Lemoenshoek Plase (Edms) Bpk v Butt

Lemoenshoek Plase (Edms) Bpk (the applicant) brought an application on 27 October 2010 seeking registration of servitudes of abutment and aquaduct in favour of its property (Portion 2 of the farm Lemoenshoek 25) over Richard Fairfax Butt's property (Portion 38 of the farm Lemoenshoek 25) in accordance with terms set out in a draft notarial deed with a draft diagram. The first respondent opposed the application. While the main application was pending, on 28 June 2011, the applicant brought an urgent interdict application seeking interim relief to prevent the respondents from interfering with diversion works on the Lemoenshoek River pending adjudication of the main application. Both matters were opposed. Richard Fairfax Butt (first respondent) then brought an application under Rule 33(4) seeking to have certain legal points adjudicated separately before the hearing of the main matters, and for leave to file a further set of affidavits in the main application.

• Whether legal points could be conveniently decided separately from factual questions under Rule 33(4)
• Whether the servitude sought was legally registrable
• Whether the servitude constituted an impermissible attempt to apportion water under the guise of a servitude application in terms of section 127 of the National Water Act 36 of 1998
• Whether the applicant satisfied the requirements of section 127 read with Schedule 2 of the National Water Act for authorization to use the water
• Whether the interdict application lacked urgency

The application for separate adjudication under Rule 33(4) was refused. The first respondent was given leave to file a further set of affidavits in the main application, to which the applicant may reply if necessary. Costs were reserved for later determination.

Under Rule 33(4), legal points may only be adjudicated separately from other questions if they can be conveniently decided independently. Legal issues that are inextricably linked with factual issues and whose determination requires the consideration and resolution of factual disputes should not be separated from those factual issues. Where legal and factual issues cannot be separated, it is desirable in the interests of expedition and finality of litigation to have one hearing at which all issues are canvassed so that the Court may dispose of the whole case after conclusion of the trial.

The Court observed that the term 'convenience' in Rule 33(4) conveys not only the notion of facility, ease or expedience, but also the notion of appropriateness and fairness (citing Mota v Moloantoa 1984 (4) SA 761 (O) at 786 D). The Court noted that in determining whether to grant a Rule 33(4) application, the Court must gauge the nature and extent of advantages and disadvantages that would flow from the order, and if advantages outweigh disadvantages with due regard to divergent interests and convenience of parties, the application would normally be granted (citing Minister of Agriculture v Tongaat Group Ltd 1976 (2) SA 357 (D) at 364). The Court also noted it may not be desirable to separate issues in circumstances where the issues are inextricably linked (citing Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA) at 485). The Court observed that under section 130 of the National Water Act, the Court may award a claim for a servitude with or without modifications, and therefore the determination of registrability may or may not arise depending on the outcome of a claim for a servitude.

This case provides guidance on the application of Rule 33(4) of the Uniform Rules of Court regarding separate adjudication of legal points. It emphasizes that legal points may only be separated from factual issues where they can be conveniently decided independently, and that legal and factual issues that are inextricably linked should not be separated. The case illustrates the Court's preference for hearing all issues together in the interests of expedition and finality of litigation where legal issues require the resolution of factual disputes. The case also provides context on applications for servitudes under the National Water Act 36 of 1998, particularly regarding sections 127 and 130.