Santam Bpk v Biddulph
Jurisdiction | South Africa |
Judge | Harms JA, Zulman JA and Heher JA |
Judgment Date | 23 March 2004 |
Citation | 2004 (5) SA 586 (SCA) |
Docket Number | 105/2003 |
Hearing Date | 26 February 2004 |
Counsel | J J Gauntlett SC (with him M W Janisch) for the appellant. J P de Bruin SC for the respondent. |
Court | Supreme Court of Appeal |
Zulman JA:
[1] This appeal concerns an alleged insurance fraud. The appeal is brought with the leave of this Court. The appellant, an insurance company, unsuccessfully sued the respondent, a farmer, for payment of R691 745 together with interest and costs. The cause of action was I that the appellant was induced by the respondent to pay the amount as a result of a false claim made by the respondent on a policy of insurance issued by the appellant. The claim related to the destruction of a house on a farm and its contents in a fire. J
Zulman JA
[2] It was common cause that in the event of it being found that the fire was started at the instigation of the respondent the A appellant would be entitled to a refund of the amount it paid to the respondent.
[3] One central issue fell for decision by the Court a quo. It was the question of whether the claim that the respondent made was false or not. In this regard the onus rested upon the appellant. The appellant led evidence B from six witnesses in support of its claim. The main witness relied upon by the appellant was a Mr Sigasa. The other witnesses called by the appellant were the respondent's wife; Mr P C Bezuidenhout, the respondent's brother-in-law; Mr Du Randt, a police officer; Mr J Murray, who was attached to the appellant's Forensic Investigation Unit; and Mr Jansen van Rensburg, the owner of a video production C business and an expert in the making of video recordings. The respondent closed his case without leading any evidence.
[4] Sigasa's evidence was to the effect that he set the house and its contents on fire at the behest of the respondent. The Court a quo found that the evidence of Sigasa was not only D unlikely but that it was untruthful. In addition it found that the respondent's wife had given acceptable reasons for retracting certain sworn statements she made in which she accused the respondent of arranging for the fire. The Court a quo made no mention in its judgment of the other four witnesses called by the appellant. The primary issue on appeal is whether the Court a quo erred in rejecting the uncontradicted evidence of Sigasa. E
[5] Whilst a Court of appeal is generally reluctant to disturb findings which depend on credibility it is trite that it will do so where such findings are plainly wrong (R v Dhlumayo and Another 1948 (2) SA 677 (A) at 706). This is especially so where F the reasons given for the finding are seriously flawed. Overemphasis of the advantages which a trial Court enjoys is to be avoided, lest an appellant's right of appeal 'becomes illusory' (Protea Assurance Co Ltd v Casey 1970 (2) SA 643 (A) at 648D - E and Munster Estates (Pty) Ltd v Killarney Hills (Pty) Ltd 1979 (1) SA 621 (A) at 623H - 624A). It is equally true that findings of G credibility cannot be judged in isolation, but require to be considered in the light of proven facts and the probabilities of the matter under consideration.
[6] An analysis of the evidence as a whole, including that of Sigasa, proper regard being had to the probabilities, leads to the conclusion that the finding of credibility by the Court a H quo is untenable (cf Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA) at 14I - 15E). Almost at the outset of its judgment the Court a quo concluded that the appellant's claim depended exclusively upon the evidence of Sigasa. This was not a correct assessment of the I matter since the Court was plainly obliged to consider the evidence of all the other witnesses called by the appellant.
[7] Quite apart from the bare say-so of Sigasa the Court had before it as objective facts, not dependent on the credibility of any witness, the following: J
Zulman JA
The respondent's wife made a video recording of all the movable property in the farm house. The date on A the film is 8 October 1998. In the ordinary operation of the camera that date would have been generated by the person operating the camera.
On 10 October 1998 the respondent, his wife and children left their house unattended and went to spend the night with the respondent's brother-in-law, Bezuidenhout, at Bapsfontein. B
During the night of 10 October 1998 the house was destroyed by fire.
Either before or after the fire Sigasa, with the respondent's concurrence, fetched from the farm a defective motor car for which the respondent had previously asked R2 000 and which Sigasa had been unable to afford. C
During November or December the respondent's wife phoned Bezuidenhout. She told him that the respondent had been responsible for the fire and that she feared for her life.
On 2 December 1998 Bezuidenhout phoned Crime Stop and reported the conversation with his sister. In turn, the police D communicated with the appellant which then initiated enquiries.
Towards the end of January 1999, the respondent's wife secretly recorded a conversation with her husband in the course of which she attempted to entrap him into making incriminating admissions about the burning of the house. E
Also during January the respondent's wife prepared a statement (dated 4 January 1999) which she posted to Bezuidenhout. The stated purpose was to provide evidence in the event of her untimely death or unexplained disappearance. In it she described in detail the events surrounding the fire. Most important, she implicated Sigasa in respects which materially accorded with the F evidence which he eventually gave in...
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