Normandien Frams (Pty) Ltd v Safire Crop Protection Co-operative limited
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Bezuidenhout J |
| Judgment Date | 26 January 2023 |
| Docket Number | 8960/2016P |
| Hearing Date | 28 July 2022 |
| Court | KwaZulu-Natal Division, Pietermaritzburg |
Bezuidenhout J:
Plaintiff instituted an action against Defendant resulting from a fire in a plantation on a farm known as Albany Farm, Newcastle during May 2015 which it alleged resulted in damage in the sum of R 14 385 720.85. The action is defendant by Defendant. It is common cause that Plaintiff was insured with Defendant at the time and had such insurance with Defendant for some prior years. It is also common cause that the necessary instalments in respect of the said policy had been paid.
Plaintiff’s claim was repudiated on 22 June 2016. Defendant pleaded that in the event of it being found that a fire occurred in the plantation on Albany Farm on 7 November 2015 that Plaintiff had misrepresented to Defendant that the fire giving rise to the claim originated in compartment A13a when in fact it originated in a sawdust and timber waste area situated on the north western boundary of compartment A13a. It is contended that this misrepresentation was material and entitled Defendant to repudiate the claim. Plaintiff allowed sawdust and timber waste to be dumped on the property
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adjoining the insured plantations, increasing the combustible material in the vicinity of the insured plantation increasing the fire risk. Plaintiff had not made any mention of the existence of the sawdust and timber waste area in completing the renewed form. Plaintiff was also involved in litigation in respect of certain local inhabitants relating to grazing rights which was not declared and affected the risk. The sawdust and timber waste area required a firebreak of at least 30 metres wide around the whole immediate exterior perimeter thereof and in breach thereof Plaintiff failed to maintain such a firebreak which entitled Defendant to repudiate the claim.
In a replication by Plaintiff it was contended that Mrs R Bezuidenhout (Bezuidenhout) representing Defendant admitted that the insurance premium was paid and the cover was applicable from 1 May 2015 to 31 April 2016 and that the claim was duly instituted during that period. The claim was considered by Bezuidenhout and in a letter dated 22 June 2016 she repudiated the claim. Plaintiff did not accept the repudiation and instituted action on 17 August 2016. It refers to the plea where the defences referred to above are raised and contends that Defendant, by the conduct of Bezuidenhout, failed to void the insurance and thereby waived reliance on these defences, alternatively elected not to rely thereon and is estopped from now relying thereon.
Bezuidenhout on 9 November and 11 November 2015 visited Albany Farm concluded that a firebreak of 30 metres had not been made around the perimeter of the waste dump. On 9 February 2016 a letter had been addressed to her about the grazing rights. Letters were received from her by Plaintiff on 10 February, 24 February, 26 February and 16 March 2016 which did not indicate any repudiation of the claim. In the letter of 16 March 2016 she merely recorded that she was unware of the sawmill dump until 7 November 2015, that it must cease, that Defendant was unaware of the substantial risk factor and that further cover would not be extended to Plaintiff and that Defendant will continue to hold Plaintiff covered under the existing certificate subject to certain conditions.
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On 20 January 2016 to February 2016 various letters were addressed by Bezuidenhout to representatives of Plaintiff in respect of the salvage of trees, the price of burnt trees etc. She did not void the policy nor repudiate the policy. She waited until after the expiry of the insurance period on 30 April 2016 and only on 22 June 2016 addressed a letter to Plaintiff repudiating the claim which was submitted on 13 November 2015. If the claim was repudiated shortly after it was submitted then Defendant would have had to repay to Plaintiff the sum of R 1 254 461.80 for the remaining five month period. It is therefore contended that Defendant waived the right to rely on the alleged breaches of the policy. Further in the alternative that Defendant is estopped from relying on the defences set out in the plea. There was no indication from Defendant from 13 November 2015 to 20 June 2016 that the claim would be rejected.
Defendant filed a rejoinder that the relationship between the parties were contractual in terms of the contract and section 18(b) of the policy provides no indulgence by Defendant to Plaintiff that failure to reinforce the terms of the agreement shall be construed as a waiver or capable of founding estoppel. Accordingly Plaintiff is precluded from relying on a waiver by Defendant to rely on the defences and raising estoppel.
During the evidence of Defendant’s case when Bezuidenhout testified Plaintiff’s sought an adjournment and tendered the wasted costs to bring an application to file a replication. Such application was brought and Plaintiff was granted leave to file a replication.
The evidence in this matter is voluminous and a typed record has been provided. I accordingly deem it unnecessary to deal with the evidence of each witness in detail but will refer to the evidence of the witness which is relevant to the issues in these proceedings.
Plaintiff’s witnesses
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Miss Nthombifuthi Khubeka (Khubeka) was employed by Plaintiff since 2011 and at times did duty in the fire tower. This entails the reporting of any fire which is visible from the tower. She is provided with a cellular phone and a radio. If she sees a fire she reports to the person in charge. On 7 November 2015 she was on duty in the tower from 6 a.m. She took over from one Thandi Nbugase who reported no incident to her. While she was seated she saw smoke in the sawdust area. She could not see the sawdust area from the tower because of the trees. She reported it to Mr Dennis Pretorius (Pretorius) at 8:45 a.m. It was white smoke that became black. She did not see any smoke at the sawdust area when she was walking to work that morning. There was wind at the time that she reported the smoke. The smoke was white for approximately 10 minutes. She did not contact Mr Simon (Simon) as he was not on duty.
Pretorius testified in Afrikaans as will appear from the record. (I have translated his evidence into English). He was employment by Plaintiff from 2003 until 2016. He was in control of forestry, the workshops and cutting of trees. He was on duty on Saturday 7 November 2015 as they were on duty during certain weekends. They were busy chopping wood to load and take to the saw mill. He commenced working at 7 a.m. and had radio contact with the tower. Simon was not on duty that day. He received the radio contact at 8:40 a.m. from Khubeka. It is a call channel open to all vehicles on the Normandien Farms. When he received the radio call he had not seen any smoke. She referred to the sawdust area. He immediately went to the area where she said the fire was. He drove into the saw mill area from where he could see smoke. He used the road which went past the sawdust area. Simon also arranged with workers to go to where the smoke was coming from.
He went past the area marked waste 1 and waste 2 and did not see any smouldering. The material that was in the waste areas come from the saw mill. It was sawdust, bark, soil and stone. This was then transported to the said places and flattened with a grader. They wanted to rehabilitate the donga area to plant trees. Soil was usually brought and thrown over the sawdust etc. which was then flattened. When he arrived at A13a compartment he saw that the fire was about 10 to 15 metres from
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the road. He went into the compartment to contain the fire. He then marked with an X on the map where the fire was. The wind was blowing in a westerly direction and he was not able to contain the fire. He estimates that the wind was blowing between 15 and 25 km per hour. It is incorrect that the fire started at the sawdust site. He has never seen any smouldering at the sawdust site. The fire burnt from west to east. There were many spot fires which made it difficult to determine the line of fire. At times there were 3 or 4 different fires ahead of him. The fire jumped the tar road which is the Newcastle Normandien Road. When they started fighting the fire the wind came from a westerly direction in an easterly direction but as the fire became larger whirlwinds started and it was not possible to determine how big the fire became. During the afternoon they went to the waste sites and at waste site number 1 he saw an area of approximately ½ metre by 1 metre that was smouldering. There were no flames.
Compartment A13a burnt in a westerly direction towards the road. The area on the road where waste sites 1 and 2 were had been burnt and he suspected that it was back burning. He has been involved in fighting approximately 100 fires. When back burning is done you attempt to cause a buffer zone between the fire coming in your direction and it then burns back towards the fire approaching. In the afternoon when the smouldering was seen they attempted to douse it with a water cart and the water bag at the back of his bakkie. After the incident Mr Hay (Hay), the attorney for Defendant had discussion with him and took various statements from him in English. He attended a meeting where a senior advocate and Plaintiff’s attorney was present while he was being questioned by the attorney for Defendant. After this a statement was drafted which was read to him by Mr Vinnicombe, Plaintiff’s attorney and he signed it as correct. The statement is contained in bundle B page 67 and he confirmed that he signed each page and it was his signature that appeared thereon.
Approximately 3 months later an interview was conducted with him by the insurance company’s employees. He...
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