Gordon v Dickson and Others (2023/022277) [2025] ZAGPJHC 505 (26 May 2025)

In the matter between:

DIANE IRENE
GORDON                                                  

PLAINTIFF

And

ROBERT WESTON
DICKSON                                         

1^ST DEFENDANT

JANNIC FINANCIAL SERVICE (PTY)
LTD                      

2^ND DEFENDANT

BDO ADVISORY SERVICES (PTY)
LTD                          

3^RD DEFENDANT

LEISURE OPTIONS (PTY)
LTD                                        

4^TH DEFENDANT

Coram: Dlamini J

 Request
for Reasons:  18
March 2025                 

Delivered:   
26 May 2025 – This judgment was handed down electronically
by circulation to the parties’ representatives via email,
uploaded to CaseLines, and released to SAFLII. The date and
time for the hand-down are deemed to be 10:30 on 26 May 2025.

JUDGMENT

DLAMINI
J

INTRODUCTION

[1] 
There are two
interlocutory applications that the parties agreed should be heard
simultaneously, namely:

1.1. The first
is an application to compel discovery, wherein the plaintiff is the
applicant and the first, second, and fourth defendants
are the first,
second, and fourth respondents.

1.2 The second
is an application for separation, wherein the first, second, and
fourth defendants are the applicants seeking an
order against the
plaintiff, who is the respondent, in accordance with Rule 33 (4) of
the Uniform Rules of Court for the separation
and prior determination
of the issues pleaded in paragraphs 6.2 to 6.4 of their plea.

BACKGROUND FACTS

[2] 
It is apposite to consider the background
facts that are relevant in the determination of this matter.

[3] 
In the main action, the plaintiff was a 20%
shareholder and a director of the fourth defendant.

[4] 
A dispute appears to have arisen between
the plaintiff and the first and second defendants. To resolve this
dispute, on 28 September
2021, the parties entered into a written
settlement agreement (the Settlement Agreement). The Settlement
Agreement was amended
through addenda on 11 October 2021 and 18
November 2021.

[5] 
The material terms of
the Settlement Agreement  relevant to this dispute are as
 follows ;

5.1. The first
and second defendants purchased the plaintiff’s 20%
shareholding in the fourth respondent for an amount equal
to 24% of
the Valuation, which was to be determined by the third respondent
(BDO) the net asset value of the Company as at 2 October
2017, less
an amount of R5 395 000.00.

5.2 The
Valuation amount was calculated to be R26,913,320.00.

[6] 
It appears that the
first and second defendants duly complied with the terms of the
agreement and made full payment in the amount
R26 913 320.00 to the
plaintiff. Whereupon the plaintiff duly accepted the payment and
transferred the Sale Shares to the first
and second defendants as per
the Settlement Agreement.

[7] 
In September 2022,
the plaintiff addressed correspondence to the defendants, notifying
them that a dispute exists between the parties
regarding the NAV
valuation. 

[8] 
The parties agreed
that in terms of the Settlement Agreement, the plaintiff’s
dispute concerning the NAV Valuation ought to
be referred to
arbitration.

[9] 
In January 2023, the
plaintiff initiated arbitration proceedings.

[10] 
However, in the midst
of the proceedings, the arbitration was withdrawn by the plaintiff
because the third and fourth defendants
stated that they were not
parties to the arbitration agreement, as they were also not parties
to the Settlement Agreement. The
plaintiff then launched this action.

[11] 
In this application,
the plaintiff seeks the following orders: First, a review and setting
aside of the Valuation conducted by BDO.
Second, to direct BDO to
re-evaluate the Sale Shares, with particular reference to the
allegations in paragraphs 19.1 -19.9 of
the plaintiff’s
particulars of claim.

[12] 
After filing their
notice to defend, the defendants filed their plea. In paragraphs 6.2
– 6.4 of their plea, the defendants argue
that the plaintiff accepted
the Valuation, represented an acceptance thereof, and voluntarily
participated in the implementation
of the transaction based upon such
settlement.

[13] 
The defendants then
filed the application for separation in terms of Rule 33 (4) of the
Uniform Rules of the Court.

[14] 
On 15 May 2024, the
plaintiff delivered a notice in terms of Rule 35 (3) and (6) of the
Uniform Rules of Court. When no response
was forthcoming from the
first, second, and fourth defendants, the plaintiff launched this
application to compel.

[15] 
I now turn to deal
with the respective applications,

The
Separation Application

[16] 
It is worth restating
that the main issue for determination in this matter is whether the
applicants’ application to have
paragraphs 6.2 to 6.4 of their
plea dealt with separately from, and prior to, the determination of
the remaining issues in terms
of the provisions of Rule 33 (4).

[17] 
The defendants argue
that the separated issue would, if successful, constitute a complete
defence to the plaintiff’s claim
and thus would be dispositive
of the matter. 

[18] 
Also, the applicants
insist that if the separation is successful, it will be dispositive
of the action, sparing the parties the
inconvenience of having to
prepare any evidence related to the more complex and time-consuming
issues related to reviewability
of the Valuation.

[19] 
Furthermore, the
applicants argue that the plaintiff’s complaints regarding the
valuation will require detailed accounting
evidence for the Court to
determine whether the valuation was conducted properly.

[20] 
Lastly, the
applicants submit that the plaintiff failed to take into account the
many days it will take the parties’ preparation
and the costs
the parties will incur leading up to a trial if the separated issues
are not decided separately.

[21] 
The respondent argues
that a finding that she accepted the NAV, alternatively represented
an acceptance thereof, has no impact on
the issues in dispute in the
main action and the relief sought by the plaintiff, which is to
review and set aside the NAV

Valuation.

[22] 
The respondents argue
that it was a term of the Settlement Agreement, requiring both
parties to continue performing their respective
obligations under the
Settlement Agreement pending the resolution of the dispute concerning
the NAV Valuation.

[23] 
The respondent
contends that the applicants cannot dispute the fact that she had
expressed her dissatisfaction with the NAV Valuation
dating back to
November 2021. Also, even if a court makes a determination that the
plaintiff accepted the NAV valuation, the fact
that the respondent
disputed the NAV Valuation, so the argument goes, as she was entitled
to do, negates any finding of acceptance
and the accompanying
conclusion that she is precluded from disputing the determination.

[24] 
Lastly, the
respondent argues that since the pleadings closed in June 2023 and
the application for separation was only launched
in September 2024,
this long delay renders the application for separation inconvenient,
as it is no longer appropriate and fair
to separate the issues. This
situation no longer serves the purpose of avoiding delays and costs
associated with conducting the
trial. The respondent’s
submissions in this regard are valid, and I concur with them.

[25] 
It will be helpful to
examine the provisions of Rule 33(4), which state as follows: –

“If,
any pending action, it appears to the cpourt mero motu that there is
a question of law or fact which may conveniently be decided
either
before any evidence is led or or separately from any other question,
the court may make an order directing the disposal
of such question
such manner as it may deem fit and may order that all further
proccedings 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 question cannot conveniently
be decided
separately”.

[26] 
The
trite principle of our law is that courts generally favour and
support the principle that timeous disposal of litigation is
best
achieved by allowing all the issues to be dealt with at once rather
than permitting piecemeal litigation. A sensible interpretation
of
the rule is that it aims to facilitate the convenient and expeditious
disposal of litigation, thereby saving the parties the
costs and
delays of a full trial.

[27] 
In my view, the
applicant’s contention lacks merit and stands to be dismissed.
This is because the issues raised by the applicants
in paragraphs
 6.2 -6.4. are clearly not dispositive of the issues raised in
the plaintiff’s claim.  At the heart
of the plaintiff’s
claim is the request for the review and the setting aside of the
Valuation, particularly the BDO’s
valuation of shares.
Additionally, the plaintiff seeks an order directing BDO to perform a
revaluation of the sale Shares with
specific reference to the
allegations contained in paragraphs 19.1- 19.9 of the plaintiff’s
particulars of claim.

[28] 
Therefore, to avoid
piecemeal litigation and preserve the very limited court resources,
it is my finding that it will not be in
the interest of justice to
order separation. Additionally, the applicant’s complaint
regarding the calling of experts are
of no moment. Preparation for
trial, including the calling of any witnesses, including expert
witnesses, is routine and forms part
of our civil practice.

[29] 
Having regard to all
the circumstances mentioned above, the applicants have failed to
discharge the onus that rested on their shoulders
that they are
entitled to the order that they seek. The application for separation
is dismissed.

The
application to compel discovery

[30] 
The application for a
stay of proceedings largely hinges on the outcome of the separation
application. I have already made a ruling
and dismissed the
separation application. It follows, therefore, as it must, that the
defendants must comply and make the necessary
discovery in terms of
the plaintiff’s Rule 234 notice.

[31] 
In all the
circumstances, alluded to above, the defendant’s application
for separation is dismissed. Consequently, the plaintiff’s

discovery application is granted.        

COST

[32] 
The trite principle
of our law is that costs follow suit and are awarded to the
successful party. I find no reason why costs should
not follow the
event.

ORDER

1. 
The order marked “X” that I
signed on 3 March 2025 made an order of this court.

J DLAMINI

Judge of the High Court

Gauteng Division, Johannesburg