|The applicant in this matter, “NK”, applied to the court in terms of rule 33(4) of the Uniform Rules of the High Court (“the Rules”) for a separation of issues in the divorce proceedings between him and his wife, “KM”. The parties sought an order to have their marriage dissolved. KM opposed the claim to the extent that NK sought forfeiture of the matrimonial benefits, arguing that their joint estate ought be divided equally between the parties and claiming spousal maintenance.
Rule 33(4) reads as follows:
“ 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.”
NK accordingly applied for the separation of the decree of divorce, to be heard first on an unopposed basis, from the forfeiture issue, to be determined later.
Citing the case of Rauff v Standard Bank and Another 2002 (6) SA 693 (W), it was held that the purpose of Rule 33(4) is “that an alleged lacuna in the plaintiff’s case or an answer to a case can be tested; or simply that a factual issue can be determined which can give direction to the rest of the case and in particular to obviate a parcel of evidence. The purpose is to determine the fact of the plaintiff’s claim without costs and delays of a full trial”. It was emphasised that the Courts are often faced with having to strike a balance in respect of the separation of issues: a prompt disposal of an aspect of litigation and fairness to the parties. The expeditious disposal of issues cannot outweigh the principle of fairness (KO v MO  ZAWCHC 136).
It was held that the onus is on the applicant to set out facts with sufficient particularity in order to assist the Court in considering whether it is ‘convenient’ to grant a separation of issues. Once the applicant has proven a prima-facie case favouring separation, the burden is on the respondent to show that separation would be prejudicial to it. The use of the word “convenience” was held in Molotlegi v Momkwalase 2010 JDR 0360 (SCA), to be considered as follows:
“The notion of convenience is much broader than the mere facility or ease or expedience. Such a court should also take due cognisance of whether separation if 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.”
Also referring to the case of De Wet and Others v Memor (Pty) Ltd  ZAGPJHC 188, this Court confirmed that it has a discretion to grant or refuse an application in terms of Rule 33(4). In addition, the separation must not only be convenient to the applicant, but also convenient to all the parties, including the Court. The determination of such an application requires a value judgment in respect of weighing up the advantages and the disadvantages in granting such separation. The notions of appropriateness and fairness are also pertinent in such applications.
Analysis of facts
In his Founding Affidavit, NK failed to take into account the principle of fairness and whether separation, if granted, would be appropriate and fair to KM. It is only in the replying affidavit that NK dealt with the issue of prejudice. He advanced that KM was responsible for the situation in which she found herself and was unwilling to find work. In addition, NK argued that the Court should take into consideration the short duration of the marriage and that NK had good prospects of success in his claim for forfeiture of benefits once the marriage is dissolved. The objective facts, to the contrary, depicted KM as destitute and vulnerable.
NK accordingly failed to make out a prima facie case to separate the issue of divorce from the other issues in the divorce proceedings. In the circumstances, it would have been neither fair nor appropriate to order separation of the issues in this matter.
Rule 43 application
Another issue that arose is whether the pending Rule 43 application could be sustained once separation of issues was granted and the decree of divorce accordingly made. Bearing in mind that KM would no longer be NK’s spouse, we observe that Rule 43 reads: “This rule shall apply whenever a spouse seeks relief from the court in respect of one or more of the following matters:
(a) Maintenance pendente lite;
(b) a contribution towards the costs of a pending matrimonial action”
In KO v MO  ZAWCHC 136, Loots AJ held that:
“It cannot be the correct position that, in a pending divorce action, following a granting of the decree of divorce, the fact that the parties are no longer married, would disentitle a person who, until the decree of divorce (which is one of the part of the divorce action), was entitled to the relief set out in Rule 43, pendente lite, would no longer be entitled thereto due to the unnecessarily strict interpretation of the with “spouse” for the purposes of the Rule. Accordingly, I find that, pending the finalization of the divorce action, and extant order in terms of Rule 43 survives a decree of divorce to the extent the issues of regulated thereby remain unresolved.”
Beckley v Beckley GJ 01098/2015 dealt with a situation where the application in terms of Rule 43 was launched after decree of divorce was granted following the separation of issues. The court in Beckley found that the provisions of Rule 43 were not applicable as at the time there was no pending divorce action between the parties as provided for in this said rule – an applicant lacked the right to claim interim maintenance where there was no matrimonial action or where none was pending or was about to be instituted (Gunston v Gunston 1976 (3) SA 179). It was held in Beckley that there was no matrimonial action pending between the parties or about to be instituted and that being so, there was no existence or contemplated a lis such as is referred to in Rule 43. Once a decree of divorce is granted, the provisions of Rule 43 would find no application.
Accordingly, Gunston and Beckley was found to be binding on this Court, as opposed to KO v MO, a judgment of the Western Cape division.
The Court held that there would be no basis in law for KM to institute a Rule 43 application once a decree of divorce is granted, following the separation of the divorce from the other issues. In the premises, the applicant’s application stands to fail because it would not be convenient for the respondent if the issue of divorce was to be separated from the other issues. Accordingly, NK’s application was dismissed with costs.
The application of Rule 33(4) together with Rule 43
Written by Danmari Bouwer and Caitlin Wilde