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[2014] ZAGPJHC 361
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Chartis South Africa (Pty) Ltd v Super Group Trading (Pty) Ltd (36709/2010) [2014] ZAGPJHC 361 (21 November 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO.:
36709/2010
DATE:
21 NOVEMBER 2014
In
the matter of:
CHARTIS SOUTH
AFRICA (PTY) LTD
..............................
Applicant
/ Defendant
And
SUPER GROUP
TRADING (PTY) LTD
..............................
Respondent
/ Plaintiff
JUDGMENT
GAIBIE, AJ
[1]
There are two interlocutory applications in
this matter: the first is an application in terms of rule 21(4)
in which the applicant,
Chartis South Africa Limited (‘Chartis’),
seeks to compel the respondent, Super Group Trading (Pty) Ltd (‘Super
Group’) to furnish further and better particulars to its
request for particulars for trial; and the second is an application
for the separation of issues in terms of rule 33(4). In respect of
the latter application, the parties agree that there should
be a
separation, but differ over the formulation of the separated issues.
[2]
This matter emanates from an action
launched by Super Group as the insured, against Chartis the insurer
for certain financial losses
suffered by it during the period March
2006 and May 2008 and in respect of which it claims it is insured.
Super Group’s cause
of action is based on a written Corporate
Armour Crime Policy of indemnity insurance (‘the Policy’)
which was issued
by Chartis on 22 May 2007. Super Group operates a
division through which it conducts the business of warehousing and
transporting
fast moving consumer goods for 3 clients: Colgate
Palmolive (Pty) Ltd, Kimberly-Clark of SA (Pty) Limited and Unilever
SA Foods
(Pty) Ltd (‘the clients’). In rendering
these services to its clients, Super Group contends that it undertook
the risk of loss or damage to its clients’ goods which were in
its possession.
[3]
In
terms of the
Policy
,
the initial period of insurance was from 1 April 2007 to 31 March
2008, and the Policy was renewed for a further period of twelve
months from 1 April 2008 to 31 March 2009 (‘the contractual
period’). What is quite peculiar about the contractual
arrangements between the parties is that Chartis provided insurance
cover for financial loss that may have been suffered by Super
Group,
or a 3
rd
party to whom Super Group might become legally liable, if such loss
was discovered by Super Group during the contractual period
(or
within 12 months after the termination of the Policy), even if the
loss was suffered prior to the contractual period but not
earlier
than 30 June 1999, being the ‘retroactive date’
[1]
.
[4]
In any event, the
Policy
is quite specific about what loss is covered, and the circumstances
in which indemnity for such loss would be provided. And
like
all insurance policies, this one too has particular limits and layers
of cover, exclusions, conditions and the well known
principle of
aggregation.
The
application in terms of rule 21(4)
[5]
It is trite that the purpose of rule 21(4),
and consequently the purpose of permitting a party to call for
further and better particulars,
is to prevent surprise by ensuring
that the parties are told with greater precision what the other party
is going to prove in order
to enable his opponent to prepare his case
to disprove such allegations, and in so doing, to balance the rights
of the parties
by ensuring that the party called upon to deliver
better particulars is not unfairly tied down or limited in his case
at trial.
In essence therefore, the purpose of rule 21(4) is to
ensure that a party knows what case he has to meet.
[6]
Whether
Chartis is entitled to the particularity which it seeks is a matter
for this court’s discretion
[2]
.
In exercising that discretion, and in determining what particulars,
if any, must be provided by Super Group to Chartis,
in terms of rule
21(4), it is necessary to look at the pleadings, as well as the terms
of the
Policy
on which Super Group relies upon for the purposes of
indemnification
[3]
. I deal
with the relevant terms of the
Policy
first. Before I do so, it is necessary to record that there is
in my view no dispute between the parties about the interpretation
of
the terms of the
Policy
,
save for one aspect to which I will return later, and that the
dispute between the parties is limited to an application of the
terms
of that
Policy
to the facts.
[7]
The salient terms of the Policy include the
following:
a)
In
terms of insuring clause A, the financial loss for which indemnity
was provided, was that caused by one or more dishonest or
fraudulent
acts of any of Super Group’s employees whether committed alone
or in collusion with others
[4]
.
In respect of such loss Super Group was insured to the maximum amount
of R30 000 000 (thirty million rands) for
‘each and
every occurrence and in the annual aggregate’
[5]
subject to a ‘self insured deductable’ in the amount of
R750 000 for each and every such ‘occurrence’
[6]
.
In other words, Chartis’ obligation is effectively triggered
only once the amount of R750 000 is deducted from
the loss
suffered by Super Group in respect of each and every occurrence of a
dishonest or fraudulent act by one or more of its
employees acting
alone or in collusion with each other.
b)
However,
and only in so far as such dishonest or fraudulent acts are committed
by ‘
one
person or in which such person is involved or implicated will be
considered one occurrence
’
[7]
(‘the 2
nd
proviso’ or the ‘aggregation clause’). In
other words, if Super Group suffered a spate of fraudulents acts,
they would ordinarily be regarded as individual occurrences each of
which would be subject to a deductable of R750 000 unless
each
occurrence had the common denominator of the same actor, in which
case the ‘spate’ would be regarded as one occurrence
and
against which the deductible would operate only once. Any
reliance on the aggregation clause would, in my view,
require the
identity of the common actor.
c)
In so far as Super Group suffered loss as a
result of the fraud or dishonesty of any of its employees, but it was
unable to designate
the specific employee or employees causing the
loss, then its claim for indemnity would not be invalidated by its
inability to
do so, provided that it was able to furnish evidence to
prove to the reasonable satisfaction of Chartis that the loss was
caused
by one or more dishonest or fraudulent acts of one employee or
more than one employee acting in collusion.
d)
In
addition to providing indemnity for losses suffered by Super Group as
defined in the
Policy
,
Chartis also undertook in such circumstances to cover: 1) the costs
and expenses reasonably incurred by Super Group in producing
and
certifying any particulars or details required by Chartis, in
relation to any claim, provided that such costs do not exceed
R500 000; and 2) the costs and expenses incurred by Super Group
with the consent of Chartis for the recovery or attempted
recovery of
any loss to which the policy applied provided that such costs do not
exceed R500 000
[8]
.
e)
Upon
discovery of any event which may result in a loss covered by the
Policy, Super Group was required to give notice thereof to
Alexander
Forbes Group (Pty) Limited as soon as reasonably practicable and in
any event within 30 days and, as soon as practicable
after the event
to inform the police, and to submit full details of the claim to
Chartis
[9]
.
[8]
In its particulars of claim, Super Group
alleges that during the period March 2006 and May 2008, it sustained
financial loss in
the sum of R38 741 104,28 as a result of
the theft of its clients fast moving consumer goods that was in its
possession.
It claims that the loss was occasioned by a series
of dishonest and fraudulent acts of a multiplicity of employees
acting in collusion.
Given that it suffered such loss, or part
of such loss prior to the inception of the policy but after the
retroactive date, Super
Group must establish that it had no knowledge
of that loss prior to the inception of the
Policy
in terms of clause 7 of the ‘exclusions’, in order to
lodge a successful claim. In dealing with this aspect, Super
Group
contends that it had, during August 2007, (approximately four months
after the inception of the
Policy)
,
become aware that there ‘might be’ a large scale of
collusion amongst its employees causing the loss, and in
the
circumstances it had as soon as reasonably practicable thereafter
given notice thereof to Alexander Forbes; informed the police;
and
engaged private detectives and investigators to discover the guilty
parties and to recover the stolen property.
[9]
On 10 December 2008 Super Group submitted
full details in writing of its claim to Chartis, and on 20 May 2009,
Chartis rejected
its claim. Because it was indemnified up to a
maximum amount of R30 million rands in respect of the principal
amount [
each and every occurrence in the
annual aggregate
], and R500 000
rands each for substantiating its claim and costs incurred in the
recovery of its loss, it claims a total amount
of R31 000 000
from Chartis in terms of the
Policy
.
[10]
In
essence, Super Group has pleaded that it suffered a global
undifferentiated loss of over R38 million rands in a period of two
years from unparticularised thefts. No details of the thefts
are provided, nor of the employees who committed such acts of
theft.
The only semblance of a suggestion that such loss may have been
occasioned by a common actor or actors for the purposes
of the
aggregation clause, is the assertion in the particulars of claim
[10]
that the loss was ‘occasioned by ..... a series of dishonest
and fraudulent acts of a multiplicity of employees of the plaintiff
[Super Group], acting in collusion’. But even that
assertion is far from clear, and the next assertion that the theft
was undertaken by a ‘syndicate’ is made by Super Group
not in its reply to the request for further particulars, but
in its
answering affidavit to Chartis’ application in terms of rule
21(4), in which it contends for the first time that:
’
15
The theft was sophisticated and involved a great deal of co-operation
to beat the security measures employed at the warehouse.
It is
for that reason that the plaintiff has pleaded in paragraph 10 of its
particulars of claim that the loss was occasioned by
reason of and
was directly caused by a series of dishonest and fraudulent acts of a
multiplicity of employees of the plaintiff
acting in collusion.
The losses were generally detected when stock counts of physical
stock were undertaken in the warehouse.
Goods had left the
plaintiff’s possession as with records being made over the
removal. The effect of the theft that
was taking place was
being observed after the event rather than individual acts of theft.
............
17
The plaintiff engaged a firm of private detectives to attempt to
identify the individuals that made up the
syndicate
perpetrating the theft on such a scale.’
[11]
There
are three immediate problems with the approach that has been adopted
by Super Group. The first is that on a balance of probabilities,
losses on the scale apparently suffered by Super Group over a period
of approximately two years can hardly point to a single occurrence
as
defined in the aggregation clause, unless Super Group makes that
contention unequivocally based on a clear set of facts which
must
necessarily include the allegation that these occurrences have a
common actor or actors. Second, in adopting this equivocal
approach, it is almost impossible to assess whether Super Group
relies on a single occurrence or a series of occurrences of dishonest
acts, and in doing so it skilfully avoids the issue of the
application of the deductible clause
[11]
and its operation in the circumstances of this case. This is
clearly inexplicable given that Super Group pleads that it is
a term
of the
Policy
,
and that the amount of R750 000 must be deducted from each and
every occurrence of financial loss, but fails to deal with
precisely
how that deductible applies to the facts of this matter.
Thirdly, and perhaps most importantly, in so far as it
relies on the
aggregation clause, Super Group has not pleaded any facts which would
bring its claim based on a single aggregated
occurrence within the
ambit of that proviso. In adopting this approach, Chartis is
left guessing about the fundamental nature
of its claim and precisely
which clauses it relies upon for the purposes of establish Chartis’
obligation to it in terms
of the
Policy
.
Simply put, Chartis does not know what case to meet.
‘
Act’
or ‘Occurrence’
[12]
Many
of the issues that have given rise to the application in terms of
rule 21(4), and indeed in terms of rule 33(4), emanate from
Super
Group’s reluctance to formulate its claim in terms of the
relevant provisions of the Policy, and it does so deliberately
in an
effort to avoid any debate about its interpretation of the
difference, if any, between the meaning of the terms ‘act’
and ‘occurrence’. Given its approach, it is
necessary to enter that debate, even if to do so would constitute
a
peripheral attempt to give meaning to those terms for the purposes of
the two interlocutory applications. For its part,
Super Group
contends that the term ‘occurrence’ is not defined in the
Policy and has not ventured an interpretation
save to say that it
will be a matter for legal argument
[12]
.
This approach, in my view, lies at the heart of its refusal to tie
itself down to whether the ‘series of dishonest
and fraudulent
acts of a multiplicity of employees acting in collusion’
constitutes one or more occurrences of theft.
Chartis on the
other hand takes the view that every incident of theft or fraud
constitutes an ‘occurrence’ as that
term is used in the
Policy
[13]
.
In entering this debate, I do not intend to resolve the issue as to
whether an ‘act’ of theft or fraud constitutes
an
‘occurrence’, but some thoughts on the issue would be
prudent in the circumstances of determining the outcome of
the rule
21(4) application, and indeed of the rule 33(4) application. My
views are, I stress, not dispositive of the issue,
and the outcome of
that debate must be dealt with at trial.
[13]
It
is apparent from the
Policy
,
that the terms ‘act’ and ‘occurrence’ are
used interchangeably, and sometimes either of these terms
is
used to make grammatical sense of the context in which they are
used. Examples of the latter are reflected in the schedule
to
the
Policy
[14]
,
where the term ‘occurrence’ is used to describe the
extent of the cover, being ‘R30 000 000 each &
every occurrence’ and in the same vein the term ‘occurrence’
is used to describe the application of the deductible
clause to ‘each
& every occurrence’. In addition, the term ‘act’,
it appears, is used in the
Policy to describe the conduct of the
actor in an occurrence. So for instance, clause A of the
insuring clauses
[15]
, provides
cover where loss is suffered ‘
by
reason of and directly caused by one or more dishonest or fraudulent
acts of any of the employees of the insured
’.
The logical corollary of this observation is that it makes
grammatical sense to say that a dishonest or fraudulent
act
constitutes an ‘occurrence’.
[14]
As
indicated earlier, the
Policy
also uses these terms interchangeably and this is borne out by clause
7 of the exclusions
[16]
, for
example, which excludes any liability for loss ‘
arising
out of any circumstance, occurrence or act
’
described therein. In this context, the plain and ordinary
meaning of these terms appears to be that they mean one
and the same
thing. This approach is supported by the Oxford Dictionary
definition of ‘occurrence’ which is defined
as ‘
the
act or an instance of occurring, an incident or event
’.
This definition not only accord’s with Chartis’
interpretation of the Policy but it is congruous with
the principle
of the ordinary and popular meaning of the language of the contract
(or in this case, the
Policy
)
articulated by the Supreme Court of Appeal in
Mutual
& Federal Insurance v Gouveia
[17]
.
A similar approach to the meaning of an ‘occurrence’ is
adopted by the High Court of Australia in
Government
Insurance Office of New South Wales v Atkinson-Leighton Joint
Venture
[18]
,
and
by the Court of Appeal (UK) in
Philadelphia
National Bank v Price
[19]
.
In applying this definition, the Policy does make one exception for
the benefit of the insured in the aggregation clause,
in which a
series of dishonest or fraudulent acts will be considered to be one
occurrence if the insured is able to establish the
common denominator
of the same actor in each such occurrence. The aggregation
clause is clearly advantageous to the insured
so that it can
aggregate the various occurrences into one occurrence in order to
show that its loss exceeds the limit of the deductible
clause.
But irrespective as to one agrees with this point of view or not, it
is far from clear whether Super Group intends
to rely on a series of
acts or occurrences, or on the aggregation clause to establish its
claim in terms of the Policy, and it
is for that reason that Chartis
simply does not know what case to meet.
The
request for further and better particularity (‘the request’)
Paragraphs
7.1 to 7.3 and 9 to 12 of the request
[15]
Against the background of the debates set
out above, the particularity provided by Super Group about the nature
of its claim must
be assessed. In paragraph 10 and 11 of the
particulars of claim, Super Group has pleaded that it has suffered
loss resulting
from the theft of its clients’ goods whilst in
its possession over a period of some two years. In describing
the conduct
that caused the loss it alleges that –
‘
The
said financial loss was occasioned by reason of and directly caused
by a series of dishonest and fraudulent acts of a multiplicity
of
employees of the plaintiff, acting in collusion’
[20]
.
[16]
In response to this short and sharp
description, and in the absence of any further particularity as how
or why this claim falls
within the ambit of the Policy, Chartis has
sought in paragraphs 7.1 to 7.3, and paragraphs 9 to 12 of its
request for further
and better particulars (‘the request’)
responses to questions aimed at determining whether Super Group
relies upon
a single occurrence to which one deductible of R750 000
would apply, or a series of separate occurrences to each of which the
self deductible would apply. As indicated earlier, apart from
an assertion of ‘collusion’ between employees who
are
alleged to have committed the dishonest acts, no further response in
respect of these enquiries are made. The assertion
that a
‘syndicate’ occasioned such loss does not take the matter
any further, and in any event, it is not made in the
pleadings for
trial but rather in this interlocutory application. In these
circumstances, and in order to inform Chartis
of the case it is
required to meet, Super Group is obliged to provide particularity as
to the case which it intends to pursue at
trial. It either
relies on a series of acts or occurrences or one act or occurrence,
it simply cannot be both.
Paragraph
22 of the request
[17]
The request in this paragraph is aimed at
obtaining further particularity in respect of paragraph 14 of the
particulars of claim
in which Super Group contends that pursuant to
the loss suffered by it as a result of the theftuous activities of
its employees
it is obliged to pay to its clients the loss
consequently suffered by them, in the following terms –
‘
The
above sum is made up of the undermentioned amounts which the
plaintiff is obliged to pay to its clients, less recoveries made,
and
calculated as follows:
Colgate
- R14 766 602, 82
Kimberly-Clarke
- R16 659 392, 59
Unilever
- R11 169 488, 49
SUB-TOTAL
R42 595 483, 90
LESS
RECOVERIES R 3 854 379, 62
TOTAL
R38 741 104, 28.
[18]
In
relation to the formulation of this allegation, Chartis seeks further
and better particularity as to when the obligation to pay
its clients
arose, what the ‘causa’ for the obligation is and whether
Super Group has paid these amounts to its clients
and if so when
payment was made and in respect of what goods. These questions
are aimed, in my view, at establishing whether
and on what basis
Super Group’s liability to its clients arose, and the extent
thereof, particularly in the context of the
first paragraph of the
Policy
[21]
which provides
cover ‘
for
financial loss suffered by the insured, or a third party
to
whom the insured became legally liable
,
on or subsequent to the retroactive date and prior to the termination
of the policy and discovered by the insured during the period
of the
Policy, or within 12 months of termination of the Policy
’.
In response Super Group has, apart from an assertion that it
undertook the risk of loss or damage to such goods,
refused to
provide a response to this request.
[19]
The answers to these questions are clearly
relevant to the case that the defendant has to meet, and must in the
circumstances be
provided by Super Group.
Paragraphs
23 to 25 of the request
[20]
The request in paragraphs 23 to 25 of the
request are based on Super Group’s formulation of its financial
loss as articulated
in paragraphs 10 to 12 of the particulars of
claim, particularly its grammatical use of the singular term ‘loss’
as
opposed to ‘losses’ and whether this has any bearing
as to whether Super Group intends to run its case on one act or
occurrence of theft or many acts or occurrences of theft. These
particulars are necessary for the same reasons that are applicable
to
paragraphs 7.1 to 7.3 and 9 to 12 of the request.
The
application in terms of rule 33(4)
[21]
The
parties seek a separation of issues in terms of the provisions of
rule 33(4) which enjoins a court to order such separation
on the
application of any party, unless it appears that the questions cannot
be conveniently separated. Ordinarily it is
desirable in the
interests of expedition and finality of litigation to have one
hearing only at which all the issues are canvassed
so that the Court,
ceased of the matter, might after the conclusion of the trial,
dispose of the whole of the case. Rule
33(4) was clearly
conceived in the realisation that in some instances, it might serve
the interests of justice by disposing of
a particular issue or issues
‘
before
considering other issues which, depending on the result of the issues
singled out, might fall away or become confined to
substantially
narrower limits
’
[22]
.
In the circumstances, I do not think that rule 33(4) could be decided
solely on the convenience of one or both parties.
In
determining whether it would be ‘convenient’ to have the
issues agreed upon (and the issue in respect of which there
is
disagreement) decided separately from others, there are two important
considerations that must be factored into this determination.
The first, is whether a preliminary hearing for the decision of such
issues would materially shorten the proceedings. In
that
regard, the court in Minister of Agriculture v Tongaat Ltd
[23]
stated that:
‘
Ordinarily,
if it were to appear to the Court that the duration of the trial
would be substantially curtailed by a preliminary hearing
to settle
specific questions, it would probably grant the application, but even
then it would not necessarily do so because the
nature of the case
may be such that proper consideration of overall convenience may
involve factors other than those relating only
to actual duration of
the Court hearings.
The
word “convenient” in the context of Rule 33(4) is not
used, I think, in the narrow sense in which it is sometimes
used to
convey the notion of facility or ease or expedience. It appears
to be used to convey also the notion of appropriateness;
the
procedure would be convenient if, in all the circumstances, it
appeared to be fitting, and fair to the parties concerned.’
[22]
The
second consideration is that raised by the Supreme Court of Appeal in
CNA v MTN
[24]
where Navsa JA
and Hurt AJA cautioned against piecemeal litigation, and indicated
that before separation is ordered, the court
must be satisfied that
it is convenient and proper to do so. In that regard they
stated that:
‘
This
court has warned that in many cases, once properly considered, issues
initially thought to be discrete are found to be inextricably
linked. And even where the issues are discrete, the expeditious
disposal of the litigation is often best served by ventilating
all
the issues at one hearing. A trial court must be satisfied that
that it is convenient and proper to try an issue separately’.
[23]
It is with these principles in mind that I
proceed to deal with the application for separation by Super Group
and a counter application
for separation by Chartis. The
parties are in agreement in respect of the majority of the defined
issues which fall to be
separated. In that regard, paragraphs
1.1, 1.2, 1.3, 1.4, 1.5, 1.6 and 1.8 of Super Group’s notice of
motion corresponds
with the same numbered paragraphs in Chartis’
notice of motion.
[24]
In summary, the issues that have been
agreed upon are a reference to particular paragraphs in the
particulars of claim and Chartis’
response thereto in its
plea. The parties have therefore agreed that: paragraph 5 of
the particulars of claim (PoC) which
deals with whether Super Group
bore the risk of loss in respect of the stolen items; paragraphs 6
and 7 of the PoC which deal with
the relevant provisions of the
Policy; paragraphs 10 and 11 of the PoC which deal with the
occurrence of loss and whether Super
Group relies on one or more
occurrences of loss; and paragraphs 12 and 15 of the PoC which deal
with the allegation of collusion
amongst those employees who were
involved in the theftuous acts, as well as whether there was
compliance by Super Group with the
claims procedures in terms of the
Policy – should be separated.
[25]
In addition thereto Chartis has pleaded
certain material facts in paragraphs 12.1, 12.2, 12.4 and 13 which
deal with its contentions
that the loss, or part thereof was excluded
by paragraph 7 of the Policy because Super Group knew of its
existence prior to the
inception of the Policy, or that the loss
arose from multiple incidents of theft and that each incident
attracts a deductible of
R750 000. Broadly speaking, the
agreed issues all deal, to a greater or lesser extent, with the issue
of liability.
[26]
What is excluded by the parties by
agreement, are the issues raised in paragraphs 13, 14, 16 and 17 of
the PoC which essentially
deal with quantum including the extent of
the financial loss, whether and what amounts are payable to Super
Group’s clients,
and the consequential losses, if any, suffered
by it for the purposes of substantiating its losses and the costs
incurred by it
for the recovery or attempted recovery of its
losses.
[27]
The only material issue upon which the
parties disagree is whether or not the issues identified in
paragraphs 12.3 and 12.5 of the
Chartis’ plea should form part
of the separated issues. Paragraph 12 of Chartis’ plea, as a
whole, alleges the following
–
12
Alternatively, and in the event of it being found that the plaintiff
has sustained financial loss by reason of and directly caused
by one
or more dishonest or fraudulent acts of its employees, then the
defendant pleads as set out hereunder:
12.1 The financial
loss suffered by the plaintiff arises from multiple incidents of
theft by various employees of the plaintiff.
12.2 Each incident
of theft constitutes an ‘occurrence’ as that term is used
in the policy.
12.3 Each incident
of theft resulted in financial loss of no more than R750 000,00.
12.4 Each incident
of theft attracts a deductible of R750 000,00.
12.5 Accordingly the
plaintiff is not entitled to indemnity in terms of the policy in
respect of any incidents of theft, each one
of them falling within
the deductible specified in the policy.
[28]
Super
Group contends that paragraph 12.3 of Chartis’ plea forms part
of the issue of quantum
[25]
and will require detailed evidence regarding each incident of theft,
and that its inclusion in the separated issues would defeat
the
purpose of this application. On the other hand, Chartis
contends that whether or not the issue is relevant to the issue
of
quantum is of no moment and that the ultimate enquiry is to determine
whether or not it is convenient to do so. They submit
that the
issue of the deductible is inextricably linked to the issue of
liability, and that Chartis’ liability does not arise
if Super
Group cannot prove that each occurrence of theft exceeded the self
insured layer of R750 000.
[29]
The issue raised by Chartis points to the
fundamental difficulty with separating out the issues in this
matter. The central
point of dispute between the parties in
this matter (although there are others) is whether the loss suffered
by Super Group was
occasioned by one dishonest act or occurrence or
several such acts or occurrences. In the absence of the
resolution of that
matter, it is hardly appropriate to move on to the
application of the deductible. Conversely however, once the
issue is resolved,
the application of the deductible must be applied
to determine whether Chartis is liable, and if so to what extent.
Given
my views on the application in terms of rule 21(4), and for the
purposes of compliance with the order granted in relation thereto,
Super Group will be required to make a decision about its approach to
this matter. If it relies on the aggregation clause
for the
purposes of its claim, then the deductible can be readily applied to
the holistic claim of its loss in the amount stipulated
in paragraph
14 of its PoC. If it relies on a number or a series of
dishonest acts or occurrences, then it will in any event
have to
undertake an investigation or a process to determine the details of
each such act or occurrence, and it is unclear to me
why that process
will not simultaneously yield the value of goods stolen in respect of
each such incident. In the circumstances,
it seems to me that
it is not possible at this stage, and in the absence of the further
particulars, to determine whether it is
‘convenient’ to
separate out the issues. In fact, the issues in this matter
appear to be inextricably linked.
Perhaps after Super Group’s
compliance with the outcome of the rule 21(4) application, the
parties can reconsider their views
on the appropriateness of
separating out the issues.
[30]
In the circumstances, and in relation to
the Rule 21(4) application, it is ordered that:
a)
The Respondent/Plaintiff is ordered to
furnish further and better particulars in terms of Rule 21(4) to
paragraphs 7.1 to 7.3, 9
to 12, and 23 to 25 of the
Applicant’s/Defendant’s request for particulars for trial
served on 30 October 2013 within
ten (10) days of the date of this
order;
b)
The Respondent / Plaintiff is ordered to
pay the costs of this application, such costs to include the costs of
two counsel.
[31]
In the circumstances, and in relation to
the Rule 33(4) application, it is ordered that:
a)
Both the application and the counter
application are dismissed.
b)
There is no order as to costs.
Appearances:
For
the Applicant / Defendant
: Adv. CDA Loxton
SC / Adv. G.M. Goedhart
Instructed
by:
Norton Rose Fulbright South Africa
Tel:
(011) 685-8500
Fax:
(011) 301-3200
Ref:
Mr J M Neaves
For
the Respondent / Plaintiff
: Adv. John
Peter SC / Adv. Alan Lamplough
Instructed
by:
Gary G Mazaham Attorneys
Tel:
(011) 782-4441
Fax:
(011) 783-6752
Ref:
Mr G Mazaham / GS144
Date
of Hearing: 27 October 2014
Date
of Judgment: 21 November 2014
[1]
Clause
8 of the Schedule to the Policy read with exclusion 7 on page 11 of
the Policy.
[2]
Schmidt
Plant Hire (Pty) Ltd v Pedrelli 1990 (1) SA 398 (D).
[3]
Thompson
v Barclays Bank DCO
1965 (1) SA 365
(W) at 369; hardy v Hardy
1961
(1) SA 643
(W) at 646.
[4]
Clause
A page 4 of the Policy.
[5]
Clause
5 of the Schedule on page 2 of the Policy.
[6]
Clause
7 of the Schedule on page 2 of the Policy.
[7]
The
2
nd
proviso on page 6 of the Policy.
[8]
Clauses
C and D of the insuring clauses on page 6 read with Clause 5 of the
Schedule to the policy on page 2
[9]
Clause
6 of the conditions on page 13 of the Policy.
[10]
Para
11 of the particulars of claim.
[11]
Clause
7 of the Schedule on page 2 of the Policy.
[12]
Paragraph
19 of the answering affidavit to the rule 21(4) application.
[13]
Para
12.2 of Chartis’ plea.
[14]
Pages
2 and 3 of the Policy.
[15]
Page
4 of the Policy.
[16]
Page
11 of the Policy.
[17]
2003
(4) SA 53
(SCA) at para 9.
[18]
[1981] HCA 9
;
(1980)
31 ALR 193.
[19]
[1938]
2 All ER 199.
[20]
Para
11 of the particulars of claim.
[21]
Page
4 of the Policy.
[22]
Minister
of Agriculture v Tongaat Group Ltd 1976 (2) 357 (D&CLD) at 362H.
[23]
1976
(2) 357 (D&CLD) at 363.
[24]
2010
(3) SA 382
at 408 paras [89] and [90].
[25]
Para
18 of the FA to the Rule 33(4) application