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[2015] ZAGPJHC 240
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CMH Car Hire (Pty) Limited t/a First Car Rental v Banda (34321/2012) [2015] ZAGPJHC 240 (21 October 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
REPUBLIC
OF
SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 34321/2012
DATE:21
OCTOBER 2015
In the matter
between:
CMH CAR
HIRE (PTY) LIMITED t/a FIRST CAR
RENTAL
.............................................
Plaintiff
And
BANDA,
MARY TERESA
MAMPAKI
..................................................................................
Defendant
J
U D G M E N T
MAKUME,
J
:
INTRODUCTION
[1]
On the 15
th
day of December 2011 the Defendant hired Plaintiff’s motor
vehicle namely a Honda CRV Auto bearing registration letter and
number ND 699355 (the motor vehicle). In terms of the rental
agreement to which was attached terms and conditions the defendant
was to return the motor vehicle to the plaintiff on or before the
18
th
day of December 2011.
[2]
Whilst the Defendant was driving in the Free State Province heading
to Fouriesburg she was involved in an accident which resulted
in the
Plaintiff’s motor vehicle being damaged beyond economical
repair.
[3]
In this action the Plaintiff’s claim against the Defendant is
for payment of the sum of R317 340,00 being the replacement
value of
the motor vehicle.
THE
RENTAL AGREEMENT
[4]
Attached to the Rental Agreement are Terms and Conditions thereto,
clauses 2 and 5 are of relevance in this judgment and I deem
it
appropriate to quote same in full:
“
2.
RISK, DELIVERY AND RETURN
2.1
The
VEHICLE will be at YOUR sole risk from the date and time of delivery
of the VEHICLE until the VEHICLE is returned to US.
YOU
undertake to return the VEHICLE in the same condition that YOU
received it, fair wear and tear excepted.
”
“
5.
LIABILITY WAIVER
5.1
YOU
may purchase in advance a collision damages waiver (CDW) and/or theft
loss waiver (TLW) or a super waiver (‘SCDW/STLW’),
or
such LIABILITY WAIVERS may be included in the OFFICIAL RATES recorded
in clause 4.1.1.
5.2
In
such event, YOUR liability in terms of clause 2.1 will not exceed the
amount stated in the AGREEMENT as the ‘Renter’s
Responsibility’, unless one or more of the exclusions in clause
5.3 is applicable.
5.3
CDW
and TLW do not cover loss of, or damage to the VEHICLE in the
following circumstances, and YOU will be liable for all such loss
or
damage:
5.3.1
where YOU or the DRIVER are in breach of this AGREEMENT;
5.3.2
where
damage is caused to tyres, rims, hubcaps, windscreens or the
undercarriage, if no collision of the VEHICLE has occurred;
5.3.3
where
damage is caused by water;
5.3.4
where
damage or loss is caused by DRIVER negligence;
5.3.5
where
damage or loss is sustained in an accident not caused by physical
contact with another vehicle, person, animal or object;
”
COMMON
CAUSE ISSUES
[5]
It is not disputed that the Plaintiff is the owner of the motor
vehicle and that it was damaged beyond economical repair whilst
being
driven by the Defendant.
[6]
It is further common cause that the Plaintiff has suffered loss in
the sum of R317 340,00.
IN
ISSUE – THE DISPUTE
[7]
What is in issue in this matter is the proper interpretation of
clause 5.3.5 under Liability Waiver. This issue is central
to
the resolution of the dispute and for a better understanding of the
issue I deal with the evidence of the Defendant first.
THE
EVIDENCE AND THE PLEADINGS
[8] The Plaintiff presented no evidence and closed its case. In the
particulars of claim the Plaintiff alleges the following:
Ad
Paragraph 9
The Defendant returned
the vehicle to the Plaintiff in an accident damaged condition.
Ad
Paragraph 10
The
damage was occasioned to the vehicle in circumstances where there was
no physical contact with another vehicle, person animal
or object,
alternatively as a result of driver negligence.
Ad
Paragraph 11
As a consequence
of the aforegoing the waivers opted for by the Defendant do not apply
and the Defendant is accordingly liable for
the full extent of the
Plaintiff’s damages.
[9]
In her plea the Defendant denies contents of paragraphs 10 and 11
and says that the damage to the vehicle was caused due to
physical
contact with an object.
[10]
The evidence of the Defendant is briefly that she was driving along a
tarred road in the Free State when suddenly an animal
in this
instance a calf ran into her line of travel she swerved the motor
vehicle to the left in an attempt to avoid colliding
with the animal
and it was when she was swerving back into the road that she lost
control of the vehicle and in the process hit
a cliff on the side of
the road. The motor vehicle was damaged in that process.
[11]
She was cross-examined in detail about the agreement and how the
accident happened. She testified that she had as a passenger
her
child and that if she had not swerved the motor vehicle she would
have hit the animal and as she says this may have caused
her and the
child serious injuries or even death.
[12]
She testified further that when she hired the plaintiff’s
motor vehicle she indicated to them that she wants insurance
to cover
accident damage and as far as she understood when she took delivery
of the motor vehicle she was fully covered for this
type of accident
that she became involved in. She denied that she drove negligently or
at a high speed. The animal suddenly appeared
in front of her and the
only way to avoid colliding with it was to swerve away from it.
[13]
The Plaintiff did not present any evidence to prove that the
Defendant was negligent despite having so pleaded albeit in the
alternative. There was nothing to gainsay the Defendant’s
version as to how the accident happened. During cross-examination
the
Defendant reiterated the same version of events which version was not
discredited by any inconsistencies or ambiguities.
The
cross-examination did not damage her credibility nor did it raise any
serious concerns about the reliability of her evidence.
[14]
The Defendant was not represented during the trial and was thus not
able to present argument and make submissions. She
instead
repeated in argument her evidence-in-chief. However, in her
plea which was drafted by her attorney she said that
the damage to
the vehicle was caused when the vehicle made physical contact with an
object which could only mean the cliff or the
hillside. In her
mind this is sufficient to make the act fall within the insured
event.
[15]
I asked counsel for the Plaintiff why this Court should not find that
the hillside or the cliff that made contact with the
motor vehicle is
an object as stated in clause 5.3.5. I did not get any
suggestion that the hillside was not an object. What
I was told is
that if the motor vehicle had made contact with another motor vehicle
or the animal itself then that will be an object.
The Terms and
Conditions of the Rental Agreement do not define what an object is.
I was also not referred to any authorities
on this aspect and that
being the case I have to rely on comparative rulings in this regard.
[16]
The question to be answered is the following: is a hillside or
the side of the road an object or not? In paragraph
10 of the
amended particulars of claim the Plaintiff says that the damage to
its vehicle was occasioned in circumstances where
there was no
physical contact with another vehicle, person, animal or object
alternatively as a result of driver negligence.
[17]
In dealing with the alternative ground of exclusion it is so that the
Plaintiff placed no evidence before this Court to prove
that the
Defendant drove the motor vehicle negligently as set out in clause
5.3.4 of the exclusion clause.
[18]
The only evidence presented is that of the Defendant who testified
that faced with a sudden emergency she swerved in order
to avoid
hitting a cow and being more concerned in saving her life as well as
that of her minor child who was sleeping in the motor
vehicle. She
lost control of the motor vehicle and hit the embankment or cliff or
side of the road. That evidence remains unchallenged
and in my view
does not prove any negligence on the part of the driver.
[19]
I now deal with the vexed question which is what was the intention of
the parties in using the words “
object
”
without defining or specifying what objects would qualify to
indemnity the Defendant in terms of clause 5.
[20]
In clause 1.1.7 of the Terms and Conditions to the Rental Agreement
it is said that:
“
A
liability waiver is not an insurance policy but provides a basis on
which your liability in terms of this agreement may be reduced.
”
Notwithstanding
this statement in both the rental agreement as well as the Terms and
Conditions document the language used is that
normally that which is
found in short-term insurance policy documents. For example the
rental agreement refers to type of
cover chosen and accepted by the
Defendant and in clause 5.4 of the Terms and Conditions the following
is said:
“
5.4 YOU may not
decline the LIABILITY WAIVERS offered by US unless:
5.4.1
there
is a valid corporate account opened in YOUR name; and
5.4.2
YOU
have signed OUR ‘Self Insurance Agreement’; and
5.4.3
YOU
have provided US with written proof from YOUR insurers that all
vehicles rented are comprehensively insured.
”
[21]
In my view despite the Terms and Conditions of the rental agreement
seeking to define the LIABILITY WAIVER clause not as an
insurance
clause it unfortunately invites being interpreted as an insurance
policy in order to clearly understand what the intention
of the
parties was. I say this because the Defendant in her evidence
testified that according to her when she accepted the
type of cover
in the rental agreement she says it was meant to cover the type of
accident she became involved in.
[22]
The Plaintiff argues that what the motor vehicle made physical
contact with is excluded in clause 5.3.5 in other words the
insured
motor vehicle did not make physical contact with an object. I
posed a question to Plaintiff’s counsel what
then did the
insured motor vehicle make contact with for it to sustain such
serious damage. I could not get a clear intelligible
answer
instead it was argued that if the motor vehicle had made contact with
the cow or with another motor vehicle then the damage
sustained would
have been covered. In my view this explanation is not only
absurd but flies in the face of what was intended
by the parties.
This rental agreement sought to indemnify the Defendant for damages
occasioned to the motor vehicle under
circumstances where she was not
the cause of the accident irrespective of what the motor vehicle made
contact with.
[23]
Clause 5 of the Rental Agreement is a typical short-term insurance
contract. The principles governing the interpretation of
an insurance
policy were set out by the Supreme Court of Appeal in
Fedgen
Insurance Limited v Leyds
1995 (3) SA
33
(A) as follows:
“
The
ordinary rule relating to the interpretation of contracts must be
applied in construing a policy of insurance. A court must
therefore
endeavour to ascertain the intention of the parties. Such intention
is in the first instance, to be gathered from the
language used
which, if clear must be given effect to. This involves giving words
used their plain, ordinary and popular meaning
unless the context
indicates otherwise. Any provision which purports to place a
limitation upon a clearly expressed obligation
to indemnify must be
restrictively interpreted for it is the insurer’s duty to make
clear what particular risks it wishes
to exclude. A policy normally
evidences the contract and an insured’s obligation, and the
extent to which an insurer’s
liability is limited, must be
plainly spelt out. In the event of a real ambiguity the contra
proferentem rule which requires
a written document to be construed
against the person who drew it up would operate against Fedgen as
drafter of the policy.
”
[24]
In the matter of
Van Zyl NO v Kiln
Non-Marine Syndicate No 510 of Lloyds of London
2003 (2) SA 440
(SCA) the court quoted with approval from the
judgment by King J in
Barnard v Protea
Assurance Co Ltd t/a Protea Assurance
1998
(3) SA 1063
(C) to the following effect:
“
Now it
is accepted principle in interpreting insurance contracts that it is
the duty of the insurers to make it clear what particular
risks he
wishes to exclude. The principle is stated by May in the following
terms:
‘
No
rule in the interpretation of a policy is more fully established or
more imperative or controlling, than that which declares
that in all
cases it must be liberally construed in favour of the insured so as
not to defeat without a plain necessity his claim
to an indemnity
which in making the insurance it was his object to secure.’
”
At
page 1068D the learned judge continues as follows:
“
From
this it would follow that if a term in a policy (term in the sense of
designation) is capable of both a broader and narrower
meaning it is
that which is favourable to the insured in other words to the
upholding of the policy which must be employed.
”
[25] The terms and conditions of the Rental Agreement do not define
or explain what “
object
” was intended in clause
5.3.5. The
Concise English Oxford Dictionary
12
th
edition defines the word “
object
” in the following
words:
“
a
material thing that can be seen or touched.
”
The
World Book Dictionary
also defines or describes “
object
”
as something that can be seen or touched. It is clear that a
hillside or the cliff that the motor vehicle made contact
with is an
object as defined in the
World
Dictionaries
.
[26]
A restrictive interpretation of clause 5.3.5 would confine the
indemnity afforded the driver to instances where the collision
is
with moving or movable objects because the words vehicle, person and
animal are all movable or moving objects. If that is the
case then
there should have been no need to add the words or “
object
”
to this sentence and in my view by including the word “
object
”
the author intended to include also immovable obstacles like a cliff,
a hillside or a tree or even where the motor vehicle
would overturn
and roll on the hard surface of the road and become damaged. In those
instances the driver would be indemnified
unless there is proof that
he or she was negligent.
[27]
In the present matter the Defendant was not negligent when she
collided with the hillside of the road. The hillside is an
object
that is referred in clause 5.3.5 and the Defendant is indemnified in
full for the damages occasioned to the motor vehicle.
[28]
In view of my finding the following
dictum
in the matter of
Metcash Trading Limited
v Credit Guarantee Insurance Corporation of Africa Ltd
2004 (2) All SA 484
(SCA) paragraph [10] at 488b-f is apposite:
“
According
to our law a policy of insurance must be construed like any other
written contract so as to give effect to the intention
of the parties
as expressed in the terms of the policy considered as a whole. The
terms are to be understood in their plain, ordinary
and popular sense
unless it is evident from the context that the parties intended to
have a different meaning, or unless they have
by known usage of
trade, or the like, acquired a peculiar sense distinct from their
popular meaning.
If the
ordinary sense of the words necessarily leads to some absurdity or to
some repugnance or inconsistency with the rest of the
contract then
the court may modify the words just so much as to avoid that
absurdity or inconsistency, but no more. It must also
be borne
in mind that very few words bear a single meaning and the ordinary
meaning of words appearing in a contract will
necessarily depend upon
the context in which they are used, their interrelation and the
nature of the transaction as it appears
from the entire contract.
”
[29]
I have considered the word “
object
”
in relation to the context in which it is used with its interrelation
to the contract as a whole, including the nature and
purpose of the
contract. It follows accordingly that the ordinary and single meaning
of the word “
object
”
covers the incident in which the Defendant was involved in and I
accordingly make the following order.
ORDER
[30]
The Plaintiff’s claim is dismissed with costs on a party and
party scale.
DATED
at JOHANNESBURG this day of SEPTEMBER 2015.
M
A MAKUME
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
FOR
PLAINTIFF ADV C J BRESLER
INSTRUCTED
BY MESSRS MOONEY FORD ATTORNEYS
209
Smit Street
Braamfontein
Ref:
IG King/nikki/C41894/364
Tel:
011 807 6046
FOR
DEFENDANT IN PERSON
Tel:
072 353 0009