Analyses: The Rebel and His Life Insurance Policy: A Reappraisal of the Decision in Burger v South African Mutual Life Insurance Society

• Jurisdiction: South Africa
• Citation: (1999) 11 SA Merc LJ 399
• Pages: 399-416
• Published date: 25 May 2019
• Date: 25 May 2019
• Author: JP van Niekerk

LIFE INSURANCE:

BURGER v SOUTH AFRICAN MUTUAL LIFE



399

The Rebel and His Life Insurance Policy:

A Reappraisal of the Decision in

Burger v

South African Mutual Life Insurance Society*

JP VAN NIEKERK

University of South Africa

1 Introduction

Burger v South African Mutual Life Insurance Society

((1903) 20 SC

538; also reported in slightly less detail in (1903) 13

CTR

847 (SC), and

noted in (1904) 21

SALJ

270 and

Digest

68) is one of very few South

African insurance cases referred to in the leading English insurance law

textbook,

MacGillivray & Parkington on Insurance Law

(8 ed by Michael

Parkington, Nicholas Legh-Jones, Andrew Longmore & John Birds

(1988)).

* I wish to thank my colleague, Heinrich Schulze, for imparting to me some of his vast

genealogical knowledge and skills. The mistakes and omissions which remain serve to show how

much I still have to learn.

(1999) 11 SA Merc LJ 399

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400



(1999) 11 SA Merc LJ

The

Burger

case is in fact not simply referred to in a footnote but it

elicits some more pertinent comment (idem in par 459 & 519). The

decision is regarded as a difficult one to explain in view of accepted

principles applicable in this area of insurance law. The main reason why

the decision of the Cape Supreme Court in the

Burger

case attained this

prominence was because in 1937 the English Court of Appeal, in the well-

known decision in

Beresford v The Royal Insurance Co

([1937] 2 KB 197

(CA)), disagreed with at least some of the views expressed in

Burger.

Another possible reason why references to a handful of South African

insurance decisions, including that in the

Burger

case, may have been

included in

MacGillivray & Parkington

— the involvement in earlier

editions of the work, namely the sixth edition (1975) and the

seventh edition (1981)) of a South African-trained lawyer, Anthony

O'Dowd (BA LLB (Wits)) — may be discounted: the case was already

referred to in the fifth edition (1961) in which he was not involved.

Despite the fact that it concerns controverted and involved aspects of

insurance law, namely the effect on the insurer's liability of the fact that

the insured's own conduct caused or contributed to the materialisation

of the risk insured against, the decision in

Burger

has, strangely enough,

not received any in-depth analysis in South African texts on insurance

law. In the latest edition of

Gordon & Getz on the South African Law of

Insurance

(4 ed (1993) by DM Davis at 355-356) the decision is noted and

the reasoning in it disapproved of as difficult to reconcile 'with concepts

generally prevailing at the time of the decision'. Interestingly enough, in

an earlier edition of this work, published before the

Beresford

case, the

Burger

decision was referred to with apparent approval or at least not

with disapproval (see Gerald Gordon

The South African Law of Insurance

(1936) at 136,137 and 138). This single instance aside, the

Burger

decision

nowhere attains greater prominence than humble footnote references (see

Gordon & Getz

op cit at 358 n405-406 and 409; and MFB Reinecke &

SWJ van der Merwe

General Principles of Insurance

(1989) in par 186 n39

and n45).

The aim with this brief note, therefore, is to reconsider the correctness

or otherwise of the reasoning and the decision in the

Burger

case in a little

more detail. And, if nothing else, the case has some fascination for those

with an historical bent because the factual background to the decision

unfolded during one of the many tragic periods of South African history,

the Anglo-Boer War, which broke out exactly a century ago.

2 The Life and Death of Burger

Burger was born on the farm Elizabethsfontein in the district of

Clanwilliam, in the Western Cape, on 16 June 1863. The farm Elizabeths

fontein, or Betjesfontein as it is also referred to in the sources, is situated

some 30 kilometers north east of Clanwilliam, to the left of the present

road to Calviana (the R364), just on the other side of the Pakhuis Pass

(see topographical maps 3219AA (Pakhuis) and 3119CC (Doringbos)).

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