Incorporated General Insurances Ltd v Reinecke

• Jurisdiction: South Africa
• Judge: Van Blerk ACJ, Wessels JA, Trollip JA, Corbett JA and Hofmeyr JA
• Judgment Date: 25 November 1975
• Hearing Date: 06 November 1975
• Court: Appellate Division

Incorporated General Insurances Ltd v Reinecke
1976 (1) SA 591 (A)

1976 (1) SA p591

Citation	1976 (1) SA 591 (A)
Court	Appellate Division
Judge	Van Blerk ACJ, Wessels JA, Trollip JA, Corbett JA and Hofmeyr JA
Heard	November 6, 1975
Judgment	November 25, 1975

Flynote : Sleutelwoorde

Insurance — Motor vehicle insurance policy — Insured indemnified in respect of bodily injury, to any person not of same household — 'Member of household' — Meaning of in context and in general — Insured claiming indemnity in B respect of injuries to mother and sisters when his passengers — Insured succeeding in establishing that he had left his parental household after matriculating and entering employment — Left parental home for good with all his belongings and ceased to receive any further financial assistance.

Headnote : Kopnota

The contract under which the respondent had insured his motor C car with appellant contained, inter alia an indemnity in respect of liability to third parties in respect of 'bodily injury to any person not being a member of the same household as the insured'. The respondent's mother and sisters having sustained injuries in 1968 in a collision when passengers in his motor car whilst he was driving, the respondent had succeeded in obtaining an order in a Provincial Division declaring in terms of section 19 (1) (a) (iii) of Act 59 of D 1959, as substituted by section 2 of Act 41 of 1970, that the appellant was liable in terms of the policy to indemnity him in respect of claims brought against him in respect of their injuries. In an appeal it was contended by the appellant that the respondent had been a member of the same household as his mother and sisters at the date of the collision. The objective facts established by the evidence were that respondent E matriculated in 1964; in January 1965 he had left Johannesburg for Pretoria where he had become employed in the Post Office; and he had also done his stretch of military service during 1965 and returned to his employment. The Post Office transferred him from place to place and finally back to Johannesburg, to the training centre there. When he had initially left home he had taken all his belongings with him, and thereafter he had made all his own arrangements for accommodation wherever his employer required him to be, without any financial assistance from his father. He had purchased, run, maintained and insured his own motor car, and entirely F supported himself. At no stage had he returned to his parent's home except for week-end visits at long or short intervals depending upon the distance he was living away from home. By the date of trial he was a married man living in Pretoria. As to the subjective facts, he had stated that after leaving home he no longer regarded his parent's home as his and that he never returned to their home except to visit them because of his filial ties with them. His evidence was supported by that G of his father, and the Court a quo had accepted their evidence.

Held, that the words 'member of a household' had to be interpreted in the context of the insurance policy as a whole and not in vacuo or in connection with situations unrelated to insurance policies, and that it would be unwise to attempt a definition of such words for any purpose outside the present context.

Held, further, that the Court a quo had been justified in H deciding that the respondent was not at the time of the collision in question a member of the same household as his mother and two sisters.

Held, further, (per TROLLIP, J.A.; WESSELS, J,A., and CORBETT, J.A., concurring), that for a person to be a member of a household at least two fundamental elements had to co-exist, viz. (a) there had to be some relationship, affinity, or tie between him and the other members of the household, such as a family tie, and (b) the person had to 'occupy' or 'live' or 'dwell' in the household premises, which imported some degree of continuous or permanent residence there, which was not the case here.

The decision in the Transvaal Provincial Division in Reinecke v. Incorporated General Insurances Ltd., confirmed.

1976 (1) SA p592

Case Information

Appeal from a decision in the Transvaal Provincial Division (HUMAN, J.). The facts appear from the judgments of TROLLIP, J.A. and HOFMEYR, J.A.

P. M. Wulfsohn, S.C. (with him R. J. Goldstone ), for the appellant: The onus is on the respondent to prove that the claimants (his mother and his two sisters) were at the time of the collision not members of the same household as the respondent. Eagle Star Insurance Co. Ltd. v. Willey, 1956 (1) SA 330. The word 'household' is defined in Oxford English Dictionary, (1933), vol. V, p. 421; Webster, New International Dictionary of the English Language, 2nd ed, p..207; The New B Century Dictionary, (N.Y., 1927), vol. 1, p. 769; Funk & Wagnalls, Standard Dictionary of the English Language, International Edition, (N.Y.), vol. 1, p. 612. The classes of person who would constitute the inmates in a household would include at least the following: a husband and wife not permanently separated; Clark & Co. v. Lynch, 1963 (1) SA at p. 186A - F; Read v. Avon Insurance Co. Ltd 1967 (1) SA at C pp. 382C - F; 384A - E; their children, Clark's case, supra at p. 186B - D; a relative, Brand v. Kotze, 1948 (3) SA at p. 771; servants in the household, MacGillivray v. W.R. Investments (Pty.) Ltd., 1959 (3) SA at p. 20C - G. The elements relevant to the word 'household' would seem to be the D following: (a) there must be a house or a flat; (b) the occupation of persons therein; (c) the fact that that there must be more than one person; (d) these persons are to be collectively considered as an organised family; (e) in so far as the collective group is to acknowledge a head of the household, one such person may be the head, or the authority may be shared by two or more such members; (f) there must be dependence upon the head of the household. Words and Phrases Legally Defined, 2nd ed., D - H at pp. 379 - 380, s.v. E 'household'. A 'member of a household' would be one of the persons comprising such household. In considering the element of occupation in respect of a person being a member of a household, such occupation need not be permanent but may be temporary; Clark's case, supra at p. 186C - D; MacGillivray's case, supra at p. 20F - G; Gordon & Odes, Law of Compulsory F Motor Vehicle Insurance, 2nd ed. at p. 57. A person may be a member of the household however tightly or loosely the family be knit. Cf English v. Western, (1940) 1 K.B. at p. 149; Western case, supra, (1940) 2 K.B. at p. 163. Persons living in separate flats in a block of flats would not be of the same household although they be in the same building, but in each G flat there would ordinarily be a household, persons living therein being members of the same household. Abrahamsohn v. Voluntary Workers' Housing Utility, 1953 (3) SA at p. 220A - C; McGillivray's case, supra. The nexus is an a fortiori one in the case of a grown-up son who comes home for a week-end compared with a stranger visiting for the week-end. The H expectation or intention of the son returning invariably to the parents' home for week-ends, also helps to retain the relationship relevant to membership of a household. Cf. May v. May and Thomas, 1962 V.R. at p. 124. A

The second meaning of the word 'household' relates to a 'domestic establishment', in regard to which the relevant definitions, see Oxford English Dictionary, vol. III, p. 299, 593; Webster, supra at pp. 768, 874; New Century Dictionary, supra, vol. 1, pp. 448, 517; Funk & Wagnalls, supra, vol. 1, pp. 377, 434.

The fact that the respondent had been ordinarily residing away from his parents' home would not preclude him from being a member of his parents'

1976 (1) SA p593

household during the particular few days when he was temporarily staying over with his parents. Just as a man may have two residences at one and the same time, Ex parte Minister of Native Affairs, 1941 AD at p. 58; Maritz v. Erasmus, 1914 CPD at p. 122, and the one place may be where he 'ordinarily resides', and the other place may be where he actually 'resides' temporarily, Biro v. Minister of Justice, 1957 (1) A S.A. at p. 20D - G, so may he be a permanent member of one household, but still be a temporary member of another household if he sleeps over at his parents' house as a temporary guest. The evidence of surrounding circumstance is admissible in order to apply the terms of the contract of insurance to the facts. Delmas Milling Co. Ltd. v. Du Plessis, 1955 (3) SA at p. 454F B - G. The contra proferentem rule would not be applicable in the present case because it is not suggested that the relevant wording in the policy gives rise to two equally consistent reasonable meanings. If the meaning of the relevant wording is clear, then the rule is not applicable, Eagle Star case, supra at p. 335H, and the same applies if there is mere C difficulty in the construction of the wording. Western case, (1940) 2 K.B. at p. 166. However, if there be genuine ambiguity in the interpretation of the wording, so that there are two reasonably possible meanings to be assigned to the wording, and there is real doubt as to which be the correct meaning, and if the true meaning cannot otherwise be satisfactorily determined, D then, as a last resort, the contra proferentem rule may be invoked. Bon Accord Irrigation Board v. Braine, 1923 AD at p. 486; Cohen v. Rapidol Ltd., 1934 AD at pp. 143, 144 and 147; Cairns (Pty.) Ltd. v. Playdon & Co. Ltd., 1948 (3) SA at pp. 122 - 124; Standard General Insurance Co. Ltd. v. Croucamp, 1959 (3) SA at pp. 169H - 170A; Western case, (1940) 2 K.B. at pp. 163 - 165.

N. S. Page, S.C., for the respondent: It is accepted that the E onus rested upon the respondent to prove that the claimants were not members...