IN THE HIGH COURT OF PRETORIA

						
											25/02/2009

In the matter between:

FIRSTRAND BANK LIMITED t/a FIAT FINANCE					PLAINTIFF

And
MARTIENUS JOHANNES SMITH							DEFENDANT

TLHAPI, AJ

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

[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.

[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 insurer was confirmed by the fact that it took plaintiff a long time before summons was issued, suggesting that the plaintiff was aware that defendant was at some time processing his claim with the insurer.
[6]      On the 3 September 2008 he was advised that his claim had prescribed due to his failure to provide full information relating to his condition despite the fact that full details had been forwarded to an employee of the plaintiff, a certain Mr Khan and confirmation by some employees of the insurer that such information had been received, Mr Khan's confirmatory affidavit was not availed.
[7]      It was submitted on behalf of the plaintiff that the applicable clauses in the lease agreement which were relevant in this application were:

6.	When signing this agreement you must make the first payment or give the required advance rental in terms of the agreement;

Lessor will have the right (without affecting any of its other rights):

10.	

12.	Should the Lessor not have insisted that you follow any of the terms and conditions strictly at any previous stage you may not assume that the terms and conditions have been altered. These terms and conditions still apply.

12.	This is the whole contract and no changes may be made to it unless these changes are in writing and signed by both you and the Lessor/'
[8]      Except for a letter dated 11 October 2006 from Fiat Finance Customer Service Centre

[9]      It was correctly submitted on behalf of the plaintiff that the clauses extracted from the lease agreement were relevant to the determination of this matter. As I understood it, in order for the defendant to succeed, they should have presented such information or reasonable positive indication that the plaintiff had placed a limitation on its rights under the lease agreement. Having regard to clause 13 of the lease agreement, it is clear, that no other agreement would have had the effect of cancelling or suspending the rights and obligations under the lease agreement, unless reduced to writing and signed for by the
parties. In the absence of such agreement, formally concluded, the defendant would in my view have difficulty succeeding in his defence at trial and. on the basis of the facts in his opposing affidavit.

[10]    In the circumstances, judgment for the plaintiff then followed.

TLHAPI, V V
(ACTING JUDGE OF THE HIGH COURT)
ATTORNEYS FOR THE PLAINTIFF						HACK STUPEL & ROSS, PRETORIA

ATTORNEYS FOR THE DEFENDANT						PG DE JAGER ATTORNEYS PRETORIA