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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case No: 10098/2018P
In the matter between:
TRANSNET SOC LIMITED APPLICANT
and
SEAWORLD AVIATION SERVICES (PTY) LTD RESPONDENT
In re:
TRANSNET SOC LIMITED PLAINTIFF
and
SEAWORLD AVIATION SERVICES (PTY) LTD RESPONDENT
____________________________________________________________________
ORDER
_____________________________________________________________________
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1. The issue that in terms of Rule 33(4) is separated from other issues to be
determined first is whether due to the failure to develop the premises which are
the subject of the agreement, cancellation of the agreement is valid and effective
and it results in the defendant to have no right to continue to be in occupation of
the premises.
2. The costs of the application and counter- application to be costs in the cause.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
Mngadi J
[1] The parties seek separation of issues in terms of Rule 33(4) in different terms
resulting in an application and a counter application, both opposed.
[2] The plaintiff , Transnet SOC Limited , instituted an action against defendant
SeaWorld Aviation Services (Pty) for a cancellation of the agreement between the
parties, ejectment of the defendant from the premises and payment of related damages.
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[3] The defendant pleaded to the claim resisting the cancellation of the agreement,
ejectment and payment of damages. It counter -claimed that plaintiff breached and
repudiated the agreement, delaying the defendant’s preparation and use o the premises
resulting in it suffering loss of profit and incurring additional costs. In total , the
defendant claimed R340,396m.
[4] The plaintiff in the particulars of claim in which it attached the copy of the
agreement stated that on 15 June 2017 the parties concluded an agreement in terms of
which it leased to defendant certain premises. The agreement commenced on 1
September 2017. The defendant at its costs to develop the premises that are leased to
it. The defendant failed to develop the premises as agreed, sublet part of the premises
for purposes unrelated to the development of the premises, failed to pay certain charges
relating to its lease of the premises, and despite the cancellation of the agreement on 7
June 2018 defendant refused to vacate the premises.
[5] The defendant pleaded that for developing the premises as a commercial airport
it was granted a lease for an initial period of ten (10) years, renewal period of ten(10)
years, and it would be liable for VAT, Insurance, rates and taxes and other charges
commencing from the completion date of the development, the commencement date
being 1 September 2017. The defendant granted access to the premises from the
commencement date. The development brief , construction program me, specification
and bill of qua ntities all to be finalized and submitted to the lessor within twelve (12)
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months from close o f commencement date, except or otherwise agreed. The
completion date being 31 January 2019.
[6] The defendant pleaded that it was acknowledged in the agreement that a portion
of the premises was unlawfully occupied that needed to be removed, portion of the
premises was leased to several other tenants, it was entitled to sublet portion of the
premises during the duration of the agreement. The defendant, in addition, pleaded that
the unlawful occupier(s) could not be removed, there were other illegal tenants and the
plaintiff failed to remove the illegal tenants from the premises. As a result, it did not
develop the premises as only a small portion of the premises was not occupied by
illegal tenants, and it continued not to have access to the biggest part of the leased
premises. On 17 August 2018 the defendant advised plaintiff that it has been unable to
commence any development of the premises.
[7] The plaintiff in its application for separation of issues seeks an order that the
issues relating to the merits and quantum of both its claim and the defendant’s counter-
claim be separated and the following questions of fact and law be determined at the
merit stage, prior to and independently of any determination of quantum:
1. Whether the defendant breached the lease agreement in that it failed to develop the
leased premises into a commercial airport within the agreed 18 months period as was
required in terms of the leased agreement.
2. Whether defendant unlawfully sublet portions of the leased p remises before fulfilling its
development obligation.
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3. Whether the defendant breached its obligations under the leased agreement to furnish
the plaintiff with progress report and development plans, including obtaining any
required statutory approvals.
4. Whether as a result of any or all if the aforementioned breaches the plaintiff was entitled
to and did in fact lawfully cancel the lease agreement.
5. Whether the plaintiff complied with the breach notice provisions stipulated in the
development agreement.
[8] The defendant seeks separation to the effect that issues raised in paragraphs
141 to 143 of its plea be separated and determined first, namely, a breach notice is a
precondition to any valid suit a t the instance of plaintiff, defendant denies that the
plaintiff has complied with the preconditions and therefore has no cause of action,
subletting is not a breach as the defendant in the agreement was granted the right to be
sublet, breach notice TSL2 is not a breach of any alleged term of the lease agreement,
TSL2 has not been given under clause 17.3 of the lease agreement, Annexure TSL3
demands compliance with non -existence of a term of the agreement, Annexure TSL3
demands compliance whereas non -compliance is as a result of breach by plaintiff,
plaintiff delayed to cancel after issuing notice of breach.
[9] Rule 33(4) requires that separation be ordered f or a discreet distinct issue , its
determination shall shorten the litigation be separated and it be determined first.
[10] The plaintiff is seeking confirmation of the cancellation of the agreement and the
ejectment of the defendant from the premises.
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[11]` Clause 17.4 of the agreement provides : If, for any reason, the lessee is unable to
perform its development obligation in whole or in part, the lessor reserves the right to cancel the
agreement, without prejudice to any other right it may have in terms of thereof, in which event
the amount contemplated in clause 17.5 shall be forfeit as a pre -estimate of the lessor ’s
damages.
[12] It is a fact that the defendants did not develop the premises. The development of
the premises was a material term of the agreement. The plaintiff conveyed to the
defendant that since there was no development of the premises, amongst other things,
it intended to cancel the agreement and subsequently cancelled the agreement. The
defendant contends that the plaintiff could not cancel the agreement due to failure to
develop the premises prior to the expiry of the time stipulated for the development.
However, the defendant had informed the plaintiff that it is not in a position to develop
the premises , and it clearly was not taken any steps to develop the premises. By
September 2018 when the plaintiff issued summons it was common cause between the
parties that the defendant had not started with and had no intention to develop the
premises. The defendant did not in its plea nor in any form indicate the intention to
develop the premises as agreed. It had 18 months from September 2017 to develop
the premises to completion, but it never commenced with the development of the
premises.
[13] The parties in my view in their respective applications for separation, in
particular, issues proposed to be the issues for determination have missed the point.
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The issues proposed by plaintiff are rather unclear and broad whereas those set out by
the defendant are too narrow and will not address the crux of the matter. However, if
one considers the main claim and the counter –claim, it is clear that the main issue to
be determined before other issues is the validity of the cancellation of the agreement
based on the fact that there was no development of the premises in terms of the
agreement, and if it is found that this is valid cancellation whether the defendant has
any right to remain in occupation of the premises.
[14] The said issue is capable of being independently determined without traversing
other issues. Its determination is regulated by the provisions of the agreement ; the
pleadings read with an annexures setting out the steps taken by the plaintiff in
cancelling the agreement; facts admitted in the pleadings including in the counter claim
by defendant establishing that there was no development of the premises as agreed.
Even if plaintiff had not issued any notice of breach followed by cancellation, it is entitled
to do so in the particulars of claim if it was relying on a ground for cancellation that need
not be preceded by a notice of breach, in particular, if it is relied on a fact admitted by
the defendant.
[15] Separation may be at the instance of a party or at the instance of the court. The
court considers separation as proposed by a party, but it is not bound by it. The
separation must be in the interest of justice. It must be d irected at resolving the dispute
or main part thereof to avoid a delay which is prejudicial to one or both parties, that is
likely to save costs . T he determination of the separated issue may lead to the
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settlement of the entire dispute. Separation is meant to facilitate expeditious litigation.
It is convenient and appropriate to order separation in the term set out above. See
Minister of Agriculture v Tongaat Group Ltd 1976 (2) SA 357 (D) at 362E-H; Denel (Pty)
Ltd v Vorster 2004 (4) SA 481 (SCA) at 484J-485A-E
[16] In relation to both the application and the counter – application, I make one order.
The separation in the stated terms is meant to benefit both parties and the court. The
separation is a process towards the settlement of the dispute. Both parties, although in
different terms, supported separation. The costs of the applications for separation must
be costs in the resolution of the dispute. It appears at this stage that the agreement
could not be pro ceeded with because due to no fault of any party development of the
premises could not be made.
[17] If the cancellation of the agreement is valid and effective, the defendant loses the
right to remain in occupation of the premises based on the agreement. This is a
discreet
distinctive issue that can be determined separately and it shall have an impact on the
litigation between the parties. This issue is in terms of Rule 33(4) separated, and it is
ordered that it be determined separately. It is ordered the costs be costs on the cause.
The separated issue may be placed on the expedited trial roll for trial.
[18] It is ordered as follows.
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1. The issue that in terms of Rule 33(4) is separated from other issues to be
determined first is whether due to the failure to develop the premises which are the
subject of the agree ment, cancellation of the agreement is valid and effective and it
results in the defendant to have no right to continue to be in occupation of the premises.
2. The costs of the application and counter- application to be costs in the cause.
___________________
Mngadi J
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APPEARANCES
Case Number: 10098/2018P
For the Applicants V. Maleka SC with T Mathopo
Instructed by Mkhabela Huntley Attorneys
c/o Ismath Akoo & Associates
PIETERMARITZBURG
For the Respondent: GD Hapur SC with C DuToit
Instructed by DMI Attorneys
c/o Rei Mornet Attorneys
PIETERMARITZBURG
Heard on: 13 April 2026
Judgment delivered on: 05 May 2026