Santam Insurance Ltd v Cave t/a the Entertainers and the Record Box

• Jurisdiction: South Africa
• Judge: Rabie CJ, Jansen JA, Trengove JA, Botha JA and Boshoff JA
• Judgment Date: 19 November 1985
• Citation: 1986 (2) SA 48 (A)
• Hearing Date: 05 November 1985
• Court: Appellate Division

Boshoff JA:

This appeal turns on the correctness of the construction placed by KIRK-COHEN J in the Witwatersrand Local Division on two general conditions in an insurance policy which provides cover for inter alia loss or damage caused by burglary as defined in the policy. The judgment has since been reported in 1984 (3) SA 735 (W).

The insured, now the respondent, was the plaintiff in the Court G a quo and claimed from the insurer, now the appellant, the defendant in the Court a quo, R11 806,10 under the policy. The appellant denied liability and raised the following two special defences: (a) In terms of an endorsement on the policy the parties agreed that the respondent would install burglar bars H on all the windows of the premises to the satisfaction of the appellant on or before 15 January 1982 and that, should the respondent fail to do so, cover under the burglary section of the policy would be excluded. The respondent failed to install such burglar bars. (b) On 18, alternatively 24, February 1982 the appellant disclaimed liability in respect of the claim; in I terms of clause A (9) of the general conditions of the policy all benefits under the policy are forfeited by the respondent if action be not instituted against the appellant within three months after a disclaimer of liability in respect of any claim. The respondent instituted action against the appellant more than three months after the disclaimer.

The parties thereafter agreed upon a written statement of facts in the form of a special case for the adjudication of the Court in terms of Rule 33 of the Uniform Rules of Court. The parties J also agreed that, in the event of the Court, (a) dismissing both defences, judgment should be granted

Boshoff JA

in favour of the plaintiff for R11 806,10 with interest thereon A at 11% per annum from the date of judgment to the date of payment and costs of suit; and, (b) upholding either of the defendant's defences, the action should be dismissed with costs.

The material facts agreed upon are the following. On 30 January 1980 the respondent effected a written policy of insurance with B the appellant. The policy commenced on 7 January 1980 and was renewable on the 7th of each successive month thereafter. The annual premium was payable by monthly debit orders on the respondent's bank account. The policy was renewed on 7 January 1982 and remained operative and effective until cancelled on 4 C May 1982 with effect from 3 June 1982. At all material times William Slabe and Co were the duly authorised agents and insurance brokers of the respondent and had authority generally to act on respondent's behalf in all matters relating to the policy including applications for increased cover, endorsements issued pursuant thereto and claims under the policy. During D about October 1981 respondent requested appellant to increase the cover in the all risks section of the policy. Subsequently on or about 20 November 1981 the appellant advised William Slabe and Co that burglar bars were required to be installed on the windows of respondent's premises. No time limit was imposed for the installation of the burglar bars. Very shortly E thereafter in November 1981, William Slabe and Co advised the respondent of the requirement. On 22 November 1981 the respondent entered into an agreement with Bezcam Welding Specialists for the installation of the burglar bars and respondent was advised that they would be installed either in January or February 1982 as the firm's workshop would be closed F during December 1981. On 18 December 1981 the appellant in Johannesburg issued and posted to William Slabe and Co in Johannesburg endorsement No 95860, the material part of which reads as follows:

"It is hereby declared and agreed that the insured shall install burglar bars to all the windows of the premises to the G satisfaction of the company on or before 15 January 1982. Failing to do so cover will be excluded from the burglary section."

The parties are unable to state when the endorsement was received by William Slabe and Co. In the normal course of events a letter posted in Johannesburg would reach the addressee in Johannesburg within seven days. The burglar bars H were installed...