but for the submission of the applicant’s expert reports.

[12] The respondent contends that the consequences of the alleged wrong are
ongoing effect. If so, additional delay will further exacerbate whatever harm the
respondent suffers.

[13] The special plea of prescription relates to the entire claim. The respondent points
out that its core complaint concerns a live and ongoing nuisance which, it says,
cannot prescribe.

[14] In dealing with that issue in separated proceedings, o ver and above needing to
persuade a court that, in law, an ongoing nuisance cannot prescribe, the respondent
would have to prove that the wrong has been and is ongoing. That may require
evidence of the circumstances prevailing over a long period leading up to the trial
which may very well overlap with evidence required to determine the merits. That
raises the risks of a duplication of evidence with witnesses havin g to be recalled to
cover issues which they had already testified about, the wasting of costs and
potential conflicting findings of fact and credibility of witnesses.

[15] It may be that the issues relating to the payment of damages are discrete and
that there would be little overlap between the evidence required to establish when
prescription started running in respect of that claim and that required for the merits.
However, the respondent has signaled its intention to call its expert witness, Mr
Kelly, to give evidence on the methodology of his investigations and at what stage of
the investigations he could confirm his findings. In order to deal with this, the
deponent to the founding affidavit applicant indicates that

“[for] the sake of advancing the matter, the Applicant is prepared to accept that the
Respondent’s expert observed what he did, on the dates mentioned in the summary
of evidence, but with the understanding that the Applicant does not concede that the
opinion is correct, which may still be challen ged at the trial (if the need arises). I
submit that this should completely obviate the need to call Mr Kelly.”

[16] In light of this, it might have been unnecessary to call Mr Kelly in separated
proceedings or his evidence could be confined to simple factual p oints, but it is not
for this court to direct the evidence to be led in respect of the separated issues.6

[17] As I have indicated above, the authorities indicate that the court should consider
whether there are prospects of an appeal. 7 The applicant contends that t he
argument that a finding on a special plea might be subject to an appeal is not
persuasive since that is the case with any and ev ery separation of issues. A party
cannot be permitted to prevent the separation of issues merely by threatening to
appeal the findings on separated issues. However, in this case the issue of whether
an ongoing nuisance can prescribe and whether any nuisance was ongoing is
obviously a contentious issue between the parties and, because it is not simple
legally and factually and clear cut, could form the subject of an appeal. That would
exacerbate any delay and thus negate the rationale for separation.

[18] As far as the special plea relating to settlement is concerned, it does not seem
that this issue would require a great deal of additional evidence at a trial on the
merits. The applicant alleges that two or three factual witnesses would be required,
whose evidence would be extremely narrow and limited . This would not significantly
lengthen a trial if separation is refused.

[19] The settlement plea also raises the spectre of evidence detailing efforts to
resolve the respondent’s concerns regarding the damp caused to units 5 and 6. This
evidence goes to the merits of the action and it therefore makes no sense to
separate it out.

Conclusion


6 Van der Burgh v Guardian National Insurance Co Ltd 1997 (2) SA 187 (E) at 189J.
7 See also Hollard Insurance Company Ltd v Coetzee [2015] ZAWCHC 212 (6 May 2015) at para 15

[20] In the circumstances, in exercising my discretion regarding whether to grant the
separation, I consider that such would not be convenient and would not facilitate the
expeditious disposal of the pending litigation.

[21] The court therefore makes the following order:

21.1. The application is dismissed.
21.2. The costs in this application shall be costs in the cause


_______________________________
BOSCH AJ
ACTING JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION


APPEARANCES

For the Applicant: Adv A Brown
Instructed by: Smith Tabata Buchanan Boyes Inc

For the Respondent: Adv G Solik
Instructed by: Slabbert Venter Yanoutsos Inc