Santam Ltd and Others v Segal

• Jurisdiction: South Africa
• Judge: Patel J, Theron J and Van Zyl J
• Judgment Date: 01 April 2008
• Docket Number: AR 416/07
• Hearing Date: 07 February 2008
• Counsel: AC Ferreira SC for the appellants. AG Jeffrey for the respondent.
• Court: Natal Provincial Division

Patel J:

[1] The respondent, Mr Neil Segal, instituted an action against Santam Ltd, Mutual and Federal Insurance Company, SA Eagle Insurance Company Ltd and Alexander Forbes Insurance Company Ltd (the J appellants) in the Durban and Coast Local Division of the High Court

Patel J

of South Africa. In this action the respondent claimed indemnity from A the appellants in terms of a contract of insurance. The respondent sued the appellants in terms of the said contract for loss occasioned by theft of the respondent's personal contents when they were housed in any office, business or trade premises where the respondent worked. The indemnity was limited to the sum of R661 250. The policy further B stipulated that, in respect of any claim arising in respect of furs, jewels, jewellery, gemstones, watches and articles of platinum, gold and silver, the appellants' liability would be limited to one-third of the total sum insured.

[2] The respondent claimed in terms of the policy on the essential C ground that on 9 July 2004, and at the premises where the respondent worked, a burglary took place during which certain of the respondent's personal property was stolen. A substantial portion of the goods allegedly stolen comprised gemstones. The appellants, however, repudiated the respondent's claim, inter alia, on the basis that the property allegedly stolen constituted business assets or goods or stock-in-trade, and not D personal items. It was not in dispute that, in terms of the policy, if it were to be found that the property allegedly stolen was in fact business assets or goods, or stock-in-trade and not personal items, the respondent would be non-suited. It was further not in dispute that the respondent is a gemmologist by trade and conducted his business from the premises E where the burglary allegedly took place. The respondent, in bringing the action, relied upon the extension in the insurance contract to the effect that, if his personal effects are away from the risk address, that is to say, his place of residence, such goods are covered for loss or damage when they are in any office, business or trade premises where he works. F

[3] In preparation for trial and on 9 October 2006 appellants caused a notice in terms of rule 35(3) to be served on the respondent. The appellants were not satisfied with the answers given in the respondent's reply and hence launched an application in terms of rule 35(7) which served before Choudree AJ on 27 February 2007. The court dismissed G the application with costs and a subsequent application for leave to appeal was dismissed on 16 March 2007. The appellants thereafter applied for special leave to appeal to the President of the Supreme Court of Appeal. On 28 June 2007 the Supreme Court of Appeal granted the appellants leave to appeal to this court. H

[4] I might in passing mention that the appellants made an application for condonation for the late filing of the record of appeal. In the absence of opposition we were satisfied that a proper case was made for condonation and accordingly granted the same. The essential issue before us was whether the order made by the learned judge a quo was I appealable. From the reading of the brief judgment, it would appear that the court below was not satisfied that the application was properly founded or brought with due expedition. No reasons are advanced as to why the application was not properly founded, and to that extent the judgment is not helpful. The appellants were criticised for being dilatory in the prosecution of their application by waiting until the eve of the trial J

Patel J

A before bringing their application for further particulars, which particulars, according to the learned acting judge, may emerge from the evidence at the trial.

[5] In initio I shall deal with the failure on the part of the appellants to bring the application for further discovery timeously. No explanation is B proffered in the papers before us as to why the application for further and better discovery was late, nor was any explanation forthcoming from counsel in the court below. Clearly the urgency was of the appellants' own making and this may have worked a hardship on the respondent who, because of the breadth of the discovery required, may have been C placed under a time limit which was onerous. What emerges however is that the respondent did not deny that he had these documents in his possession. Therefore, can it be said that the laches of the appellants constitutes an abuse of the court's process? In my view it does not. Nor were any cogent arguments to that effect advanced in the court a...