S v Mngqibisa

• Jurisdiction: South Africa
• Judge: Brand JA, Mlambo JA and Combrinck JA
• Judgment Date: 06 September 2007
• Citation: 2008 (1) SACR 92 (SCA)
• Docket Number: 75/2007
• Hearing Date: 06 September 2007
• Counsel: Snoyman for the appellant. L Pienaar for the State.
• Court: Supreme Court of Appeal

Mlambo JA:

[1] The appellant was the insured under a short term motor vehicle A insurance policy underwritten by Auto and General (Pty) Ltd in respect of his Fiat Uno. In terms of the policy the appellant and his then fiancée, Aura Thandeka Magagula (now his wife), were the designated drivers of the Uno even though his wife was at the time the holder of a learner driver's licence. The policy provided that additional excess was payable, B in the event of a claim, where the driver at the time was in possession of a learner driver's licence. As fate would have it, the Uno, driven at the time by the appellant's wife, was involved in a collision with a truck on the N4 motorway between Ngodwana and Waterval Boven, Mpumalanga Province.

[2] After lodging a claim the appellant, during a telephone conversation C with Derek Fabian Jefta, an employee of Hotline Administrative Services (Pty) Ltd, informed Jefta that he was driving the Uno at the time of the collision. Hotline Administrative Services (Pty) Ltd was contracted by Auto and General to manage and administer claims on its behalf and D Jefta's responsibility was to receive and process claims from policy holders. In a subsequent telephone discussion with Hendrik van Staden, a claims assessor also employed by Hotline Administrative Services, the appellant informed the latter that his wife was in fact the driver at the time of the collision.

[3] The claim, assessed at R37 000 was never paid out, after it was E verified that the appellant's wife was the driver and that she was in possession of a learner driver's licence. Moreover, as a consequence of his misstatement to Jefta the appellant was charged on one count of fraud. According to the charge-sheet the indictment was that he made the false representation to Jefta, well knowing that it was false and that F he had thereby caused potential prejudice to Hotline Administrative Services and/or Auto and General, in that the latter may have been induced to pay out under the policy on the basis that the statement was true.

[4] In the ensuing trial in the Pretoria Specialised Commercial Crimes Court the appellant was convicted but the imposition of sentence was G postponed for a period of five years in terms of s 297(1)(a)(ii) of the Criminal Procedure Act 51 of 1977, as amended. An appeal against the conviction was dismissed by the Pretoria High Court (Mabesele AJ and Van Zyl AJ). The High Court, however, granted him...