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2024
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[2024] ZAECMKHC 82
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Caterpillar Financial Services South Africa Proprietary Limited v Amlo Trading Close Corporation (Leave to Appeal) (2696/2023) [2024] ZAECMKHC 82 (30 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
NOT
REPORTABLE
CASE
NO.2696/2023
In
the matter between:
CATERPILLAR
FINANCIAL SERVICES SOUTH AFRICA
PROPRIETARY
LIMITED
Applicant
and
AMLO TRADING CLOSE
CORPORATION
Respondent
JUDGMENT (Application
for Leave to Appeal)
WATT
AJ:
[1]
This is an opposed application for leave to appeal in which the
Respondent seeks leave to appeal my judgment in which I ordered
that
the Respondent return four Caterpillar units (“the Units”)
to the Applicant. The main application was a
rei vindicatio
,
based on the Applicants ownership of the Units in terms of a written
sale agreement and two schedules thereto (“the Agreement”).
In my judgment I found that the Agreement had been validly cancelled
by the Applicant and that the Respondent had not proved a
legal basis
upon which it could remain in possession of the Units.
[2]
For convenience I shall refer to the parties as they were in the main
application.
[3]
Section 17
of the
Superior Courts Act 10 of 2013
provides that leave
to appeal may “
only be given
” if the appeal
“
would”
have a reasonable prospect of success, or
there is some other compelling reason why the appeal should be heard.
[4]
The prior
Act
[1]
employed the word “
could
”
instead of “
would
”
in relation to the test in an application for leave to appeal and did
not contain the word “
only
”.
The test is now more onerous than it previously was, but what remains
consistent is that it is still required that there
be reasonable
prospect of success and there must be a rational basis to conclude
that there exists a reasonable prospect of success
on appeal.
[2]
[5]
“
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There must be
a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal”
.
[3]
[6]
The application for leave to appeal consists of five paragraphs which
contain the grounds of appeal, two paragraphs of which
refer to
attached documentation consisting of nineteen pages, which
documentation was not before me at the hearing of the main
application. There is no affidavit identifying and explaining the
attached documentation. Mr Louw, who appeared on behalf of the
Applicant, submitted that the application for leave to appeal is
fatally defective as it does not comply with
Rule 49(1)(b)
because
the grounds of appeal are not clearly and succinctly set out in clear
and unambiguous terms so as to enable the court,
and the Applicant,
to be fully informed of the case the Respondent seeks to make out.
Although it is improper for nineteen pages
of documentation to simply
have been attached to the application for leave to appeal, which
documentation I deal with later on
in this judgment, I am able to
discern the main thrust of the grounds of appeal and accordingly do
not dismiss the application
on this ground.
[7]
There are essentially three grounds of appeal advanced by the
Respondent. Firstly, that I erred in not finding that there was
agreement between the parties, notwithstanding the terms of the
Agreement, that lump sum payments made by the Respondent to the
Applicant was an acceptable form of payment. Secondly, that I erred
in finding that the Agreement had terminated by the effluxion
of
time. Thirdly, the Applicant issued a letter confirming that one of
the Units had been fully paid for and the Respondent had
made payment
of the full sum owed to the Applicant. I deal with these three
grounds, in turn, below.
[8]
I dealt
with the Respondent’s defence that there was agreement between
the parties, that the Respondent would make lump sum
payments to the
Applicant, in paragraph 27 of my judgment. I found that this defence
was not supported by the correspondence which
had been exchanged
between the parties, considered together with the payments made by
the Respondent, and found further that the
Applicant had validly
cancelled the Agreement. I also found that payments made by the
Respondent to the Applicant, after the cancellation
of the Agreement,
could not defeat the validity of the cancellation.
[4]
Mr Giwu, who appeared on behalf of the Respondent, urged that the
Applicants conduct, by accepting payments after the cancellation,
evidenced that there was such an agreement. The Applicants conduct,
reflected in the correspondence, to which I referred in paragraph
6
of my judgment, does not evidence such agreement. Mr Giwu was unable
to refer me to any case law in support of his submission
that the
Applicants conduct in accepting payments after cancellation, in
circumstances in which the Applicant specifically stated
that such
acceptance should not be construed as a waiver of its rights, revived
the cancelled Agreement. I am not persuaded that
this ground has
reasonable prospects of success on appeal.
[9]
In paragraph 29 of my judgment I stated that “
I also add, as
advanced by Mr Louw in argument, that the time period of 36 months
contained in the respective schedules to the instalment
sale
agreement, has lapsed and accordingly the Agreement has terminated by
effluxion of time
”. I rejected the Respondent’s
defence of the alleged agreement relating to lump sum payments and,
similarly, this defence
could not be sustained against the fact that
the Agreement had lapsed though the effluxion of time. Even if I had
not made this
finding, the result would have been the same. I am also
not persuaded that this ground has reasonable prospects of success on
appeal.
[10]
I heard the main application on 28 March 2024 and judgment was
delivered on 25 June 2024. The application for leave to appeal
states
that I erred by not considering that one of the Units “
has
been fully paid-off as per the letter the Respondents sent to the
Appellant on the 03
rd
of June 2024 annexed
herein as “Annexure AT1”.
Annexure “AT1”
is a letter from the Applicant to the Respondent, dated 3 June 2024,
and headed “
Paid up Letter
”. This letter states
that the total balance in terms of the Agreement, relating to one of
the Units, has been settled. The
application for leave to appeal
further states that the Respondent received a statement from the
Applicant, ending on 3 February
2024, which reflects a balance of
R878,121.84 and attaches the statement as “AT2”. Annexure
“AT2” is a
fourteen page document reflecting five
columns, including debits and credits. It is not apparent that “AT2”
emanates
from the Applicant and is simply a spreadsheet. Proof of
payments are also attached to the application for leave to appeal, as
“AT3”, “AT4” and “AT5”, which
reflect payments to the Applicant by the Respondent in the sum
of
R500,000.00 on 30 March 2024; R300,000.00 on 29 April 2024 and
R78,182.00 on 24 June 2024 respectively.
[11]
I did not have the documentation referred to in the preceding
paragraph, which is simply attached to the application for leave
to
appeal with no affidavit, before me when I heard the main
application, nor prior to my judgment being handed down. It is
documentation
primarily referring to events which occurred after the
hearing of the main application.
[12]
“
As
they now seek to build a case on a foundation not previously
laid, they should be precluded from doing so. Although it may
be open
to a party to raise a point of law which involves no unfairness to
the other party and raises new factual issues, a point
raised for the
first time on appeal on factual considerations not fully explored in
a court below, should not be allowed.”
[5]
Not
only were the new documents, attached to the application for leave to
appeal, not explored in the main application, they did
not form part
of the application papers which were before me. The main application
was decided on the facts that were present at
the time, and as were
apparent from the application papers. The adjudication of a matter is
done on the evidence which was before
the court at the time, events
which occurred subsequent to the hearing of the matter cannot sustain
the basis of an application
for leave to appeal.
[13]
There is, in any event, no application before me, supported by an
affidavit, for the Respondent to adduce the documentation
as evidence
on appeal. In fact the documentation attached to the application for
leave to appeal cannot be considered evidence
at all because the
documents are not dealt with by way of an affidavit. Mr Giwu urged me
to condone the lack of an affidavit, which
I am of the view I cannot
do.
[14]
Despite these glaring difficulties relating to the documentation
attached to the application for leave to appeal, which are
fatal to
the application succeeding based thereon, I will in any event deal
with the documentation which is sought to be relied
upon by the
Respondent.
[15]
It is
incumbent on an applicant for leave to adduce further evidence to
satisfy the court that the further evidence should be accepted
and
further evidence will only be allowed where special grounds exist.
[6]
The further evidence tendered must be weighty and material, and
presumably to be believed, and must, if adduced, be conclusive,
otherwise the matter would still lack finality.
[7]
[16]
The test
whether to allow further evidence to be adduced was formulated in S v
De Jager
[8]
and is that (a)
there should be a reasonably sufficient explanation why the evidence
was not led when the matter was heard; (b)
there should be a
prima
facie
likelihood of the truth of the evidence and (c) the evidence should
be materially relevant to the outcome of the matter.
[17]
The reason why the documentation was not adduced in evidence when the
main application was heard is because they did not exist
at the time
of the hearing. Annexures “AT1”, “AT3”,
“’AT4” and “AT5” to the
application for
leave to appeal were all generated, and are dated, subsequent to the
hearing of the main application. I assume
that “AT2” is
the document referred to in the application for a postponement, which
I quoted at paragraph 10 of my
judgment. I refused the application
for a postponement and it appears that the Respondent again wishes to
place a document before
me, which I had previously refused. I engaged
with Mr Giwu at the hearing of the application for leave to appeal as
to whether
the Respondent should not have sought to appeal against my
dismissal of the application for a postponement. He indicated that
the
Respondent accepted my decision regarding the postponement
application. Evidence of events which occurred subsequent to the
hearing
of the main application cannot be admissible.
[18]
I cannot determine whether the documentation attached to the
application for leave to appeal is even
prima facie
correct or
accurate as it is not dealt with by way of an affidavit, particularly
in relation to annexure “AT2”, of
which I cannot
determine the source nor accuracy thereof.
[19]
As to whether the documentation is material, I think not. The alleged
payments reflected in “AT3”, “AT4”
and “AT5”
were made subsequent to the cancellation of the Agreement and I found
in my judgment that subsequent payments
made by the Respondent, after
the cancellation, cannot defeat the validity of the cancellation.
[20]
I am accordingly not persuaded, based on the documentation attached
to the application for leave to appeal, that there are
reasonable
prospects of success on appeal.
[21]
There is no
sound nor rational basis for me to conclude that there is a
reasonable prospect of success on appeal and I therefore
intend
refusing the application. There is no reason why costs should not
follow the result. The Agreement makes provision for costs
on an
attorney and client scale and there is no reason to interfere with
this agreement between the parties.
[9]
[22]
In the circumstances the following order is made:
The
application for leave to appeal is dismissed, with costs on an
attorney and client scale.
KL
WATT
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES
For
the Applicant:
Mr
PG Louw, instructed by Netteltons Attorneys, Makhanda
For
the Respondent:
Mr N
Giwu, instructed by Nceba Giwu Inc., Mthatha
.
Date
heard:
26
July 2024.
Date
delivered:
30
July 2024.
[1]
Supreme Court Act 59 of 1959
[2]
Valley
of the Kings Thaba Motswere (Pty) Ltd and Another v Al Mayya
International
(EL926/2016, 2226/2016) [2016] ZAECGHC 137 (10 November 2016) at
paragraph 4
[3]
MEC for
Health, Eastern Cape v
Mkhitha 2016 JDR 2214 (SCA) at paragraph 7
[4]
Moodley
v Reddy
1985
(1) SA 76
(D) at 82F and
Boland
Bank Ltd v Pienaar and another
1988 (3) 618 (A) at 621G-623B
[5]
Ras and
Others NNO v Van Der Meulen and Another
2011 (4) SA 17
(SCA) at paragraph 16
[6]
De
Aguiar v Real People Housing (Pty) Ltd
2011 (1) SA 16
(SCA) at paragraph 11 and
Simpson
v Selfmed Medical Scheme and Another
1995
(3) SA 816
(A) at 825A-D
[7]
Colman
v Dunbar
1933
AD 141
at 162
[8]
1965 (2) SA 612
(A) at 613B
[9]
Geldenhuys
v East and West Investments (Pty) Ltd
2005 (2) SA 74
(SCA) at paragraph 7