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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION: GQEBERHA)
CASE NO: 1946/20
In the matter between
RECYCLE YOURSELF (PTY) LTD Applicant/Plaintiff
and
WHITE AND WILLIAMS INCORPORATED First Respondent/Defendant
T/A LEXICON ATTORNEYS
MICHAEL WHITE Second Respondent/Defendant
ANTHONY BOWES Third Respondent/Defendant
MFUNDO MADIKIZELA Fourth Respondent/Defendant
PAUL ABERNETHY Fifth Respondent/Defendant
GENEVIEVE DE KLERK Sixth Respondent/Defendant
PETER VAN ROOYEN Seventh Respondent/Defendant
JAN LOUW JANSEN Eighth Respondent/Defendant
SEAN JOHNSON Ninth Respondent/Defendant
JUDGMENT
______________________________________________________________________________
NGOQO AJ
[1] The plaintiff seeks an order in terms of Rule 33(4) of the Uniform Rules of Court directing a
separation of the merits (the issue of liability) from the quantification of the claimed
damages.
It proposes that the issues of liability in the action proceedings instituted under case number
1946 /20, pleaded in paragraphs 18 to 31 of the Plaintiff’s particulars of claim, read with the
Defendants’ plea to those paragraphs, be separately determined. and that the remaining
issues
on the pleadings stand over for later determination. The Plaintiff’s contention is that the
proposed separation will not only be convenient, but will serve the interests of justice.
[2] The defendants have opposed the application on the grounds that the separation is not
convenient and will result in the duplication of evidence, delay and prejudice. According to
the defendants, their plea to the allegations contained in paragraphs 32 to 34 of the
plaintiff’s
particulars of claim, raises various g rounds of defence relevant to the averments made
therein.
[3] The following facts are common cause between the parties:
(a) The plaintiff conducted business from the premises in Deal Party, Port Elizabeth
which it leased from Clemlen Investments No 10 (Pty) Ltd (Clemlen);
(b) On 5 June 2018 the plaintiff’s landlord, Clemlen, issued summons against the
plaintiff claiming payment of arrear and future rentals (the Clemlen summons);
(c) A copy of the Clemlen summons was sent to the first defendant whereafter, on 8
June 2018, an oral contract of mandate was concluded between the plaintiff and
the first defendant. A component of that mandate was an instruction from the
plaintiff to Ms. Jenna Friedman, a practicing attorney representing the first
defendant, to enter an appearance to defend the Clemlen action. Ms. Friedman
accepted that instruction;
(d) Despite Ms. Friedman’s advice that a notice of intention to defend had been filed,
it subsequently transpired that the first defendant had failed to timeously enter an
appearance to defend;
(e) Default judgment was granted against the plaintiff which included an eviction
order, despite no such relief being claimed in the Clemlen action;
(f) The plaintiff was evicted from the leased premises on the 28 June 2018.
(g) Plaintiff instituted re scission proceedings in the Magistrates Court which was
refused in respect of the orders for payment of arear and future rental rates;
(h) No other proceedings were brought by the plaintiff to secure re -occupation of the
leased premises.
[4] What this court is called upon to decide is whether a separation as suggested by the plaintiff
should be granted or whether such separation would be convenient and in the interest of
justice or alternatively, such separation should be granted with the in clusion of paragraphs
32
to 33.
[5] Rule 33(4) reads 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 ma y order that all such 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 be conveniently decided separately.’
[6] The process envisaged in this Rule is aimed at facilitating the convenient and expeditious
disposal of litigation.1 The word ‘conveniently’ within the context of the sub-rule seems to
suggest a mechanism which brings about ease or expedience, an d appropriateness and
fairness
to all who are parties to the proceedings.
[7] In the case of Denel (Pty) Ltd v Vorster 2 the Supreme Court of Appeal expressed the
following view;
‘Rule 33(4) of the Uniform Rules - which entitles a Court to try i ssues 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 litigation is often best
served by ventilating all the issues at one heari ng, 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.’
[8] The Supreme Court of appeal appreciated the fact that, insomuch as a ventilation of facts at
one hearing is the default position, the question of whether a separation should be ordered is
objectively assessed on a case to case basis based on the litigation as a whole. However, it
cautions litigants that a separation of issues should not be readily resorted to where in
particular, issues that arise are intertwined.
[9] In the case of Molotlegi v Mokwalase3 the Supreme Court of Appeal dealing with the same
aspect, laying down some guidelines, stated the following;
1 DE Van Loggenberg, Erasmus, Superior Court Practice, Vol 2 Second edition D1 -437
2 2004 (4) SA 481 (SCA) at para 3
3 2010 (4) All SA 258 (SCA) at para 20
‘It follows that a court seized with such application has a duty to carefully consider the
application to determine whether it will facilitate the proper, convenient and expeditious disposal
of litigation. The notion of convenience is much broader than a mere facility or ease or
expedience. Such a court should also take due cognizance of whether separation is appropriate
and fair to all the parties. In addition, the court considering an application for separation is also
obliged, in the interest of fairness, to consider the advantages and disadvantages which might
flow from such separation.
[10] The function of the court before whom an application for separation of issues is under
consideration, is to gauge to the best of its ability the nature and extent of the advantages
which would flow from the separation and the advantages. The court ought not to grant the
separation “unless there appears to it to be a reasonable degree of likelihood that the
alleged
advantages would in fact result.” 4
[11] In the matter of Absa Bank Ltd v Bernert,5 the Supreme Court of appeal emphasized the
extent to which a court must engage the question of separation when it said;
‘If for no reason but to clarify matte rs for itself a court that is asked to separate issues must
necessarily apply its mind to whether it is indeed convenient that they are separated, and if so, the
question to be determined must be expressed in its order with clarity and precision.’
[12] The Plaintiff contends that in the current action, the issue of liability and quantification are
clearly distinct and can be conveniently separated as follows:
a. The enquiry into liability will involve limited factual evidence. Those questions will
mainly cen ter on legal argument which is governed by long standing principles and
authority as those are applied to the largely undisputed facts;
b. Should the plaintiff fail to establish liability on the first defendant’s part, the need for a
time-consuming and expensive quantification hearing will be unnecessary. That outcome
4 Coppermoon Trading v Eastern Cape Province 2020 (3) SA 391 (ECB) at para 20
5 2011 (3) SA 74 (SCA) at para 21
would obviate the risk of incurring significant, and, ultimately, futile expenditure and
extensive court time;
c. If liability is established, the quantification phase can proceed with clarity and focus,
supported by the factual findings flowing from the liability hearing;
d. The advantages of a separation outweigh any potential disadvantages and
e. No serious prejudice will be occasioned to any of the parties should a separation be order.
[13] The defendants in their counter argument contend that contractual damages can either be
general or intrinsic damages being damages that flow naturally from the breach of the
contract concerned, (the breach of mandate alleged), in which event they are generally
recoverable, or they can be special or extrinsic damages in which event they are ordinarily
in law regarded as to remote to be recovered unless in the special circumstances that
prevailed at the conclusion of the contract, the parties actually or presumptively
contemplated that they would probably result from breach.
[14] The defendants contend that the plaintiff claims for general contractual damages as special
contractual damages. However, the plaintiff excludes the aforesaid issue, namely a
determination of whether the damages claimed are general or special damages, and all that
goes with that, from the issue it seeks to separate as the separation is sought only with
reference to paragraphs 18 to 31 of the particulars of claim.
[15] According to the defendants, it is clear that at least the claims for loss of profits comprise
claims for special damages. Separation of issues as proposed by the plaintiff, seeks, in
addition to the exclusion of a determination of whether the damages are general or special
damages, to exclu de pertinent issues of causation, more specifically and with refence to
the
excluded paragraphs, firstly, whether the plaintiff could not successfully revive its
business
operations due to its inability to re-occupy the leased premises and its eviction therefrom,
and whether the entirety of its business operation subsequently ceased, and whether that
was
similarly, as a result of its inability to re-occupy the leased premises and its eviction
therefrom. Secondly, whether the damages, if proven, were suffered as a result of the
defendants’ breach.
[16] The Plaintiff contends that it is incumbent on the defendants to satisfy the court that the
questions sought to be separated cannot conveniently be resolved in the manner the
plaintiff
proposes. It contends that the objections of the defendants are mainly argumentative. They
are flawed as they improperly conflate the nature and requirements of liability and
quantification. They also exaggerate the complexity of the disputes on liability. And in
addition, the defendants have relied mainly on speculation and supposition which do not
outweigh the procedural and substantive benefits of the separation.
[17] I struggle to understand the argument by the Plaintiff that the objections by the Defendants
are argumentative. Paragraph 30 of the plaintiff’s amended particulars of claim, which
forms
part of the issues to be separated, reads as follows;
‘Owing to its inability to re -occupy the leased premises and its unlawful eviction
therefrom on the 28 June 2018 the Plaintiff could not successfully revive its business
operations and the entirety of its business operations ceased on or immediately after 28
June 2018.
[18] Paragraph 32 of the amended particulars, which does not form part of the issues to be
separated, as per the plaintiff’s proposal, reads as follows;
‘Owing to its inability to re -occupy the leased premises and its unlawful eviction
therefrom the Plaintiff could not successfully revive its business operations and the
entirety of its business operations subsequently ceased.’
[19] No one can seriously argue that there is no interlinking between the two paragraphs such
that evidence adduced in respect of paragraph 30 would have to be adduced in respect of
paragraph 32. That in essence would mean a duplication of evidence and unnecessary costs
being incurred in the matter. The contention by the plaintiff that the defendants are being
argumentative and are making flawed objections can thus not be correct.
[20] The proposed separation, which excludes paragraph 32 to 33 seems to exclude pertinent
and
material issues relating to causation without which such cannot be determined. On this
ground alone, I cannot agree with the proposed separation by the plaintiff. I am not
convinced that it will bring convenience to any of the parties in its current form. In the
contrary, I am of the view that it has a potential of duplicating evidence, something which
is not desirable.
Order
[21] In the result, I make the following orders:
i. The application is dismissed.
ii. Each party to pay its own costs.
____________________________
D. N. Ngoqo
Judge of the High Court (Acting)
Date heard: 7th August 2025
Delivered on: 5th February 2026
Appearances:
For the plaintiff: ARG MUNDELL SC
For the defendants: JJ NEPGEN SC