IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case No.: 23633/2024
In the matter between:
ENGEN PETROLEUM (PTY) LTD Applicant
and
KEPU TRADING (PTY) LTD First Respondent
MICHELLE IMELDA LOUW Second Respondent
ANTHONY BRYN RUSSELL Third Respondent
FAKU FAMILY ENTERPRISES (PTY) LTD Fourth Respondent
Coram: Montzinger AJ
Heard: 23 March 2026
Delivered: 25 March 2026
Summary: Application to separate issues in terms of Uniform Rule 33(4) and to stay
further litigation – Whether a separation is competent in motion proceedings or limited to
action proceedings - Consideration of authorities that shed light on whether separation is
competent in motion proceedings – Separation refused – Stay of further litigation pending
determination of separated issue not granted – principles when court will grant separation.
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ORDER
1. The application for separation of issues and the ancillary relief for a stay of the
main application is dismissed.
2. The costs of this interlocutory application shall be costs in the cause in the main
application.
JUDGMENT
Montzinger AJ
Introduction
[1] This is an opposed application brought by Faku Family Enterprises (Pty) Ltd for
the separation of an issue it contends is discrete from the main application instituted
by Engen Petroleum (Pty) Ltd (“Engen”). In the main application, Engen is the
applicant, Kepu Trading (Pty) Ltd (in liquidation) (“Kepu Trading”) is the first
respondent while Michelle Imelda Louw (“Louw”), Anthony Bryn Russell
(“Russel”) and Faku Family Enterprises (Pty) Ltd (“Faku Enterprises”) are cited as
second to fourth respondents respectively.
[2] In the separation application Faku Enterprises is the applicant, and Engen the first
respondent. Kepu Trading, Louw and Russell are cited as second, third and fourth
respondents, respectively. For convenience, and to avoid confusion, I prefer the
heading of the main application and refer to the parties in this judgment by the ir
identified names.
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[3] Engen instituted the main application in October 2024 seeking payment arising
from the supply of petroleum products and to hold Louw, Russell and Faku
Enterprises liable as sureties and co-principal debtors for Kepu Trading’s alleged
indebtedness. As against Faku Enterprises, Engen relies on a written deed of
suretyship said to have been executed on or about 11 July 2019 in Cape Town.
[4] In opposition to the main application a comprehensive answering affidavit was
filed, and various disputes of fact were raised. One of those disputes involved a
defence by Faku Enterprises with regard to the alleged conclusion of the surety
agreement. Faku Enterprises disputes that the suretyship is valid and binding upon
it. It does so on three grounds. First Mr Mkhuseli Richman Faku, the representative
of the company, denies that he signed the document on behalf of Faku Enterprises.
Secondly, that in any event the conclusion and execution of the surety agreement
was not authorised by Faku Enterprises. Thirdly, that the alleged signature on the
document does not comply with the General Law Amendment Act 50 of 1956
and/or the Electronic Communications and Transactions Act 25 of 2002.
[5] During the period August to September 2025, the attorneys exchanged
correspondence in which Faku Enterprises proposed that the suretyship-validity
issue be separated and determined first before the issues in the main application.
Engen declined the proposal. Its attorneys raised concerns of a possible appeal and
an unnecessary delay and proposed instead that the suretyship issue be argued at
the outset of the hearing of the main application, similar to a point in limine.
[6] Not satisfied with Engen’s response Faku Enterprises launched the separation
application in October 2025 in terms of Rule 33(4) of the Uniform Rules of Court.
It sought separation of the suretyship-validity issue and a stay of the main
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application pending determination of the surety issue. Louw and Russell filed a
notice to abide the outcome of the separation application and did not participate in
the hearing of this part of the matter.
[7] Faku Enterprises seeks, before me, an order separating for independent
determination, the issue of: “Whether the written suretyship allegedly executed on
behalf of Faku Enterprises constitutes a valid and binding suretyship”
1. In addition
it also seeks an order staying all further proceedings in the main application pending
determination of the separated issue. Faku Enterprises also wants the costs of the
separation application if successful, while Engen seeks a dismissal of the
application with costs.
The consent order of 26 February 2026
[8] Before delving into the merits the order by agreement between the parties issued by
the Judge President Mabindla-Boqwana on 26 February 2026 is in my view an
important procedural aspect of this litigation and has influenced the conclusion I
reached at the end of this judgment.
[9] The salient features of the Judge President’s order may be summarised as follows
(duly paraphrased):
[9.1] If the separation application is granted the separate issue, as defined by the
parties, would be heard on 20 April 2026.
1 This is a paraphrased version of how the parties framed the separated issue, by agreement, in the order of
Mabindla-Bowana dated 26 February 2026.
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[9.2] If the separation application is not granted, Engen’s interlocutory
application in the main proceedings (concerning the consolidation of the
main application with the Nguni2 matter and referral to oral evidence of
issues relating to the quantum of Engen’s claim in the main application)
would also be heard on 20 April 2026.
[9.3] Pursuant to a finding that the suretyship issue is valid and binding (if
determined as a separate issue), Engen may thereafter enrol its consolidation
and / or referral to oral evidence interlocutory applications on a date to be
determined by the Registrar.
[9.4] Faku Enterprises agreed that it would not appeal against a decision that the
suretyship is valid and binding until the merits in the main application have
been determined.
[9.5] That if Engen’s consolidation and / or referral to oral evidence interlocutory
applications is granted, the Court may appoint a judicial case manager and
the matter may proceed to oral evidence subject to directions, including the
identification of issues, witnesses, subpoenas, discovery, exchange of
witness statements, and pre-trials.
[10] The Judge President’s order plainly conveys that the parties envisaged procedural
clarity and certainty flowing from the anticipated proceedings on 20 April 2026.
2 This is an application against Nguni Fuel (Pty) Ltd (in liquidation), Louw and Russell under case number:
23104/2024. In that application Engen seeks payment for the supply of petroleum products. That application
has also been set down for hearing on 20 April 2025.
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The competing contentions
[11] Faku Enterprises’ case is that the issue of the validity of the suretyship is an issue
that is discrete from the issues and merits of the main application. The proposition
is that if the proposed separated issue is determined in its favour, Engen’s claim
against it falls away entirely. It is further the case for Faku Enterprises that without
a separation of the surety validity issue it will remain embroiled in extensive and
potentially protracted proceedings involving disputes between Engen and the
other parties.
[12] Engen in turn takes the position that a Rule 33(4) separation is not competent in
motion proceedings and applies only to actions. Furthermore, even if separation
is competent, whether under Rule 33(4) or by virtue of the Court’s inherent
jurisdiction to regulate its own proceedings, it would not be prudent to order a
separation. Engen’s preferred alternative is that the suretyship validity issue be
argued similar to an in-limine point at the hearing of the main application.
The legal framework: Separation of issues
[13] Rule 33(4)
3 provides in the main that if in “any pending action” there is a question
of law or fact which may conveniently be decided separately, the Court may order
the disposal of such question separately. Recently in Harold Gie4 the Supreme
3 The rule provides: 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.
4 Herold Gie and Broadhead Inc v Harris N O and Others [2024] 4 All SA 333 (SCA); 2025 (2) SA 144
(SCA)
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Court of Appeal restated the purpose of this rule and what it aims to facilitate. The
SCA found that the rule’s purpose is to determine the plaintiff’s claim without the
costs of delays of a trial 5. The SCA has also confirmed that the rule facilitates
convenient and expeditious disposal of litigation6.
[14] Ultimately, it is clear from the rules and the authorities that a court asked to order
a separation exercise a discretion 7. The starting point is therefore that the
discretion to order separation must be exercised judicially and with due regard to
convenience in the wide sense, including fairness and appropriateness to all
parties. Separation should not be ordered as a matter of course and must be aimed
at facilitating the convenient and expeditious disposal of litigation
8.
[15] The SCA has warned on many occasions that a decision under Rule 33(4) must be
considered carefully, that 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 could be considered separately but when properly
considered, the issues will be found to be inextricably linked with the rest of the
issues that arise in a particular case
9. Also, where it appears that separation of
issues will not result in a convenient and prompt finalisation of litigation the court
must refuse to order separate adjudication
10. Lastly, it is not the convenience of
5 para 18
6 Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA); 25 ILJ 659; [2005] 4BLLR 313 para 3.
7 The City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners Association [2019] 1 All
SA 291 (SCA); 2019 (3) SA 398 (SCA) para 15; Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA); 25
ILJ 659; [2005] 4BLLR 313
8 Herold Gie and Broadhead Inc v Harris N O and Others [2024] 4 All SA 333 (SCA); 2025 (2) SA 144
(SCA) paras 18 -19
9 The City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners Association [2018] ZASCA
176; [2019] 1 All SA 291 (SCA); 2019 (3) SA 398 (SCA) para 15.
10 Denel supra
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any one of the parties or even the court, but the convenience of all concerned that
must be taken into consideration11.
[16] However, in this matter there is a legal point to consider. Since the main
application commenced by way of motion, the question arises whether a
separation of issue of the kind sought by Faku Enterprises may be entertained in
motion proceedings.
[17] As stated, Engen’s position is that various authorities endorse a conclusion that
the legal position is that Rule 33(4) only applies to actions and not to applications.
The relatively recent judgment of Theron
12 seems to have started this line of
argument. Ponnan JA who wrote for the unanimous court concluded that there
may be circumstances in which a high court may in the exercise of its inherent
jurisdiction, separate issues in application proceedings. Wallis JA disagreed with
Ponnan JA that the issue of separation was actually before that court. In my view
Theron is not persuasive authority for a definitive finding that a rule 34 separation
cannot be ordered in motion proceedings.
[18] Engen’s reliance on the judgment of Louis Pasteur
13 for the proposition that a
separation is not allowed in motion proceedings, is not much clearer. In that
judgment the court placed reliance on a remark by the learned author Harms
14
where he stated that rule 33(4) does not apply to applications, but that a court may
separate issues in limine and in its inherent power apply a similar procedure to
11 The City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners Association [2019] 1 All SA
291 (SCA); 2019 (3) SA 398 (SCA) par 50 with reference to D E van Loggerenberg Erasmus Superior
Court Practice (2016) 2 ed at D1-43
12 Theron N.O and Another v Loubser N.O and Others, InRe; Theron N.O and Another v Loubser and
Others [2014] 1 All SA 460 (SCA); 2014 (3) SA 323 (SCA)
13 Louis Pasteur Holdings (Pty) Ltd and Others v Absa Bank Limited and Others (1119/2017; 1120/2017)
[2018] ZASCA 163; 2019 (3) SA 97 (SCA) (29 November 2018)
14 D Harms Civil Procedure in the Superior Courts Part B High Court at B33.9
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them. The court in Louis Pasteur then concludes that a court in exercising its
inherent power in application proceedings to separate issues in limine, must do so
with circumspection 15, and with due regard to the warning in Democratic
Alliance16 that courts should be slow to allow parties to engage in piecemeal
litigation and be intent on obviating prolonged litigation. So it seems as if the court
in Louis Pasteur did not issue a definitive finding on the issue but rather warned
against piecemeal litigation.
[19] Then came the Constitutional Court judgment of Ascendis17 in which Khampepe
J remarked that Rule 33(4) applies to action proceedings, not application
proceedings. Engen also referred to Koch18 where the Court passed over the
question whether separation is permissible in motion proceedings but made
reference in a footnote with reference to the Kampepe J’s remark in Ascendis that
rule 33(4) only applies to actions.
[20] On behalf of Faku Enterprises, on the other hand, reliance was placed on the
judgment of Binns-Ward J in Economic Freedom Fighters
19 that apparently
recognised that courts have in appropriate circumstances separated issues in
motion proceedings. However, the judgment relied on by Faku Enterprises did not
involve a rule 33(4) separation application but rather dealt with discouraging
litigants from piecemeal litigation. In fact, the learned judge made it clear that the
separation of issues is unusual in motion proceedings and if it is done it must be
15 Para 33
16 Democratic Alliance & others v Acting National Director of Public Prosecutions & others 2012 (3) SA
486 (SCA) para 49
17 Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation and Others 2020 (1) SA 327
(CC) ; 2020 (1) BCLR 1 (CC); 2019 BIP 34 (CC) par 77
18 Koch & Kruger Brokers CC and Another v Financial Sector Conduct Authority and Others 2023 (11)
BCLR 1329 (CC) fn 14
19 Economic Freedom Fighters and Others v Speaker of the National Assembly and Others [2016] 1 All
SA 520 (WCC) (8 December 2015)
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done with circumspection. What is said is that if a court is asked to order a
separation of issues it should be informed by the principles that apply in rule 33(4)
in respect of actions
20. So, Economic Freedom Fighters is at best notional support
for Engen’s proposition that a separation is preferred or reserved in action
proceedings.
[21] On consideration of the case law I do not intend, and I also find that it is not
necessary, to pronounce definitively whether Rule 33(4) applies to motion
proceedings or not. Even assuming in Faku Enterprises’ favour that a court may,
in a proper case, direct the prior determination of a discrete issue in proceedings
on motion, whether by analogy to Rule 33(4)
21 or under the court’s inherent power
to regulate its own processes, the decisive enquiry remains whether it
is convenient, in the broad sense, to do so, considering all the parties, including
the court.
[22] My understanding of the case law and therefore the legal position is that a court
must assess, on the facts of the particular case, regardless of whether the matter
proceeds by way of motion or action proceedings, whether a separate
determination of a discrete issue will assist with the convenient and expeditious
resolution of the litigation, or whether it will fragment proceedings, duplicate
evidence, or otherwise produce inefficiency. This is done with the underlying
conviction that a court should be circumspect to allow for piecemeal litigation.
The aforementioned approach or formulation does not require a definitive legal
20 para 20
21 As suggested by Binns-Ward J in Economic Freedom Fighters
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conclusion on whether a separation can be ordered in terms of Rule 33(4) in
motion proceedings or only actions.
Application of the law to the facts
[23] I deal broadly with whether the issue of the validity of the surety is discreet and
anterior, whether its determination would be dispositive or narrow the disputes
further, and if it is convenient in the context of this matter to grant a separation.
[24] The separated issue as identified by the parties is objectively fairly narrow and
easily identifiable. It concerns the adjudication of whether the suretyship
agreement allegedly executed on 11 July 2019 on behalf of Faku Enterprises in
favour of Engen is valid and binding on Faku Enterprises. The bases on which the
validity of the surety is disputed by Faku Enterprises are likewise confined. Mr
Faku denies signing it on behalf of the company and further that Faku Enterprises
did not authorise him to conclude the surety, also that in any event the signature
does not comply with the requirements of the various applicable statutes.
[25] It is apparent that the issue concerning the validity and enforceability of the
suretyship as the cause of action for Engen’s claim against Faku Enterprises do
not require the Court to determine, at the same time, the issues in the main
application. In the main application there are issues concerning accounting
disputes about alleged rebates, a debatement of account, and the quantification of
Kepu Trading’s actual indebtedness to Engen. Those disputes may later become
relevant if Faku Enterprises is found to be bound as a surety.
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[26] I am therefore satisfied and accept that the suretyship validity issue is to a large
degree anterior to the question whether Faku Enterprises is liable at all and may
potentially be dispositive as against the company.
[27] However, separation is not ordered merely because an issue is discrete, or because
it may be dispositive. I must examine the anticipated course of the litigation as a
whole and determine whether a formal separation order will, in reality, advance
the expeditious and fair disposal of the matter.
[28] In my assessment of the situation the order the parties agreed to on 26 February
2026 materially changes the context within which the convenience of a separation
must be assessed. In that order the parties have agreed upon a process that will
result on 20 April 2026 in either the suretyship issue be heard, if I grant separation
of that issue in this application. If separation is not granted by this court the
determination of the surety issue is still open to that court to determine. Engen’s
interlocutory applications for the consolidation of the Nguni application and / or
referral to oral evidence of various issues in the main application could also be
heard. The parties have also agreed to further steps that may follow depending on
the outcome of those proceedings.
[29] In practical terms, therefore, the litigation will in some manner converge on 20
April 2026 where that judge, hearing the matter, could potentially determine all
the in limine and interlocutory issues and the further conduct of the main
application and the related matters. That being the case, the question is not simply
whether Faku Enterprises’ suretyship issue is a distinct issue viable for separation.
It is whether I should now grant a formal separation order which will, almost
inevitably, increase the risk that the litigation will be handled in parts by a
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succession of different judges, an outcome which the authorities warn may be
inimical to judicial economy, especially in motion proceedings. The potential of a
piecemeal adjudication here is not only possible appeals it is the reality of multiple
judges dealing with fragments of the same case.
[30] Engen initially emphasised the risk of piecemeal appeals. However, the February
2026 order substantially mitigates that risk, because Faku Enterprises has
undertaken not to appeal an adverse decision on the suretyship issue until the
merits of the main application are determined.
[31] If a formal separation order were to be granted now, the separation application
would have been decided by one judge. Then the separated issue would be heard
by a second judge on 20 April 2026 and hopefully the consolidation application
of the Nguni matter and / or the referral to oral evidence application may thereafter
be heard by the same judge also on the aforementioned date. That means it is
possible that a third or fourth judge will have to decide either the remaining
interlocutory applications and/or be concerned with the case management process.
[32] It seems therefore that Engen’s alternative proposal, that the suretyship issue be
argued at the outset of the main hearing, is in the circumstances, having regard to
the consent order, a sensible middle ground. It permits the judge seized with the
matter on 20 April 2026 (i) to determine whether the suretyship issue can be
decided on the papers as they stand, or whether any further directions are required;
(ii) to hear and decide that issue first (in limine), if appropriate; (iii) if judgment
on that issue is reserved, to allow that situation to have the practical effect of a
stay of the remainder of proceedings as they concern Faku Enterprises; and
thereafter, with the benefit of being seized of the broader matter, to hear counsel
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on what should happen next, including managing the hearing of the consolidation
/ and referral to oral evidence applications and thereafter issue directions regarding
the further conduct of the matter.
[33] In my view this approach addresses Faku Enterprises’ legitimate concern that its
liability issue should not be submerged in the broader disputes in the main
application. It also addresses Engen’s concern that the litigation should not be
fragmented.
Prejudice to Faku
[34] Faku’s prejudice argument is that it should not be compelled to “tag along” in a
matter involving rebates, debatement and quantum disputes in which it has no
interest. The concern is understandable. But the manner in which the main
application has been pleaded indicates that Faku Enterprises’ principal (and
seemingly sole) dispute with Engen is the suretyship issue. In those circumstances,
the approach to argue the suretyship issue in limine materially reduces the
potential litigation burden on Faku Enterprises.
[35] If it later transpires that Faku Enterprises was nevertheless unnecessarily put to
the cost or inconvenience by reason of procedural decisions made in the broader
litigation, that can be addressed by an appropriate costs order at the relevant stage
to cater to the realities that unfolded.
[36] Since I am not persuaded that a formal separation order should be made now, the
stay sought by Faku Enterprises cannot be granted. However, this does not mean
that the proceedings cannot be managed so that Faku Enterprises is not burdened
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pending the determination of the suretyship issue. It means only that having regard
to how a judge who will ultimately be seized with the discreet issue of Faku
Enterprises’ liability in terms of the suretyship may decide to deal with the matter
it may mean that a stay in the main application, as far as it concerns Faku
Enterprises, may in any event be obtained indirectly. A stay order by this Court
would therefore not be prudent.
Conclusion and order
[37] The application for separation and the stay of the main application is therefore
refused.
[38] Although Faku Enterprises is unsuccessful with the application, it would not be
prudent to grant a costs order against it at this stage. This approach is justified by
the fact that a trial court, or in this case the court seized with the main application,
would in any event be entitled to reconsider a separation order
22 or decide to
determine the issue in limine. Therefore, it may be that one court is satisfied that
it is convenient for a separation to be ordered or for an issue to be determined in
limine, while circumstances may change during the course of litigation that at a
later stage a separation may no longer be convenient. This means to grant a cost
order refusing the separation may be revisited by the next judge who may
approach the matter that separation or a in limine determination is in fact
convenient. It is therefore prudent for the issue of costs of this separation
application to be determined with the main application.
22 NCS Resins (Pty) Ltd v Allan and Others (2708/2016) [2022] ZAECQBHC 25 (30 August 2022)
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[39] In the result, the following order is made:
1. The application for separation of issues and the ancillary relief for a stay of
the main application is dismissed.
2. The costs of this interlocutory application shall be costs in the cause in the
main application.
______ _____
A MONTZINGER
Acting Judge of the High Court
Appearances:
Attorneys for Faku Enterprises: C A Friedlander Attorneys
Mr G A Meinking
Counsel for Faku Enterprises: Mr P Tredoux
Attorneys for Engen: Mathopo Moshimane Inc.
Mr S. P. Mathebula
Counsel for Engen: Mr A Coetzee