Joosub Investments (Pty) Ltd v Maritime & General Insurance Co Ltd

• Jurisdiction: South Africa
• Court: Cape Provincial Division
• Judge: Seligson AJ
• Judgment Date: 25 April 1990
• Citation: 1990 (3) SA 373 (C)

Seligson AJ:

On the afternoon of 11 October 1985 a fire occurred in a E building owned by the plaintiff, known as 'Corporation Chambers' and situated at the corner of Darling and Corporation Streets, Cape Town. This building was insured by the defendant for the sum of R350 000 in terms of a written contract of insurance entered into between the parties. The contract covered, inter alia, any damage to the plaintiff's F building caused by fire. As appears from the minute of the pre-trial conferences held in terms of Rule of Court 37 which was handed in at the commencement of the hearing, it is common cause that as a result of the fire the plaintiff's building was damaged and that the plaintiff suffered loss in a total amount of R221 317,50. The plaintiff also alleges that it suffered further loss in the sum of R35 228,17 in G respect of lost rental income, which is not admitted.

Plaintiff has instituted action in this Court on the aforementioned contract of insurance, claiming payment of the loss sustained by it in consequence of the fire. The defendant resists the claim, relying upon an exception contained in the policy which reads as follows:

'A.

H This policy does not cover loss of or damage to property related to or caused by:

(i)

civil commotion, labour disturbances, riot, strike or lockout;

(ii)

war, invasion, act of foreign enemy, hostilities or warlike operations (whether war be declared or not) or civil war;

(iii) (a)

mutiny, military rising, military or usurped power, I martial law or status of siege, or any other event or cause which determines the proclamation or maintenance of martial law or state of siege;

(b)

insurrection, rebellion or revolution;

(iv)

any act (whether on behalf of any organisation, body or person, or group of persons) calculated or directed to overthrow or influence any State or government or any provincial, local or tribal authority with force, or by means J of fear, terrorism or violence;

Seligson AJ

(v)

A any act which is calculated or directed to bring about loss or damage in order to further any political aim, objective or cause, or to bring about any social or economic change, or in protest against any State or government, or any provincial, local or tribal authority, or for the purpose of inspiring fear in the public, or any section thereof;

(vi)

any attempt to perform any act referred to in clause (iv) or (v) above;

(vii)

the act of any lawfully established authority in controlling, B preventing, suppressing or in any other way dealing with any occurrence referred to in clause (i), (ii), (iii), (iv), (v) or (vi) above.

If the insurers allege that by reason of clause (i), (ii), (iii), (iv), (v), (vi) or (vii) of this exception, loss or damage is not covered by the policy, the burden of proving the contrary shall rest on the insured.'

C (My emphasis.)

In para 3(3) of its plea, defendant pleads as follows:

'Defendant denies that any of the damage or losses resulting from the said fire are covered by the said contract of insurance inasmuch as such damage or losses were related to or caused by an act, namely the deliberate starting of the said fire, which was calculated or D directed to bring about loss or damage in order to further a political aim, objective or cause, or to bring about social or economic change, or in protest against the State or government, or against a provincial or local authority, or for the purpose of inspiring fear in the public or in a section thereof, or were related to or caused by an attempt to E perform such an act.'

Defendant accordingly denies liability to plaintiff in respect of the loss occasioned by the fire. In a request for further particulars the plaintiff sought greater particularity as to the contents of para 3(3) of the plea. For the sake of convenience I have extracted the respective questions and corresponding answers from the respective pleadings and F have juxtaposed them:

'Q.

Who is alleged to have deliberately started the fire? Full details are required in order to enable the plaintiff to identify the person and/or persons and/or organisation responsible.

A.

A person G or persons whose identity is unknown to defendant deliberately started the said fire.

Q.

In precisely what part of the plaintiff's building is it alleged that the said fire was started? Full details are required in order to enable the plaintiff to identify the floor and the location on the floor where the fire was started.

A.

H The fire was probably started in the stairwell of the said building, either on the ground or first floor.

Q.

Precisely which political aim, objective or cause was the starting of the fire calculated or directed to bring about? Full details are required.

I What was the precise nature of the social or economic change which the starting of the fire was calculated or directed to bring about? Full details are required.

What was the precise nature of the protest against the State or government which the starting of the fire was calculated or J directed to express? Full details are required.

Seligson AJ

A What was the precise nature of the protest against the provincial or local authority which the starting of the fire was calculated or directed to express and what is the name of the provincial or local authority concerned? Full details are required.

In which section of the public was the starting of the fire calculated or directed to inspire fear? Full details are required.

A.

The fire B was deliberately started by or on behalf of an organisation on the right of the political spectrum, whose identity is unknown to defendant, in order to further its right-wing political aims, objectives or causes by damaging or destroying the property of the organisations referred to in para 3(2) of C defendant's plea, which are on the left of the political spectrum, or in order to inspire fear in the general public or in the members of the said left-wing organisations and/or in their sympathisers.

Alternatively, the fire was deliberately started by or on behalf of an organisation or organisations on the left of the political D spectrum, whose identity is unknown to defendant, in order to further its or their left-wing political aims, objectives or causes by creating the false impression in the minds of the public that one or more of the organisations referred to in para 3(2) of defendant's plea had been the victims of arson committed against them by right-wing elements, thus promoting their advocacy of E social and/or economic change in the direction of racial equality and socialism and their protest against current State, government, provincial and/or local authority policies which are unacceptable to them.

Q.

Who is alleged to have attempted to perform any of the acts referred to above? Full details are required in order to enable the F plaintiff to identify the person and/or persons and/or organisation responsible for such attempts.

A.

A person or persons whose identity is unknown to defendant attempted to perform the said acts.'

According to the minute of the pre-trial conferences in terms of Rule G 37, the defendant was requested to give the name of the 'organisation on the right of the political spectrum' to which it had referred in para 2(1) of its further particulars to its plea. The defendant's reply as recorded in the minute was that

'... it was unable to state the name with certainty, but that it might have been an organisation or body called the Vigilante Action Group'.

H The defendant further admitted the following extract from Hansard (Debates of the House of Assembly) for 6 October 1987, as being a true copy of the relevant passage:

'Corporation Chambers Building, Cape Town: fire

*14. Mr S S van der Merwe asked the Minister of Law and Order:

(1)

I whether the South African Police have completed their investigation into the cause of the fire in the Corporation Chambers Building in Cape Town on or about 11 October 1985; if not, (a) why not and (b) what progress has been made in this investigation; if so, what was the cause of the fire;

(2)

whether any persons have been arrested in connection with this fire; if so, (a) how many and (b) on what date;

(3)

J whether he will make a statement on the matter?

Seligson AJ

A The Minister of Law and Order:

(1)

Yes. The cause of the fire could not be ascertained beyond question. (a) and (b) fall away.

(2)

No. (a) and (b) fall away.

(3)

Yes. No evidence could be found that the fire had been started with malicious intent.

The building consists of a ground floor and two other floors. The fire B apparently started on the second floor in a store-room containing plastic toys and spread upwards to the roof of the building. The fire did not spread to the first and ground floors.

Reports in the media speculated that the fire was started in order to prejudice the UDF who have offices on the first floor in the building. The South African Police investigated these allegations. Employees of C the UDF who were working in the building at the time the fire started refused to assist the police with their investigation.

It was established beyond doubt that this speculation was totally unfounded, seen in the light that the fire started in a place which held very little potential damage for the offices of the UDF. Their eventual D damage comprised approximately R6 500 of the total damage of R350 000.'

The pre-trial minute furthermore recorded defendant's admission that no prosecution had taken place to date against any person or persons as a result of the fire which took place in the plaintiff's building on 11 October 1985. It was also admitted by the plaintiff that the contract of E insurance incorporated the SASRIA amendments endorsement.

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