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[2026] ZAGPJHC 497
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Bophela NC Manufacturing and Trading (Pty) Ltd and Another v Caterpillar Financial Services South Africa (Pty) Ltd (2026/052863) [2026] ZAGPJHC 497 (12 May 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
REPUBLIC
OF SOUTH AFRICA
CASE
NO:
2026-052863
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
In
the matter between:
BOPHELA
NC MANUFACTURING AND TRADING (PTY) LTD
1
st
Applicant
NONTUTHUKO
CHAROL NGIDI
2
nd
Applicant
(formerly
Respondents in the main application)
and
CATERPILLAR
FINANCIAL SERVICES SOUTH AFRICA (PTY) LTD
(formerly
Applicant in the main
application)
Respondent
Neutral
Citation
:
Delivered:
By
transmission to the parties via email and uploading onto Case Lines
the Judgment is deemed to
be delivered.
JUDGMENT
(LEAVE TO APPEAL)
SENYATSI
J:
[1]
This is an application for leave to appeal against the judgment and
order I handed down on 27 March 2026 (“the main judgment”).
In that judgment, I found in favour of the respondent (Caterpillar
Financial Services South Africa (Pty) Ltd, to whom I shall refer
as
“Catfin”) and granted an order for the repossession of a
Caterpillar Backhoe Loader, as well as ancillary relief.
I also
dismissed the points in limine raised by the applicants, who were the
respondents in the main application.
[2]
The applicants (Bophela NC Manufacturing and Trading (Pty) Ltd and Ms
Nontuthuko Charol Ngidi) have filed a notice of application
for leave
to appeal. That notice was filed on 13 April 2026. It sets out seven
grounds upon which the applicants seek to challenge
the main
judgment.
[3]
However, the prosecution of this application has been markedly
deficient. The applicants did not file any heads of argument
as
required by the Uniform Rules of Court and the practice directives of
this Division. Furthermore, the applicants’ erstwhile
attorneys
of record withdrew from the matter, and that withdrawal has been duly
noted on the court file. Most significantly, on
the day set down for
the hearing of this application, there was no appearance on behalf of
the applicants.
[4]
By contrast, the respondent (Catfin) has been properly represented
throughout by Advocate Van Der Merwe, who filed comprehensive
heads
of argument dated 4 May 2026 in opposition to the application for
leave to appeal. The respondent’s heads of argument
meticulously address each of the grounds raised by the applicants.
[5]
The test for leave to appeal is governed by
section 17(1)(a)
of the
Superior Courts Act 10 of 2013
. Leave to appeal may only be granted
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 the appeal should be heard. An applicant for
leave to appeal bears the
onus to demonstrate that this threshold is
met.
[6]
In the present matter, the applicants have done little to discharge
that onus. The mere filing of a notice of application for
leave to
appeal, without more, is insufficient. The failure to file heads of
argument and the failure to appear at the hearing
are not merely
procedural irregularities; they evince an abandonment of the
application. A party that does not advance any written
or oral
submissions in support of its application cannot reasonably expect
the court to grant the relief it seeks.
[7]
Even if I were inclined to overlook these defaults and consider the
grounds of appeal on their merits, which I am not obliged
to do ,I am
satisfied that none of the grounds raised by the applicants has any
reasonable prospect of success. I have carefully
re-evaluated my
findings in the main judgment. The applicants’ grounds, as set
out in their notice, essentially seek to re-argue
the urgency ruling,
the factual findings regarding the insurance lapse and the tracking
system, the existence of a dispute on the
quantum of arrears, and the
location of the equipment. I have considered each of these grounds
and the submissions made by the
respondent in opposition.
On
urgency
[8]
It is well settled that a ruling on urgency is a case management
decision that is not appealable. In any event, my finding that
the
matter was urgent was properly grounded in the risk of disposal or
concealment of a high-value movable asset not registered
on e-Natis,
the lapse in insurance, and the commercial realities of the case.
There is no reasonable prospect that another court
would interfere
with that finding.
On
the insurance breach
[9]
It was common cause that the insurance cover had lapsed due to unpaid
premiums, that this constituted an event of default under
the Master
Instalment Sale Agreement, and that Catfin was accordingly entitled
to cancel the agreement. The duration of the lapse
(whether four days
or two months) does not detract from the fact of the breach. The
cancellation was lawful, and the repossession
order followed as a
contractual remedy.
On
the quantum of arrears
[10]
My finding that there was no genuine dispute of fact on the arrears
was correct. The applicants’ answering affidavit
contained bare
denials and attempts to put Catfin to proof, which do not create a
bona fide factual dispute. Moreover, the applicants
themselves
conceded that arrears existed and had been partially settled. Even on
their own version, there were arrears at the date
of cancellation,
which entitled Catfin to cancel.
On
the location of the equipment and the tracking system
[11]The
applicants did not place any evidence before me in the main
application that the site in Harding was “secured”.
The
ground now raised in the leave to appeal is an impermissible attempt
to supplement the record. The speculative nature of the
risk of
tampering with the tracking system was properly considered, and my
finding in that regard was not unreasonable.
[12]
In short, I am not persuaded that any of the grounds advanced by the
applicants have a reasonable prospect of success on appeal.
Nor has
any compelling reason been advanced why the appeal should be heard.
The application for leave to appeal is devoid of merit,
and its
prosecution has been substantially abandoned.
Costs
[13]
The respondent has been put to the trouble of opposing this
application and has incurred costs, including the costs of counsel.
There is no reason why the applicants should not be ordered to pay
those costs. The respondent has asked for costs on the attorney
and
client scale, relying on clause 18.4 of the Master Instalment Sale
Agreement which provides for such costs in enforcement proceedings.
I
am satisfied that this is an appropriate case for such an order,
given the lack of merit in the application and the conduct of
the
applicants in failing to prosecute it properly.
ORDER
In
the premises, I make the following order:
1.
The application for leave to appeal is
dismissed.
2.
The applicants, jointly and severally,
the one paying the other to be absolved, are ordered to pay the costs
of this application
on an attorney-and-own-client scale, such costs
to include the costs of senior counsel for the respondent.
JUDGE
SENYATSI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances
Counsel
for the Applicants:
None
Instructed
by:
None
Counsel
for the Respondent:
C V D MERWE
Instructed
by
:
SIBUYI
ATTORNEYS INC
[email protected]
Matter
heard
on:
7 May 2026
Judgement
delivered on:
12 May 2026