Caterpillar to have R18m worth of vehicles returned after court victory

Construction vehicles worth more than R15m were successfully reclaimed by Caterpillar after the intended buyer, Azania, stopped paying the instalments.

Though the majority of the High Court ordered the company to return the equipment, one dissenting judge argued Caterpillar had not proved its claim.

Some time before 2021, construction group Azania entered into a sale agreement with Caterpillar, to purchase six construction vehicles. The total cost was almost R20m.

However, by October 2021, Azania had stopped paying but were still using the vehicles. As a result, Caterpillar cancelled the sale agreement and successfully obtained a court order for the return of its vehicles.

After much back and forth litigating, Caterpillar obtained an order to have its vehicles returned.

Caterpillar told the High Court that while Azania fights in court, it would suffer irreparable harm to its business without the vehicles. Caterpillar also said it has no other guarantee to protect it from Azania’s alleged breach of the contract and every day the vehicles are used by Azania, their value decreases.

Though Caterpillar could get its vehicles back once Azania has exhausted its appeals, Caterpillar wants the vehicles returned as soon as possible.

Azania appealed to the full bench of the Johannesburg high court so it could continue to retain the vehicles.

The full bench was split, with the majority of the court dismissing Azania’s appeal on Tuesday. The dissenting judge, however, found Caterpillar had not actually proved its claim for the return of the vehicles.

The court majority

Judge Ingrid Opperman, with whom judge Victor Noko concurred, ruled that Azania had not made out a case on appeal and Caterpillar should have its vehicles returned. “It is now November 2023,” she wrote in her majority judgment, “and the machinery is still being used without payment.”

She also noted Azania put up no evidence to support the view the vehicles are being well-maintained. After Azania was challenged to produce evidence about the vehicles’ maintenance, “nothing was presented to allay Caterpillar’s fears.”

By denying Caterpillar the return of its vehicles, Caterpillar would be suffering irreparable harm. “Everything points to an unscrupulous exploitation of the benefit of possession [of the vehicles by Azania] with little or no regard for the rights of [Caterpillar]”.

She also found that, in contrast, if the vehicles are returned to Caterpillar, Azania will not suffer harm. Azania did not show the court it could not use alternative vehicles to continue its construction work, for example.

She therefore dismissed Azania’s appeal, with costs, so Caterpillar can now proceed to get its vehicles back.

The dissenting judgment

Meanwhile, judge Stuart Wilson, agreed with almost everything Opperman found, he disagreed that Caterpillar had proved it would suffer irreparable harm.

“There is no suggestion that the vehicles will be irreparably damaged, destroyed or spirited away pending appeal,” Wilson wrote. “Caterpillar can, and does, track them. If its monitoring of the vehicles shows the possibility of them being rendered unusable or of them being placed beyond its reach, it will have its remedies then. But there is simply no suggestion of that at present.”

moosat@businesslive.co.za