REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2024-128008
In the matter between:
CATERPILLAR FINANCIAL SERVICES
SOUTH AFRICA (PTY) LTD Applicant
AND
KHULAKANYE INVESTMENTS
AND PROJECTS (PTY) LTD Respondent
JUDGMENT
ROBERTSON, AJ
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
______________ _
DATE SIGNATURE
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Introduction
1. This is an application arising from a Master Instalment Sale Agreement
concluded between the parties, together with schedules concluded under that
agreement in respect of Caterpillar’s equipment.
2. The applicant obtained an interim ex parte order from Wepener J on
12 November 2024. That order authorised repossession of the equipment,
pending the determination of Part B. The matter now comes before me after the
filing of answering and replying affidavits and heads of argument.
3. The applicant also seeks condonation for the late filing of its replying affidavit.
The application for condonation was not seriously opposed. Although the
explanation for the delay is not entirely satisfactory, the delay is not excessive,
the respondent h as dealt fully with the replying affidavit, and no material
prejudice has been demonstrated. In the circumstances, condonation is
granted.
4. In Part B, the applicant initially sought final relief arising from the repossession
order, together with payment of R4 510 423.64, interest and costs. The
applicant no longer seeks a monetary judgment at this stage. It presently seeks
leave to dispose of the equipment, with the monetary claim to be postponed
until after disposal and quantification.
5. For convenience, I refer to the Master Instalment Sale Agreement as “the
MISA”.
The central issue
6. Although a number of issues were raised in the papers and heads of argument,
the central issue for present purposes is whether the applicant validly cancelled
the relevant agreements concluded under the MISA. If it did, the applicant’s
entitlement to the p resent disposal relief follows, subject to the respondent’s
complaints about the ex parte order and alleged non-disclosure.
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Clauses 9 and 10 of the MISA
7. The applicant relies on payment default. The relevant contractual provisions
are clauses 9 and 10 of the MISA.
8. Clause 9(a) (p. 27-96) provides that an event of default occurs if the respondent
fails to make payment when due, or if payment is not received when due for
any reason.
9. Clause 10 (p. 27-96) then provides for the remedies available to the applicant
upon an event of default, including declaring the relevant agreement in default
and cancelling it.
10. The respondent contends that clause 9(d) applies (p. 27 -96). That clause
provides for a 10 -day period in relation to failure to observe or perform a
covenant, agreement or warranty. I do not accept that clause 9(d) governs the
present default. Non -payment is dealt with expressly in clause 9(a). Clause
9(d), properly construed, governs other breaches not specifically catered for
elsewhere in clause 9. Clause 9(a) does not require 10 days’ notice before an
event of default arises. The respondent’s constructio n would impermissibly
subject the specific non -payment default in clause 9(a) to the separate notice
regime in clause 9(d).
11. That conclusion accords with the principle generalia specialibus non derogant,
as applied by the Supreme Court of Appeal in Lebashe Financial Services (Pty)
Ltd v Prudential Authority ,1 and Sterklewies (Pty) Ltd t/a Harrismith Feedlot v
Msimanga.2 The principle applies mutatis mutandis to the construction of a
contract, where the parties have addressed a specific subject (here, non -
payment) in a specific provision (clause 9(a)), the general words of clause 9(d)
cannot be used to displace that bargain.
12. It is not seriously disputed on the papers that the respondent was in arrears.
1 [2022] ZASCA 141; 2023 (2) SA 130 (SCA) para 37
2 [2012] ZASCA 77;2012 (5) SA 392 (SCA); [2012] 3 All SA 655 (SCA) para 15
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The cancellation issue
13. The respondent disputes the validity of the cancellation and contends that it
was premature.
14. The formal cancellation letter was sent on 6 November 2024. It is annexed to
the founding affidavit as FA8 (p. 02 -77). In paragraph 6 thereof, the applicant
stated that it had “elected to, as it hereby does, cancel the agreement with
immediate effect”.
15. Paragraph 7 of the same letter then required the respondent, by no later than
7 November 2024, to disclose the whereabouts of the equipment and to make
it available for collection by the applicant.
16. In my view, the reference to 7 November 2024 in paragraph 7 related to the
disclosure and collection of the equipment after cancellation. It was not an
opportunity afforded to the respondent to remedy the payment default before
cancellation took effect.
17. The respondent relies heavily on an email dated 5 November 2024 annexed to
the answering affidavit as Annexure M (p. 27 -165). In that email, the applicant
urged the respondent to make payment by 7 November 2024 or to contact the
writer to discuss a payment arrangement.
18. I do not read that email as a waiver, suspension, or postponement of the
applicant’s accrued contractual right to cancel. Properly construed, it is a
payment demand and an attempt to procure payment of arrears. It does not
state that the applicant will ref rain from cancelling pending 7 November 2024,
nor does it amount to an election to suspend accrued cancellation rights. In
addition, clause 15 of the MISA (p. 27 -98) expressly provides that no delay,
latitude, extension of time or other indulgence granted by the applicant shall be
construed as a waiver of any rights arising from an event of default.
The notice issue
19. The respondent contends that the letter of cancellation was invalid on several
grounds. It submits that the letter was not delivered at the respondent’s
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domicilium address, that it was sent to an incorrect email address, and that it
was sent to Mr Mthombeni after he had resigned as a director of the respondent.
20. I do not accept those contentions. The agreement distinguishes between
contractual notices and service of legal process. The cancellation letter was not
legal process. It was a contractual notice.
21. Clause 18(i) of the MISA (p. 27 -98) expressly permits notices to be sent by
email to the nominated email address recorded in the agreement, or to such
other email address as may be furnished in writing. Clause 18(i)(c) further
provides that notice by email is deemed received on the first business day
following transmission, provided the email is received in legible form.
22. There is no sufficient basis on the papers to conclude that the respondent
formally changed the nominated notice address in writing in accordance with
clause 18(i). At most, the papers establish that some operational
communications were conducted through a different email address. In addition,
numerous emails annexed to the answering affidavit continue to reflect use of
the original nominated email address.
23. In any event, clause 18 contains a safety -net provision which records that “a
written notice or communication actually received by a party shall be an
adequate written notice or communication to it, notwithstanding that it was not
sent to or delivered at i ts chosen address”. Mr Mthombeni admits in his
answering affidavit (at paras 20.9 and 30, pp. 27 -14 and 27-17) that both the
5 November email and the 6 November cancellation letter reached him at the
Gmail address.
24. Even if the Gmail address had ceased to be the chosen address (which I have
found it had not), the cancellation notice was “actually received” and is therefore
an adequate notice. The decision in Swart v Vosloo ,3 upon which the
respondent relied, does not assist. The contract in that case did not contain a
respondent relied, does not assist. The contract in that case did not contain a
deeming or “actual receipt” provision of the kind contained in clause 18 of the
MISA.
3 1965 (1) SA 100 (A)
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25. Nor did the agreement require notice to be given to a current director. The
nominated email address remained the contractual address for notices.
26. I therefore find that the applicant validly cancelled the relevant agreements
concluded under the MISA on 6 November 2024.
27. Once the relevant agreements under the MISA were validly cancelled, the later
payments did not revive or reinstate them. Those payments did not cure the
breach before cancellation. They were made after cancellation.
The ex parte order
28. The respondent also raises a number of complaints concerning the ex parte
order. These include complaints about alleged non -disclosure relating to the
use, maintenance and movement of the equipment, the role of Barloworld, the
location of the equipment, and the respondent’s tender work.
29. I accept that an applicant approaching court ex parte must disclose all material
facts. But the alleged non-disclosures relied upon by the respondent do not, in
my view, warrant reconsideration or discharge of the interim repossession
order. The material facts were that the applicant was the owner of the
equipment, that payment defaults existed, and that the relevant agreements
under the MISA had been cancelled. None of the alleged omissions would, in
my view, have altered the granting of the interim repossession relief.
30. So far as the locations of the equipment are concerned, the applicant in fact
disclosed those locations, with GPS coordinates, both in paragraphs 2.2 to 2.4
of the notice of motion (pp. 02 -3 to 02 -4) and in paragraphs 42 to 44 of the
founding affidavit (pp . 02 -27 to 02 -28). As to the maintenance position, the
applicant is the financier; the maintenance contract (if any) was with Barloworld
Equipment, a separate juristic entity. The applicant cannot be required to
disclose, as a fact, that of which it has no knowledge.
31. It is unnecessary for me to determine all disputes concerning the use,
31. It is unnecessary for me to determine all disputes concerning the use,
maintenance or movement of the equipment. Those disputes are not decisive
once cancellation for non-payment is upheld. I therefore make no final findings
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on those disputes.
Consequential relief
32. It follows that the applicant is entitled to consequential relief permitting it to
dispose of the equipment. The monetary claim cannot sensibly be determined
until after disposal and quantification. It should therefore be postponed sine die,
with leave to the applicant to supplement its papers after disposal.
Costs
33. As to costs, clause 10(k)(ii) of the MISA contains a contractual costs provision
entitling the applicant to recover attorney-and-client costs incurred in enforcing
the agreement.
34. In the circumstances, the applicant is entitled to costs on that scale. I do not
award those costs as a mark of judicial displeasure or because the
respondent’s opposition was vexatious. I award them because that is what the
parties agreed in the contract.
Order
35. I therefore make the following order:
35.1. the applicant’s non -compliance with Rule 6(5)(e) of the High Court
Rules is condoned;
35.2. the interim order granted by Wepener J on 12 November 2024 under
the above case number is made final;
35.3. the applicant is granted leave to dispose of the following CAT
equipment by private sale:
35.3.1. Caterpillar Backhoe Loader 426 with Serial Number/VIN
EJ406046 under contract number IS/SA-003423;
35.3.2. Caterpillar Medium Excavator 320 with Serial Number/VIN
ZBN21947 under contract number IS/SA-003595; and
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35.3.3. Caterpillar Medium Excavator 320 with Serial Number/VIN
ZBN50010 under contract number IS/SA-003654;
35.4. the applicant’s claim for a monetary judgment against the respondent
is postponed sine die;
35.5. the costs relating to the future determination of the applicant’s
postponed monetary claim are reserved for determination at the
hearing thereof;
35.6. the applicant is granted leave to deliver a further supplementary
affidavit in support of its claim for a monetary judgment after disposal
of the CAT equipment and quantification of its claim;
35.7. the respondent is directed to pay the costs occasioned by Part A and
the costs of this hearing, both on the attorney-and-client scale.
__________ _
CL ROBERTSON
Acting Judge of the High Court
Gauteng Division, Johannesburg
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email and by upload to Caselines. The date for hand -down is
deemed to be 2 June 2026.
Date of hearing: 14 May 2026
Date of judgment: 2 June 2026
APPEARANCES
For the Applicant: Adv C van der Merwe
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Instructed by: Senekal Simmonds Inc, Bedfordview
For the Respondent: Mr KJ van Huyssteen
Instructed by: Fluxmans Inc, Illovo, Johannesburg