Caterpillar Financial Services South Africa Proprietary Limited v Ndes Civil Work and Construction CC (HC-MD-CIV-ACT-CON-2024/02675) [2025] NAHCMD 41 (13 February 2025)

Case Title:

Caterpillar Financial Services

South Africa Proprietary Limited Plaintiff

and

Ndes Civil Work and Construction CC Defendant

Case No:

HC-MD-CIV-ACT-CON-2024/02675

Division of Court:

Main Division

Heard on:

Determined on papers

Heard before:

Honourable Mr Justice Usiku

Delivered on:

13 February 2025

Neutral citation: Caterpillar Financial Services South Africa Proprietary Limited v Ndes Civil Work and Construction CC (HC-MD-CIV-ACT-CON-2024/02675) [2025] NAHCMD 41 (13 February 2025)

Order:

1. The cancellation by the plaintiff of the agreement concluded by and between the parties on or about 13 February 2024, is hereby confirmed;

2. The defendant is directed to return the Motor Grader 919 with serial number S9R02259 to the plaintiff within a period of seven court days from the date of this order, failing which, the Deputy Sheriff of the area within which the said Motor Grader is situated, is hereby directed and authorized to attach and return the Motor Grader to the plaintiff, at the cost of the defendant;

3. The plaintiff is granted leave to apply to this court on the same papers, amplified if necessary, once the said Motor Grader has been returned to the plaintiff, for assessment of damages, if any, such damages to be calculated by subtracting the current market value of the Motor Grader from the balance outstanding in respect of the purchase price;

4. The defendant is ordered to pay the costs of the plaintiff on an attorney client scale;

5. The matter is removed from the roll and is regarded finalised.

Reasons for order:

USIKU J:

Introduction

[1] For convenience sake, the parties are referred to as in the main action. This is an application by the plaintiff for summary judgment. The plaintiff applied for summary judgment in the following terms:

‘(a) An order confirming the termination and/or cancellation of the agreement;

(b) An order directing the defendant to return the Motor Grader 919, with serial number S9R02259 to the plaintiff within a period of seven court days from the date of such order, failure of which , an order directing the Deputy Sheriff to attach and return the unit to the plaintiff, costs to be borne by the defendant’

(c) Leave be granted to the plaintiff to apply to this court on the same papers, amplified, if necessary, once the Motor Grader 919, with serial number S9R02259 has been returned to the plaintiff for assessment of the damages, if any, such damages to the calculated by subtracting the current market value of the unit from the balance outstanding in respect of the purchase price;

(d) Costs on an attorney-client scale as per clause 10(ii) of the agreement;

(e) Further and/or alternative relief.’

Background

[2] On 18 July 2024, the plaintiff instituted action against the defendant seeking the abovementioned relief. The plaintiff’s claim is based on a written agreement concluded between the parties on 13 February 2024, in terms of which, the plaintiff sold a Motor Grader 919 to the defendant over time, against monthly instalments.

[3] In the particulars of claim, the plaintiff alleges that the defendant breached the agreement, in that, it failed to pay its monthly instalments as and when they became due.

[4] The defendant entered appearance to defend. Subsequently, the plaintiff launched the present application asserting that the defendant filed its notice to defendant solely for the purpose of delay, as the defendant has no bona fide defence to its claim.

[5] The defendant does not oppose the application.

Analysis

[6] A court faced with a summary judgment is required to enquire:

(a) whether defendant has fully disclosed the nature and grounds of his defence and the material facts upon which it is founded; and;

(b) whether on the facts so disclosed the defendant appears to have a defence which is bona fide and good in law.

[7] In the present matter, the defendant has not disclosed any defence to the plaintiff’s claim. Upon a careful reading of the papers filed of record, I am of the view that the plaintiff is entitled to be granted summary judgment in the terms as prayed for. The application for summary judgment, therefore, stands to succeed.

[8] In the result, I make the following order:

1. The cancellation by the plaintiff of the agreement concluded by and between the parties on or about 13 February 2024, is hereby confirmed;

2. The defendant is directed to return the Motor Grader 919 with serial number S9R02259 to the plaintiff within a period of seven court days from the date of this order, failing which, the Deputy Sheriff of the area within which the said Motor Grader is situated, is hereby directed and authorized to attach and return the Motor Grader to the plaintiff, at the cost of the defendant;

3. The plaintiff is granted leave to apply to this court on the same papers, amplified if necessary, once the said Motor Grader has been returned to the plaintiff, for assessment of damages, if any, such damages to be calculated by subtracting the current market value of the Motor Grader from the balance outstanding in respect of the purchase price;

4. The defendant is ordered to pay the costs of the plaintiff on an attorney client scale;

5. The matter is removed from the roll and is regarded finalised.

Judge’s signature

Note to the parties:

B Usiku

Judge

Not applicable

Counsel:

Plaintiff:

1^st to 12^th Defendant:

C Maritz

Koep & Partners,

Windhoek

G Kasper

Murorua Kurtz Kasper Incorporated,

Windhoek