Financial Services (Pty) Ltd
TRIAL NO. 3040/99
S.W. SAPIRE, CJ
Plaintiff Mr. P.R. Dunseith
defendant Mr. S. Simelane.
applicant has approached the court seeking relief originally as a
matter of urgency declaring that the Vehicle Rental Agreement entered
into between the parties on 24th June 1999 to be cancelled, directing
and ordering that the respondent restore the vehicle to the
possession of the applicant.
the matter was first heard an order was made for the attachment and
delivery to the applicant of the vehicle in question pending the
outcome of this application and the applicant now seeks a final order
for the return of the vehicle with costs.
applicant has set forth in the finding affidavit that Afinta
Financial Services (Pty) Ltd which is a company duly registered and
carrying on business in Swaziland. The respondent is an individual, a
woman, Sibongile Thandi Nhlengethwa and it is common cause that she
is an adult woman female trader and a transport operator.
applicant has alleged that an agreement was entered into between the
parties for the lease of the vehicle in question and that agreement
has been annexed and appears as annexure "RK2" at page 14
of the papers. The agreement clearly announces itself to be a rental
agreement and provides in detailed terms for the leasing by the
applicant to the respondent of the vehicle in question. There is, on
the original page a bold announcement as to the nature of the
agreement and it is signed on that page both by the applicant and by
agreement provides, inter alia, that the rentals are to be 36 in
number and E9 000.00 in amount.
were to be payable, the first rental on the 7th July, a further
rental on the 30th July and 34 subsequent rentals on the 30th day of
each succeeding month until the period had elapsed.
is a further allegation that the respondent was as at the 19th
September in arrears with payments in terms of the agreement to the
extent of E18 000.00. It is also alleged in the founding affidavit
that the vehicle was delivered to the respondent and the applicant
had complied with all its obligations.
reason of her default the applicant sent her letter of demand on the
19th September by registered post and on the 8th October a further
letter was sent to the respondent notifying her that the rental
agreement was cancelled and that she was required to restore
possession of the vehicle to the applicant.
she made her replying affidavit the respondent did not dispute that
these letters had been received by her.
is a further allegation that subsequently a meeting took place
between the parties at which meeting agreement was reached as to how
the arrears would be dealt with and that the terms of this agreement
were reduced to writing signed by the parties. The respondent has
said on oath that she was not a party to this and that her
does not appear on the document which has been attached. It is not
necessary to consider this dispute as the matter may be decided on
the basis that this agreement was not entered into.
applicant says that the respondent has failed to pay any amount since
the respondent was informed of the default and now seeks return of
the vehicle. The respondent has raised several issues.
appears from the papers and it is common cause that the vehicle had
originally been acquired on lease by the respondent from a company
associated with the applicant, which is known as Afinta Motor
Corporation. To this company an initial amount of E30 000.00 was paid
and certain payments were made in terms of the original agreement.
transpires however that subsequent to these events the vehicle had to
be repaired and that the respondent took the vehicle to the repairer
in Matsapha but was unable or did not pay the costs of the repairs.
Accordingly a position arose when that vehicle was in the possession
of the repairer who would not release the vehicle until such time as
its costs for repairs had been paid.
respondent says she approached, the AMC (PTY) LTD, that is, Afinta
Motor Corporation (Pty) Ltd and made an arrangement that the cost of
the repairs would be paid by way of an advance to her.
was thus enabled to receive the vehicle which was then with the
repairer into her possession. It is at this point that the versions
of the two parties diverged. The applicant contends that, and this
was in fact so, that the arrangement was then made that a new lease
agreement was entered into with the applicant which is in fact an
associated company of Afinta Motor Corporation and that the
instalment payable would be increased to cover the new indebtedness
which had arisen through the advance of monies to the repairer.
respondent however contends that the arrangement was that she would
borrow the money from the applicant but the terms of her original
agreement with Afinta Motor Corporation would govern a continued
possession of the vehicle.
applicant is supported very strongly in its version by the fact that
the agreement "RK2" which was signed at Matsapha on the
24th June, 1999 was entered
The respondent says this is an agreement which provides for the
leasing by the applicant to the respondent of the vehicle from that
time. The respondent contends however that she was under the mistaken
impression that the agreement provided only for an acknowledgement of
debt for the amounts paid by the applicant to the repairer to secure
the release of the vehicle.
however does face certain difficulties. First of all the agreement
itself announces itself to be a rental agreement. There is no talk of
a loan agreement. The contract clearly provides, albeit in small
typing, that the 36 payments of E9 000.00 were to be made and on the
terms which I have previously alleged.
view of this it is difficult to see how it can be found that the
respondent's contention that she was mistaken can be accepted. Even
if she did make a mistake, it was a unilateral mistake and it was not
reasonable. She complains that she was not given an opportunity of
reading the agreement or consulting an attorney on the meaning
thereof. The allegations are vague in the extreme and there is
nothing to show that she was overreached or that there was any
attempt to overreach her or that she was compelled by anything other
than her need to have the money and the bus to to sign the agreement.
There is nothing to show or even to suggest that the applicant hid
from the respondent the true nature of the agreement or the contents
thereof. There is prima facae proof of the indebtedness and on the
papers the respondent has not discharged the onus which rests on her
of proving payment of the amounts claimed by the applicant.
allegations make it clear that the respondent was indebted in two
instalments. These are identified when demand is made and the prima
facae proof tendered in the form of an affidavit from the Managing
Director of the applicant has not been in any way disputed. The
affidavit therefore stands as convincing evidence of the arrears.
coming to this conclusion what may have taken place between the
respondent and the applicant's associated company is not relevant to
the present issues On the probability the events preceding the
entering into of the agreement are those which have been explained by
the circumstances, in view of the terms of the agreement, there is no
option but to declare the Vehicle Rental Agreement entered into
between the parties on the 24 June, 1999 to be cancelled.
to direct and order that the respondent is to restore the vehicle to
the possession of the applicant together with any documentation or
registration which may be required to transfer the registration of
the vehicle, this is commonly known as "the blue book". The
respondent is further to pay the costs of this application.