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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NUMBER: 1150/2024
(1) REPORTABLE: YES/ NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 3 FEBRUARY 2025
SIGNATURE:
In the matter between:
CATERPILLAR FINANCIAL SERVICES APPLICANT
SOUTH AFRICA (PTY) LTD
Registration number: 2017/486709/07
-and-
MNTK PROJECTS PROPRIETARY LIMITED RESPONDENT
Registration number: 2019/091643/07
JUDGMENT
BRESLER AJ:
Introduction:
[1] The Applicant applies inter alia for the following relief:
1.1 Rectification of the first schedule to the instalment sale agreement
concluded between the Applicant and the Respondent on the 9th of December
2019 under contract number IS/SA -000855 by deleting the serial number
“D[...] ” where it appears and by substituting same with serial number “ D[...]2 ”.
1.2 Delivery of the following items to the Sheriff of the High Court within 24
(twenty -four) hours from service of the order:
1.2.1 A Caterpillar Skid Steer Loader 226 with serial number D[...]2 ;
1.2.2 A Caterpillar Articulated Truck 730 with serial number 3[...]; and
1.2.3 A Caterpillar Articulated Truck 730 with serial number 3[...]2 ;
and
1.2.4 A Caterpillar Articulated Truck 730 with serial number 3[...]3 .
(the ‘Units’)
1.3 In the event of the Respondent failing to compile with the above, that
the Sheriff of the High Court is authorised and ordered to take possession of
the Units from wherever he / she may find it, and the Sheriff is authorised to
retain possession of the Units until delivered to the Applicant or its duly
authorised representative.
1.4 That the Respondent be ordered to pay the costs on attorney and client
scale.
[2] The Applicant’s relief is premised on master instalment sale agreement (the
‘Instalment Sale Agreement’ concluded during Desember 2019, and various written
schedules th ereto during December 2019, April 2021, September 2021 and June
2022 (the ‘Schedules’).
[3] In terms of the Instalment Sale Agreement, the Applicant lent and advanced
the amounts as indicated in the Schedules to enable the Respondent to purchase
the Units .
[4] On the 29th of August 2023, the Applicant’s Attorneys addressed a termination
notice to the Respondent.
[5] The Applicant submits that it is the owner of the Units, ownership was
reserved in terms of the Instalment Sale Agreement, and, because of the
Respondent’s breach and the subsequent valid termination of the Instalment Sale
Agreement, the Applicant is entit led to the return of the Units.
[6] It is apposite to note that the Instalment Sale Agreement pertinently provides
that the Applicant will retain ownership until all the payments in terms of the
Instalment Sale Agreement and the Schedules has been made in full.
[7] The application is opposed by the Respondent.
[8] The Respondent raised the following issues in opposition of the relief prayed
for by the Applicant:
8.1 The Commissioner of Oaths has a vested interest in the proceedings
and as such, the Founding affidavit has not been properly commissioned.
8.2 There is a dispute of fact. As such, the matter cannot be determined on
the papers before court.
8.3 The legal action has been instituted prematurely as the date of service
of the proceedings predates the agreed payment date. Once legal action was
instituted, the Respondent was no longer obliged to perform in terms of the
payment agreement.
8.4 The Applicant fai led to account for a payment to the value of
R300,000.00.
8.5 The ‘Skid’ was paid in full, and the Respondent is thus entitled to the
ownership thereof.
8.6 The relief prayed for amounts to unjustified enrichment as the Applicant
will be able to reposses s the Units whilst the Respondent has paid a
considerable amount towards the outstanding balance, which amount will be
forfeited in toto .
8.7 The process adopted by the Applicant is objectionable to the extent
that multiple claims should have been institu ted as opposed to one
consolidated claim.
[9] During argument, counsel for the Respondent predominantly focused on the
discussions between the parties after the agreement was cancelled. It was conceded
that the agreement was cancelled but that the negotia tions between the parties after
cancellation is relevant to the determination of the issues before court. There is a
factual dispute as to what transpired during these negotiations and the matter can
therefore not be determined on the papers before court. It was also submitted that
the cancellation of the agreement was unfair and unreasonable having regard to the
substantial amounts that has already been paid by the Respondent.
Issues that require determination:
[10] This Court is called upon to determin e if the Applicant has met the
jurisdictional requirements for vindicatory relief. The Court must further determine if
the negotiations between the parties, subsequent to the cancellation of the
agreement, had the result that the agreement was revived and, as such, rendering
the current legal action premature.
The Applicable Legal Principles:
[11] The law pertaining to the rei vindicatio is well -known. In Chetty v Naidoo1 it
was held:
‘The owner, in instituting a rei vindicatio, need, therefore, do no more than
allege and prove that he is the owner and that the defendant is holding the res
- the onus being on the defendant to allege and establish any right to continue
to hold against the owner.’
[12] The maxim, ubi rem meam invenio, ibi vindico captures the gist of the rei
vindicatio : ‘where my property is found, there I vindicate it’.
[13] To succeed vindicatory relief, the Applicant must show, on a b alance of
probabilities that:
13.1 He holds ownership;2 and
13.2 That the Respondent was in possession of the property when the
action was instituted.3
[14] Should the Respondent rely on a right of possession (by virtue of a lease, for
example), the Res pondent must allege and prove the right.4 If the Applicant
concedes this right at any stage of the proceedings, the onus is on the Applicant to
prove a valid termination of the right. This includes the onus to prove the term of the
agreement that gives the right to terminate.5
1 1974 (3) SA 13 (A) at 20 C – D
2 See Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 1993 (1) SA 77 (A) at 82 and Concor
Construction (Cape) (Pty) Ltd v Santambank Ltd 1993 (3) SA 930 (A)
3 See Graham v Ridley 1931 T PD 476 and Chetty v Naidoo 1974 (3) SA 13 (A)
4 See Woerman NO v Masondo 2002 (1) SA 811 (SCA)
5 See Matador Buildings (Pty) Ltd v Harman 1971 (2) SA 21 (C), Chetty v Naidoo supra and
Schnehage v Bezuidenhout 1977 (1) SA 362 (O)
[15] Save for the ownership of the Skid, it is common cause between the parties
that the Applicant is the owner of the remaining Units. It is furthermore common
cause that the Respondent is in possession of these Units and was in arr ears with its
obligations in terms of the Instalment Sale Agreement.
[16] As to the Respondent’s right to possess the Units, the cancellation of the
agreement is not in dispute. The Respondent claims to retain possession of the
remaining units purportedly on the premise that the return thereof will be unfair
towards the Respondent. The Responden t also claims that the negotiations after the
cancellation of the agreement, resulted in the agreement to be revived or re - instated,
thus rendering these proceedings premature.
[17] This Court is of the view that the further payments allegedly made by the
Respondent is irrelevant having regard to the nature of the relief being prayed for.
This is, after all, vindicatory relief. To succeed, the Applicant only need to show that
it is th e owner of the Units (which is undisputed save for the skid) and that the
Respondent is in possession thereof. Unlawfulness is assumed once ownership is
established.6
[18] The Applicant do not claim monetary judgment at this stage. Nor does the
Applicant claim damages as an alternative to the return of the Units which will
require an accurate calculation of the outstanding balance. The quantum is thus
rendered irrelevant in as far as the breach of the agreement, and the subsequent
cancellation is not in di spute.
[19] Generally, cancellation of a contract results in the termination of the
obligations created thereby, and obligations arising from the contract is
extinguished.7 The Respondent is therefore not entitled to claim performance in
terms of the cont ract once same has been cancelled. This does not presuppose that
the Respondent is not obliged to pay any outstanding balance due and payable to
6 See Caterpillar Financial Services South Africa (Pty) Ltd v Azania Money Growth (Pty) Ltd
2023 JDR 3742 (GJ) at paragraph 17
7 See Naka Diamond Mining (Pty) Limited v Joh annes Frederick Klopper NO and others [2022]
ZASCA 94 at paragraph 23
the Applicant as these amounts became due and payable prior to cancellation and
by virtue of the acceleration clause conta ined in the Instalment Sale Agreement.
[20] It renders moot the question if the subsequent negotiations revived the
agreement or if the legal proceedings are premature. Having regard to the contents
and gist of the exchanges between the parties, it is evi dent that the Applicant did not
have the intention to revive the contract between the parties or to novate the terms
thereof. It follows that the potential factual dispute, alleged by the Respondent, need
also not be determined in lieu of the nature of the proceedings before Court. This
dispute is not relevant to the issues at hand or to the determination of the vindicatory
relief. The Applicant never gave permission to the Respondent to retain the Units
after the contract was cancelled and is therefore ent itled to have the Units returned
to it.
[21] In as far as the Respondent argued that the enforcement of the Instalment
Sale Agreement is unfair, counsel for the Applicant correctly referred in his Heads of
Argument to the case of South African Forestry Co Ltd v York Timbers Ltd8
where the Supreme Court of Appeal aptly stated:
‘[A]lthough abstract valued such as good faith, reasonableness and fairness
are fundamental to our law of contract, they do not constitute independent
substantive rules that courts c an employ to intervene in contractual
relationships. These abstract values perform creative, informative and
controlling functions through established rules of the law of contract. They
cannot be acted upon by courts direct ly. Acceptance of the notion that judges
can refuse to enforce a contractual provision merely because it offends their
personal sense of fairness and equity will give rise to legal and commercial
uncertainty. After all, it has been said that fairness and j ustice, like beauty,
often lie in the eye of the beholder.’
[22] This sentiment has since been repeatedly stated in our Courts and remains
the current approach to allegations of this nature.
8 2005 (3) SA 323 (SCA) at 27
The Skid:
[23] As stated herein before, the Respondent alleges that it has paid the Skid in
full and is therefore entitled to retain possession and to require the Applicant to
transfer ownership thereof to it.
[24] What the Respondent fails to appreciate is the fact that payment was made
after cancellation of the agreement. As set out herein before, the Respondent is not
entitled to claim performance of the Applicant’s obligations in terms of the contract
once same w as cancelled.
[25] It must moreover be borne in mind that the said Skid forms part of the
Schedules to the Instalment Sale Agreement concluded between the parties. Clause
3 of the Instalment Sale Agreement states the following:
‘Notwithstanding the exis tence of a security interest, you acknowledge that we
own and hold title to a Unit unless and until title is transferred to you upon
completion of your obligations to us. A Unit is and will remain our property
regardless of its use or manner of attachment to immovable property and we
reserve the right, title and interest in and to the Units until all the amounts
owning to us have been irrevocably paid in full. Upon completion of all
payments pursuant to a Schedule, we will transfer title and ownership of th e
relevant Unit to you via a bill of sale.’
[26] The remainder the clause is not relevant for purposes of these proceedings.
Suffice to state that the clause makes specific provision that the transfer of
ownership necessitates a further action from the pa rties, being the conclusion of a
bill of sale. In the absence thereof, ownership does not transfer. More specifically,
ownership did not transfer automatically upon payment of the amounts due in terms
of the Schedule.
[27] In the interpretation of this cl ause, this Court is fortified by the judgment in
Natal Joint Municipal Pension Fund v Endumeni Municipality9 that expounds on
the approach generally to be adopted when interpreting a contract as thus:
”Interpretation is the process of attributing meaning to words used in a
document be it legislation, some statutory instrument, or contract, having
regard to the context provided by reading the particular provision or provisions
in the light of the document as a whol e and the circumstances attendant upon
its coming into existence . Whatever the nature of the document, consideration
must be given to the language used in the light of the ordinary rules of
grammar and syntax; the context in which the provision appears; th e apparent
purpose to which it is directed and the material known to those responsible for
its production. Where more than one meaning is possible each possibility
must be weighed in the light of all these factors. The process is objective, not
subjective. A sensible meaning is to be preferred to one that leads to
insensible or unbusiness like results or undermines the apparent purpose of
the document. Judges must be alert to, and guard against, the temptation to
substitute what they regard as reasonable, s ensible or business like for the
words actually used. To do so in regard to a statute or statutory instrument is
to cross the divide between interpretation and legislation; in a contractual
context it is to make a contract for the parties other than the on e they in fact
made. The “ inevitable point of departure is the language of the provision
itself”, read in context and having regard to the purpose of the provision and
the background in the preparation and production of the document ”.
(own underlining)
[28] The trite wording of the Instalment Sale Agreement simply does not lead itself
to an interpretation that that parties intended ownership to transfer immediately upon
final payment being made in terms of the Schedule and the Respondent’s argument
that it obtained ownership can thus not succeed.
9 2012 (4) SA 593 (SCA) 12 paragraph 18
[29] The Applicant retained ownership until ownership is transferred by means of a
bill of sale and is therefore entitled to the return of the skid.
Rectification of the agreement:
[30] The proposed rectifica tion of the Schedule does not appear to be in dispute
between the parties. It is evident on the papers before court that the parties are ad
idem that the correct serial number of the Unit is D[...]2 , and rectification must thus
be granted accordingly.
Costs:
[31] There is no reason why the cost order should not follow the outcome of the
proceedings. In this case, the Respondent has consented to attorney and client
scale costs in the event of legal proceedings being necessitated. Costs is therefore
awar ded in favour of the Applicant accordingly.
Order:
[32] In the result the following order is made:
32.1 The Applicant is granted leave to deliver its supplementary
affidavit dated the 23rd of September 2024.
32.2 The first schedule to the Instalment S ale Agreement concluded
between the Applicant and the Respondent on 9 December 2019 under
contract number IS/SA -000855, is rectified by the deletion of the serial
number “ D[...] ” where it appears in the second row, in the third column
of the table at the foot of page 1 of the schedule (Annexure ‘FA 3’ to the
Founding Affidavit), and by the replacement thereof with “ D[...]2 ”.
32.3 The Respondent is ordered to deliver to the Sheriff of the High
Court within 48 (forty -eight) hours of service of this Order on the
Respondent at its registered address:
32.3.1 A Caterpillar Skid Steer Loader 226 with serial number
D[...]2 ;
32.3.2 A Caterpillar Articulated Truck 730 with serial number 3[...];
and
32.3.3 A Caterpillar Articulated Truck 730 with serial number 3[...]2 ;
and
32.3.4 A Caterpillar Articulated Truck 730 with serial number 3[...]3 .
(the ‘Units’)
32.3 In the event that the Respondent fails to comply with prayer 33.3
above, the Sheriff of the High Court is authorised and ordered to retake
possession of the Units from wherever he / she may find it, and the
Sheriff is authorised to retain possession of the units until delivered to
the Applicant or its duly authorised representative.
32.4 The Respondent is ordered to pay the costs of the application on
an attorney and client scale.
M BRESLER AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
FOR THE APPLICANTS : Adv. PG Louw
INSTRUCTED BY : Werksmans At torneys
Sandton
zoosthuizen@werksmans.com
FOR THE RESPONDENT : Mr. D Sithole
INSTRUCTED BY : Henstock van den Heever Attorneys
Polokwane
Invorderings9@henstock.co.za
DATE OF HEARING : 28 October 2024
DATE OF JUDGMENT : 3 February 2025