IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MIDDELBURG (LOCAL SEAT)
CASE NO: 5734/24
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO/-¥e$
(2) OF INTEREST TO OTHER JUDGES: NO/-¥e$
(3) REVISED: NO/¥eS
23 January 2026
DATE SIGNATURE
In the matter between:
VICKY WALDECK AND OTHERS FIRST APPLICANT
RUDOLF WALDECK SECOND APPLICANT
SA ORGANIC FARMING (PTY) LTD THIRD APPLICANT
ERIKA BESTER N.O. FOURTH APPLICANT
VICKY WALDECK N.O. FIFTH APPLICANT
RUDOLF WALDECK N.O. SIXTH APPLICANT
and
2
DAIMLER TRUCK FINANCIAL SERVICES
SOUTH AFRICA (PTY) LTD RESPONDENT
This judgment was handed down electronically by circulation to the parties’
representatives by email. The date for hand -down is deemed to be 23 January 2026
at 10h00.
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL
Coram: Langa J
Introduction and background
[1] This is an application for leave to appeal to the Supreme Court of Appeal,
alternatively to the Full Court of the Mpumalanga Division of the High Court, against
the whole of the judgment and order , including the costs order , granted against the
Applicants by this Court on 9 September 2025.
[2] The Applicants contend that there are reasonable prospects that another court
would come to a different conclusion and that there are other compelling reasons why
an appeal should be heard, as contemplated in section 17(1)(a) of the Superior Courts
Act 10 of 2013.
[3] The facts of the matter are not contentious. In the application the Respondent,
who was the Applicant/Plaintiff in the application and action respectively, Daimler Truck
Financial Services South Africa (Pty) Ltd (“Daimler”) , sought the payment of the
amount of R3 094 062.03, together with interest , jointly and severally, from the
Applicants who were the Respondents /Defendants in the application and action
respectively.
3
[4] It was not disputed that Mercedes -Benz Financial Services (Pty) Ltd
(“Mercedes”) and the debtor, SA Zero Waste (Pty) Ltd (in liquidation), entered into the
Sale Agreements as pleaded in the particulars of claim in the action by Daimler.
[5] It is further common cause that Daimler was not a party to the said Instalment
Sale Agreements and its right to sue is based on its alleged and disputed Cession
Agreement with Mercedes.
[6] It is further common cause that SA Zero Waste fell into arrears with payments
in terms of the agreements and subsequently applied for business rescue. However, it
ultimately signed and entered into a Voluntary Surrender and Agreement of
Termination (“ Agreement of Termination”) on 17 March 2022 with Mercedes in
Harrismith, Free State.
[7] Subsequent to the said Agreement of Termination, it is common cause that the
vehicles and trailers involved were surrendered to Daimler , which in turn had them
valued and sold for a total amount of R3 964 122.92. The total shortfal l owing to the
Plaintiff on all accounts after the sale was R3 094 062.03 according to the certificate
of balance dated 21 August 2024.
[8] Daimler essentially contend ed that, although it was not a party to the original
Sale Agreements, it had entered into a Cession Agreement with Mercedes, in terms of
which it assumed all the rights and obligations flowing from the Sale Agreements
between Mercedes and SA Zero Waste.
[9] The Applicants admitted that SA Zero Waste entered into the written Sale
Agreements with Mercedes and fell into arrears and consequently applied for business
rescue. While they accept that the Agreement was terminated and the vehicles handed
back to Daimler, they, however denied that Daimler has the locus standi to sue and
further that this Court has jurisdiction to hear the matter as in their view the matter
revolves around the Agreement of Termination, which was entered into in Harrismith,
Free State, outside of the jurisdiction of this court.
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[10] They further argued that Daimler was not entitled to sell the vehicles and that,
in any event, the amount of R3 964 122.92 at which they were sold was not reasonable
or market-related. The Fourth to Sixth Applicants, on their part , denied the deed of
suretyship only on the basis that no resolution was attached to the summons.
[11] Another issue which the Applicants raised was that the amounts owing
constitute a penalty stipulation in terms of section 3 of the Conventional Penalties Act
15 of 1962 , and that the se must therefore be reduced to an extent deemed just and
equitable by this Court.
The grounds of appeal
[12] The first ground relied upon by the Applicants is that the court made an error in
holding that the cause of action is the Sale Agreements when the Applicants were
being sued as sureties. They contend that the court ought to have found that the cause
of action is the deed of suretyship.
[13] The second ground is that the court erred in finding that the contradiction
between the date of the alleged cession and the subsequent date of the Termination
Agreement entered into by the original creditor, Mercedes , was “of no moment ” and
consequently erred in finding that the point taken in respect of the Plaintiff ’s locus
standi cannot be sustained.
[14] They argue that the court ought to have held that either the Cession Agreement
is invalid or did not cover the specific Instalment Sale Agreements , as the alleged
cession agreement was concluded with Mercedes on 1 December 2021, but it was still
Mercedes, not Daimler, that entered into the Termination Agreement with SA Zero
Waste later on 17 March 2022. They argue that this constitutes a contradiction which
creates a legal dilemma giving rise to two mutually destructive possibilities , either of
which gives rise to a bona fide defence that is good in law. It is on this basis that they
argued that Daimler has no locus standi to bring this action.
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[15] Alternatively, they argue that if the Cession Agreement is valid and applicable,
Mercedes would have had no right to terminate the agreements in March 2022 , and
the Termination Agreement would have been rendered a nullity. They argue, therefore,
that this constitutes a triable issue the resolution of which requires the hearing of oral
evidence and cannot be dealt with in a summary judgment procedure.
[16] Regarding the third ground , they argue that the court erred concerning the
liquidated nature and quantum of the claim by making a finding that the agreement did
not require the sale price of the vehicles to be market related or reasonab le and that
this finding constitutes a material misdirection as it ignores the common law principle
that a contractual discretion must be exercised reasonably and in good faith . They
argue that the court ought to have found that , through the common law principle of
arbitrio boni viri , even a wide or “absolute sole discretion ” must be exercised
reasonably and in good faith. The question of whether this discretion was exercised
reasonably can, therefore, not be determined summarily and requires factual
investigation, thereby rendering the claim unliquidated and precluding summary
judgment until a court has determined the reasonableness of the sale.
[17] The fourth ground is that there are also other compelling reasons why an appeal
should be heard, as contemplated by section 17(1)(a)(ii) of the Superior Courts Act 10
of 2013. In this respect , they contend that the j udgment raises issues of significant
public and commercial importance , such as the application and scope of the arbitrio
boni viri principle in the context of the sale of repossessed assets where the underlying
agreement purports to grant an “absolute sole discretion” to the creditor, particularly in
non-NCA commercial matters. Th ey argue that this principle affects thousands of
commercial credit agreements, and legal certainty is required to ensure fairness and
commercial credit agreements, and legal certainty is required to ensure fairness and
prevent abuse in the financial services sector. They further argue that it also raises the
legal question of when a claim for a shortfall becomes unliquidated for the purposes of
Rule 32 of the Uniform Rules of Court , particularly where prima facie evidence
suggests the sale was not conducted in a manner to achieve the best price.
[18] Furthermore, a compelling reason exists based on the Court’s failure to provide
a fully reasoned judgment on all determinative issues raised. The learned Judge erred
6
in failing to consider, address, or adjudicate upon the central legal dilemma advanced
by the Defendants in their papers and developed during oral argument.
Applicable legal principles for leave to appeal
[19] It is trite that applications for leave to appeal are now governed by the provisions
of section 17 of the Superior Courts Act 10 of 2013. Section 17 provides as follows:
“(1) Leave to appeal may only be given where the judge or judges concerned are of
the opinion that –
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
(b) the decision sought on appeal does not fall within the ambit of section 16(2)(a);
and
(c) where the decision sought to be appealed does not dispose of all the issues in
the case, the appeal would lead to a just and prompt resolution of the real issues
between the parties.”
[20] It is trite that the test for leave to appeal has changed substantially from the test
ordained in terms of the repealed Supreme Court Act 59 of 1959. The current standard
is captured succinctly i n the case of Mont Chevaux Trust v Goosen and Others ,1 in
which the Court stated that:
“… the threshold for granting leave to appeal against a judgment of a High Court has
been raised in the new Act. The former test whether leave to appeal should be granted
was a reasonable prospect that another court might come to a different conclusion, see
Van Heerden v Cronwright and Others 1985 (2) SA 342 (T) at 343H. The use of the
word “would” in the new statute indicates a measure of certainty that another court will
differ from the court whose judgment is sought to be appealed against.”
_________________
1 Mont Chevaux Trust v Goosen and Others 2014 JDR 2325 (LCC) para 6.
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[21] This position has since been confirmed in several decisions in other Divisions
of the High Court. See Magashule v Ramaphosa and Others ,2 and MEC for Health,
Eastern Cape v Mkhit ha and Another.3 It is accordingly generally accepted that the
current section is now more burdensome than its predecessor. However, as stated in
the Valley of the Kings Thaba Motswere (Pty) Ltd and Another v AL Mayya
International,4 “… [the] contextual construction of the phrase ‘reasonable prospect of
success’ still requires of the judge, whose judgment is sought to be appealed against,
to consider, objectively and dispassionately, whether there are reasonable prospects
that another court may well find merit in arguments advanced by the losing party.”
Analysis
[22] Most of the issues are common cause as stated above. The Applicants admitted
that SA Zero Waste had entered into a written instalment agreement and received the
vehicles in question. They further admitted that after SA Zero Waste unsuccessfully
applied for business rescue, on 17 March 2022 , the Voluntary Surrender and
Agreement Termination was signed with Mercedes. This was after the cession had
already been entered into between Daimler and Mercedes. The vehicles were
voluntarily handed over to Daimler.
[23] It must be mentioned that although the Applicants raised the issue of jurisdiction,
they did not persist therewith a nd therefore nothing turns thereon. However, on the
cause of action, i t is common cause that Mercedes and the First to Sixth Applicants
entered into a suretyship agreement in terms of which they bound themselves, jointly
and severally, as surety and co-principal debtors for the repayment on demand of all
sums of money which the Debtor (SA Zero Waste) may owe to Mercedes , including
costs on an attorney and client scale, resulting from the Sale Agreement.
[24] Thus, while the Applicants were sued as sureties, it is clear that the debt is
[24] Thus, while the Applicants were sued as sureties, it is clear that the debt is
based on the original Sale Agreement, which is the cause of action. It is further clear
_________________
2 Magashule v Ramaphosa and Others [2021] ZAGPJHC 405.
3 MEC for Health, Eastern Cape v Mkhitha and Another [2016] ZASCA 176.
4 Valley of the Kings Thaba Motswere (Pty) Ltd and Another v AL Mayya International [2016]
ZAECGHC 137 para 4.
8
that the parties acted on the basis of the cession of the Sale Agreement by Mercedes
to Daimler. The Applicants did not plead any facts to show why the cession is invalid,
and it is clearly a valid cession signed by the relevant parties thereto. There can be no
dilemma as suggested by the Applicants , as they cannot successfully deny the
existence of the cession agreement. Thus, nothing turns on the fact that the cession
agreement was signed before the Voluntary Surrender Agreement , and Mercede s
signed the latter agreement despite the cession . In terms of this cession , the
Respondent was entitled to institute the claim for the shortfall.
[25] The contention that the Instalment Sale Agreement was no longer extant and
so was the liability cannot be correct. This suggest s that the Voluntary Surrender
Agreement substituted the original Instalment Sale Agreement , and the shortfall
claimed arose from and is dependent upon the Voluntary Surrender and Termination
Agreement. This argument ignores the fact that the Instalment Sale Agreement itself
provided for a lawful repudiation of the agreement by agreement between the parties
to terminate same. This ground cannot stand.
[26] Concerning the ground relating to the sale of the vehicles , it is alleged without
facts that the highest possible price was not achieved. In terms of the cession
agreement, Daimler, as the cessionary, was entitled to sell the vehicles. Further, it is
clear that in terms of the Voluntary Surrender and Agreement Termination , where the
total balance outstanding exceeds the net sale amount, such excess shall be the
measure of Mercedes’ damages arising out of the Debtor’s termination of the initial
agreement.
[27] Although the issues concerning the quantum and whether the amount is
liquidated are raised on appeal, they were, however, not raised in the papers opposing
the application for summary judgment. However, there is evidence on record that the
the application for summary judgment. However, there is evidence on record that the
vehicles were evaluated and sold for more than their value. There is accordingly no
merit in the argument that the sales of the vehicles did not achieve the highest possible
price.
[28] I now turn to consider the argument that there are compelling reasons for the
appeal to be heard . As stated above , the Applicants argue in this respect that the
9
judgment raises issues of significant public and commercial importance , such as the
application and scope of the arbitrio boni viri principle in the context of the sale of
repossessed assets where the underlying agreement purports to grant an “absolute
sole discretion” to the creditor, particularly in non-NCA commercial matters. The issue
of the liquidated amount was not raised in their papers . The Applicants now seek to
rely on a general umbrella of the interest of justice despite the fact that this was not
part of the issues raised in their papers. There is accordingly no merit in this argument.
[29] Lastly, the contention that the court failed to adjudicate the legal dilemma
presented by the Defendants, and that this constitutes an error warranting the grant of
leave to appeal, cannot stand. The issue of the so-called dilemma concerning the date
of the alleged cession and Termination Agreement was addressed in the above. There
could be no dilemma when it was clear that the parties acted on the basis of the cession
agreement. This argument is accordingly unmeritorious and ought to be rejected.
Conclusion
[30] In conclusion, I am not persuaded that the Applicants have shown that there are
reasonable prospects of success on appeal and that another court would come to a
different conclusion. Secondly, they have failed to satisfy the court that there are
reasonable prospects of success in the appeal as required by section 17(1)(a)(i) and/or
(ii) of the Act. The application for leave to appeal thus ought to be dismissed with costs.
Costs
[31] Concerning the costs, the rule that costs follow the results must clearly apply.
The only question to be decided is the scale of the costs. I am satisfied that the case
justifies that costs should be on scale C , inclusive of the costs attendant to the
employment of counsel where so employed.
Order
[32] In the result, I make the following order:
1 The application for leave to appeal is dismissed with costs on Scale C;
2 Such costs to include the costs attendant to the employment of counsel where
so employed ; and
3 Such costs to be paid, jointly and severally, by the Applicants, the one paying
the other to be absolved.
Appearances
For the Applicants:
For the Respondent:
Date heard:
Date delivered:
MBG LANGA
JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MIDDELBURG
Advocate E Nel
Advocate CJ Welgemoed
31 October 2025
23 January 2026