In a recent judgment, the court addressed an interlocutory application concerning a divorce case in South Africa. The application, based on rule 33(4) of the Uniform Rules of Court, sought to separate the issue of granting a divorce decree from the determination of the patrimonial consequences following the dissolution of the marriage.
The parties involved, a 67-year-old applicant and a 71-year-old respondent, were married on 2 September 2000. Their marriage was out of community of property, and they had an antenuptial contract excluding community of property and profit and loss, with the accrual system in place. The divorce action was initiated by the respondent on 5 October 2021, shortly after their twenty-first anniversary. The respondent sought a divorce decree and half of the difference in the accrual of their respective estates. The applicant filed a counterclaim for a divorce decree and a forfeiture of the accrual against the respondent.
On 7 December 2021, the respondent filed a rule 43 application for monthly living expenses and legal costs, which was opposed by the applicant and ultimately dismissed with a punitive costs order against the respondent. The applicant later opposed the referral of the action to mediation.
During a pre-trial conference on 23 August 2022, it was revealed that the applicant’s primary income was from a living annuity. The parties agreed that the marriage had irretrievably broken down and that a divorce decree should be granted. The contentious issues were the reasons for the marriage breakdown, the accrual claims, the applicant’s claim for forfeiture, and the costs.
The parties appointed Business Valuation Advisers (BVA) to determine the fair market value of the applicant’s living annuity. Based on BVA’s report, the applicant offered the respondent R642,517.75, which the respondent did not respond to. The respondent later sought further financial disclosure from the applicant.
The applicant then filed the current application on 17 April 2023, seeking to separate the divorce decree from other issues, arguing that there would be no prejudice to the respondent. The respondent opposed this, fearing financial prejudice regarding his accrual claim.
The court, referencing rule 33(4) of the Uniform Rules of Court and previous case law, noted that the separation of issues in a trial is permissible to promote expeditious resolution and fairness, provided no significant prejudice to either party. In matrimonial disputes, the irretrievable breakdown of a marriage can be a separate issue, as established in CC v CM.
The court found that both parties agreed on the marriage’s irretrievable breakdown and that the primary contention was the valuation of the applicant’s living annuity for accrual calculation. The respondent’s rejection of BVA’s valuation was seen as a delay tactic. The court held that separating the issues would be convenient and allow the applicant to be free from a marriage both parties acknowledged as non-existent.
Consequently, the court granted the application, ordering the separation of the divorce decree from the determination of accrual, forfeiture, and costs. The respondent was ordered to pay the costs of the application. The applicant was allowed to enroll the divorce action on an unopposed divorce roll to obtain the decree, while the other issues were postponed indefinitely.
LEGAL POSITION IN RESPECT OF RULE 33(4) OF THE UNIFORM RULES OF COURT
Rule 33(4) of the Uniform Rules of Court states 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 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.”
The Appellate division has repeatedly warned that, when a decision is called for in terms of Rule 33(4), it should be a carefully considered one. In Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA) in paragraph 3, the Court expressed the following in respect of rule 33(4):
“Before turning to the substance of the appeal it is appropriate to make a few remarks about separating issues. Rule 33(4) of the Uniform Rules – which entitles a court to try issues 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 the litigation is often best served by ventilating 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 will be possible properly to determine whether it is convenient to try an issue separately. But where the trial court is satisfied that it is proper to make such an order – and in all cases it must be so satisfied before it does so – it is the duty of that court to ensure that the issues to be tried are clearly circumscribed in its order so as to avoid confusion. The ambit of terms like the ‘merits’ and the ‘quantum’ is often thought by all the parties to be self-evident at the outset of a trial but in my experience it is only in the simplest of cases that the initial consensus survives. Both when making rulings in terms of Rule 33(4) and when issuing its orders a trial court should ensure that the issues are circumscribed with clarity and precision. It is a matter to which I shall return later in this judgment.”
The Appellate division has further held that piecemeal litigation which defeats the object of rule 33(4) and consequent piecemeal appeals are equally to be eschewed. In respect of the duty of Court and its discretion, when hearing an application for a separation of issues in terms of Rule 33(4), in Molotlegi v Mokwalase (222/09) [2010] ZASCA 59 (1 April 2010), the Court held that:
“A court hearing an application for a separation of issues in terms of rule 33(4) has a duty to satisfy itself that the issues to be tried are clearly circumscribed to avoid any confusion. It follows that a court seized with such an 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 mere facility or ease or expedience. Such a court should also take due cognisance 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 interests of fairness, to consider the advantages and disadvantages which might flow from such separation. Where there is a likelihood that such separation might cause the other party some prejudice, the court may, in the exercise of its discretion, refuse to order separation. Crucially in deciding whether to grant the order or not the court has a discretion which must be exercised judiciously. The court cannot simply grant such an application because it is unopposed. I regret to say that the court below failed in this respect. See Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA) para 3.”
It is further submitted that it is accepted law that the court has a wide discretion in considering a separation application. In the leading case of Minister of Agriculture v Tongaat Group LTD 1976 (2) SA 357 (D), Miller J (as he then was) discussed the application of Rule 33(4) of the Uniform Rules of Court at length. In brief, the following was expressed in his judgment in reference to Rule 33(4), namely that:
- The discretion to make an order under the Rule may be exercised only when it appears to the Court that it would be convenient to do so, and further, that it is not the convenience of any one only of the parties, or of the Court only, that is the criterion. The convenience of all concerned must be taken into consideration and there should exist substantial grounds to justify the exercise of such power;
- ordinarily, it is desirable in the interests of expedition and finality of litigation to have one hearing only at which all the issues are canvassed so that the Court, after conclusion of the trial, might dispose of the whole case;
- ordinarily, if it would appear to the Court that the duration of the trial would be substantially curtailed by a preliminary hearing to settle specific questions, it would probably grant the application, but even then it would not necessarily do so because the nature of the case may be such that proper consideration of overall convenience may involve factors other than those relating only to actual duration of the Court hearings;
- the word “convenient” in the context of Rule 33(4) appears to be used to convey also the notion of appropriateness; the procedure would be convenient if, in all circumstances, it appeared fitting and fair to the parties concerned;
- another factor which the Court held must be borne in mind and which is relevant to the question of whether there would be any real saving in time and cost of litigation, relates to the problem of a possible appeal against the decision of a Court on the special questions. If the litigant against whom that decision goes is dissatisfied with it, he may or may not be entitled to appeal to the Appellate Division before final judgment in the case has been pronounced. Whether he may appeal forthwith or whether he would have to wait until the final judgment has been given, there is inherent in the situation a possibility that, far from the separate hearing shortening the proceedings, it will prolong it. In the event that the appeal is brought only after judgment had been delivered at the end of the trial and the decision on the special questions is reversed on appeal, the matter would no doubt be referred back to the trial Court to hear the very evidence which, by reason of the erroneous decision, was not led at the trial.
Miller, J further considered the aspect of a credibility finding being made where a witness could potentially testify in the first hearing and then also at the trial, stating that:
“It is a matter of extreme difficulty to estimate at this stage what the extent, if any, of the saving of evidence and time would be if the application were granted. Moreover, once it is accepted that evidence will or is likely to be led on these issues at the preliminary hearing, it follows that questions of credibility or reliability of a witness or witnesses might arise. The witnesses, or some of them, who testify at the first hearing will in all probability also testify at the trial in the event that the disputed questions are decided against the defendant at the preliminary hearing. They will, as it were, complete their evidence at the trial, but meanwhile findings depending on their credibility or reliability will already have been made by the Court, which might, after hearing the second instalment of such witnesses’ evidence, be disposed to re-assess their credibility or reliability. What this serves to emphasize is not that such a situation should never be allowed to arise, but that generally it is undesirable to decide piecemeal an issue which, although notionally it may be divisible into two parts, is essentially a composite issue to the extent that there is a degree of inter-dependence of its notionally divisible components.”
In the matter of AVW v SVW and Others (3118/2021) ZAWCHC (20 April 2022), (Western Cape High Court) De Wet AJ, in a matter with similar facts to the facts in casu in which the parties also signed a consent paper (albeit after the institution of the divorce action and after the first defendant had been placed under bar), when the matter was set down on the unopposed roll in third division, in considering an application for leave to defend the divorce action, held in her reasons for granting leave to defend, as follows:
“Settlement agreements in divorce matters are clearly distinguishable from settlements in other types of litigation as they are primarily regulated by statute and concern issues of status, maintenance issues which can only be determined at divorce and the best interests of minor and dependent children. [41] To make such settlement agreement an order of court represents a decision of the court based on evidence placed before it. In the circumstances of this application a refusal to grant leave would have amounted to the court prohibiting the first defendant from having access to the court and to place relevant evidence before it in order for the court to determine the manner in which its discretion should be exercised.”
In her reasoning, De Wet AJ refers to the decision of Rogers AJA in ST v CT in which the Appellate decision dealt with the enforceability of a waiver of maintenance in an antenuptial contract. In a separate minority judgment, dealing only with the aspect of the unenforceability of the waiver in maintenance, Rogers, AJA held that:
“I thus do not think that the limitation advanced by the respondent is justified. This, however, does not lead to the result for which the appellant’s counsel contended. In terms of s 7(2), the court’s power to make an order under that subsection exists in any case where an order has not been made in terms of s 7(1). Section 7(1) provides that a court ‘may’, not ‘must’, make an order in accordance with a written agreement of the kind contemplated. If a court considers that there is good reason not to give effect to the written agreement regarding maintenance, it may refrain from doing so and can then proceed to make an order in terms of s 7(2). Read together, ss 7(1) and (2) do not prohibit an agreement by which a spouse waives her right to maintenance in return for gifts but they do explicitly accord to the court a discretion either to give effect to the agreement in terms of s 7(1) or to award maintenance in terms of s 7(2). The very circumstance that the court has a statutory power to override the agreement shows that an agreement cannot override the statutory power. This flows inevitably from a proper interpretation of the statutory provisions though it is supported by considerations of policy. As was said in Ritch and Bhyat v Union Government (Minister of Justice) 1912 AD 719, to allow such a waiver would be ‘to defeat the provisions of an enactment intended on general and public grounds to be peremptory and binding on all concerned’ (at 735). However, the fact that the overriding statutory power cannot be ousted by contract does not lead to the conclusion that the parties’ endeavour at the contractual ordering of maintenance is contrary to public policy.”
In summary, the following factors (set out by Loots, AJ in the matter of O v O 6912/2013 [2017] ZAWCHC 136 (21 November 2017) are considered in the application of Rule 33(4) by the Courts:
- Whether the hearing on the separated issues will materially shorten the proceedings;
- Whether the separation may result in a significant delay in the ultimate finalisation of the matter. The granting of the application, although it may result in the saving of many days of evidence in court, 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, may nevertheless cause considerable delay in finalising the matter;
- Whether there are prospects of an appeal on the separated issues, particularly if the issues sought to be separated out are controversial and appear to be of importance;
- Whether the issues in respect of which a separation is sought are discrete, or inextricably linked to the remaining issues;
- Whether the evidence required to prove any of the issues in respect of which a separation is being sought will overlap with the evidence required to prove any of the remaining issues.
Loots, AJ in O v O also stated:
“Where the court is satisfied that a marriage has broken down irretrievably, the court has no discretion but to grant a decree of divorce; save that b. The court can only grant the decree of divorce if, as is provided by section 6(1) of the Divorce Act, it is satisfied that the provisions made or contemplated with regard to the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances.”
In South African law, a court will allow for the separation of issues in a legal proceeding, as per Rule 33(4) of the Uniform Rules of Court, when it is determined that such separation will lead to a more convenient, expeditious, and fair resolution of the case. This decision is contingent on the court’s careful consideration of whether the issues at hand are sufficiently distinct to warrant separate hearings without being inextricably linked. The court must also assess whether separating the issues will indeed shorten the overall duration of the trial and not lead to unnecessary delays or potential prejudice to any party involved. Furthermore, the court must consider the likelihood of an appeal against the decision on the separated issues, as this could prolong the litigation process. In divorce cases involving minor children, the court must also ensure that any decisions regarding the children’s welfare are satisfactory and in their best interests. The overarching principle is that the separation of issues should facilitate the efficient and fair administration of justice, without compromising the integrity of the legal process or the rights of the parties involved.
Summarised by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here. Read the author’s latest book here.
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