REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
l) REPOR TABL E: NO
2) OF IN TEREST TO O THER JUDG ES: N O
3) REV ISED.
In the matter between:
11 Au g ust 2025
DATE
CATERPILLAR FINANCIAL SERVICES
SOUTH AFRICA (PTY) LTD
And
ELEPHAN-TE TRADING (PTY ) LTD
CASE NO:081166 /2023
DOH: 26 June 2025
DECIDED: 11 Augu st 2025
Applicant
Respondent
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______________________________________________________________________
ORDER
______________________________________________________________________
Order
1. The application for leave to appeal is refused.
2. The respondent must pay the applicant’s costs on a scale between attorney and client.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
Bam J
1. This is an application for leave to appeal the judgment and order of this court of 27
December 2024. For convenience, I refer to the parties as they were in the original
application. In this regard, the applicant refers to Caterpillar FSSA and the respondent,
to Elephan-te Trading (Pty) Ltd. The applicant opposes the application on various
grounds. These include the respondent’s failure to identify the test it has to meet for
leave to appeal and consequently, the failure to meet the test.
2. The respondent’s grounds of appeal are set out in its application for leave to appeal
and may be summarised thus:
(i) The court erred in identifying the issue in dispute.
(ii) The issue in dispute was whether the applicant is entitled to the return of the goods,
(identified as machines in the judgment) under the rei vindicatio principle, and
the interpretation of the instalment sale agreement, specifically clauses 10(b) to
10 (k).
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(iii) The Court erred in disregarding that the applicant had pleaded a valid defence of
contractual lien and that such right had to be protected. This ground is repeated
in ground 10.
(iv) The court erred in disregarding the amounts paid by the respondents towards the
instalment sale agreements. This ground is set out as two grounds as it raises
the same point in respect of the two instalment sale agreements.
(v) The court erred in finding that there are no formalities provided for termination of
the contract when clause (k) of the contract makes provision as follows:
‘Should any breach of our obligations and rights under clause 10(b) to 10(k) we will
approach the court of law and obtain a court order to permit us to exercise our rights.
(vi) The court erred in finding that the cancellation or termination of a contract is not
harmful and does not amount to self help. This ground is repeated 3 times.
The respondent concludes that it is in the interests of justice that the appeal be allowed
as contemplated in Section 17(1) (a) and (ii) of the Act.
Relevant legal principles
3. Legislative provision for applications for leave to appeal appears in the Section 17 (1)
(a) and (i) and (ii) of the Superior Courts Act1. Our senior courts have also pronounced
on the issue such that the legal principles governing applications for leave to appeal
have become trite. Those principles may be summarised thus: An applicant for leave
must satisfy the court that the appeal would have a reasonable prospect of success or
that there is some other compelling reason why the appeal should be heard2. In the
1 Act 10 of 2013.
2 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd (982/18) [2020] ZASCA 17; 2020 (5) SA 35 (SCA) (25 March
2020), paragraph 2.
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event the court is unpersuaded that there are prospects of success, it must still enquire
into whether there is a compelling reason to entertain the appeal. Here too the merits
remain vitally important and are often decisive3.
Respondent’s grounds
4. I now deal with the respondent’s grounds in turn.
(i) The court erred in identifying the issue in dispute.
(ii) The issue in dispute was whether the applicant is entitled to the return of the
goods, (identified as machines in the judgment) under the rei vindicatio principle,
and the interpretation of the instalment sale agreement, specifically clauses
10(b) to 10 (k).
5. I start with the first ground dealing with the court’s failure to identify the issue between
the parties. The respondent contends that the issue was not whether the applicant is
entitled to cancel the contract without first obtaining a court order. The point has no
merit. That this was indeed the issue is apparent from the respondent’s answering
affidavit, in paragraphs 18 and 23. Other than this only issue, the answering affidavit
contained no defence against the applicant’s case of rei vindicatio. There is no need to
repeat what is set out in the judgment on this issue. There is no prospect that another
court would come to a different conclusion.
6. As to the second point which suggests that the issue was whether the applicant is
3 Ramakatsa and Others v African National Congress and Another (Case No. 724/2019) [2021] ZASCA 31 (31 March
2021).
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entitled to the return of the goods relying on the rei vindicatio and the interpretation of
the Master Agreement, in particular clauses 10 (b) and 10 (k). The judgment deals with
this point and it concludes that the applicant is entitled to the return of the machines. It
would be supererogatory to go over that discussion and the court’s finding. There is no
merit to this ground and no prospect that another court would come to a different
conclusion.
(iii) the court erred in disregarding the defence of a lien;
(iv) The Court erred in disregarding that the amounts paid by the respondents towards
the instalment sale agreements.
(v) The court erred in finding that there are no formalities provided for termination of
the contract
7. As to the court having disregarded the defence of a lien, this was never the applicant’s
case. Nothing further need be said about a lien.
8. As to the court having disregarded the amounts paid by the respondent towards the
instalment agreements, it is not in dispute that the agreement requires the respondent
to pay all, and not some of the instalments, which the respondent on its own version
failed to do. In any event, the fact of having paid some instalments is not a defence
against the applicant’s claim of rei vindicatio. The judgment deals with what is required
of an applicant to succeed on a claim based on the rei vindicatio and it concludes that
the applicant in this case had met those requirements. The point lacks merit and there
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is no prospect that another court would come to a different conclusion.
9. On the question of formalities and the allegation that the court erred in finding that there
are no formalities, this was never an issue between the parties. The issue had always
been whether the applicant required a court order to cancel the agreement. That
question has been answered in the judgment. The respondent cannot re-litigate its
case. The point has no merit and there is no prospect that another court would come
to a different conclusion.
Conclusion
10. Based on all the reasoning set out in this judgment, leave to appeal must be
refused.
Order
1. The application for leave to appeal is refused.
2. The respondent must pay the applicant’s costs on a scale between attorney and client.
——————
N.N BAM (Ms)
JUDGE OF THE HIGH COURT,
GAUTENG DIVISION, PRETORIA
Date of Hearing: 26 June 2025
Date of Judgment: 11 August 2025
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Appearances:
Counsel for the Applicant: Adv N.J Horn
Instructed by: Werksmans Attorneys
c/o Serfontein, Viljoen & Swart
Attorneys
Brooklyn, Pretoria
Counsel for the Respondent: Adv M Mapila
Instructed by: T Radzilani Attorneys
Edenvale, Johannesburg