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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG
Case no:3232/2019
In the Application between:
NSPCA First Applicant
WOLHUTER, DB Second Applicant
and
STEINMAN, JAN DANIEL First Respondent
SWARICO AUCTIONEERS (PTY) LTD Second Respondent
PIENIKA CC Third Respondent

In re:
STEINMAN, JAN DANIEL First Plaintiff
SWARICO AUCTIONEERS (PTY) LTD Second Plaintiff
PIENIKA CC Third Plaintiff
And
NSPCA First Defendant
WOLHUTER, DB Second Defendant
THE MEC: NORTH WEST DEPARTMENT OF RURAL,
ENVIRONMENT AND AGRICULTURAL DEVELOPMENT Third Defendant

RESPONDENTS’ HEADS – SEPARATION OF ISSUES

[a] INTRODUCTION
1. The application before Court is about the qualification that the Applicants wish to
make to an order for separation in terms of Rule 33(4).

2. It is common cause that the Respondents do not oppose separation per se, albeit
that it is of the view that the Court may consider a separation of quantum and
merits as more convenient instead of limiting or in addition to limiting the issues
to the special pleas only.
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3. The Applicants claim that the Court add to its order that the method of addressing
the special pleas be limited to legal argument only, the Respondents view is that
they are also relying on oral and documentary evidence that is to be introduced in
the ordinary fashion.

4. The Applicants make their case by attempting to make the argument of a next leg
in full. The Respondents will attempt to reduce their argument to the principle
only – namely whether to add the sting sought by the Applicants to disallow oral
and documentary evidence.

5. It is common cause that the Respondents’ Heads are filed late. The
Respondents apologise for the late filing. The situation came about due to
miscommunication between the offices of the Respondent’s correspondent and
instructing attorneys. No disrespect was intended to the Court and/or the
Applicants and it certainly was of no intent to delay finality in the separation
application.

[b] FORMAT OF THE ORDER SOUGHT

6. The Applicants are ostensibly of the view that the special pleas raised by them
are limited to questions of law, not fact thereby limiting the finalisation thereof to
legal argument only.

7. Common cause is that subrule 33(4) is applicable to any question of law or fact.
The procedure is aimed at facilitating the convenient and expeditious disposal of
litigation.1

8. Whereas the effective disposal serves as guiding principle, are the Respondents
concerned that much of the issues are inextricably linked, even though, at first
sight, they might appear to be discreet. And even where the issues are discreet,
the expeditious disposal of the litigation is often best served by ventilating all the

1
Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA) at 485A-E
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issues at one hearing, particularly where there is more than one issue that might
be readily dispositive of the matter.2

9. The relief sought is not a mere formality and the convenience must be
demonstrated.3 The Respondents are concerned that no real convenience is
demonstrated.

10. The purpose of the rule is to confer on the court the power of shortening the
duration, or facilitating the final determination of actions. 4

11. The problem that the Applicants are facing – and which they stubbornly persist
with is that there is no room in the rule for a court, on ordering of separation of
issues, to make an order in respect of what evidence may or may not be
relevant.5 It is accordingly not open to limit the parties to application proceedings
where the Respondents are intend on introducing oral and further documentary
evidence.

12. A question of law per subrule 34(6) is where the facts are not in dispute but are
agreed upon and the only question is as to what the legal consequences are that
flow from them. This is not the premise of the application before court.

13. A further difficulty is that decisions as to admissibility of evidence are purely

interlocutory. Because an interlocutory order may be varied or set aside during
the course of the trial even by the Judge who made it, it would usually be futile to
determine such a question in advance of the evidence. 6

14. It is in any event not the right juncture for the Court to, in this application, finally
determine the issues of the special pleas – it is procedurally incorrect for a judge
2
Compare Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA) at 485A-B
3
Sibeka v Minister of Police 1984 (1) SA 792 (W) at 795H
4
King v King 1971 (2) SA 630 (O) at 634F
5
Van der Burgh v Guardian National Insurance Co Ltd 1997 (2) SA 187 (ECD) at 189J-190A
6
Rhodesian Timbers Ltd v Rosenbach 1962 (1) SA 112 (D) at 113-114C; King v King 1971 (2) SA 630 (O) at 633B-
C
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hearing an application for a separation of issues in terms of rule 33(4)

immediately to determine those issues, and potential prejudice to one of the
parties may well result from such a course of conduct, justifying an Appeal Court
in setting aside the judge’s findings and remitting the matter for the separate
determination of the issues in question by a different judge of the division from
which the action emanated.7

[C] APPLICATION TO THE ISSUES CALLED FOR SEPARATION

[a] Jurisdiction
15. The first special plea is of a legal nature only, namely that of jurisdiction. Albeit
that the Court is not to decide the merits of such special plea at this juncture, is
the various case law presented by the Applicant not dispositive of the issue. In
this regard, see inter alia Ezokuthutha8.

16.  In Bisonboard Ltd v K Braun Woodworking Machine (Pty) Ltd  1991 (1) SA
482 (A) the Appellate Division held that the nature of the inquiry into whether a
court has jurisdiction ‘is a dual one: (1) is there a recognised ground of
jurisdiction; and, if there is, (2) is the doctrine of effectiveness satisfied - has the
Court power to give effect to the judgment sought? 9

17. In Burchell v Anglin10 the court had to consider the question of jurisdiction in
respect of the claim based on information which arose when publication of
defamatory remarks took place in Nebraska, USA. In that case, the Court
referred to the connecting factor in a delictual claim as the place where the delict
was committed.

18. The Respondents are of the view, although not to be decided at this juncture, that
the issue taken with jurisdiction of this Court, is a red herring. In any event, even
7
Compare Marsay v Dilley 1992 (3) SA 944 (A) at 963C-D; 964H-J; 966B
8
Ezokuthutha Transport (Pty) Ltd & Transbulk Carriers (Pty) Ltd v MAN Financial Services (SA) (RF) (Pty) Ltd & 5
Others (Norhwest High Court, Case num:57/2019; Date of Judgment: 10 May 2019; Coram Hendricks, J)
9
Also see Hugo v Wessels 1987 (3) SA 837 (A)
10
2010 (3) SA 48 (ECG)
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if there is an eventual finding that the Court lacks jurisdiction (which is denied),
will it not be the end of the matter and may the matter merely be transferred to for
e.g. the Gauteng Local Division. Will any court time have been save through
such an exercise? The answer is obvious, no.

[b] Alleged misjoinder

19. In respect of the Third Defendant, that has a material interest in the litigation, is it
with all due respect not to be decided on special plea on the grounds raised by
the Applicants. The Respondents are of the view to present evidence on the
impact that the publications have on their relationships with the Third
Respondent, remaining concerned that its certificates or permits may be affected
at any time. To the extent that the position do alter, may the relief sought in the
action be supplemented.

20. The relationship with the Third Defendant, the continued impact of the
publication and the position of the permits or certificates, cannot be decided on
paper, requiring the presentation of oral evidence.

21. The issue with Swarico Auctioneers (Pty) Ltd is a non-issue, inter alia for the fact
that the Respondents gave notice of the amendment of the citation, which was
not opposed by the Applicants; and was it explained how the misdescription
came about. The nexus and impact of publications between the respective
Respondents cannot be decided on paper either. Steinman intends on
presenting oral evidence on the impact of the publication on all the relevant
entities. This door cannot be closed to the Respondents. And there is and
cannot be any prejudice to the Applicants.

[D] CONCLUSION
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22. And that brings one back to the real nature of the opposition. The Court may
order a separation. To order such separation between the aspects of quantum
and merits may be more responsible. To direct that the parties be limited to the
papers without introducing further evidence, cannot be sustained.

23. Will there be any convenience to the Court to decide the special pleas
separately? Will any Court time be saved as a result thereof? The Respondents
cannot foresee such a situation. To the contrary – more time and costs are
consumed.

24. Irrespective of the considerations of convenience and effectives, it is clear that

the Court cannot limit process for the hearing of the issues so separated. And
that is the real bone of contention between the parties.

25. As the Applicants fail to consider this last material aspect whilst refusing the
typical separation between quantum and merits, is the Applicants to be ordered
to pay the costs of the application. The Application has not aided the effective
disposal of the litigation at all.

26. Wherefore, the Respondents pray that the Application be dismissed with costs,
alternatively that the Court, with its wisdom order a separation either for the
hearing of the special pleas and/or on quantum and merits, but that the Court
refrain from directing that the special pleas be enrolled for hearing on the
opposed motion roll as prayed for in prayer 2 of the Notice of Motion.

Adv. DH Wijnbeek
Maisels Chambers
29 October 2021
Instructed by Andreas Peens Attorneys.