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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: 11 MARCH 2025
SIGNATURE:
In the matter between:
CATERPILLAR FINANCIAL SERVICES
SOUTH AFRICA (PTY) LTD
Registration number: 2017/486 709/07
APPLICANT
-and-
MNTK PROJECTS PROPRIETARY LIMITED RESPONDENT
Registration number: 2019/091 643/07
JUDGMENT – LEAVE TO APPEAL
BRESLER AJ:
Introduction:
[1] The Applicant (Respondent in the Main Application) applies for Leave to Appeal
against this Court’s judgment and order delivered on the 3rd of February 2025.
[2] Counsel for the Applicant recorded that only the grounds set out in the Amended
Application for Leave to Appeal are pursued , and this judgment will therefore be
limited to the aspects raised therein.
[3] The Respondent (Applicant in the Main Application) in r eturn applies in terms of
Section 18(3) of the Superior Court Act , Act 10 of 2013 for the following relief:
3.1 Dispensing with the requirements of the Rules of the Court relating to
service and time periods and disposing with the application as one of
urgency in terms of Rule 6(12) of the Uniform Rules of Court.
3.2 An order in terms of Section 18(3) directing and declaring that the
operation and execution of the judgment and order granted on the 3rd of
February 2025, is not suspending pending:
3.2.1 the finalization of the application for leave to appeal launched by
the Applicant on the 4 February 2025.
3.2.2 the expiry of the time period for the launching of any subsequent
appeal(s) by the Applicant.
3.3 An order directing and authorizing the Sheriff of the High Court to take
immediate possession of the Units listed below, from wherever he / she
may fin d it, and to retain possession of the Units until delivered to the
Respondent or its duly authorised representative :
3.3.1 a Caterpillar Skid Steer Loader 226 with serial number: D[...] (the
‘Skid Steer’)
3.3.2 a Caterpillar Articulated Truck 730 with serial number : 3[...];
3.3.3 a Caterpillar Articulated Truck 730 with serial number: 3[...]2 ; and
3.3.4 a Caterpillar Articulated Truck 730 with serial number: 3[...]3 .
(the ‘Units’)
3.4 An order authorising the Respondent to retain possession of the Units at
its location to be elected by the Respondent , where the Units shall be held
in safekeeping and shall not be sold by the Respondent until the appeal
process has been finalised, alternatively , until the prescribed time period
for any future or subsequent appeals has lapsed.
3.5 Costs on attorney and client scale.
[4] During the course of argument this Court indicated that the relief prayed for, to the
extent that it provides for a preservation of the Units , is not contemplated in
Section 18(3). Counsel for the Respondent recorded that, in the event of the relief
being granted, an undertaking is provided that the Units will be preserved pending
finalization of the Appeal process in due course.
Issues that require determination:
[5] Having regard to the amended Application for Leave to Appeal, this Court is only
called upon to determine essentially two issues:
5.1 If the agreement was properly cancelled entitling the Respondent to claim
repossession of the Units; and
5.2 If the Respondent should be entitled to execute the order pending
finalisation of the appea l as contemplated in Section 13(3).
The Applicable Legal Principles:
Leave to Appeal
[6] From the onset, it must be noted that the cancelation of the agreement was
common cause between the parties. Counsel for the Applicant opined that
cancelation is a legal question that may be raised for the first time on Appeal.
Contrary hereto, the couns el for the Respondent was adamant that it is not a point
of law but rather common cause facts between the parties and the contrary can
thus not be argued on Appeal.
[7] This Court tends to agree with the Respondent. It was, after all, conceded at least
three times during argument in the Court a quo that the agreement was indeed
cancelled. Be that as it may, this Court finds it apposite to provide reasons why the
alleged ground s of Appeal , as per the Amended Application for Leave to Appeal,
can in any event not succeed on the merits thereof.
[8] The Applicant submitted that Leave to Appeal should be granted as the
Respondent failed to properly terminate the agreement. In the Amended
Application for Leave to Appeal, the approach is enunciated as such:
‘Nowhere in the agreement is it stated that the mere default may result on
(sic) termination without prior notice or demand that in the event of default,
termination will follow. ’
[9] The Applicant further submits that once a party has exercised its election to either
terminate or enforce, and it elects to enforce, the party may not change that
election without acquiring another right to terminate.
[10] This is correct to a certain extent . As correctly stated by the Respondent in its
heads of argument, the Supreme Court of Appeal held as follows in the case of
Primat Construction CC v Nelson Mandela Bay Metropolitan Municipality1:
‘...even where the aggrieved party had elected to abide by the contract, in
the face of persistent breach despite the opportunity to relent, the aggrieved
party may elect to cancel. Where the defaulting party is clearly determined
not to purge the breach, and shows and unequivocally intention not to be
bound by the contract, the aggrieved party may abandon his or her futile
attempt to claim performance and change the election, claiming cancelation
and damages . …’
[11] The Applicant was therefore at liberty t o change its election from enforcement to
cancellation, as it effectively did on the 2 9th of August 202 3.
[12] During argument in Court, Counsel for the Applicant stated that the common law
position is that, in the absence of an explicit indication in the agreement that
breach will result in termination without further notice, a letter of demand requiring
the breac h to be purged, is a necessity.
1 2017 (5) SA 420 (SCA) at Para 25
[13] This Court respectfully disagrees with the submissions made by Counsel. At the
heart of this argument lies an interpretation of Clause 9 and 10 of the Agreement
entered into between the parties .
[14] Clause 9 of the Agreement provides inter alia :
‘Each of the following is an event of default (“Event of Default”) :
(a) you fail to make payment when due, or if we do not receive payment
when due for any reason, including any deposit or fees, and
including any costs or fees associated with the preparation, drafting ,
or securing any of the Units, this Master Agreement, or a Schedule;
(b) ...
(c) ...
(d) you fail to observe or perform a covenant, agreement or warranty
and the failure continues for ten (10) calendar days after written
notice to you.’
[15] Clause 10 of the Agreement , in return, provides that if an event of default occurs
the Respondent will have the remedies available to it in terms of the Agreement
and in terms of any law or otherwise. These remedies include enforc ing specific
performance or declar ing the Agreement in default and cancel ling same or
terminati ng of the right to use any Unit.
[16] Having a holistic view of the contents of the Agreement, it is evident that the
parties intended to draw a distinction betw een an instance where breach entails a
failure to pay in terms of the Agreement as opposed to the failure to observe or
perform a ‘covenant, agreement or warranty’. Failure to pay in terms of the
agreement is a ground for immediate termination.
[17] In the interpretation of this clause, t his Court is fortified by the judgment in Natal
Joint Municipal Pension Fund v Endumeni Municipality2 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 documen t as a whole 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; the 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, n ot 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, sensible 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 one 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)
[18] The maxim expression unius est exclusion alterius (‘the expression of one is the
exclusion of the other’) will apply in casu. In the case of Bruwer v Nova Rist
Partners Ltd3 the Court stated the following:
2 2012 (4) SA 593 (SCA) 12 paragraph 18
‘Just as the presence of every word of phrase in the contract is relevant to its
interpretation, so too may the absence of certain wor ds, phrases or
provisions from the contract be relevant in interpretation ... Another way of
stating this rule is expressio unius est e xclusio alterius , which means that, if
a document contains a special reference to a particular thing, it is prima facie
assumed that the parties intended to exclude everything else , even that
which would have been implied in the circumstances, had it not b een for the
special reference.’
[19] It could not have been the intention of the parties that every incidence of breach
must be met with notification prior to cancelation. For this reason, a failure to pay
was specifically excluded and contained in a separ ate clause.
[20] It is clear from the papers filed on record that the Respondent informed the
Applicant on no less than three occasions that the Agreement is cancelled due to
the Applicant ’s default. In this Court’s view, the actions of the Respondent
accorded with the trite provisions of the Agreement. The procedure adopted by
the Respondent cannot be faulted and the Agreement was properly cancelled .
[21] As to the common law position pertaining to demand and cancellation , this was
extensively dealt with in the matter of Scoin Trading (Pty) LTD v Bernstein N.O.4
where the Supreme Court of Appeal said:
‘[11] The starting point I therefore an examination of the meaning of mora.
The term mora simply means delay of defaul t. The concept is employed
when the consequences of failure to perform a contractual obligation within
the agreed time are determined . The date may be stipulated either
expressly or tacitly and there must be certainty as to when it will arrive.
Thus, when the contract fixes time for performance, mora (mora ex re) arises
3 2011 (1) SA 234 (GSJ) at par 27
4 2011 (2) SA 118 (SCA) at [11] and further
from the contract itself and no demand (interpellatio) is necessary to place
the debtor in mora. The fixed time, figuratively, makes the demand that
would otherwise be had to be made by the creditor.
[12] In contrast, where the contract does not contain an express or tacit
stipulation in regard to the date when performance is due, a demand
(interpellatio) becomes necessary to put the debtor in mora. This is referred
to as mora ex persona. The debtor does not necessarily fall into mora if he
or she does not perform immediately or within a reasonable time. In this
situation, mora arises only upon failure by the debtor to comply with a valid
demand by the creditor. Mora ex persona is so referred to si nce it requires
an act of a person (the creditor) to bring it into existence.
[13] In this case it has been established that the date agreed for the
payment of the balance of the purchase price was 31 December, and that
the debt was not paid on this date . It is therefore a situation where mora ex
re applies.
[22] The common law position therefore do es not assist the Applicant.
[23] In MEC Health, Eastern Cape v Mkhitha5 the Supreme Court of Appeal
stated the following (reference to other authorities omitted):
‘[16] Once again it is necessary to say that leave to appeal, especially to
this court, must not be granted unless there truly is a reasonable prospect
of success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes
it clear that leave to appeal may only be given where the judge concerned
is of the opinion that the appeal would have a reasonable prospect of
success; or there is some other compelling reason why it should be
heard.
5 MEG Health, Eastern Cape v Mkhitha (1221/15) [2016] ZASCA 176 (25 November 2016)
[17] 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. ’
[24] This court is of the view that the Appeal has no reasonable prospect or realistic
chance of success, nor is there some other compelling reason why the appeal
should be heard. The Application for Leave to Appeal therefore stands to be
dismissed with costs.
The Section 18(3) application:
[25] For an Applicant to succeed in terms of Section 18(3) of the Superior Courts Act ,
the Applicant bears the heavy onus to show6:
25.1 that exceptional circumstances exist;
25.2 on a balance of probabilities:
24.2.1 the presence of irreparable harm to the applicant if the relief is
not granted; and
24.2.2 the absence of irreparable harm to the Respondent if the relief
is granted .
[26] The Applicant raised the objection that the matter is not urgent. This Court
disagrees. Having regard to the provisions of Section 18, it is evident that
applications of this nature should be dealt with as expeditiously as possible and at
the earliest opportunity. The Applicant’s objection must therefore fail.
6 Incubeta Holdings (Pty) Ltd v Ellis 2014 (3) SA 189 (G J) at Para 16
[27] The Respondent has placed evidence before the Court that they endeavoured to
inspect the Units to no avail. The Respondent requires the Court to draw a
negative inference from this failure and / or refusal by the Applicant to grant
access to the said Units. This Court tends to agree.
[28] The Respondent has also placed evidence before court that the Applicant fails to
maintain the Units. This evidence was not rebutted by evidence to the contrary.
Once again, the Court shares the view of the Respondent that a negative
inference should be drawn from the evasive manner in which the Opposing
affidavit was drafted. The Applicant elected to provide a laconic and , more often
than not, over technical response to the Respondent’s allegations but nonetheless
fails to provide any evidence in rebuttal. Especially in respect of the insurance of
the Units and the continued effective maintenance which are of great concern to
the Respondent.
[29] In this Court’s view, exceptional circumstances have been shown to exists –
especially since the Respondent’s ownership stands uncontested, and the
Applicant has the evident intention to continue utilising the Respondent’s property.
[30] Insofar as the matter is of a vindicatory nature, irreparable harm is assumed in
favour of the Respondent. The Applicant was therefore obliged to provide the
Court with the appropriate facts from which the inference can be drawn that it will
suffer irreparable harm and to reb ut the allegations made by the Respondent in
this regard . This was not done. The Applicant essentially alleges that he must
continue to make use of the Units although he is not the owner thereof . This
places the security of the Applicant at risk.
[31] It cannot be said that the Applicant will suffer irreparable harm. No proof in this
regard was submitted , safe to state that the Applicant utilises the Respondent’s
assets to generate an income , which income will be potentially lost . The threshold
to be satisfied is ‘irreparable harm’ and not simply ‘harm’. As such, this Court
agrees with the Respondent tha t it will suffer irreparable harm , and that the
Applicant will not suffer irreparable harm .
[32] The Application in terms of Section 18(3) must therefore be granted. Insofar as
the Respondent ha s provided an undertaking that they will not dispose of the Units
pending finalisation of the Appeal, the order will confirm same accordingly.
Costs:
[33] The Respondent is substantially successful in both the opposition of the
Application for Leave to Appea l as well as the Section 18(3) application. The
Applicant has consented to attorney and client scale costs in the event of legal
proceedings being necessitated. Costs is therefore awarded in favour of the
Respondent accordingly.
Order:
[34] In the result the following order is made:
34.1 Leave to Appeal is refused.
34.2 The requirements of the Rules of the Court relating to service and
time periods are dispensed with and the application is heard as one
of urgency in terms of Rule 6(12) of the Uni form Rules of Court.
34.3 An order in terms of Section 18(3) directing and declaring that the
operation and execution of the judgment and order granted on the 3rd
of February 2025, is not suspending pending:
34.3.1 the finalization of the application for leave to appeal launched
by the Applicant on the 4 February 2025.
34.3.2 the expiry of the time period for the launching of any
subsequent appeal(s) by the Applicant.
34.4 An order directing and authorizing the Sheriff of the High Court to
take immediate possession of the Units listed below, from wherever
he / she may find it, and to retain possession of the Units until
delivered to the Respondent or its duly authorised representative:
34.4.1 a Caterpillar Skid Steer Loader 226 with ser ial number: D[...]
(the ‘Skid Steer’)
34.4.2 a Caterpillar Articulated Truck 730 with serial number: 3[...];
34.4.3 a Caterpillar Articulated Truck 730 with serial number: 3[...]2 ;
and
34.4.4 a Caterpillar Articulated Truck 730 with serial number: 3[...]3 .
(the ‘Units’)
34.5 In accordance with its undertaking t he Respondent is authorised to
retain possession of the Units at its location to be elected by the
Respondent, where the Units shall be held in safekeeping and such
Units shall not be sol d by the Respondent until the appeal process
has been finalised, alternatively, until the prescribed time period for
any future or subsequent appeals has lapsed.
34.6 The Applicant is ordered to pay the costs of the Leave to Appeal
application and the Section 18(3) application on an attorney and
client scale.
M BRESLER AJ
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES :
FOR THE APPLICANT : Adv. C Watt -Pringle SC
Adv. S Monyela
INSTRUCTED BY : Sithole Risuna Attorneys
Polokwane
info@sitholeinc.co.za
FOR THE RESPONDENT : Adv. PG Louw
INSTRUCTED BY : Werksmans Attorneys
Sandton
zoosthuizen@werksmans.com
DATE OF HEARING : 3 March 2025
DATE OF JUDGMENT : 11 March 2025