IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2025-115482



In the matter between –

HLABANG TRADING ENTERPRISE (PTY) LTD Applicant

And

CATERPILLAR FINANCIAL SERVICES (PTY) LTD First Respondent
MRS MIRINDA GALANT SHERIFF MTUBATUBA Second Respondent
MR GRADUATE NDLOVU SHERIFF LOWER UMFOLOZI Third Respondent

In re the ex parte application between –


(1) REPORTABLE: NO.
(2) OF INTEREST TO OTHER JUDGES: NO.
(3) JUDGMENT : 3 AUGUST 2025


..........................

2

CATERPILLAR FINANCIAL SERVICES (PTY) LTD Applicant
and
HLABANG TRADING ENTERPRISE (PTY) LTD Respondent
*

SNYCKERS AJ


JUDGMENT



INTRODUCTION
1. This application came before me in the urgent court week of 28 July 2025. It
was argued and heard on 30 July 2025. Argument consumed the best part of
the day on 30 July 2025. I reserved judgment at the end of argument.

2. The application concerns the reconsideration, under Rule 6(12)(c), of an order
granted ex parte in favour of Caterpillar Financial Services (Pty) Ltd (“Catfin”),
by Raubenheimer AJ, on 10 June 2025.

3. The order was against Hlabang Trading Enterprise (Pty) Ltd. It concerned
repossession of yellow plant (3 heavy industrial yellow plant vehicles) owned
and financed by Catfin and delivered to and used by Hlabang under an
instalment sale agreement (the MISA), on the strength of cancellation for
default in terms of the MISA.

3

4. Instead of enrolling the reconsideration by way of delivery of an answering
affidavit to the initial ex parte application,1 Hlabang launched a fresh and
independent urgent application, this application. It was an application on notice
of motion with founding affidavit, which replied, by way of a replying affidavit, to
the papers that Catfin filed in response to the Hlabang founding affidavit. It
sought, not only the reconsideration of the order granted ex parte and its setting
aside, but substantive relief in the form essentially of return of the repossessed
machines. Catfin objected to this methodology. It conferred a procedural
advantage on Hlabang, allowing it a “reply” to Catfin’s reply in the
reconsideration application, when the substantive relief sought would in any
event flow naturally from success in setting aside the ex parte order. As a result,
the position adopted in the papers and heads of argument for Catfin was that
the contents of the Hlabang “reply” should not be taken into account, especially
as it overwhelmingly dealt with the reconsideration issues only , as the
proverbial “second bite”.

5. There is much to be said for Catfin’s objection. A consideration of the nature of
Hlabang’s application , however, suggests it not to be as contrived as
suggested. Hlabang contends that the ex parte order ought not to have been
granted, mainly because of material non -disclosures and an inadequate case
having been made out for failing to proceed on notice to Hlabang. It also
contends that Catfin acted unlawfully in the manner in which it “executed” the
repossession on the strength of the ex parte order. It raises various bases upon
which it alleges that the conduct of “execution” was unlawful, particularly that

1 See Afgri Grain Marketing (Pty) Ltd v Trustees, Copenship Bulkers A/S (in liquidation) 2024 (1) SA 373
(SCA) paras 13 and 14.

4

no warrant had been obtained, and that the nature of the process was not
adequately explained to individuals in possession of the machines in a
language they could understand. This meant that, according to Hlabang, it had
an independent cause of action for return of the machines, quite apart from the
question whether the ex parte order fell to be set aside. In argument before me
it was clarified and confirmed with Mr Ngcukaitobi, who appeared with Ms
Naidoo for Hlabang, that what this independent cause of action in essence
amounted to was a mandament van spolie , in that it sought restoration of
possession unlawfully disturbed by the “execution”. This meant that the
application before me was really two proceedings rolled up in one – the
reconsideration proceedings, and a spoliation application, and the rolled up
single urgent application was the most appropriate method of proceeding.

6. I think this way of treating the application(s) makes sense. It ultimately did not
matter before me, as Mr Kairinos, who appeared with Mr Van der Merwe for
Catfin, was content to argue the applications thus, and for me to consider all
the affidavits filed, including further supplementary affidavits filed both by
Hlabang and by Catfin. This I did.

7. Catfin contended that the case on unlawful execution rested on a basic
fallacious premise, that what was at issue was “execution” or “attachment”,
instead of simply repossession by an owner as a contractual right , as
authorised by a court order.

8. I am inclined to agree with Catfin on this. It is, however, given the conclusion
that I reach, unnecessary for me to determine the spoliation application.

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9. This kind of reconsideration application must make out its own case for
urgency – independent of the urgency that may have attached to the initial
application. The parties were ad idem that this was the law.

10. I am satisfied that a sufficient case for urgency is made out and that notice in
the circumstances was reasonable , or at least not so unreasonable as to
deprive Hlabang of its entitlement to have its application heard in urgent court.
Catfin should be commended for the work it produced in answering the papers,
and Hlabang in turn for the work it produced in reply. In this I refer to quality, not
bulk. Both sets of counsel supplied me with extensive heads of argument.
These were welcome in assisting me to re fresh and supplement my notes in
preparing this judgment after a very crowded urgent court week. They were
also, as were the submissions before me, helpful, to the point and of a high
standard. I am grateful for this.

RECONSIDERATION, MERITS AND DISCRETION

11. A good starting point is the following from Wilson J in Le Grellier & Another v
Kamionski: 2
“Reconsideration under Rule 6(12) (c) encompasses a full rehearing of the
applicant’s case with the benefit of the respondent’s affidavits and legal
submissions. A court sitting in reconsideration of an order granted in the
respondent’s absence must give t he order that the court that heard the
applicant ex parte would have given if it had heard from the respondent.”


2 2023 JDR 4369 (GJ) para 6.

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12. The Supreme Court of Appeal explained the two dimensions in such
reconsiderations as follows in The Fonarun Naree: 3

“If an affidavit is filed in support of the application for reconsideration, then
the party that obtained the order is entitled to deliver a reply thereto, subject
to the usual limitations applicable to replying affidavits. When that is done,
and the party seeking reconsideration does not argue a preliminary point at
the outset that the founding affidavit did not make out a case for relief, the
case must be argued on all the factual material before the judge dealing with
the reconsideration proceedings. That material may be significantly more
extensive and the nature of the issues may have changed as a result of the
execution of the original ex parte order.”

13. So there are two stages to the enquiry – a potential “preliminary point” at the
outset that the founding affidavit did not make out a case for relief, and a
resolution of the application on the merits (applying the rules of assessment of
versions in motion proceedings), now with the benefit of the papers filed by the
respondent (the party seeking reconsideration – Hlabang in the instant case).

14. The initial inquiry can further be divided into two distinct potential attacks on the
order -

14.1. The respondent (party seeking reconsideration) may contend that
the applicant had failed to disclose material facts that may have
made a difference to the assessment by the ex parte judge, and
had breached the duty of utmost good faith burdening an ex parte
applicant; or


3 The Fonarun Naree: Afgri Grain Marketing (Pty) Ltd v Trustees Copanship Bulkers A/S (in liquidation) &
Others 2024 (1) SA 373 (SCA) para 14.

7

14.2. The respondent may contend that the applicant had not made out
a sufficient case on the papers in the ex parte application to have
warranted dispensing with notice to the respondent – that the
affidavit in support of the ex parte application did not contain
“evidence to support a conclusion that the giving of notice to the
defendant and permitting him to defend the application would
defeat the purpose of the application.” 4

15. Hlabang relies on both these bases to contend that Catfin had abused the ex
parte procedure in the present case.

16. The main question debated before me, and my main concern in determining
this application, was the extent to which a very strong (if not overwhelming)
case on the merits in favour of Catfin could overcome defects in relation to its
employment of the ex parte process in obtaining its initial order.

17. The jurisprudence contai ns two strands. There is a strand that strongly
suggests that, once the respondent (party seeking reconsideration) persuades
the court either that the ex parte application contained material non-disclosures
that would, or at least reasonably could, have led the judge to have declined to
grant the relief if disclosed, or that the allegations in the founding papers in the
ex parte application seeking to justify why no notice was given to the
respondent were inadequate, then the reconsidering court should set aside the

4 Turner AJ (Adams J concurring) in Glo-See Chemicals CC v Hulley [2023] ZAGPJHC 621 (GJ) (5 June 2023)
para 29, having cited and endorsed the test as set out in the commentary by Erasmus et al Superior Court
Practice.

8

ex parte order without considering the merits at all.5 There is also a strand that
suggests that an overall discretion remain s whether to set aside the ex parte
order and that retaining the order in place may be appropriate in certain cases
even if ex parte relief ought not to have been granted.6

18. Sutherland DJP in Mazetti 7 expressed the question in tentative (or guarded)
terms as follows:

“I have yet to deal with the substantive merits, if any, of the application
and, strictly speaking, in the light of the conclusions to which I have
already come, it could be argued it is unnecessary because, were the
substantive relief sought, either in whole or in part, to have been
meritorious, the proper route to obtaining such relief would, in any event,
have been proceedings launched upon proper notice” (my emphasis).

19. The reason this question assumes such prominence in the instant case is
because, on my assessment, Hlabang has a strong case for setting aside the
ex parte order on the basis of the absence of allegations sufficient to have
justified dispensing with notice, and to a lesser degree material non-disclosure,
whereas Catfin may have a strong case for saying the merits are
overwhelmingly in favour of the relief it obtained ex parte.

20. The closest one comes to guidance on the exer cise of a discretion despite a
finding that relief ought not to have bee n sought or gr anted ex parte is the

5 See, for example, in particular Emerald Capital (Pty) Ltd v Ace Auto Salvage CC 2023 JDR 3282 (GJ)
Senyatsi J, para 17; Mokweni v Plaatjies [2023] ZAWCC 266, para 51; Caterpillar Financial Services (Pty)
Ltd v Khongo Investments (Pty) Ltd [2025] ZAGPJHC 692 (30 June 2025) paras 22 and 23.
6 Schlesinger v Schlesinger 1979 (4) SA 342 (W) at 348-9; Insamcor (Pty) Ltd v Dorbyl Light and General
Engineering (Pty) Ltd 2006 (5) SA 306 (W), paras 31 to 32, citing Jewel Net CC v Arthur J Kaplan (Pty) Ltd
2002 BIP 194 (W) para 67.

2002 BIP 194 (W) para 67.
7 Mazetti Management Services (Pty) Ltd & Another v Amabhungane Centre for Investigative Journalism
NPC & Others 2023 (6) SA 578 (GJ) para 17.

9

adumbration of factors set out in the Arthur Kaplan case as endorse d in the
Insamcor case:8

(a) The extent to which the rule has been breached;
(b) The reasons for non-disclosure;
(c) The extent to which the court may have been influenced by
proper disclosure in the application;
(d) The consequences from the point of doing justice between the
parties of denying relief in the application for the order;
(e) The interests of innocent third parties.

21. Mr Kairinos stressed factor (d) above before me.

22. The problem in the present case with this is that what was pressed before me
in relation to factor (d) was n othing more than the strength of Catfin’s case for
repossession on the basis of the absence of a credible defence against
cancellation and repossession under the MISA.

23. I notice in the cases I refer to above (in the second strand) a pre-occupation
with material non-disclosures (as the basis for supporting the setting aside of
the ex parte order) against other factors that would favour keeping the order in
place despite material non -disclosures. Schlesinger for example talks of “very
cogent practical reasons ” in the formulation that has become seminal on this
issue:


8 See footnote 6.

10


“It appears to me that unless there are very cogent practical reasons why
an order should not be rescinded, the Court will always frown on an order
obtained ex parte on incomplete information and will set it aside even if
relief could be obtained on a subsequent application by the same
applicant.” 9

24. I am not sure what “very cogent practical reasons” would be. They can hardly,
in my view, be the mere inevitability of relief being granted to the party that had
obtained the order ex parte should it go to the trouble of seeking the order on
notice (i.e nothing more than a strong case). If that were so, then little would be
left of the ind ependence of the first dimension , as the creditor would often be
able to persuade the reconsideration court that the debtor has no credible
defence and proceeding on n otice would really simply be a wa ste o f
everybody’s time and resources . It seems to me what was conte mplated in
Schlesinger were practical considerations such as that restoration of the status
quo ante would be impossible, or that it may wreak disproportionate harm on
the creditor (I can think of a case where the creditor had a very strong case for
approaching the court without notice to the debtor, based on well -established
fears of dissipation or destruction, yet was guilty of material non-disclosures in
seeking ex parte relief. It may be that in some cases the severity of the non -
disclosure would be outweighed by th e consequences of restoration of the
status quo ante. This would really simply be paying heed to factor (d) listed in

9 Schlessinger see footnote 6 at 350B-C.

11

Arthur Kaplan. But that is a far cry from saying “where’s the defence? What’s
the point of insisting on notice anyway? We will inevitably get our relief”.)

25. Less is said in these cases (in both strands referred to above) about the need
to upset the ex parte order despite any other considerations when the reason
for doing so is not material non -disclosure, but the failure to have made out a
case for why no notice was given to the respondent – i.e. why it was appropriate
to seek ex parte relief. Khongo,10 a case with obvious relevance to the in stant
case, and one heavily relied upon by Hlabang, is a clear example of regarding
the first strand thinking to be applicable even if the basis for set ting aside the
ex parte order is not so much material non-disclosure as a failure to have made
out the kind of case for failing to give notice as referred to in GloSee.11

26. The reason I draw this distinction is because, on my assessment, the case for
material non-disclosure is weaker than the case for the failure to have made
out a proper case for failing to give notice. That latter case is very strong.

27. I believe that material non-disclosures weigh more heavily in the Schlesinger /
Arthur Kaplan / Insamcor discretion than a failure to have made out a case for
using the ex parte procedure. Part of the reason is that th e judge hearing the
ex parte application is in as good a position to assess the ad equacy o f the
allegations as is the reconsideration judge, who is in a sense second-guessing
the original assessment. But there is a critical difference, as appears from the
passage quoted from Le Grellier above: the reconsideration judge has the

10 See footnote 5: Khongo paras 22 and 23.
11 See footnote 4.

12

benefit of the respondent’s submissions (not only the factual material put up in
answer). This often makes all the difference, which is precisely why one affords
someone audi rights.

28. I would think that, whatever scope there is for discretionary refusal to set aside
the ex parte order despite coming to a conclusion that it ought not to have been
sought or granted in the first place, this can never be based only on the merits
of the creditor’s case. I am not persuaded that the first strand referred to above
means there is no discretion at all. I believe the factors set out in Arthur Kaplan
do still operate and there is a discretion , and I have said how the case may
differ depending on whether one is dealing with material non-disclosure or a
failure to have made out a case for ex parte relief. There must, however, be
something more to put on the creditor’s side of the ledger than the merits of its
case, something which is absent in this case. Mr Kairinos suggested one could
apply the healing balm of a cost order to express censure, in the event that the
debtor has no defence and where insisting on another round on notice would
seem to be a waste of time and money . I think that would potentially set a
dangerous precedent. I can see big finance houses buying their ex parte orders
with cost awards. This court is not selling.

29. So, in the present case, if Hlabang succeeded in persuading me that the order
should not have been sought and g ranted ex parte, that would, in my view,
given the circumstances here, be sufficient to set as ide the order, even if I
agreed with Catfin that Hlabang had no defence on the merits. Since Hlabang
did indeed succeed on this score, I do not consider the merits any further, as

13

this would, in light of my conclusion and order, be inappropriate ly anticipating
what another court should assess.12

NON-DISCLOSURES AND A CASE FOR EX PARTE RELIEF

30. On 28 March 202 5, t his court (Pretorius J) , having heard argument in a
reconsideration application on 27 March 2025, handed down an order setting
aside an ex parte order granted to Catfin on 11 February 2025, and ordering
Catfin to pay costs including costs of two counsel on scale C. The debtor was
an entity called Khongo. Catfin’s attorneys were the attorneys of record in this
matter.

31. Reasons were so ught on 1 April 2025 and provided by way of the Khongo
judgment13 on 30 June 2025.

32. The order was set aside mainly on two bases. The first was that Catfin had
failed to set out the interactions between the pa rties leading up to its
cancellation, including the payment his tory of Khongo. This was sufficiently
material on the applicable tests. See in this r egard the formulation by a
unanimous Supreme Court of Appeal in Recycling:14
“The applicant must thus be scrupulously fair in presenting her own case.
She must also speak for the absent party by disclosing all relevant facts
she knows or reasonably expects the absent party would want placed
before the court. The applicant must disclose and deal fairly with any
defences of which she is aware or which she may reasonably anticipate.
She must disclose all relevant adverse material that the absent
respondent might have put up in opposition to the order. Sh e must also

12 See the remarks of Senyatsi J in Emerald Capital, footnote 5 above, paras 17 and 18.
13 See footnote 5 above.
14 Recycling and Economic Development Initiative of South Africa NPC v Minister of Environmental Affairs
2019 (3) SA 251 (SCA) para 47.

14

exercise due care and make such enquiries and conduct such
investigations as are reasonable in the circumstances before seeking ex
parte relief. She may not refrain from disclosing matter asserted by the
absent party because she believes it to be untrue. And even where the
ex parte applicant has endeavoured in good faith to discharge her duty,
she will be held to have fallen short if the court finds that matter she
regarded as irrelevant was sufficiently material to require disclosure. The
test is objective.”

33. The second basis for setting aside the order in Khongo was a finding that there
had been failure of the test enunciated in Glosee relating to the need to employ
the ex parte procedure.

34. In essence, the allegations relating to fears of spiriting away the machines, and
removing their tracking devices, were boiler-plate general speculative
assertions that were not tied to the particular respondent, Khongo, in any way.

35. This was held to have been entirely inadequate.15

36. There was, in this last regard , what the court termed “a more fundamental
twist”:16

“But there is a more fundamental twist in the present matter.
Catfin notified Khongo in correspondence before bringing the
application that it would bring an urgent application for, what
appears to be, similar relief than what it sought in the ex parte
application. Despite notifying Khongo of its intention to bring the
application, Catfin elected not to give Khongo notice of the
application itself which it then set down for hearing almost two
weeks thereafter. The fact that Catfin elected to notif y Khongo
that it would bring an urgent application militates against its
contention that notice of the application would have defeated the
purpose of the order. This is not the conduct of someone who

15 Khongo paras 8, 25 and 26.
16 Khongo para 27.

15

genuinely fears that a possessor of goods would dissipate,
destroy, move or hide property upon notice of an application,”


37. In the case before me, Mr Ngcukaitobi contended that the failure to set out the
full history of interactions with Hlabang mirrored that in Khongo. Mr Kairinos
pointed to a material difference: in Khongo, the debtor was contending, to the
knowledge of Catfin, that it had in fact paid off the arrears before Catfin
cancelled, and that the additional amount that Catfin had levied, and that
Khongo had not paid, was not something Catfin was entitled to levy, meaning
that Catfin was not in fact entitled to cancel. Although this contention appeared
objectively to have lacked merit on a consideration of the MISA in Khongo (I do
not pronounce on this), it was clea rly some thing that fell well within the
Recycling test as requiring disclosure, the absence of which would be material.

38. There was no such dispute in this case.17 There were occasions when Hlabang
failed to pay, and then paid later. One of the three January debit orders was not
honoured, later debit orders were honoured, but then in April two debit orders
were again dishonoured. The January debt remained unpaid. All debit orders in
May were dish onoured. The first serious demand letter was sent on 17
February 2025. Hlabang says it made certain payments to Barloworld, the entity
to which it had paid the deposit and which is the sup plier of the machines, 18
after that . Be all that as it may, by the time of cancellation, 28 May 2025,

17 Since the filing of the Hlabang application, its case had become that cancellation was not competent in
the circumstances. Some of the bases appeared for the first time in argument before me. But until the
application was brought, Hlabang did not dispute Catfin’s right to cancel. Indeed, it requested a
“reinstallation” of the MISA on 8 July, after cancellation, and after the ex parte order had been obtained.

18 Catfin says it is not Barloworld and Barloworld is not its agent for payment. It does not specifically say it
was unaware of these payments.

16

Hlabang was not adopting the attitude that there was no right to cancel, or that
it had in fact cleared the arrears. Nor that the acceleration clause had not been
triggered, re ndering the full amou nt of some R7,85m payable. Instead, it
directed a letter to Catfin on 28 May 2025, the same day as the cancellation,
some ten minutes after receipt of the cancellation email, to the following effect:

“Hi Johan.
Please note that the government of SA as my clients have been unable
to make any payments to any suppliers in KZN due to their BAS system
changes for the last three months. I have been making other
arrangements to make payments for my machines as I am cont inuing
using them on site and this month the 7th debit orders were returned.
And on the 1st I will make such payments lagging behind.”

39. There were no further communications b etween the parties between this
communication and the launch of the ex parte application on 5 June 2025. In
the meantime, the 1st of June came and went, without any payment or further
communication from Hlabang.

40. I do not believe any of the communications to which Mr Ngcukaitobi referred
could be classed as “payment arrangements”. At best for Hlabang, there were
previous occasions upon which it partially cleared previous defaults, and Catfin
held back on cancellation despite an entitlement under the MISA to cancel and
despite its February demand.

17

41. This case contained two instances of what Pretorius J in Khongo called the
“more fun damental twist ” – intimations or threats from Catfin that it would
proceed to court to repossess the machines. The first was in a demand letter
dated 17 February 2025 and the second was in the let ter of cancellation of 28
May 2025. Both of these were attached to the founding papers in the ex parte
order, although the affidavit did not specifically draw attention to these threats.

42. The ex parte order was granted on 10 June 2025. In a somewhat tragic twist,
Hlabang made the payment that it had promised on 28 May, on 1 0 June –
although I understand this did not include the unpaid January debt. By then, the
dogs had been let slip, and had caught the fox. And of course the debt had now
been accelerated to R7,85m.

43. Given the 28 May letter from Hlabang, I do not believe that the earlier history in
relation to default and payment should reasonably have been felt by Catfin to
have been relevant enough to a case Hlabang might seek to advance to require
disclosure in the ex parte proceedings. This is, however, subject to one rather
important caveat. As the post-balance sheet event on 10 Ju ne demonstrated,
and as the previous history appeared to suggest, Hlabang was the kind of
debtor that made efforts to regularise default, to keep the hounds off, so that it
could continue with its business. The machines were its business. This might
well have been thought relevant, by the ex parte judge, to the question whether
Catfin genuinely feared Hlabang might run off with the machines, or strip them
naked, the moment it was given any notice of court procee dings. This was the
reasoning employed in Khongo, albeit in that case relating to disputed debts,19

19 “This is not the conduct of a recalcitrant debtor” – Khongo para 33.

18

which reasoning I must also employ unless I believe it to be clearly wrong, and
I do not.

44. Furthermore, the reasoning relating to the “more fundamental twist” in Khongo
is of a fortiori application in this case. I do not find such reasoning to be clearly
wrong. In fact, with respect, it is persuasive.

45. What is most tr oubling is this. In Khongo, Catfin advanced fourteen short
paragraphs adumbrating its fears that were said to justify dispensing with
notice. These are quoted in paragraph 8 of the judgment, and dealt with in
paragraph 25. These paragraphs were repeated verbatim in this ex parte
application – the only change being that illegal mining was now feared in Mtuba-
tuba, not Phalaborwa. These allegations were not in any way made peculiar to
Hlabang, as they were not made peculiar to Khongo.

46. There were some additional allegat ions relating to Hlabang in this application.
The 28 May letter called upon Hlabang to advise of the whereabouts of the
machines so that they could be repossessed, and this was not addressed in the
letter 10 minutes later promising payment. But the l etter promising payment
could not reasonably have been thought to be reconcilable with acquiescence
in the repossession of the machines ; it was obviously a plea from a debtor to
be given an opportunity to pa y, to enable it to continue the relationship and its
business. There was no response to this at all from Catfin, least of all something
to the effect of “quite apart from any promises to pay, where are the machines?”

47. In addition, the founding papers in the ex parte application alleged that the UMS
(trackers) in the machines routinely ‘pinged’ their location once a day, and that

19

the last ‘pings’ were received on 1 June. Oddly, despite what this appeared to
imply, the affidavit did not proceed to say the inference was drawn that the UMS
had been removed or disabled, and that efforts to engage the UMS by Catfin
after 1 June were unsuccessful. Hlabang furnished evidence in reply that the
UMS were active at all times. Indeed, in Catfin ’s heads of argument , the
following disavowal is offered:

“It was not Catfin ’s case that the UMS systems were removed or
tampered with in the founding affidavit, but that there was a risk that
same could eventuate.”

48. This was one of the assertions repeated verbatim from Khongo.

49. Catfin did not contend, in these proceedings, that it was unfair to say it simply
repeated the general speculative allegations from Khongo wholesale and
verbatim in this case. The Khongo judgment is not mentioned in Catfin’s heads
of argument.

50. This is a rather disconcer ting modus operandi. Mr Ngcukaitobi referred me to
the c ensure such printing press affidavits attracted from a full court of this
Division in a different context, in Lembore.20

51. There is the added disconcerting feature, that these allegations were employed
again in an ex parte application by Catfin , with the same attor neys of record,
after the ex parte order had been handed down in Khongo and while reasons

20 Lembore & Others v Minister of Home Affairs & Others 2024 (5) SA 251 (GJ), paras 92 and 93.

20

were awaited for the order. I did not have the papers in Khongo, but it appears
from the judgment that the boilerplate and speculative nature of the allegations
relating to Catfin ’s fears featured prominently in argument in the matter. One
would have thought the prudent thing for Catfin to do was at least to see
whether the court upheld these arguments before rep eating the precise same
speculative boilerplate allegations in another yellow plant ex parte
repossession a few months later. Or, if this were to have been ri sked, to have
drawn the attention of the court to the order in Khongo and the fact that reasons
were still awaited. This may well have given the ex parte judge some cause for
pause.

52. The Caselines file includes the pap ers and orde rs in the matter of Catfin v
Musor 2025-023190. Suffice it to say that an examination of the founding
papers in Musor reveals a striking similarity between the boilerplate, speculative
and generalised assertions there, and those employed in Khongo and here with
respect to Hlabang. There are some differences with respect to activity reflected
by the UMS in Musor but also no suggestion that it was clear the UMS had been
removed.

53. Musor yielded an ex parte order, granted by Mahomed J, on 25 February 2025.
A reconsideration application was brought and struck from the roll “for a lack of
urgency” on 28 March 2025, by Pretorius J (I am told this was the same
Pretorius J who handed down the judgment in Khongo and who had given his
order in reconsideration in Khongo, also on 28 March 2025).

54. This cannot begin to suggest that Pretori us J was satisfied with the ex parte
order in Musor. All it suggests is that the learned judge entertained the

21

reconsideration in Khongo as urgent , but declined to do so in Musor. Mr
Kairinos correctly did not seek to submit that I shou ld draw any inferences of
approval or endorsement of the ex parte order from the fact that the
reconsideration application had been struck from the roll for want of urgency.

55. But what Musor does confirm is that the ex parte affidavits for repossession of
yellow plant by Catfin on its MISAs look very, very similar, not only with respect
to the boilerplate assertions relating to why notice is not being given.

56. I would strongly urge Catfin, and its attorn eys, to approach future applications
for repossession on a more circumspect basis, and to bring them on an ex parte
basis only when there are facts, peculiar to the debtor in question, that truly
warrant dispensing with notice to them. At the very least , if the pra ctice is to
threaten court proceedings, only then to go ex parte, there will always be a
problem with the “more fundamental twist” in Khongo as an initial formidable
obstacle.

57. I agree with the submission that a punitive cost order is warranted in the
circumstances. I am not inclined to make it de bonis propriis . I am making it
against Catfin. It can take it up with its attorneys.

58. I was a sked to award costs ag ainst the attorneys de boni s propriis or
alternatively against Catfin on an attorney-client basis, on scale C, including the
costs of two counsel. I am mindful, however, of the admonition in Maano, that
attorney-and-client awards and awards on scale C are mutually exclusive
concepts:21

21 Maano Chemicals (Pty) Ltd v Rand Water SOC Ltd 2024 JDR 3663 (GJ) Goedhart J, para 61.

22


“The respondent, which has substantial ly succeeded in this matter,
seeks costs ‘on an attorney and client scale on Scale C’. This approach
conflates two distinct concepts. As a matter of law, Rule 67A does not
apply to costs on the attorney and client scale; it applies only to ‘fees
and disbursements as between party-and-party’.”


59. I accordingly make the following order:



59.1. The application is determined to be urgent.

59.2. The ex parte order granted by Raubenheimer AJ on 10 June 2025
under case number 2025-084594 is set aside.

59.3. The first respondent in this application, Caterpillar Financial
Services (Pty) Ltd, is directed to pay the costs of the application,
on an attorney-client basis, such costs to include the costs of two
counsel.


HEARD 30 JULY 2025
JUDGMENT 3 AUGUST 2025
For Applicant (respondent in ex parte):
T Ngcukaitobi SC

23

J Naidoo

Instructed by :
Saney Mbatha & Associates, Sandton

For Respondent (applicant in ex parte):

G Kairinos SC
C van der Merwe
(heads of argument prepared by C van der Merwe)

Instructed by:
Senekal Simmonds Inc
Bedfordview