Insurance Law

• Author: Millard, D.
• Published date: 28 March 2022
• Date: 28 March 2022
• Pages: 646-764

646

1. INTRODUCTION

This chapter contai ns the most recent developments in insurance law. After

what seemed like a marathon of legisl ative changes spanni ng almost two

years, legislative updates over the past year have been minim al. Case law,

on the other hand, saw a surge, main ly as a result of litigation pertain ing

to business interrupt ion insurance claimed due to the COVID-19 pandemic.

Several cases followed in the wake of Café Cham eleon CC v Guardrisk

Insurance Company Ltd.1 Other cases dealt with life i nsurance and t rust

law, the indemnity period in an indem nity insura nce contract, the basis of

an insurance cl aim, the duties of a short-term (non-life) insurance broker,

misrepresentation, repudiation due to fals e information, cover under a life

insurance policy a nd time bar clauses. It is evident that the prevalent issues

in insurance law over the repor ting period mostly revolved around the

insurance co ntract.

2. LEGISLATION

2.1 LONG-TERM INSURANCE ACT 52 OF 1998

2.1.1 Penalt ies

The penalty determ ined for failure to fur nish the Regist rar with retur ns

etc for the purposes of s 68(1)(a) of the Act was published and GN 205 in

GG43050 of 28 February 2020 was repealed.2

* BIur LLB LLM (UP) LLD (UJ); Dean: Faculty of Law, Thompson Rivers University.

1 Unreported, [2020] ZAWCHC 65, 26 June 2020, available online at http://www.saflii.

org/za/cases/ZAWCHC/2020/65.html. For a discussion of the first business interruption

case, see D Millard ‘Insurance law’ (2021) 1 Yearbook of South African Law 757–775.

2 GN119 in GG44186 of 26 February 2021 at 3.

Insurance LawInsurance Law

Daleen Millard*

2020/2021 YSAL 646

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INsurANCe LAW 647

2.2 SHORT-TERM INSURANCE ACT 53 OF 1998

2.2.1 Penalties

The penalty determ ined for failure to fur nish the Regist rar with retur ns

etc for the purposes of s 66(1)(a) of the Act was published and GN 206 in

GG43050 of 28 February 2020 was repealed.3

3. CASES

3.1 INTERPRETATION OF AN INDEMNIFIABLE EVENT

The first case for di scussion is Anabella Resources CC v Ge nric Insurance

Company Ltd.4

3.1.1 Fact s in Anabella

Agreements between in surers and their pol icyholders are nominate

contracts and, as such, are subjec t to the same rules of inter pretation as

any other contract.5 This i s why so many insurance disputes h inge on the

interpretation of policy wording.6 The plaint iff was granted leave to appeal

by the court a quo after its cla im was dismisse d with costs.7 The pa rties

concluded an insurance contract dur ing March 2013, in terms of which the

defendant undertook to indemni fy the plainti ff for loss or damage which

it suffered in the event of the occu rrence of an indemn ifiable event. The

contract compri sed the policy schedule a nd the wording of the policy.8 The

dispute revolved around the occurrence of a n indemnifia ble event which

occurred on 26January 2017, for which the plaintif f claimed indemnificat ion

from the defendant in an a mount of R2400000,00, interest thereon and costs.9

The contract was current and t he sole issue for determination was whether

the event constituted an ‘indemni fiable event’ as contemplated by the terms

of the contract.10 In addition, the further u ncontested facts were that the

plaintiff traded in gold, cash and d iamonds from its business prem ises

located at Suite 701 DC Jewel City, 225 Main Street, Johanne sburg. The gold,

cash and diamonds were secu red and stored in a safe on t he premises.11

Mr Hadife was the plai ntiff’s financial m anager and Ms Mathebula was

3 GN 118 in GG44185 of 26 February 2021 at 3.

4 Unreported, [2020] ZAGPJHC 163, 2 July 2020, available online at http://www.saflii.

org/za/cases/ZAGPJHC/2020/163.html.

5 Silverstone v North British and Mercantile Insurance Co 1907 ORC 73.

6 See the recent controversial case of Café Chameleon CC v Guardrisk Insurance Company Ltd

(unreported, [2020] ZAWCHC 65, 26 June 2020; available online at http://www.saflii.org/za/

cases/ZAWCHC/2020/65 html).

7 Para 1.

8 Para 3.

9 Para 4.

10 Para 6.

11 Para 7.1.

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YeArbooK oF south AFrICAN LAW

648

a member and the manager of the plai ntiff. She accessed the ca sh in the

safe in order to pay the plaintiff ’s suppliers of scrap gold jewellery.12 She

further controlled t he safe and gained ent ry to it by way of two keys and

the combination to the lock. Ms Mat hebula kept the keys in her poss ession

or hidden in a place known only to her and the plai ntiff’s majority member,

one MrC hammas.13 Mr Hadife also h ad access to and control of the safe

and the cash stored withi n it in two ways: he could ask Ms Mathebula for

the keys and the combination, whic h Ms Mathebula would give him, or he

could ask her to open the safe and remove what he required.14

If MrHadife asked her to open the safe and remove cash he did so verbally,

either by way of an intercom announcement at the plaint iff’s premises, or

telephonically, or via WhatsApp voice note or, occasionally, by using a text

message. This was the acceptable, standard ma nner in which he obt ained

access to cash in the safe.15

On the day the event occurred, Mr Hadife was driving to work when he

was pulled over by a man in a Metro Police vehicle. Whi lst the driver of

the Metro Police vehicle inspecte d MrHadi fe’s driver’s licence, three men

appeared from another car t hat had stopped in front of MrHadife’s vehicle.

They approached Mr Had ife, threatened him w ith a firearm, forcefu lly

removed him from his vehicle, placed hi m in their vehicle, and drove to an

unknown desti nation where they held him captive.16

The men were familiar w ith the plaintiff ’s business practices and knew

what Mr Hadife h ad to do to gain access to the contents of the safe.17

They threatened to ki ll Mr Hadife unless he contacte d Ms Mathebula via

WhatsApp and ascertai ned how much money was in the safe. Mr Hadife

did so.18 He was told that there was cash a mounting to R2424700,47 in the

safe, whereupon the men instruc ted MrHadife to in form Ms Mathebula to

remove R2400000,00 from the sa fe, to place it in two boxes, and to instruct

Mr Phakoago, an employee of the plaintiff, to take t he two boxes to the

parking lot and give them to a man he would fi nd there in a silver BMW5

Series motor vehicle.19 Apparently it was acceptable practice for the plaint iff

both to receive instruct ions in this man ner and to take large amounts of cash

and hand it over to customers parked in the parki ng lot. This had occu rred

12 Para 7.2.

13 Para 7.3.

14 Para 7.4.

15 Para 7.5.

16 Para 7.6.

17 Para 7.7.

18 Paras 7.8–7.9.

19 Para 7.10.

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