A Johannesburg man will keep his Mazda for now after the court found out Absa charged him car installment which included an insurance premium he was not aware of.
The bank had approached the high court in Johannesburg to apply for a summary judgment against its customer, Philani Mbucani, after he defaulted on his car payments which were in arrears of R16,600.
An application for summary judgment is a legal procedure that allows a plaintiff, Absa in this case, to obtain final judgment against a defendant [Mbucani] without a full trial, usually on the basis that the defendant has no bona fide defence and intends to delay the repossession process.
As a result of Mbucani’s debt in 2023, the bank wanted to cancel the 2021 vehicle sale agreement it had with him and take back the vehicle.
He, however, filed a plea opposing the bank’s application to repossess the vehicle. He disputed to have breached the agreement.
Mbucani pleaded that the owed amount could be incorrect as it included car insurance fees he was not made aware of.
He submitted to the court that he had owned three vehicles before which he bought for cash, and that the Mazda 3 1.6 Dynamic 5DR in question was the first vehicle he bought through the bank.
When he was sold the Mazda in 2021, he declined the insurance offer as he could not afford it. However, according to the judgment delivered by Judge Lebogang Modiba last week, at no point did the bank inform him that it had insured the motor vehicle on his behalf.
“Although a party who signed an agreement is presumed to have the animus(intention) to enter into the transaction contained in it and that he bears the onus to establish that he in fact had not concluded the agreement as he is bound by the ordinary meaning and effect of the words which appear over his signature, the defendant [Mbucane] has put up a version regarding the circumstances under which the agreement was signed to rebut this presumption," read the judgment.
Mbucane said he did not agree to the insurance , and that he was once involved in an accident with the vehicle and paid for the car’s repairs off his pocket because he understood himself to be uninsured.
The court agreed with him, adding that he suffered prejudice.
“If the defendant was not aware of the obligation to insure the motor vehicle, he has a bona fide defence regarding his liability for the premiums charged to his account, particularly if the plaintiff [FNB] failed to advise him that it has taken out insurance in respect of the motor vehicle and as a result of this omission, he suffered prejudice as he could not claim from the insurance when he could have done so."
The court ruled that Mbucane has no obligation to show that his defence is likely to prevail.
Due to the dispute over insurance premiums directly impacting the alleged arrear debt and the validity of the cancellation, the court was of the view that the matter could not be resolved on an affidavit alone and that oral evidence would be required.
The application was dismissed with costs and Mbucane was granted leave to defend the action to repossess his vehicle.
