SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case no: 2025-174899
In the matter between:
THE STANDARD BANK OF SOUTH AFRICA LIMITED Applicant
and
ABSOLUTE WIND (PTY) LIMITED First Respondent
FASTLIFT CRANES (PTY) LIMITED Second Respondent
M AND M TRAINING AND RIGGING CC Third Respondent
LIEBHERR-AFRICA (PTY) LIMITED Fourth Respondent
Neutral citation: Standard Bank of South Africa Limited v Absolute Wind
(Pty) Limited and Others (Case no 2025-174899) [2026]
ZAWCHC
Coram: TOEFY AJ
Heard: 2 February 2026
Delivered: 12 May 2026
ORDER
a) The First Respondent is ordered and directed to deliver to the Applicant within 20
(twenty) days of the date of this order:
i) the 2009 440 Ton Liebherr All Terrain Crane, Model LTM1400 -7.1, having serial
number 0[...] (“the Crane”), by delivering the Crane to the Third Respondent, M
AND M TRAINING AND RIGGING CC (“M&M”) on behalf of the
Applicant, at 2[…] S[...] Road, Killarney Gardens, Cape Town;
b) at the same time as delivering the Crane as provided for in paragraph a (i) above, the
First Respondent is ordered and directed to deliver to the Applicant, care of M&M:
i) the keys to the Crane (together with any spare or duplicate sets of keys), together
with all and any means of gaining access to, utilising and operating the Crane;
ii) the NATIS certificate in respect of the Crane, together with all documents
required to bring about a change in the NATIS records to reflect the Applicant as
the Title Holder of the Crane; and
iii) all accessories, manuals, service records and manufacturer codes required to
operate the Crane.
c) Within 10 (ten) days of the delivery of the Crane as specified in paragraph a (i) above,
the First Respondent is required to sign and deliver to the Applicant all such
documents as are necessary to amend the records of NATIS to reflect the Applicant as
the Title Holder of the Crane, failing which, the Sheriff of the above Honourable
Court is authorised and empowered to sign all such documents as may be necessary,
on behalf of and in the stead of the First Respondent, to give effect thereto.
d) The Applicant is ordered, in line with its undertaking and for purposes of taking
delivery and securing the release of the Crane from the Fourth Respondent, to
discharge the obligations of the First Respondent to the Fourth Respondent, totalling
an amount of R1 674 092.14 and the Third Respondent (M&M), is directed to make
an amount of R1 674 092.14 and the Third Respondent (M&M), is directed to make
payment of the amount owed by it to the Fourth Respondent, in accordance with the
undertaking provided by it.
e) The First Respondent is ordered to pay the costs of suit of the application, including
the costs of senior counsel, on Scale C.
JUDGMENT
Toefy AJ:
[1] The applicant, the Standard Bank of South Africa Ltd, seeks to enforce a
sale agreement in terms of which the first respondent, Absolute Wind
(Pty Ltd) ( ‘Absolute Wind’) is to deliver a crane, being a 2009 440 -ton
Liebherr All Terrain Crand Model LTM 1400 -7.1 ( ‘the crane’) to the
applicant or its nominee.
[2] The applicant states that Absolute Wind is the owner of the crane and that
the latter appointed the second respondent, Fastlift C ranes (Pty) Limited
(‘Fastlift’), through a mandate agreement as its agent to acquire a
purchaser of the crane. Fastlift, the applicant contends, acted in
accordance with the mandate agreement by entering into a sale agreement
with the applicant whereby the applicant purchased the crane. The
applicant has paid Fastlift the purchase price . The applicant seeks to
enforce the sale agreement against Absolute Wind as the principal of
Fastlift.
[3] One the other hand, Absolute Wind states that, while it initially
authorised Fastlift to procure a purchaser of the crane in accordance with
the mandate agreement , this changed when Fastlift itself purchased the
crane from Absolute Wind and then on -sold the crane to the applicant.
However, Fastlift has paid Absolute Wind only a fraction of the purchase
price it received from the applicant . Because of this, Absolute Wind has
not delivered the crane to Fastlift.
[4] Absolute Wind’s defence is therefore that the applicant must enforce
specific performance against Fastlift, as the latter purportedly sold the
crane to the applicant as the owner , rather than agent acting on behalf of
Absolute Wind . Accordingly, Absolute Wind contends that it is not the
principal (whether disclosed or not) and bears no liability to the applicant.
Factual Background
[5] During 2024, t he fourth respondent, M and M Training and Rigging CC
(‘M&M’) had expressed an interest in purchasing the crane from
Absolute Wind.
[6] M&M inspected the crane in late 2024 with the assistance of a
representative of Fastlift, one Mr Bradley Medcalf. At the time, the crane
bore the branding and colours of Absolute Wind.
[7] M&M required financing to purchase the crane and approached the
applicant for such finance. It subsequently entered into a financing
agreement with the applicant in terms of which the applicant would
purchase the crane from the Absolute Wind. The applicant would acquire
ownership of the crane but would grant M&M possession of the crane
and the right to use the crane until it paid all amounts due to the applicant
under the financing agreement. M&M would thereafter become the
owner of the crane.
[8] On 13 May 2025 Absolute Wind and Fastlift entered into the
abovementioned mandate agreement for the sale of the crane (‘the
mandate agreement’). In terms of the mandate agreement, Fastlift was
given the “ irrevocable sole selling rights in respect of the crane ” at a
price of R25,000,000.00 plus VAT. Fastlift would be entitled to 5% (plus
VAT) on the amount of R25,000,000.00 as commission if it obtained a
written offer from a purchaser who is willing and able to purchase the
crane.
[9] The mandate agreement is signed by Shehaam Hassiem on b ehalf of
Absolute Wind and by Bradley Medcalf on behalf of Fastlift. It is titled:
“CONFIRMATION OF MANDATE AND SALES
AGREEMENT FOR 440T LIEBHERR”
[10] Relevant parts of the mandate agreement provide:
“1 Absolute Wind Pty Ltd (Crane owner) records and warrants that it is the lawful owner
of [the crane].
[Absolute Wind] hereby irrevocably instructs [Fastlift] to procure a willing and able
purchaser for the [crane] at a purchase price of:
[the crane] at R25’000’000.00 + 15% VAT (Ex-works – Liebherr Johannesburg).
2
2.1 Absolute Wind agrees that commission at 5% (FIVE) plus 15% VAT on the
above purchase price s, shall be payable to Fastlift if Fastlift obtains a written
offer from a purchaser who is willing and able to purchase the crane.
2.2 The commission shall be payable in full as soon as Absolute Wind receives or
becomes entitled to receive any part of the purchase price.
3 Fastlift shall have the irrevocable sole selling rights in respect of the crane/machines
until midnight on 30th May 2025.
4-7 …
8 Absolute Wind records that they have agreed to arrange the transport of the crane
from Liebherr in Springs to the new owners in Cape Town at a total cost of
R651 666.77 + 15% VAT. (Total cost of crane transport R850’000.00 plus 15% VAT
being split three ways between all parties) including the additional parts still left
behind in Epping, for example the intermediate luffer, head and + -100t of
counterweights and any other parts pertaining to the crane.
Absolute Wind to invoice new owners directly for the transport at a predetermined
date/time for the transport, we expect this approximately 3 to 4 weeks after the receipt
of payment and when the crane is ready to be transported.
9…
10 This agreement may not be amended or cancelled unless this is done in a further
written document signed by both parties.
11…”
[11] On the same day, 13 May 2025, Fastlift issued an invoice to the applicant
for one:
“Used- Liebherr Mobile Crane Model LTM1400 - 7.1 All Terrain Crane…in favour
of M&M Training and Rigging CC…”
[12] The “rate” for the crane was captured in the invoice as R25’000’000.00
plus 15%, i.e. R3’750’000.00. The total amount due was
R28’750’000.00.
[13] On t he next day, 14 May 2025, Absolute Wind provided the applicant
with a written confirmation that –
“[Fast Lift] has been invoiced for the sale of a Mobile Crane Liebherr LTM 1400 –
7.1 serial number[…], to the value of R25’000’000.00 excluding VAT.
This letter also confirms that [Fast Lift] has a 30 -day account with Absolute Wind
(PTY) Ltd.”
[14] On 16 May 2025, the applicant and M&M entered into an Instalment Sale
Agreement, which I have referred to above as the financing agreement.
[15] On 19 May 2025, the applicant paid the full amount of R28’750’000.00
to Fastlift for the purchase of the crane. The invoice was made out to
Fastlift and there was no mention of Absolute Wind therein.
[16] On 20 May 2025, Absolute Wind issued an invoice to Fastlift for the
“Sale of [the Crane]” for an amount of R2 7’312’500.00. This amount is
the portion of the purchase price due by Fastlift to Absolute Wind
(inclusive of VAT) less the 5% commission which is due to Fastlift.
Was Fastlift an Agent or Owner?
[17] The applicant contends that the documents and the sequence of events
referred to above indicate that the arrangement between Absolute Wind
and Fastlift was that of principal and agent, and that when Fastlift
concluded the purchase agreement with the applicant it did so in its
capacity as Absolute Wind’s agent. Absolute Wind became obliged to
deliver the crane to the applicant in accordance with the purchase
agreement, the applicant contends, upon the following acts: (1) Fastlift
having issued the invoice to the applicant on 13 May 2025 ; and (2) the
applicant having paid Fastlift the amount so invoiced on 19 May 2025.
[18] The submission concludes that once the purchase agreement was entered
into, a vinculum iuris was created between the purchaser, being the
applicant and the seller, being Absolute Wind.
[19] The applicant further contends that it does not matter whether it was
aware at the time of entering into the purchase agreement that Fastlift was
an agent of Absolute Wind because the latter would then be an
undisclosed principal – an agent/principal mechanism recognised in our
law - and which would nevertheless create a direct contractual nexus
between the applicant and Absolute Wind.
[20] Absolute Wind, in its written submissions (quoting extensively from
LAWSA) took issue with the legal mechanism of an undisclosed
principal by setting out the position in Roman -Dutch law, which did not
cater for the undisclosed principal . However, it is trite that the English
Law doctrine of the undisclosed principal is part of our law – as
awkwardly as it may fit into our contract law. A judgment of the
Supreme Court of Appeal reported as recently as 2023 considered
whether the facts of the case before it fulfilled the requirements of the
doctrine of the undisclosed principal. 1 The court had no hesitation in
conducting such analysis and expressed no uncertainty on the
applicability of the undisclosed principal.2
[21] Absolute Wind’s key defence is that Fastlift entered into the purchase
agreement with the applicant, not as an agent of Absolute Wind, but as
the owner of the crane. Thus, even though the mandate agreement was
entered into on 13 May 2025, Fastlift decided to itself buy the crane from
Absolute Wind and then, when it issued the invoice to the applicant (also
on 13 May 2025) and received payment on 19 May 2025 from the
applicant, it was acting as the owner of the crane. Absolute Wind
contends that the applicant must enforce the purchase agreement against
Fastlift as Absolute Wind is not a party to such agreement.
1 Nel v De Beer and Another 2023 (2) SA 170 (SCA) para 21.
2 See further SA Metal and Machinery Company (Pty) Ltd v Kleck 2005 1 All SA 44 (E), 57 where the Court
remarked that “The doctrine of the undisclosed principal, while its development may be somewhat anomalous, is
justified on the grounds of commercial convenience… It recognises that in the world of contractual relations,
parties may well be acting on behalf of another but fail to disclose that fact when concluding a contract.”
[22] Fastlift however, but for some R680’00.00, has failed to pay the purchase
price to Absolute Wind, who in consequence has not delivered the crane
to Fastlift. Absolute Wind will not deliver the crane to Fastlift until it
receives all outstanding money from Fastlift.
[23] The evidence relied upon by Absolute Wind include that the mandate
agreement is titled “Confirmation of Mandate and Sales Agreement”.
[24] This, Absolute Wind states, is important as it shows that when the
mandate agreement was concluded both Fastlift and Absolute Wind
contemplated that a sale agreement between them may ensue.
[25] Absolute Wind further states that this also explains why no other
agreement of sale was entered into between itself and Fastlift.
Furthermore, it states that this also explains why , on 14 May 2025, the
30-day credit arrangement was afforded to Fastlift when the latter
“indicated that it would be purchasing the crane itself”.
[26] Absolute Wind states in its answering affidavit that:
“The upshot of all of this is that [Absolute Wind] granted Fastlift a
mandate to sell the crane in question on its behalf originally, but
subsequently sold the crane to Fastlift for Fastlift to on-sell on the
basis that Fastlift would be afforded a credit facility of 30 days
with [Absolute Wind].”
[27] The sequence of events proffered by Absolute Wind shows a very tight
timeline. On 13 May 2025, the mandate agreement/sales agreement was
entered into. On the very same day, Fastlift must have decided to opt to
buy the crane and then on -sell to the applicant because Fastlift issued an
invoice to the applicant for the crane on 13 May 2025.
[28] When asked in Court about how the mandate agreement regulates the sale
agreement between Absolute Wind and Fastlift the following was
submitted on behalf of Absolute Wind – (1) the mandate agreement does
not preclude Fastlift from being the purchaser itself; and (2) the
compensation remains the same, in that Fastlift will still be entitled to a
5% commission.
[29] Further, Absolute Wind alleged that the motivation for Fastlift changing
the contractual structure to a sale and on -sale, was that M&M did not
want Absolute Wind to know that the ultimate buyer was M&M since it
is a direct competitor of Absolute Wind. In this way, the only contractual
nexus in which Absolute Wind is involved is the sale between itself and
Fastlift.
[30] With regard to the confirmation of 14 May 2025 that Absolute Wind
provided to the Applicant that it invoiced Fastlift for the sale of the crane,
this was proffered as evidence that Absolute Wind sold the crane to
Fastlift and the latter had 30 days to pay the purchase price.
[31] This sale from Absolute Wind to Fastlift then culminated in the invoice
dated 20 May 2025 being issued by Absolute Wind to Fastlift for an
amount which deducted the 5% commission from the purchase price.
The Applicant’s response
[32] The applicant contends that Absolute Wind’s version of events shifted
seismically. The initial position adopted by Absolute Wind was that
Fastlift was acting as the former’s agent and in accordance with the
mandate agreement (this position is consistent with a letter penned by
Absoulte Wind’s attorneys on 25 July 2025 addressed to Fastlift and to
which I return later herein). This shifted to the position now adopted in
the answering affidavit – i.e. Fastlift changed the contractual structure to
purchasing the crane from Absolute Wind and then on-selling it.
[33] First – the a pplicant argues that the mandate agreement is aimed at
authorising Fastlift to obtain a purchaser and to accordingly act as
Absolute Wind’s agent. But for the reference to a ‘sales agreement’ in
the heading and the very last provision of the mandate agreement, there is
no other indication that the document encapsulates a potential sale
between Absolute Wind and Fastlift.
[34] The language and structure of the mandate agreement are those of a
mandate and not a sale – it firstly instructs Fastlift to procure a purchaser.
Second, it contemplates compensating Fastlift through a commission for
obtaining such a purchaser – which is a typical form of compensation for
agents. Third, it does not explicitly deal with compensating Fastlift
through the same mechanism of a commission should it purchase the
crane itself. Fourth, Fastlift is given the “irrevocable sole selling rights
in respect of the crane/machines until midnight on 30 th May 2025” – this
too supports the applicant’s position that the mandate agreement is aimed
at mandating Fastlift rather than standing as an independent sale
agreement.
[35] In my view, the plain language of the mandate agreement is that of a
mandate – not a sale agreement.
[36] Second, the applicant contends that the issuance on 19 May 2025 of the
invoice by Absolute Wind to the Fastlift for the amount of the purchase
price (plus VAT) less the 5% commission is also consistent with the
agent/principal relationship as contemplated in the mandate agreement.
[37] Third, and perhaps most forceful, is the applicant’s reliance on a letter by
Absolute Wind’s attorneys addressed to Fastlift on 25 July 2025 – over
two months after the purported sale of the crane by Absolute Wind to
Fastlift. In this letter , Absolute Wind demands payment from Fastlift of
the outstanding balance. The letter, in relevant parts, provides –
“2 We refer to the mandate agreement entered into between [Fastlift] and
[Absolute Wind] on or about 13 May 2025 … whereby-
2.1. Fastlift was to procure a willing and able purchaser for [the crane]… at a
purchase price of R25,000,000.00 plus VAT; and
2.2. Fastlift had sole selling rights of the crane until 30 May 2025.
3 We are instructed that-
3.1. On 14 May 2025, [Absolute Wind] addressed a letter to Fastlift
confirming its 30-day account with our client.
3.2 A purchaser, [M&M] was secured and purchased the crane for a
purchase price of R28,750,00.00, wherein [the Applicant], on behalf of
M&M, paid the full purchase price into Fastlift’s bank account on or
about 19 May 2025…
3.3 On 20 May 2025, [Absolute Wind] invoice Fastlift for the amount of
R27’312’500.00…
3.4 On or about 18 July 2025, Fastlift made payment to [Absolute Wind] to
the amount of R682’812.50 (which is a fraction of the purchase price).
…
3.6 M&M would like to take delivery of the crane, however, [Absolute
Wind] cannot make delivery until the full purchase price is paid to
[Absolute Wind]. Fastlift is in breach of the mandate agreement and
consequently places an undue burden on [Absolute Wind]….
4 You are therefore indebted to [Absolute Wind] to the amount of
R26,629,687,50 (“Outstanding Amount”).”
[Underlining added]
[38] The above letter of demand by the attorneys of Absolute Wind makes no
mention of a purchase and sale agreement between Absolute Wind and
Fastlift. Instead, the letter of demand explicitly relies on the ‘mandate
agreement’. Further, Absolute Wind demanded payment of the balance of
the amount received by Fastlift from the applicant. Last ly, the letter of
demand expressly characterises Fastlift’s behaviour as being in breach of
the mandate agreement.
[39] This letter was sent some two months after the purported sale between
Absolute Wind and Fastlift took place. Yet, the attorneys of Absolute
Wind made no mention of such sale and instead sought to enforce the
mandate agreement. This is in direct conflict with the version put up by
Absolute Wind in its answering affidavit and persisted with in legal
argument.
[40] The contents of this letter were explicitly raised by the applicant in- and
attached to its founding affidavit. Absolute Wind chose not to explain the
clear contradiction between the contents of the letter and its affidavit. It
also chose not to provide any explanation in legal argument. Instead, it
offered the letter as an example of a material dispute of fact which– it
was submitted in Court – can only be resolved by oral evidence.
However, the letter by its attorneys is the antithesis of a dispute of fact.
Its contents are in complete harmony with the applicant’s version and are
only in conflict with Absolute Wind’s own later account of the events.
[41] It was only on 11 September 2025 that the attorneys of Absolute Wind
appear to have begun pivoting and stated in a letter to the applicant’s
attorneys that “at this stage it is apposite to point out that the transaction
that our client initially envisaged did not materialise”.
[42] However, this new version of events is contrary to the mandate
agreement and the letter of demand by Absolute Wind’s own attorneys
(which remained unexplained). Furthermore, the invoice of 13 May 2025
of Fastlift to the Applicant; and the letter of confirmation of 14 May 2025
of Absolute Wind are both not inconsistent with there being an
agent/principal relationship.
[43] Absolute Wind also fails to provide any further documentary evidence of
the alleged sale agreement between itself and Fastlift. For instance, no
communication, such as a letter or other form of communication in which
Fastlift indicates that it has decided to, itself, purchase the crane.
[44] There is another reason why Absolute Wind’s version of events stands to
be rejected – a further theory on the chain of events is provided by
Absolute Wind in its answering affidavit. At paragraph 70 Absolute
Wind’s deponent (a director, Mrs Shehaam Hassiem) states:
“It appears that Fastlift in any event disregarded [Absolute Wind’s] mandate and
acted fraudulently when it materially restructured the transaction between it and
[Absolute Wind].”
[45] This theory contradicts Absolute Wind’s version that the sale was always
contemplated in the mandate agreement. But the fundamental difficulty
with this is that if the mandate agreement always contemplated that a sale
may ensue, then it would not be fraudulent for Fastlift to have activated
the sale/purchase component of the mandate agreement. On the other
hand, this theory of a fraudulent restructuring of the agreement, is
consistent with the position adopted in the letter of the attorneys of
Absolute Wind dated 25 July 2025 which relied on the mandate
agreement and not a sale. This would be so because the mandate
agreement could only be restructured (i.e. amended) if the amendment
was reduced to writing. But Absolute Wind abandoned its reliance on the
principal/agent structure.
[46] While this theory is raised speculatively, it leaves a confused and self -
defeating answering affidavit.
Are there material and bona fide disputes of fact?
[47] The defence that Fastlift itself purchase d the crane and then sold it to the
applicant is in direct conflict with the applicant’s case, which contends
that Fastlift acted as the agent of Absolute Wind.
[48] If Fastlift acted as agent when concluding an agreement with the
applicant, this would render Absolute Wind liable as the principal. This
is so in the case of the standard situation of representation where the
principal acquires rights and incurs liabilities (and the
agent/representative none).
[49] Similarly, where there is an agent/undisclosed principal relationship, and
the agent enters into the agreement it is authorised to conclude with a
third party (i.e. Fastlift being the agent and the applicant being the third
party respectively) a vincula iuris is created between the parties to the
agreement – and an alternative vincula iuris is created between the third ---
party and the undisclosed principal (i.e. the applicant and Absolute Wind
respectively).3
[50] On the other hand, on Absolute Wind’s version, there is no contractual
nexus at all between it and the applicant, as Fastlift purchased the crane
from Absolute Wind and then sold it to the applicant.
[51] The two versions are therefore in conflict with one another . Absolute
Wind submits that, on the ratio decidendi set out in Plascon Evans ,
where there is a dispute of fact and a final order is sought in motion
proceedings, such order may be granted if it is justified based on the
“facts averred in the applicant’s affidavits which have been admitted by
the respondent, together with the facts alleged by the respondent…”. 4
[52] On this basis, the resolution of the dispute of fact in this matter will be
resolved by finding in favour of the respondent , a conclusion advanced
by Absolute Wind.
[53] However, this rule ha s exceptions. Where there is a dispute of fact, the
above rule will not apply where the denial by the respondent of a fact
alleged by the applicant fails to “ raise a real, genuine or bona fide
dispute of fact. ”5 It is not sufficient for a respondent to resort to bare
denials. It must put up a contrary version to show that there is a real,
genuine or bona fide dispute of fact.
[54] Furthermore, the respondent’s version may be rejected by the court
adopting a robust approach where such version is “ fictitious, or so far -
3 LAWSA, Agency and Representation (Vol 1- Third Edition, 2014), para 178 and the authorities cited therein at
footnotes 2 and 3.
4 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A), 634h-I.
5 Ibid; Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163-5; Da Mata v
Otto NO 1972 (3) SA 858.
fetched and clearly untenable that it can confidently be said, on the
papers alone, that it is demonstrably and clearly unworthy of credence. ”6
This position has emerged based on some 80 years of jurisprudence , was,
20 years ago, described by the Supreme Court of Appeal as follows:
“More than 60 years ago, this Court determined that a Judge should not allow a
respondent to raise ‘fictitious’ disputes of fact to delay the hearing of the matter or to
deny the applicant its order. There had to be a ‘ bona fide dispute of fact on a material
matter’. This means that an uncreditworthy denial, or a palpably implausible version,
can be rejected out of hand, without a recourse to oral evidence.” 7
[55] Based on the authorities cited above and in light of the analysis in
paragraphs [32] to [46] above, I find that the version advanced by
Absolute Wind in its answering affidavit, is palpably implausible and
lacks credibility. I therefore reject its version . Further, I accept the
version advanced by the applicant – which is consistent with the contents
of the letter by the attorneys of Absolute Wind dated 25 July 2025.
Accordingly, the Applicant must succeed.
Factors impeding delivery of the crane
[56] The crane is currently in Springs, Gauteng being held by Liebherr who
was commissioned by Absolute Wind to effect maintenance and repairs
thereto in 202 3. Liebherr holds a debtor and creditor lien against
Absolute Wind over the crane. An amount of R1 674 092.14 is owing to
Liebherr for such maintenance and repairs.
[57] In order to secure the release of this lien, the applicant has undertaken in
its founding affidavit to settle Liebherr’s invoices in respect of such lien.
6 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA), para 56.
7 Ibid, para 55.
[58] Furthermore, Liebherr holds a second debtor and creditor lien over the
crane. On or about 15 May 2025, M&M requested Liebherr to carry out
additional work on the crane. As a result, further work was indeed
effected by Liebherr to the value of approximately R2’317’678.46, which
amount is owed by M&M to Liebherr. Together with its r eplying
affidavit filed by the applicant, M&M provided an affidavit confirming
its undertaking to discharge all amounts it owed Liebherr.
[59] Once these undertakings are honoured, Liebherr will no longer hold a
lawful lien over the crane and will be obliged to release the crane.
[60] Absolute Wind has raised a third stumbling block – being the transport
costs of the crane from Springs to Cape Town. However, the travel and
transport arrangements and attendant costs are dealt with in paragraph 8
of the mandate agreement as quoted earlier herein (see paragraph [10]
above). Accordingly, this is no impediment to the delivery of the crane.
Costs and Conclusion
[61] With regard to the costs of this application, there is no reason why costs
should not be granted in the applicant’s favour. This includes the costs of
Part A, which was necessitated by Absolute Wind’s failure to provide an
undertaking beyond 19 September 2025 that it would not, pending a
resolution being found between the parties, dispose of or otherwise
encumber the crane.
[62] Accordingly, I make the following order:
a. The First Respondent is ordered and directed to deliver to the Applicant within
20 (twenty) days of the date of this order:
i. the 2009 440 Ton Liebherr All Terrain Crane, Model LTM1400 -7.1,
having serial number 0[...] (“the Crane”), by delivering the Crane to
the Third Respondent, M AND M TRAINING AND RIGGING CC
(“M&M”) on behalf of the Applicant, at 2 […] S[...] Road, Killarney
Gardens, Cape Town;
b. at the same time as delivering the Crane as provided for in paragraph a (i)
above, the First Respondent is ordered and directed to deliver to the Applicant,
care of M&M:
i. the keys to the Crane (together with any spare or duplicate sets of
keys), together with all and any means of gaining access to, utilising
and operating the Crane;
ii. the NATIS certificate in respect of the Crane, together with all
documents required to bring about a change in the NATIS records to
reflect the Applicant as the Title Holder of the Crane; and
iii. all accessories, manuals, service records and manufacturer codes
required to operate the Crane.
c. Within 10 (ten) days of the delivery of the Crane as specified in paragraph a
(i) above, the First Respondent is required to sign and deliver to the Applicant
all such documents as are necessary to amend the records of NATIS to reflect
the Applicant as the Title Holder of the Crane, failing which, the Sheriff of the
above Honourable Court is authorised and empowered to sign all such
documents as may be necessary, on behalf of and in the stead of the First
Respondent, to give effect thereto.
d. The Applicant is ordered, in line with its undertaking and for purposes of
taking delivery and securing the release of the Crane from the Fourth
Respondent, to discharge the obligations of the First Respondent to the Fourth
Respondent, totalling an amount of R1 674 092.14 and the Third Respondent
(M&M), is directed to make payment of the amount owed by it to the Fourth
Respondent, in accordance with the undertaking provided by it.
e. The First Respondent is ordered to pay the costs of suit of the application,
including the costs of senior counsel, on Scale C.
_____________________________
A TOEFY
ACTING JUDGE OF THE HIGH COURT
Appearances
For applicant: N Konstantinides SC
Instructed by: Van Hulsteyns Attorneys
For first respondent: R Stelzner SC
Instructed by: Cliff Decker Hofmeyr Inc, Cape Town.