Firstrand Bank Ltd t/a Fiat Finance v Smith

• Jurisdiction: South Africa
• Judge: Tlhapi AJ
• Judgment Date: 25 February 2009
• Docket Number: 45520/2008
• Hearing Date: 25 February 2009
• Court: Transvaal Provincial Division
• Citation: 2009 JDR 0126 (T)

Tlhapi AJ:

[1]

On the 18 December 2008 I gave judgment for the plaintiff in terms of prayers "B" and "D" of the notice of motion, in an application for summary judgment by the plaintiff. The said application was opposed. The determination of the remainder of the prayers was postponed sine die. My reasons follow.

[2]

Plaintiff's cause of action out of an agreement of lease. The plaintiff claimed summary judgment for:

"A.

Confirmation of cancellation of the AGREEMENT

B.

Repossession of the GOODS:

FIAT PUNTA 1.4 ACTIVE

2009 JDR 0126 p2

Tlhapi AJ

ENGINE NUMBER: 350A010003310077

CHASSIS NUMBER: ZFA19900001115385

C.

Damages, postponed sine die

D.

Costs of suit on an attorney and client scale;

E.

Interest calculated on prayer 4.3 at the rate of 15.708% per annum as from date of Summons to date of payment, calculated on the outstanding balance from time to time, postponed sine die;"

[3]

It is common cause that the total amount of the agreement mentioned in the particulars of claim amounted to R198 369.00. which was payable as follows:

1.

First rental payment of R3 306.15 payable on the 1 October 2006;

2.

Thereafter 56 consecutive monthly payments of R3 306.15;

3.

With a final payment of R3 306.15 payable of on the 17 August 2011.

Furthermore, the defendant was in breach of the agreement of lease and that as at the 4 September 2008, he was in arrears with his monthly payments in the amount of R39 340.28.

[4]

The defendant submitted that, the parties were bound by two agreements, the Lease Agreement and an insurance agreement namely, the Fiat Finance Protection Plan which was underwritten by International Underwriters Administrators. According to the defendant, the insurance policy was taken out at the instance of the plaintiff and was meant to protect the defendant in the event of him being unable to generate income sufficient to meet his monthly payment obligation, under the lease agreement.

2009 JDR 0126 p3

Tlhapi AJ

[5]

The defendant was unable to meet his obligation under the agreement due to ill-health, which commenced in September 2006. Having received treatment over several months his health deteriorated as a result of which a claim was lodged with the underwriters of his insurer. The defendant liaised with the underwriter telephonically and by correspondence. It was submitted on behalf of the defendant that the existence of a relationship between the plaintiff and...