Trust Bank of Africa Ltd v Dhooma

• Jurisdiction: South Africa
• Judge: James JP and Fannin J
• Judgment Date: 12 May 1970
• Citation: 1970 (3) SA 304 (N)
• Hearing Date: 13 February 1970
• Court: Natal Provincial Division

A Fannin, J.:

In the court below the respondent in this appeal obtained from a magistrate in Pinetown an order that certain goods belonging to him be released from attachment under a writ of execution issued by the appellant for the enforcement of a judgment previously obtained by the appellant against the respondent in the court of the magistrate. I shall B refer to the parties as the appellant and the respondent. The appellant was the first respondent in the application to the court below, the messenger of court, Pinetown, being joined as a second respondent but taking no part in the proceedings. The relevant facts are that the respondent had purchased a motor vehicle under a hire-purchase agreement for a total purchase price of R5,680, such hire-purchase agreement being subsequently ceded by the seller to the appellant. Some C time prior to October, 1966 the appellant sued the respondent for the full balance owed by the respondent under the hire-purchase agreement and, on 7th October, 1966, obtained judgment for such balance in the sum of R2,303.66 with interest and costs. It appears from a document, which D was put before the Court by consent after the hearing of this appeal and to which I shall refer later, that in terms of the contract interest was to be calculated on arrear amounts at the rate of 1 1/4 per cent per month, part of a month being regarded as a month, this it seems being the interest for which judgment was granted. Some months prior to judgment, the vehicle was stolen and was eventually recovered in a E damaged condition, and, after recovery, it was left with a firm of panel-beaters, the intention apparently being that it should be repaired. However, by reason of disputes between the respondent and his insurance company, no work was done on such repairs and the vehicle remained in the possession of the panel-beaters for a long time until F ultimately the firm of panel-beaters went into liquidation and the vehicle was disposed of as scrap in the course of such liquidation. In the meantime, the respondent made certain payments to the appellant in reduction of his liability to them and over many months correspondence passed between their respective legal representatives in an attempt to arrive at some arrangement both as to the disposal of what was left of G the vehicle and as to the discharge by the respondent of his liability to the appellant.

On 24th January, 1968, while the vehicle was still in the hands of the panel-beaters, a written agreement was entered into between the appellant and the respondent in which, after reciting the existence of H the hire-purchase agreement and its subsequent cession to the appellant, the parties proceeded to provide as follows:

'And whereas the ownership in and to the merchandise is vested in the cessionary;

And whereas the purchaser is in arrear with his instalments according to the said hire-purchase agreement to the amount of R2,077.49;

And whereas a total balance of R2,077.49 is still due and payable by the purchaser to the cessionary;

And whereas the purchaser and the cessionary are desirous to cancel the abovementioned hire-purchase agreement, subject to the terms and conditions hereinafter stipulated;

Fannin J

Now therefore it is mutually agreed;

1. The purchaser hereby voluntarily surrenders the merchandise to the cessionary who accepts repossession of same.

2. The cessionary will keep the merchandise in his possession for a period of twenty-one (21) days as from date hereof to grant the A purchaser an opportunity to settle the arrears of R2,077.49 and finalise such further arrangements for payment of any balance outstanding, as may be agreed upon between both parties.

3. The purchaser will be responsible for all costs involved and incurred with the repossession of the merchandise as well as fees for storage.

4. Should the purchaser fail to pay the arrears within twenty-one (21) days as from date hereof, the cessionary will sell the merchandise and credit the proceeds of such sale to the account of the purchaser, and B the purchaser shall be liable for payment of any further balance due.

5. Subject to the conditions of para. 2 above, this agreement substitutes the agreement/s which previously existed between the cessionary and the purchaser and this agreement will henceforth be deemed the only legal binding contract between the parties hereto.

6. The parties hereto agree to the jurisdiction of the magistrate's court being accepted in any action which may arise from this agreement.'

C At the end of the document, after the signatures of the parties, the respondent signed an endorsement in the following terms:

'I agree to the appointment by the Trust Bank of Africa Limited of a sworn appraiser of their choice to determine the value of the vehicle.'

D Nowhere in the document is any mention made of the judgment. It is clear from the papers that this document originated with the appellant and was put forward by it for acceptance by the respondent. In the course of argument before us, a question arose as to the manner in which the sum of R2,077.49 was arrived at and the Court was subsequently handed a statement emanating from the appellant showing how that figure E was calculated. We were later informed, however, that there is some dispute between the parties as to the correctness of the calculations, but that it is common cause that the figure of R2,077.49 was arrived at without taking into account the costs incurred by the appellant in connection with the judgment it had obtained, and was intended to represent the balance due by the respondent, with interest.

F The respondent originally made the case in the court below, for reasons which it is unnecessary at this stage to deal with, that the only amount owed by him, on the date upon which the writ of execution referred to was issued, was the sum of R108.52, and that costs incurred by the appellant...