IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: 10790/2017
In the matter between:
DURIDEV (PTY) LTD Plaintiff
and
ARUN LIFESTYLE (PTY) LTD First
Defendant
ARUN LIFE (PTY) LTD Second
Defendant
OLD MUTUAL RETIREMENT
ACCOMMODATION FUND (PTY) LTD Third Defendant
Coram: Cooke, AJ
Heard: 14 April 2026
Delivered: 17 April 2026
Summary: Separation of issues – first and second defendants sought the
separation of the ‘substitution issue’ – plaintiff submitted that this issue is
inextricably linked to the ‘rectification issue’ – Court found that it would be
convenient to separate both issues – costs reserved
ORDER
1. The following issues are to be decided in a preliminary trial, separately
from the remaining issues arising from the pleadings:
1.1. Whether the written agreement (‘the agreement’), a copy of which
is annexure DD1 to the plaintiff’s amended particulars of claim
(‘the POC’), is to be rectified as sought in paragraphs 1.1 and 1.2
of the prayers in the POC , on the grounds set out in paragraphs 5.2,
5.3, 7, 8, 9(a) , 10 and 11 (a)-(b) of the POC , and pleaded to in
paragraphs 3, 5 , 6 and 7 of the defendants’ plea ( ‘the plea’), read
with paragraph 4 of the plaintiff’s replication (‘the replication’) and
the first defendant’s rejoinder (‘the rejoinder’).
1.2. Whether the first defendant became bound to the agreement in the
second defendant’s stead, as a result of:
1.2.1. the transfer of the second defendant’s rights, obligations,
assets and liabilities, as alleged in paragraphs 12 to 14 of the
POC and pleaded to in paragraph 8 of the plea, and in the
first defendant’s special plea, as amended, read with the
denial in paragraphs 1 and 2 of the replication; alternatively
1.2.2. estoppel, as alleged in paragraph 4 of the replication , and
more particularly paragraphs 4.18 to 4.20 thereof, and
pleaded to in the rejoinder, more particularly in paragraphs
19 to 21 thereof; alternatively
1.2.3. piercing of the corporate veil, as alleged in paragraphs 4.22
to 4.25 of the replication and pleaded to in paragraphs 22 to
24 of the rejoinder.
2. The remaining issues are stayed until the issues described above have
been disposed of.
3. The costs shall be reserved for determination by the court which hears the
preliminary trial, or, if such court should see fit so to order, for the
decision of the court which hears the main trial.
JUDGMENT
COOKE AJ
[1] This is an application brought in terms of uniform rule 33(4) for the
separation of issues. The first and second defendants (collectively referred to
as ‘the Arun companies’) seek an order directing that the question whether
the first defendant (‘Arun Lifestyle’) became bound to the written agreement
attached to the particulars of claim , in the place of the second defendant
(‘Arun Life’), be decided separately in a preliminary trial.
[2] The main action concerns a claim by the plaintiff (‘Duridev’) arising
out of an agreement concluded on or about 29 July 2013 between it and
Arun Life in respect of a contemplated residential development to be known
as “ De Plattekloof” (‘the agreement’). In terms of the agreement , Duridev
was, amongst other things, to secure finance for the funding required for the
proposed development. The agreement was purportedly cancelled by Arun
Life on 26 June 2014, and now Duridev claims about R127 million. This
relief is sought not against Arun Life , but against Arun Lifestyle . To this
end, Duridev avers in its particulars of claim that there was a transfer o f
rights and obligations under the agreement from Arun Life to Arun
Lifestyle. Duridev also pleads that the agreement must be rectified to ,
amongst other things, insert the words “ or its success or in title” after Arun
Life’s name.
[3] Arun Lifestyle delivered a special plea in which it contends that there
was no transfer of rights and obligations to it, and it did not otherwise
become a party to the agreement. Arun Lifestyle concludes that Arun Life
remained one of the two parties to the agreement and Duridev has no cause
of action against Arun Lifestyle. I shall refer to this issue as ‘the substitution
issue’. For the purposes of the adjudication of the special plea, the Arun
companies accept the rectification pleaded by Duridev.
[4] The plea delivered by the Arun companies includes averments that
Arun Lifestyle was formed on 16 February 2015, after the cancellation of the
agreement, and that Arun Lifestyle was then used by a joint venture between
Old Mutual and Arun Holdings to develop the property in question . The
Arun companies also deny the rectification claim (I shall refer to this as ‘the
rectification issue’).
[5] In its replication, Duridev alleges that Arun Lifestyle is estopped from
denying liability to Duridev , alternatively and in any event , the separate
juristic personalities were abused and fall to be disregarded by the Court
(referred to below as the ‘estoppel issue’ and the ‘abuse issue’ ). These
allegations are denied by the Arun companies in a rejoinder.
The separation application
[6] In the founding affidavit in the separation application, the Arun
companies make the following main points in favour of a separation:
(a) Resolving the substitution issue will require only their evidence to
demonstrate the absence of the alleged transfer , entailing the limited
evidence of a director of either of the Arun companies an d possibly one
witness from Old Mutual.
(b) The alternative defences raised in the replication, namely, the estoppel
and abuse issues, can be decided as a matter of legal argument.
(c) Duridev’s prospects of discharging its onus to prove the alleged
transfer are particularly weak.
(d) The question of substitution is a threshold issue. If Duridev fails on
the substitution issue, the claims against Arun Lifestyle will likewise fail. In
this event , there will be no need to consider the m yriad other issues i n
dispute (referred to as ‘the contractual issues’).
(e) On Duridev’s analysis, the contractual issues include fifteen issues
that are listed in its statement of issues (in fact, it is about ten issues).
(f) Duridev has made discovery of 203 pages of documents of which
virtually all relate to the contractual issues. For its part, the Arun companies
have made discovery of 109 document s of which only some ten documents
relate to the post-cancellation period.
(g) It is evident from the pleadings and discover y that a single trial on
both the substitution issue and all the contractual issues will involve
numerous witnesses testifying over several days.
(h) A preliminary finding on the substitution issue could thus materially
shorten the proceedings and preparation, and will thus save significant legal
costs, time and court resources, as well as spare witnesses from the typical
ordeal of oral testimony and cross examination.
(i) Even if the Arun companies are unsuccessful with the substitution
issue, the evi dence to be led at a subsequent hearing on the contractual
issues would not overlap with the evidence led at the preliminary trial.
(j) The Arun companies have already cooperated with Duridev to obtain
an early trial date and will do so again in the event of a further trial date
being required for a hearing on the contractual issues.
[7] Duridev delivered an answering affidavit in which it made the
following principal submissions in opposition to a separation:
(a) The issues in the matter are inextricably linked.
(b) It would not be possible for Duridev’s witnesses to give evidence
about the substitution issue (described in the affidavit as the liability issue)
without discussing quantum and other facts.
(c) The interests of justice do not justify the granting of the separation , as
such a separation would violate the audi alteram partem rule in that Duridev
would not be afforded an opportunity to present its complete case through its
witnesses.
(d) Conducting the trial in the manner suggested by Duridev would not
only secure its right to be heard but would also save all the parties’ costs and
the court’s resources.
(e) Duridev has a ‘wealth of evidence’, to present on the substitution issue
(although Duridev did not identify this evidence).
[8] Duridev also raised certain complaints regarding the timing of the
separation application. These complaints were not , however, mentioned in
written and oral argument. Save to state that I do not consider the complaints
to be convincing, it is not necessary to address them any further.
Legal principles
[9] Rule 33(4) provides that:
‘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 dispos al
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 s uch order unless it appears that the questions ca nnot
conveniently be decided separately.’
[10] The relevant principles relating to separation applications are not
controversial. They may be summarised as follows:
(a) The entitlement to seek the separation of issues was created in the
rules so that an alleged lacuna in the plaintiff’s case can be tested or simply
so that a factual issue can be determined which can give direction to the rest
of the case and, in particular, to obviate the leading of evidence. The purpose
is to determine the plaintiff’s claim without the costs and delays of a full
trial.1
(b) The procedure is aimed at facilitating the convenient and expeditious
disposal of litigation. The word convenient within the context of the subrule
conveys not only the notion of facility or ease or expedience , but also the
notion of appropriateness and fairness. It is not the convenience of any one
of the parties or of the court, but the convenience of all concerned that must
be taken into consideration.2
(c) Rule 33(4) was amended in 1992. It has been held that the amendment
reflects the rule-maker’s encouragement to litigators to separate issues.3
1 Tshwane City v Blair Atholl Homeowners Association 2019 (3) SA 398 (SCA) para 49.
2 Tshwane City para 50.
3 Lappeman Diamond Cutting Works (Pty) Ltd v MIB Group (Pty) Ltd (No2) 1997 (4) SA 921 (W) at 929E.
(d) According to Van Reenen J in Berman & Fialkov,4 an application for
separation must be granted unless it appears that such issues cannot
conveniently be decided separately, and it is incumbent on the party who
opposes such an application (in this case Duri dev) to satisfy the Court that a
separation order should not be granted.5
(e) That being said, it should not be assumed that the convenient and
expeditious disposal of litigation is always achieved by separating issues ,
and careful thought must be given to t he anticipated course of the litigation
as a whole to determine whether it is convenient to try an issue separately.6
Analysis
[11] In its heads of argument , Duridev’s objection narrowed to one point,
namely that the substitution issue is inextricably linked to the rectification
issue and these issues cannot be decided separately.
[12] I agree that these two issues are linked. This is demonstrated , for
example, by paragraph 4 of the plaintiff’s replication which, while
responding to allegations in the plea that concern rectification, includes
allegations that relate to the substitution issue. It seems to me that the
question of whether the parties contemplated the succession of Arun Life by
another company (ie the rectification issue) will be an important component
4 Berman & Fialkov v Lumb 2003 (2) SA 674 (C) para 17.
5 See also Braaf v Fedgen Insurance Ltd 1995 (3) SA 938 (C) at 939G-H.
6 Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA) para 3. See more recently: Herold Gie & Broadhead
Inc v Harris NO and Others 2025 (2) SA 144 (SCA) para 18.
of Duridev’s case that rights and obligations were transferred from Arun
Life to Arun Lifestyle (ie the substitution issue).
[13] As noted above, in the s pecial plea , Arun Lifestyle asked that the
substitution issue be determined bas ed on the rectification pleaded by
Duridev. On this premise, the special plea could be determined without
having to consider the rectification issue. However, the question of
rectification remains in issue on the other pleadings. As pointed out by
Duridev’s counsel, the Arun companies have not sought a separation of only
the special plea, but rather the separation of the substitution issue. This
includes the issues arising from the pleadings other than the special plea that
relate to the substitution issue. In these circumstances, it is difficult to see
how the Court called upon to determine the substitution issue may do so
without also deciding the rectification issue.
[14] In oral argument , and in a supplementary note handed up at the
hearing, counsel for the Arun companies submitted that in the event of the
substitution issue being resolved in favour of Duridev at a preliminary trial,
the rectification issue w ould become moot at the main trial as the
rectification order will have no direct practical effect .7 It seems to me that
logically, the rectification issue is anterior to the substitution issue and
should be determined in the same proceedings as the substitution issue. I do
not consider that it is desirable to hold the rectification issue in abeyance on
the basis that it could become moot, in circumstances where it remains (a) an
issue on the pleadings and (b) a relevant consideration in relation to the
substitution issue.
7 Reliance was placed on AB and Another v Pridwin Preparatory School and Others 2020 (5) SA 327 (CC) para 50.
[15] I therefore agree with Duridev’s counsel that the substitution and
rectification issues are inextricably linked. I do not agree, however, that the
solution is to dismiss the application. In my view the preferable course is to
expand the ambit of the separation to include the rectification issue.
[16] To my mind , the parties will not be prejudiced if the separation
includes the rectification issue. I have taken into consideration the fact that
Arun Lifestyle pleaded that, for the purposes of the special plea, the Arun
companies accept the rectification. This even though the rectificati on is
denied in the main plea. This acceptance does introduce a complicati on for
the joint determination of the substitution and rectification issues, but it is a
complication that also exists if there is no separation. It remains open to the
Arun companie s to amend their pleadings to admit the rectification , if so
minded. Absent such an admission, however, it is necessary that the
rectification issue be determined by the Court, and this should be done at the
preliminary trial.
[17] If the rectification issue is separated together with the substitution
issue, as I propose, then the primary argument raised by Duridev, namely the
inextricable link between these issues, will fall away. Counsel for Duridev
accepted that there would not be any overlapping evidence between the
issues so separated, and the contractual issues. He submitted, however, that
an expanded separation will result in the preliminary trial not being ‘crisp
and cheap’.
[18] I concur that the relative length of the envisaged trials is a relevant
factor.8 However, even though it was incumbent on Duridev to satisfy the
Court that a separation order should not be granted, Duridev failed to adduce
evidence of the time it anticipated would be consumed by the various issues,
did not take the Court into its confidence regarding the evidence to be led by
it on the issues,9 and did not dispute the allegations made by the Arun
companies in this regard. This in circumstances where Duridev is the
plaintiff and thus dominus litis in the main action, and it is also Duridev that
introduced the estoppel and abuse issues. Duridev has therefore not
established a factual basis for a finding that the two trials would be equal in
length, or that half the issues would be decid ed in the preliminary trial, and
half in the main trial, as suggested by Duridev’s counsel.
[19] As to the anticipated length of the preliminary trial, I do not agree
with the Arun companies that the estoppel and abuse issues can be decided
as a matter of lega l argument. The Arun companies elected not to deliver an
exception in relation to these issues, and it will therefore probably be
necessary for the Court to hear evidence on the factual averments relating to
these issues. In the circumstances, there is some uncertainty regarding the
likely duration of the preliminary trial. I suspect that it will not be as brief as
suggested by the Arun companies, but , on the other hand, Duridev has not
put up any evidence to counter their case regarding the likely duration.
8 In Pieters NO v Absa Bank Limited [2017] ZAGPJHC 18 Van der Linde J observed at para 16 that the
quintessential separable issue is a narrow but discrete point, involving little documentary or viva voce
evidence, which finally decides the case one way or the other.
9 Compare Kaxu Solar One (RF) (Pty) Ltd v Santam Ltd [2023] ZAWCHC 268 para 51.
[20] Having regard to the evidential uncertainty in respect of the probable
length of a preliminary trial, I do not think that much weight can be attached
to this consideration. In any event , I do not consider that this aspect is
decisive. E ven if the preliminary trial is not brief, that is not fatal to the
application. It is but one factor to be considered.10
[21] As to the further arguments raised by Duridev in its answering
affidavit, I am not persuaded that it would not be possible for Duride v’s
witnesses to give evidence about the substitution issue (or the rectification
issue) without discussing quantum and other facts. Duridev has not
identified the witnesses who will testify on its behalf in relation to the
substitution issue, nor has it indicated what evidence it has at its disposal on
this issue. But even if Duridev did call a witness on the separated issues, I
doubt that such evidence will overlap materially with the evidence relevant
to the contractual issues. I also do not agree with the suggestion that a
separation would violate the audi alteram partem rule. Plainly, Duridev’s
right to be heard will not be negated by the separation. Duridev has therefore
not satisfied me that a separation order should not be granted.
[22] As noted above, t he Arun companies submitted that Duridev’s
prospects of discharging its onus to prove the alleged transfer are
particularly weak. I agree that t he prospects of success on the envisaged
separated issues is a material factor.11 The greater the prospects for the Arun
companies, the less likely it is that there will need to be a subsequent trial,
10 Minister of Agriculture v Tongaat Group Ltd 1976 (2) SA 357 (D) at 363C.
11 Netherlands Insurance Co of SA Ltd v Simrie 1974 (4) SA 287 (C) at 288H; see also S v Malinde and
Others 1990 (1) SA 57 (AD) at 68D-E and Lappeman Diamond Cutting Works (Pty) Ltd v MIB Group
(Pty) Ltd (No2) 1997 (4) SA 921 (W) at 927J-928E.
and therefore the greater likelihood that the separation will produce a saving
of time and costs . Put differently , i f there are strong indications that
Duridev’s claim in relation to the separated issues may be doubtful, then the
Court should not easily order the full trial to proceed with extensive costs
being incurred on all issues. Naturally, it is not appropriate to express a firm
view in this interlocutory proceeding regarding the prospects in the main
action, and my observations below should be read in this context.
[23] Based on the material available to me, it seems that Duridev will have
significant hurdles to surmount in proving that Arun Lifestyle was a party to
the agreement. For instance:
(a) The Arun companies put up a CIPC report showing that Arun
Lifestyle was only registered on 16 February 20 15, after the agreement had
been purportedly cancelled by Arun Life. It appears then that any transfer of
rights and obligation s to Arun Lifestyle could only ha ve taken place after
this date. Why, it may be asked, would the Arun companies perform a
transfer of rights and obligations in respect of an agreement that they believe
has already been cancelled?
(b) Duridev’s conduct up until at least 2017 indicated that it considered
that its contractual counterparty was Arun Life (not Arun Lifestyle) . It
issued an invoice on 4 April 2017 addressed to Arun Life, and it is not
disputed that two weeks later, on 19 April 2017, it described the cancellation
as an unlawful repudiation by Arun Life.
(c) In its particulars of claim, Duridev relies upon a Deed of Sale
template dated 2017 that describes Arun Lifestyle as the seller. This
document, however, is equally consistent with the version pleaded by the
Arun companies, namely that Arun Lifestyle was jointly owned and
managed by Old Mutual and Arun Holdings and was used by this joint
venture to act as the developer.
(d) It appears that Duridev is not privy to evidence regarding the
mechanism by which Arun Lifestyle was supposedly substituted for Arun
Life. It is also not suggested that notice of substitution was given by the
Arun companie s. The transfer is pleaded in uncertain terms, the relevant
paragraph stating: ‘(t)o the best of the Plaintiff’s knowledge, and on dates
unknown to the Plaintiff but known to the First and Second Defendants by
virtue of the entities’ controlling mind, Mr Hilton Campbell ’s knowledge of
the succession of Companies under his control, the Se cond Defendant was
succeeded by, inter alia, the First Defendant, either as a result of a name
change or as a result of a cession or sale of the Second Defendant’s rights
and obligations, assets and liabilities, none of which are within the
Plaintiff’s knowledge…’ Proof of any substitution would therefore appear to
fall peculiarly within the knowledge of the Arun companies. In its answering
affidavit, Duridev refers in vague language to the ‘numerous facts ’ which
are relevant to the substitution issue and the ‘wealth of evidence ’ it has to
present on the transfer. But no details whatsoever are provided. It is
therefore not clear how Duridev will prove that there was a substitution.
[24] Duridev may provide an answer to these difficulties at trial.
Nevertheless, on a preliminary consideration of the defence raised by the
Arun companies regarding to the substitution issue, it seems to me that their
defence is cogent and bears reasonable prospects of su ccess. This weighs in
favour of the separation.
Conclusion
[25] Having given careful thought to the anticipated course of the
litigation, I consider that a separation of the rectification and substitution
issues would be convenient. This will allow the alleged lacuna in Duridev’s
case, namely that it has sued the wrong party, to be tested. If successful, this
will obviate the leading of evidence on the contractual issues and Duridev’s
claim may thus be determined without the inevitable costs and delays of a
full trial. Significantly, it is common cause that such a separation will not
give rise to overlapping evidence. Furthermore, i t seems to me that the
substitution issue is analogous to a dispute regarding locus standi (standing).
Generally, such disputes are susceptible to separation. 12 Moreover, o n the
evidence to hand, I am satisfied that the Arun companies have reasonable
prospects of success on the separated issues. A separation would thus
promote the convenient and expeditious disposal of the action. This,
notwithstanding the risk that the preliminary trial may require a few days of
evidence. Irrespective of the duration of the preliminary trial, I am satisfied
that a separation would materially shorten the overall length of the
proceedings. Having regard to all these considerations , the advantages of a
12 See for example Pieters NO v Absa Bank Limited [2017] ZAGPJHC 18 para 16.
separation, for the parties and the Court, significantly outweigh any
disadvantages.
[26] The rectification issue is arguably a sub -issue within the substitution
issue, and to this extent is already encompassed by the relief sought in the
notice of application. In any event, rule 33(4) authorises a Court to grant a
separation order mero motu (of its own accord), and in the circumstances, I
am not constrained to make an order within the parameters of the relief
pleaded by the Arun companies. It is therefore open to me to expand the
separated issues by including the rectification issue.
[27] After or al argument , I requested counsel for the Arun companies to
submit a draft order that includes the rectification issue, as well as all other
matters relating to the substitution issue, such as the estoppel and abuse
issues. In addition, i n my view , it would avoid possible uncertainty if the
separated issues are delineated with reference to specific paragraphs in the
pleadings,13 and I therefore requested that the draft order be formulated with
this in mind.
[28] The order set out above is based on the draft submitted by counsel for
the Arun companies, although it has been revised by me in several respects.
Counsel for Duridev was invited to comment on the draft order although ,
given his client’s stance, it was made clear that he was not obliged to do so.
In the result, he did not comment on the draft order, save in respect of costs,
in which respect he submitted that if I were to grant a separation order that is
13 As stated by Strydom J in Eskom Holding SOC Limited v Santam Limited and Another [2025] ZAGPJHC
725 para 11, the issues to be separated must be capable of being ring -fenced or delineated with precision so
as to avoid uncertainty as to which issues were separated and decided . See also Road Accident Fund v
Krawa 2012 (2) SA 346 (ECG) para 27.
more expansive than that requested in the notice of application, I should not
grant a costs order in favour of the Arun companies.
[29] In assessing the question of costs, I have considered the fact that even
though the relief has been expanded , the Arun companies have nonetheless
obtained a measure of success. It is also relevant that the point belatedly
advanced in argument by Duridev’s counsel was not pertinently made in the
pre-trial conferences,14 or in Duridev’s answering affidavit. Nonetheless, the
relief ultimately granted is materially different to that sought in the notice of
application. It is also so that courts frequently reserve the costs of a
successful separation application ,15 or make them costs in the cause ,16
although there are also instances of costs being awarded to the applicant. 17
On balance, I incline to the view that the costs should be reserved for
determination by the court hearing the separated issues, or failing that court,
the court hearing the main trial. The costs order follows the formulation in
the Tongaat case.
14 Duridev’s initial stance was that the issues of fact and law raised in the special plea are of such a nature
that they must be heard at the trial. In later conferences, Duridev’s position was that the se issues are so
intertwined with the issues in the trial that they should be adj udicated at the trial. The narrow objection
based on the link between the substitution and rectification issues was apparently not raised by Duridev in
the conferences.
15 See for example Minister of Agriculture v Tongaat Group Ltd 1976 (2) SA 357 (D) at 370A; Lappeman
Diamond Cutting Works (Pty) Ltd v MIB Group (Pty) Ltd (No2) 1997 (4) SA 921 (W) at 930C; Ebersohn v
Golden Dividend 35 (Pty) Ltd 2019 JDR 2421 (GP) para 25 ; KPMG Incorporated v Public Investment
Corporation (SOC) Ltd 2024 JDR 2751 (GJ) para 30.
16 See Kaxu Solar One (RF) (Pty) Ltd v Santam Ltd [2023] ZAWCHC 268 paras 55-56.
16 See Kaxu Solar One (RF) (Pty) Ltd v Santam Ltd [2023] ZAWCHC 268 paras 55-56.
17 For example, Santam Versekeringsmaatskappy Bpk v Ntshona 1974 (4) SA 290 (C); Fourie v Campbell
NO. 2021 JDR 0742 (FB) paras 37-39; Eskom Holdings SOC Limited v Santam Limited and Another 2025
JDR 3267 (GJ) para 33.
[30] For all these reasons, I grant the order set out above.
_____________________________
DJ COOKE
ACTING JUDGE OF THE HIGH COURT
Appearances
For plaintiff : Mr A Newton
Instructing Attorney : Bouwer Cardona Inc.
c/o Lamprecht Attorneys
For first and second defendants: Mr H du Toit
Instructing Attorney : VanderSpuy Cape Town Inc.