Moco Finance (Pty) Ltd v Texmacon Trading (Pty) Ltd (2025/225121) [2025] ZAGPPHC 1371 (24 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1371 | Noteup | LawCite sino index ## Moco Finance (Pty) Ltd v Texmacon Trading (Pty) Ltd (2025/225121) [2025] ZAGPPHC 1371 (24 December 2025) Moco Finance (Pty) Ltd v Texmacon Trading (Pty) Ltd (2025/225121) [2025] ZAGPPHC 1371 (24 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1371.html sino date 24 December 2025 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 (GAUTENG DIVISION: PRETORIA) Case number: 2025-225121 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED 24 December 2025 In the matter between: MOCO FINANCE (PTY) LTD Applicant And TEXMACON TRADING (PTY) LTD Respondent JUDGMENT MINNAAR AJ: INTRODUCTION: [1] On 9 December 2025, Mbongwe J (‘the urgent application’) granted the following order in the urgent court: a. That the respondent be ordered to, within 3 (three) days of the granting of this order, return to the business premises of the applicant at Leader Trailer City, 8[…] K[…] Street, W[…] Estates, B[…], Gauteng, 1541 the movable assets being: i. 1 x New 2022 Leader Trailer Bodies 45m3 Side Tipper Interlink HWP3 with Chassis Numbers: A[…] and A[…]; and ii. 1 x New 2022 Leader Trailer Bodies 45m3 Side Tipper Interlink HWP3 with Chassis Numbers: A[…] and A[…]; and iii. 1 x New 2024 Leader Trailer Bodies 50m3 Side Tipper Interlink with chassis numbers: A[…] and A[…]; and iv. 1 x New 2024 Leader Trailer Bodies 50m3 Side Tipper interlink with chassis numbers: A[…] and A[…]. (“the equipment”) b. That in the event of the respondent failing to comply with paragraph 2 above, that the sheriff of this Honourable Court or his deputy is authorised to take such steps as may be necessary to allow the applicant and its employees and/or duly authorised agents to take possession and occupation of the equipment wherever it may be found. c. That the respondent be ordered to pay the costs of this application on the scale as between attorney and own client. (“the order”) [2] The order was granted on a fully opposed application. [3] The respondent did not delay in applying for leave to appeal against the order. On 11 December 2025, the application for leave to appeal was delivered. A request was made for the written judgment, and the respondent indicated that it is in the process of obtaining the transcripts of the proceedings. [4] Three grounds for leave to appeal are raised. In this regard, it is the respondent’s case that the court in the urgent application erred and/or misdirected itself on the following aspects: a. That a basis for urgency existed in the circumstances of the matter. b. Finding that the applicant suffered damages as a result of not being in possession of the equipment. c. Ruling that the respondent must surrender the equipment to the applicant. [5] On 12 December 2025, the applicants lodged this application in terms of section 18(1) and 18(3) of the Superior Courts Act, 10 of 2013 (‘the Section 18 application’). In terms of the section 18 application, the applicant seeks an order: a. That the order shall not be suspended pending the finalisation of the respondent’s application for leave to appeal and/or any appeal. b. That the applicant be authorised to forthwith execute the order, including taking possession of the equipment. c. That the respondent be ordered to pay the costs of the application on the scale as between attorney and own client. d. That the respondent’s legal representative, namely Van der Walt Attorneys Incorporated, be mulcted with costs de bonis propris . [6] The respondent opposed the section 18 application, and a complete set of affidavits was exchanged. [7] At the commencement of the argument, the applicant abandoned the request for de bonis propris costs. [8] The respondent indicated that it is abandoning the first ground of leave to appeal, which concerns the allegation that the court erred in finding that urgency existed in the urgent application. This is a wise decision by the respondent, but it does not detract from my concern that the application for leave to appeal, lodged with undue haste, was not adequately considered and may lack bona fides . SECTION 18 APPLICATIONS: [9] Section 18 applications are by their very nature urgent. [1] As such, the respondent’s attack on the urgency of the section 18 application is outright rejected. [10] It is practice that a section 18 application should be heard by the Court that gave the order that is appealed against. [2] This application, however, was brought during recess and, as such, it would not have been practical to place it before Mbongwe J. There can be no bar to another court entertaining the section 18 application. [11] Section 18(1) to (3) reads: “ 18  Suspension of decision pending appeal (1) Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal. (2) Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision that is an interlocutory order not having the effect of a final judgment, which is the subject of an application for leave to appeal or of an appeal, is not suspended pending the decision of the application or appeal. (3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.” [12] From the wording of section 18(3), read with section 18(2), it is evident that a party who seeks a departure from the ordinary rule that a final order is suspended pending an appeal needs to prove three things, namely: a. The existence of exceptional circumstances; b. Proof, on a balance of probabilities, that he or she will suffer irreparable harm if the interim order is not suspended; and c. Proof, on a balance of probabilities, that the respondent (i.e. the party in whose favour the interim interdict was granted) will not suffer irreparable harm if the interim order is suspended. [13] In Tyte Security Services CC v Western Cape Provincial Government and Others 2024 (6) SA 175 (SCA) at paragraph 9 it is stated that the Supreme Court of Appeal (‘SCA’) has examined the requirements for the implementation of an execution order pending an appeal in University of the Free State v AfriForum (AfriForum); [3] Ntlemeza v Helen Suzman Foundation; [4] Premier of Gauteng v Democratic Alliance; [5] Knoop v Gupta (Knoop); [6] and , in Zuma v Downer and Another. [7] [14] In paragraph 10 of Tyte, the SCA states: “ Whilst there are indeed statements in those judgments that would appear to support counsel's fundamental hypothesis, they seem to have been made in passing. They thus call for closer examination in this matter. An important point of departure, so it seems to me, is that consideration of each of the so-called three requirements is not a hermetically sealed enquiry and can hardly be approached in a compartmentalised fashion.” [15] In Afriforum the SCA has explained that section 18 “ places a heavy onus on the applicant” and does not seek merely to codify the common law but to “ introduce more onerous requirements”. [8] [16] The existence of ‘exceptional circumstances' is a necessary prerequisite for the exercise of the court’s discretion under section 18. If the circumstances are not truly exceptional, that is the end of the matter. The application must fail and falls to be dismissed. If, however, exceptional circumstances are found to be present, it would not follow, without more, that the application must succeed. [9] [17] In paragraph 12 of Tyte, it is stated: “ It has long been accepted that it is 'undesirable to attempt to lay down any general rule' in respect of 'exceptional circumstances' and that each case must be considered upon its own facts. [10] In MV Ais Mamas Thring J summarised the approach to be followed. He said that '(w)hat is ordinarily contemplated by the words "exceptional circumstances" is something out of the ordinary and of an unusual nature; something which is excepted in the sense that the general rule does not apply to it; something uncommon, rare or different . . .'.” [11] [18] In paragraph 13 of Tyte , the Supreme Court of Appeal stated: “ What constitutes irreparable harm is always dependent upon the factual situation in which the dispute arises, and upon the legal principles that govern the rights and obligations of the parties in the context of that dispute. It was accepted in Knoop that '(t)he need to establish exceptional circumstances is likely to be closely linked to the applicant establishing that they will suffer irreparable harm if the . . . order is not implemented immediately'. [12] The same, I dare say, can be said of its counterpart, the absence of irreparable harm to the respondent. In that sense, the presence or absence of irreparable harm, as the case may be, can hardly be entirely divorced from the exceptional circumstances enquiry. It would perhaps be logically incoherent for a court to conclude, on the one hand, in favour of an applicant that exceptional circumstances subsist, but, on the other, against an applicant on either leg of the irreparable harm enquiry.” [19] On the irreparable harm to the respondent, should the order be granted, the SCA held in paragraph 18 of Tyte: “ Counsel did not shrink from the logical consequence of the contention, namely that such a mechanistic approach, which rested on the supposition that the second and third had to be approached as isolated enquiries, may well strip a court of any discretion that it may possess or that it could give rise to a manifestly inequitable conclusion, which could serve to undermine the rule of law. This approach, if it is to be favoured, would disregard entirely the rationality, reasonableness and proportionality yardsticks that have become important touchstones in our jurisprudence. It likely would also, to all intents and purposes, set the bar so high as to render the remedy illusory . Counsel was, however, willing to accept that there must always remain a residual discretion. What exactly was meant by a residual discretion, or when precisely it was to be exercised, remained opaque. However, on the acceptance of a discretion, even a residual one, the argument against a weighing-up evaporates. If the argument were correct, the court would have no discretion to grant relief under s 18, whatever the consequences or however irreparably disastrous to an applicant. ” ( my emphasis). [20] It is thus evident from Tyte that the second and third requirements are not to be approached as isolated enquiries, as this would strip a court of any discretion that it may possess or that it could give rise to a manifestly inequitable conclusion, which could serve to undermine the rule of law. The court has the discretion to grant the relief under Section 18. [21] In paragraphs 19 to 21 of Tyte , the Supreme Court of Appeal discussed ‘irreparable harm’ and stated: [19] Irreparable harm, it has been said in a somewhat different context, is more than a rationale — it is a critical factor in testing the claim for an interlocutory injunction. [13] The nature of irreparable harm is not easy to define. RJ Sharpe points out: 'The rationale for requiring the plaintiff to show irreparable harm is readily understood. If damages will provide adequate compensation, and the defendant is in a position to pay them, then ordinarily there will be no justification in running the risk of an injunction pending the trial. While it is easy to see why this requirement should be imposed, it is difficult to define exactly what is meant by irreparable harm.' [14] [20] Over a century ago Innes JA, after referring to Van der Linden's Institutes, where the essentials for an interdict application had been enumerated, had this to say: 'That element [the injury feared must be irreparable] is only introduced by him in cases where the right asserted by the applicant, though prima facie established, is open to some doubt. In such cases he says the test must be applied whether the continuance of the thing against which an interdict is sought would cause irreparable injury to the applicant. If so, the better course is to grant the relief if the discontinuance of the act complained of would not cause irreparable injury to the other party.' [15] Interim interdicts (akin to interlocutory injunctions) are regular fare in our courts. They provide a flexible and most useful tool in the aid of justice. Our courts have accordingly come to accept that the remedy should not be granted if there is a danger that it may work an injustice. [21] In F Hoffmann-La Roche v Secretary of State for Trade and Industry Lord Wilberforce expressed the view that: 'The object of [an interim injunction] is to prevent a litigant, who must necessarily suffer the law's delay, from losing by the delay the fruit of his litigation; this is called "irreparable" damage, meaning that money obtained at trial may not compensate him.' [16] Albeit said in the context of the consideration of a wholly discretionary remedy, and thus not perfectly analogous, the sentiment expressed is not entirely without value here, inasmuch as it echoes precisely the position in which Royal finds itself.” [22] I am mindful that this court is not sitting as a court of appeal. The prospects of success of the appeal, however, are relevant. In Afriforum the Supreme Court of Appeal stated the following: “ [14] A question that arises in the context of an application under s 18 is  whether the prospects of success in the pending appeal should play a role in this analysis. In Incubeta Holdings Sutherland J was of the view that the prospects of success in the appeal played no role at all. In Liviero Wilge Joint Venture supra [8] [para 30] Satchwell J, Moshidi J concurring, was of the same view. However, in Justice Alliance supra [8] para 27 Binns-Ward J (Fortuin and Boqwana JJ concurring) was of a different view,    namely that the prospects of success in the appeal remain a relevant factor and therefore — 'the less sanguine a court seized of an application in terms of s 18(3) is about the prospects of the judgment at first instance being upheld on appeal, the less inclined it will be to grant the exceptional remedy of execution of that judgment pending the appeal. The same quite obviously applies in respect of a court dealing with an appeal against an order granted in terms of s 18(3).' [15] I am in agreement with the approach of Binns-Ward J. In fact, Justice Alliance serves as a prime example why the prospects of success in the appeal are relevant in deciding whether or not to grant the exceptional relief. Binns-Ward J concluded that the prospects of success on appeal were so poor that they ought to have precluded a finding of a sufficient degree of exceptionality to justify an order in terms of s 18 of the Act. This conclusion was subsequently proven to be justified when this court upheld the main appeal in Justice Alliance. However, in the present appeal, the appeal record in the review application was not before us. The prospects of success shall therefore not feature in our  consideration of whether or not the order of the Full Court should be upheld.“ [23] There is no transcription of the urgent application proceedings, nor written reasons or the judgment before me. Before me are the affidavits exchanged in the urgent application. In motion proceedings, the affidavits in essence constitute the record of the proceedings. I had regard to the affidavits exchanged in the urgent court in considering the respondent’s prospects of success in the application for leave to appeal. [24] As stated, the bona fides of the application for leave to appeal is frowned upon, especially in the haste with which the application was brought and the now abandoned ground of urgency. My understanding of the applicant’s case in the urgent application is that the subject agreements were cancelled on 4 August 2025 and 31 October 2025, respectively. The respondent’s response to the cancellation is that the cancellation is denied on the ground that the applicant debited the respondent’s account after the purported cancellation. This action by the applicant is indicative thereof that the applicant has elected to abide by the agreement rather than to cancel it and/or waive its rights to rely on the breach and notice of cancellation. [25] On the stringent test applicable to section 17 of the Superior Court’s Act, it is difficult to comprehend that another court would come to a different conclusion than the court that granted the order in the urgent application. In my view, and without preempting the outcome, the respondent’s prospects of success in the application for leave to appeal are slim. [26] I am satisfied that exceptional circumstances exist herein. The applicant, who is the owner of the equipment, cancelled the agreements. In the urgent application, the court ordered the return of the equipment. The applicant’s right to ownership over the equipment trumps the respondent’s right to lease and use the equipment. [27] On the requirements of irreparable harm to the parties, the following is stated in paragraph 15 of Tyte: ‘ Although it has been postulated that the second and third are distinct and discrete enquiries, they are perhaps more accurately to be understood as being two sides of the same coin. The same facts and circumstances, which by that stage ought largely to be either common cause or undisputed, will inform both enquiries. The logical corollary of an applicant suffering irreparable harm will invariably — but not always — be that the other party has not. The enquiry into each can thus hardly be mutually exclusive, particularly because, as far as the third is concerned, unlike the second, the onus cast upon an applicant would be to prove a negative, in accordance with the usual civil standard. This suggests that, as with the exceptional circumstances enquiry, a court considering both the second and third must have regard to all of the facts and circumstances in any particular case. Insofar as the third goes, although s 18(3) casts the onus (which does not shift) upon an applicant, a respondent may well attract something in the nature of an evidentiary burden. [17] This would be especially so where the facts relevant to the third are peculiarly within the knowledge of the respondent. In that event it will perhaps fall to the respondent to raise those facts in an answering affidavit to the s 18 application, which may invite a response from the applicant by way of a replying affidavit.’ [28] I am satisfied that, on a balance of probabilities, the applicants stand to suffer irreparable harm if the order is not granted. The equipment, which is the applicant’s sole form of security, is used in a heavy-duty working environment and depreciates daily. [29] The respondent’s alleged irreparable harm is premised on pure financial loss. [30] The submission that the application should fail if the applicant has not proved that the respondent will not suffer irreparable harm has been dispelled by the finding in Tyte. I have considered the irreparable harm the respondent contends it will suffer (pure economic loss). The harm relied on by the respondent is not sufficient to prevent the Section 18 relief from being granted. [31] In the premises, it follows that the Section 18 application should be granted. COSTS: [32] There is no reason why costs should not follow the outcome. [33] The applicant is seeking costs on the scale as between attorney and own client. The lease agreements provide for such costs, and there is no basis to deviate therefrom. ORDER: Consequently, I make the following order: 1.  That the operation and execution of the previous order dated 9 December 2025 under case number 2025-225121 is not suspended pending the application for leave to appeal alternatively appeal. 2.  That the respondent be ordered to, within 3 (three) days of the granting of this order, return to the business premises of the applicant at Leader Trailer City, 83 Koot Street, Withok Estates, Brakpan, Gauteng, 1541 the movable assets being: a.     1 x New 2022 Leader Trailer Bodies 45m3 Side Tipper Interlink HWP3 with Chassis Numbers: A[…] and A[…]; and b.     1 x New 2022 Leader Trailer Bodies 45m3 Side Tipper Interlink HWP3 with Chassis Numbers: A[…] and A[…]; and c.     1 x New 2024 Leader Trailer Bodies 50m3 Side Tipper Interlink with chassis numbers: A[…] and A[…]; and d.     1 x New 2024 Leader Trailer Bodies 50m3 Side Tipper interlink with chassis numbers: A[…] and A[…]. (“the equipment”) 3. That in the event of the respondent failing to comply with paragraph 2 above, the sheriff of this Honourable Court or his deputy is authorised to take such steps as may be necessary to allow the applicant and its employees and/or duly authorised agents to take possession and occupation of the equipment wherever it may be found. 4.  That the respondent is ordered to pay the costs of this application on the scale as between attorney and own client. Minnaar AJ Acting Judge of the High Court Gauteng Division, Pretoria For the applicant:        Adv S Viljoen Instructed by Anders Incorporated For the respondent:    Adv C Jacobs Instructed by Van der Walt Attorneys Incorporated Heard on:                    17 December 2025 Date of judgment:       24 December 2025 [1] Caterpillar Financial Services South Africa (Pty) Ltd v Zero Azania (Pty) Ltd (57252/2021) [2023] ZAGPJHC 1117 (2 October 2023) at para 14; Downer v Zuma and Another (12770/22P; 13062/22P) [2023] ZAKZPHC 75 (3 August 2023) at para 10. [2] Caterpillar at par 13 [3] University of the Free State v AfriForum and Another 2018 (3) SA 428 (SCA) [4] Ntlemeza v Helen Suzman Foundation and Another 2017 (5) SA 402 (SCA) [5] Premier for the Province of Gauteng and Others v Democratic Alliance and Others [2021] 1 ALL SA 60 (SCA) [6] Knoop NO and Another v Gupta (Execution) 2021 (3) SA 135 (SCA) [7] Zuma v Downer and Another 2024 (2) SA 356 (SCA) [8] Afriforum at para 11 [9] Tyte at para 11 [10] Norwich Union Life Insurance Society v Dobbs 1912 AD 395 at 399. [11] MV Ais Mamas: Seatrans Maritime v Owners, MV Ais Mamas, and Another 2002 (6) SA 150 (C) at 156H – J. [12] Knoop at para 47 [13] PM Perell 'The Interlocutory Injunction and Irreparable Harm' (1989) 68 The Canadian Bar Review 538 at 540. [14] RJ Sharpe Injunctions and Specific Performance (1983) at 77. Cited in PM Perell id. [15] Setlogelo v Setlogelo 1914 AD 221 at 227. [16] F Hoffmann-La Roche & Co AG and Others v Secretary of State for Trade and Industry [1975] AC 295 ([1974] 12 All ER 1128) at 355 (AC) and at 1146 (All ER). [17] MV Tarik 3: Credit Europe Bank NV v The Fund Comprising the Proceeds of the Sale of the MV Tarik 3 and Others [2022] 4 All SA 621 (SCA) ([2022] ZASCA 136) paras 24 – 34. sino noindex make_database footer start