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[2016] ZAGPJHC 197
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Barker v Altrisk, A Division of Hollard Life Assurance Company Limited (23841/2014) [2016] ZAGPJHC 197 (22 July 2016)
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:
23841/2014
DATE:22
JULY 2016
In the matter
between:-
BARKER:
MICHAEL STUART
Applicant
And
ALTRISK, A
DIVISION OF HOLLARD LIFE ASSURANCE COMPANY LIMITED
Respondent
JUDGMENT
CORAM:
CRUTCHFIELD AJ
[1]
This matter came before me o
n
the opposed motion roll of the week commencing 25 January 2016. Both
parties were represented by senior and junior counsel.
[2]
The applicant claimed the reinstatement of
a life insurance policy lapsed by the respondent, the insurer,
pursuant to the applicant’s
alleged failure to pay certain
monthly premiums required in terms of the policy.
[3]
The applicant sought the following relief:
3.1
An order declaring the respondent’s
cancellation (or lapsing) of the policy unlawful.
3.2
An order directing the respondent to
reinstate the policy on the same terms and conditions as at 17
January 2013, subject to the
applicant paying the instalments due in
terms of the policy for the period between 1 November 2012 and the
date of reinstatement
of the policy; and
3.3
Costs only in the event of the respondent
opposing the relief.
[4]
Hence, the critical issue for determination
was whether the respondent’s lapsing of the policy was
unlawful, or otherwise.
[5]
The essence of the applicant’s case
was that the respondent, in cancelling the policy, failed to act in
accordance with the
fundamental rights of fairness, dignity and
equality.
[6]
The facts which were common cause between
the parties, included the following:
6.1
The applicant applied to the respondent,
and was granted, certain assurance cover
under policy number [5………]
(‘the policy’), in respect of:
6.1.1
Life assurance cover on the applicant’s
life in the initial amount of R4 400 000.00.
6.1.2
Comprehensive disability assurance cover of
an initial amount of R1 000 000.00; and
6.1.3
Comprehensive dread disease assurance cover
in an initial amount of R1 000 000.00;
(‘the
cover’).
6.2
The cover incepted on 1 July 2009.
6.3
The relevant material terms of the policy
were the following:
6.3.1
The policy consisted of the proposal, the
life assurance policy document (including the schedule), and any
endorsements issued by
the respondent thereto.
6.3.2
No modification thereof would be of effect
unless in writing and signed by the managing director of the
respondent or his nominee.
6.3.3
In consideration of the payment to the
respondent of the premiums payable in terms of the schedule, the
respondent undertook to
pay the benefits described in the policy.
6.3.4
All premiums were payable in advance and
due on the first day of the month.
6.3.5
A period of grace of one month was provided
for the payment of each premium.
6.3.6
In the event that a premium was not paid
within the one month grace period, the policy would lapse.
6.3.7
If the policy lapsed, the respondent would
consider its reinstatement subject to the respondent’s
requirements at the time.
6.3.8
The policy provided for a compulsory
premium escalation in accordance with a recorded formula based upon
the applicant’s age
at any particular time.
[7]
The terms of the policy find application
against the backdrop of section 52 of the Long-Term Insurance Act 52
of 1998, to which
I refer below.
[8]
On or about 29 April 2012, the applicant
suffered a heart attack. The respondent honoured its commitments
under the policy, and
paid the applicant the amount of R1 200 000.00,
in terms of the dread disease cover. An endorsement was made to the
policy.
[9]
The applicant, initially, paid the monthly
premiums due under the policy by way of a debit order, registered
against a banking account
held by him at Nedbank (‘the Nedbank
account’).
[10]
On 21 July 2009, the respondent received a
debit order instruction from one Guy Rae (‘Rae’), a
person known to the applicant,
in terms of which the monthly premiums
in respect of Rae’s policy number [5……..] (‘Rae’s
policy’),
were to be paid from the Nedbank account.
[11]
As at 31 August 2012, the applicant’s
premiums for the month of August 2012 remained unpaid, as the debit
order in respect
of payment of the premium on 1 August, was reversed
on the grounds of ‘
no authority
’.
[12]
On 4 September 2012, the applicant’s
August 2012 premium, debited once again from the Nedbank account on 3
September 2012,
remained unpaid and was then credited to the
applicant’s Nedbank account.
[13]
As a result, the applicant made a cash or
manual payment in respect of his August 2012 premium.
[14]
On 5 September 2012, the applicant’s
September 2012 premium, debited on 1 September 2012, was
reversed on the grounds
of ‘
not
provided for’
.
[15]
On 24 October 2012, the applicant was
advised by the respondent that the premiums due to the latter for the
months of September
and October 2012 had not been paid.
[16]
The applicant, on that same day, 24 October
2012, paid R7 722.00, the amount of the premiums due for the
months of September
and October 2012.
[17]
The applicant’s monthly premiums were
debited from the Nedbank account until 1 September 2012.
[18]
The applicant, at that stage, was oblivious
of the deduction of the monthly premiums under Rae’s policy
from the Nedbank account,
which were allegedly not authorised by the
applicant. Notwithstanding, the applicant conceded that the relevance
of Rae’s
policy was limited to it being the source of much
confusion.
[19]
On 1 November 2012, the respondent informed
the applicant that the debit order in respect of Rae’s policy
was stopped on 1
September 2012, and that no further deductions were
made thereafter.
[20]
On 3 December 2012, the applicant completed
and submitted a new debit order application, (‘the FNB debit
order authorisation’),
to the respondent, authorising the
latter to deduct the premiums due to it under the policy, an amount
of R3 861.00 per month,
from an account held at First National
Bank (‘the FNB account’).
[21]
The relevant portion of the FNB debit order
authorisation, dated 3 December 2012, provides for the
following and I quote:
‘
Preferred
Debit Date: 7
th
of the month (07.01.13)
Premium
Amount R3 861.00
I
authorise Hollard Life to draw against this account all amounts due
in terms of this application. This authorisation is
to remain
in force until terminated by Hollard Life or myself.’
[22]
On 4 December 2012, the applicant paid (or
so he thought), the premium due to the respondent for the month of
December 2012.
[23]
Also on 4 December 2012:
23.1
The respondent provided the applicant’s
intermediary, Ms Cathleen Bierbaum (‘Bierbaum’), with
updated banking
details and advised that the change in terms of the
FNB debit order authorisation would be with effect from 7 January
2013.
23.2
Bierbaum informed the applicant by way of
electronic mail (‘email’), that:
23.2.1
The respondent had loaded the debit order
and that it would run from January 2013 as per the applicant’s
request; and
23.2.2
She assumed that the applicant would pay
the December contribution via electronic transfer.
[24]
On 20 December 2012:
24.1
The respondent advised the applicant’s
broker that the policy was in arrears, and effectively in a state of
lapse:
24.1.1
The arrear premiums up to and including 31
January 2013, (being the three premiums in respect of the months of
November 2012, December
2012 and January 2013), amounted to
R11 583.00.
24.1.2
The lapse of the applicant’s policy
would be processed on 18 January 2013, if the arrears were not paid
prior to that date.
24.2
Bierbaum contacted the applicant
telephonically and advised him of the aforementioned.
[25]
It is not without significance that
Bierbaum telephoned the applicant personally in this regard, rather
than notifying him thereof
via email.
[26]
It is apposite to mention, however, that
the respondent’s notification to the applicant on 20 December
2012 was the first
in respect of the non-payment of the November 2012
premium, due on 1 November 2012, to the respondent. In effect, the
respondent
gave notice of the unpaid status of two arrear premiums,
(in respect of the months of November and December 2012),
simultaneously.
[27]
On 21 December 2012, the respondent advised
the applicant’s intermediaries that it was in possession of the
new debit order
details relating to the FNB account, which was ‘in
place for 7 January 2013, for the month of January 2013’, but
that
the respondent had not received payment of the premiums in
respect of November or December 2012.
[28]
Bierbaum asked the respondent if it could
collect the arrear premiums referred to in the email of 20 December
2012, by way of the
debit order registered against the FNB account.
No response to that request was allegedly forthcoming from the
respondent.
[29]
On 7 January 2013, the applicant’s
intermediary notified the applicant in writing that the respondent
could not locate payment
of the December 2012 premium, and requested
that the applicant furnish proof thereof as a matter of urgency.
[30]
Subsequently, 18 January 2013 brought a
flurry of activity:
30.1
Bierbaum advised the applicant by email
that the respondent was unable to trace payment of the premiums paid
by way of EFT for November
and December 2012, and urgently requested
proof thereof as the policy was in danger of lapsing.
30.2
Proof of the applicant’s electronic
payment was transmitted to Bierbaum,
who advised thereupon, that:
30.2.1
On 4 December 2012, the applicant paid,
erroneously, the premium due under Rae’s policy and not his
own; and
30.2.2
The applicant should pay the amount of
R255.17, being the difference in the premium due under Rae’s
policy and his, which
the applicant duly did, utilising, however, the
reference number of Rae’s policy.
30.3
The applicant’s policy lapsed
accordingly.
[31]
Pursuant thereto, the applicant ascertained
the following:
31.1
The November 2012 premium was not paid, as
the respondent did not endeavour to deduct the premium due to it from
the Nedbank account.
31.2
The premium paid by the applicant on 4
December 2012, was that in respect of Rae’s policy.
31.3
The amount of the monthly premium payable
under the applicant’s policy was R3 861.00, and that in
terms of Rae’s
policy was R3 605.83.
31.4
On 14 December 2012, the respondent
refunded the amount of R4 076.15 to the Nedbank account.
31.5
The respondent did not deduct the January
2013 premium from the FNB account, as it was authorised to do in
terms of the FNB debit
order authorisation.
[32]
On Monday, 21 January 2013, the following
business day, the applicant paid the sum of R11327.83 to the
respondent, which payment
together with that of R255.17 on 18 January
2013, represented payment of all premiums due to the respondent until
31 January 2013.
[33]
18 January 2013 was a Friday and 21 January
2013, the Monday thereafter, was the next business day.
[34]
On 26 January 2013, the applicant became
aware that the respondent lapsed the policy on 18 January 2013.
[35]
The applicant referred the dispute relating
to the lapsing of the policy to the ombudsman for the long term
insurance industry (‘
the
ombudsman’
), who determined on 5
February 2014, that the respondent’s decision was justified in
the circumstances. The applicant, being
dissatisfied with the
ombudsman’s determination, instituted the current proceedings.
[36]
The applicant, (correctly in my view), did
not proceed at the hearing with the issue, raised on the papers, that
the respondent
had failed to furnish the applicant with one month’s
written notice as required by the policy, and that the cancellation
of the policy as a result thereof, was premature.
[37]
The argument of the applicant was that the
manner in which the respondent implemented the terms of the policy,
and its cancellation
thereof, was unconscionable, illegal and immoral
in the circumstances outlined above. Hence, the court should refuse
to give effect
to the respondent’s conduct in lapsing the
policy.
[38]
The applicant presented a chronology, the
purpose of which was to demonstrate that the applicant was not
reckless in respect of
payment of the premiums under the policy, and,
that he paid promptly upon being advised of non-payment thereof by
the respondent.
[39]
It was contended by the applicant that the
respondent, (in failing to present the debit order in respect of the
November 2012 premium
debit order, returning the December 2012
premium, and, declining to act upon the FNB debit order authorisation
as regards the January
2013 premium), created the circumstances upon
which it then sought to rely, as the reason for lapsing the policy,
which the respondent
was not permitted to do.
[40]
Further, there was no reason for the
respondent’s failure to act upon the Nedbank debit order in
respect of the November 2012
premium, as the policy, at that stage,
was fully paid.
[41]
The applicant relied upon the FNB debit
order authorisation mandating the respondent to deduct all amounts
due to it, as a tender
of performance of payment of the arrears as at
3 December 2012, with which the respondent failed to comply thereby
frustrating
the applicant’s tender of performance.
[42]
The respondent contended that it was well
within its rights to decline to present the Nedbank debit order for
payment of the November
2012 premium, as the debit order had failed
for the months of August, September and October 2012. Moreover, it
was obliged to return
the December 2012 premium, as the payment was
made with reference to Rae’s policy.
[43]
As regards the January 2013 premium, the
respondent argued that in so far as FNB debit order authorisation
provided for the seventh
day of the month as the preferred date of
payment, it served to modify the terms of the policy, (stipulating
payment of the premiums
on or before the first day of the month). In
order for the alleged modification to gain effect, it required the
signature of the
managing director of the respondent or his nominee.
In the absence thereof, the respondent contended that it was not
obliged to
act upon the FNB debit order authorisation in respect of
payment of the January 2013 premium.
[44]
The respondent relied upon
Venter
v Venter
[1]
as authority for its argument that because the
policy was silent on the method of
payment of the premiums, the obligation rested upon the applicant, in
order to avoid a breach
of the contract, to seek out the respondent
and tender payment of the arrear premiums in cash, before the lapse
of the grace period.
[45]
This was notwithstanding the existence of a
clearly established method of payment between the parties, by way of
debit order.
[46]
To my mind, the FNB debit order
authorisation operated as a mechanism for payment and did not amount
to a term of the contract.
Thus, it did not require signature by the
respondent’s managing director or his nominee in order to found
validity. Furthermore,
the document comprising the FNB debit order
authorisation, of which the respondent was itself the author,
provided only for the
preferred date
for payment, and hence it did not serve to vary the term of the
policy stipulating the first day of the month as the due date of
payment of the premiums.
[47]
However, the respondent was expressly
authorised by the applicant in terms of the FNB debit order
authorisation, to deduct the amount
of R3 861.00 with effect
from January 2013.
[48]
Moreover, Bierbaum’s email
communication of 4 December 2012 to the applicant stated
unequivocally, that the respondent, acting
upon the FNB debit
authorisation, would deduct only the amount required in terms of the
January premium from January 2013.
[49]
Accordingly, absent specific consensus in
terms with the respondent to deduct the existing arrears under the
debit order registered
against the FNB account, the proper
construction of the FNB debit order authorisation, in my view, is as
an authority in favour
of the respondent, to deduct all premiums
which become due to it under the policy in the future, as from
January 2013, from the
FNB account, until termination of that
authority by either the respondent or the applicant.
[50]
Hence, the provisions of the FNB debit
order authorisation do not sustain the applicant’s argument
that it served as a tender
of payment of the arrear premiums. This,
however, is not determinative of the outcome of this matter.
[51]
To my mind, the critical issue in respect
of the arrear premiums is the respondent’s failure to notify
the applicant timeously
of the non-payment of the November 2012
premium, whatever the reason for that non-payment might be.
[52]
The respondent referred in argument to the
provisions of the Long-Term Insurance Act, 52 of 1998 (‘the
Act’), the provisions
of which intercede, according to the
respondent, in favour of the insured.
[53]
Broadly stated, section 52 of the Act
provides that a policy holder be advised of the risk of the lapsing
of the policy due to non-payment
of the premium, and, legislates for
a grace period of fifteen (15) days from date of notification in the
case of a long-term policy
under which there are two (2) or more
premium payments at monthly intervals or less, or for such longer
period as may be agreed
between the relevant parties.
[54]
In the event that the overdue premium is
not paid by the end of the grace period, the policy stands to be
dealt with in accordance
with section 52(2) of the Act.
[55]
The policy in question, however, provided
for a grace period of one month for the payment of each premium. In
addition, in the event
of the policy lapsing, the respondent
undertook
to
consider its reinstatement subject to the respondent’s
requirements at the time.
[56]
In the light thereof, the respondent’s
argument that the policy, insofar as it permitted cancellation in
these circumstances,
did not offend against public policy, was
self-evidently correct.
[57]
Accordingly, the applicant was obliged to
demonstrate that the time-period was unreasonable or almost
impossible to comply with,
which the respondent contended, the
applicant failed to do.
[58]
It was not impossible for the applicant,
who was advised of the non-payment on 20 December 2012, to comply
with the time limit.
In the event that the applicant, objectively
assessed, had performed a proper investigation, the confusion and
comedy of errors
,
as it was termed, would not have occurred.
[59]
Pacta sunt servanda
remains
the cornerstone of our law of contract. Public policy requires that
parties should in general comply with contractual obligations
that
have been freely and voluntarily undertaken.
[2]
The fact that a provision in a contract, willingly undertaken, may
operate ‘
harshly’
does not mean it is unenforceable.
[3]
[60]
Given the respondent’s reliance upon
the maxim
pacta sunt servanda
and the applicant’s apparent failure to comply with his
contractual obligation to pay the required premiums timeously in
terms of the policy, the applicant referred in reply, to
Botha
v Rich NO
[4]
(‘Botha’),
in respect of
the reciprocal duty to perform obligations.
[61]
Pacta sunt servanda,
however,
is a bilateral concept. It finds application to both parties equally,
in a manner that is fair.
[62]
I turn at this stage to deal with the
issues in so far as I have not already done so hereinabove.
[63]
In
Potgieter,
[5]
the SCA stated that:
“
[32]
...Reasonableness and fairness are not freestanding requirements for
the exercise of a contractual right. … As
to the role of these
abstract values in our law of contract this court expressed itself as
follows …:
‘
(A)lthough
abstract values such as good faith, reasonableness and fairness are
fundamental to our law of contract, they do not constitute
independent substantive rules that courts can employ to intervene in
contractual relations. These abstract values perform creative,
informative and controlling functions through established rules of
the law of contract. They cannot be acted upon by the courts
directly. Acceptance of the notion that judges can refuse to enforce
a contractual provision merely because it offends their personal
sense of fairness and equity will give rise to legal and commercial
uncertainty.’ …
‘
As
the law currently stands good faith is not a self-standing rule, but
an underlying value that is given expression through
existing
rules of law. In this instance good faith is given effect to by the
existing common-law rule that
contractual clauses
that are impossible to comply with should not be enforced ...
Whether, under the Constitution, this limited
role for good
faith is appropriate and whether the maxim
lex
non cogit ad impossibilia
alone is sufficient to give effect to the value of good faith are,
fortunately, not questions that need be answered on the facts
of
this case and I refrain from doing so.’
[34]
Unless and until the Constitutional Court holds otherwise, the law is
therefore as stated by this court, for example in the
cases of
South
African Forestry, Brisley; Bredenkamp; and Maphango, ...”
[64]
The Constitutional Court formulated the
relevant test in
Barkhuizen v Napier,
[6]
in the following terms:
‘
[51]
In general, the enforcement of an unreasonable or unfair
time-limitation clause will be contrary to public policy. Broadly
speaking, the test announced in Mohlomi is whether a provision
affords a claimant an adequate and fair opportunity to seek judicial
redress. Notions of fairness, justice and equity, and reasonableness
cannot be separated from public policy. Public policy takes
into
account the necessity to do simple justice between individuals.
Public policy is informed by the concept of ubuntu. It would
be
contrary to public policy to enforce a time-limitation clause that
does not afford the person bound by it an adequate and fair
opportunity to seek judicial redress. ...
[56]
There are two questions to be asked in determining fairness. The
first is whether the clause itself is unreasonable. Secondly,
if the
clause is reasonable, whether it should be enforced in the light of
the circumstances which prevented compliance with the
time-limitation
clause. ...
[58]
The second question involves an inquiry into the circumstances that
prevented compliance with the clause. It was unreasonable
to insist
on compliance with the clause or impossible for the person to comply
with the time limitation clause. Naturally, the
onus is upon the
party seeking to avoid the enforcement of the time-limitation clause.
What this means in practical terms is that
once it is accepted that
the clause does not violate public policy and non-compliance with it
is established, the claimant is required
to show that in the
circumstances of the case there was a good reason why there was a
failure to comply.
[65]
In short, Barkhuizen contemplates a
two-part test. Firstly, an objective test is applied to the clause in
issue in order to assess
its unreasonableness or otherwise.
If
the clause survives the objective test, as in the instant case, then
the subjective test finds application in order to determine
whether
on all the relevant facts, the application of the clause was
unconscionable.
[7]
[66]
The crux of the second part of the test
[8]
is: ‘(was it) unreasonable to insist on compliance with the
(time limitation) clause or impossible for the person to comply
with
the time limitation clause.’ The question is framed in the
alternative. Hence, sufficiency of either alternative, meets
the
test.
[67]
The respondent found its entitlement to
lapse the policy in the provisions of section 52 of the Act, read
together with the relevant
provisions of the policy.
[68]
Given the argument that it was the
respondent’s application of the policy and the cancellation
thereof that was unlawful,
the issue of whether or not the respondent
applied the relevant provisions of the policy read together with
section 52, in a manner
that conformed to the Constitution, depends
firstly, upon a proper interpretation of the section.
[9]
[69]
Indeed, ‘The guidance provided
by section 39(2) of the Constitution to statutory interpretation
under our constitutional order
means that all statutes must be
interpreted through the prism of the Bill of Rights...The general
rule of statutory construction
is that courts will give unambiguous
provisions of a statute their plain meaning unless that meaning
creates a result that is contrary
to the purpose of the statute
itself or when it leads to an absurd result.’
[10]
[70]
It follows that I am obliged, in
interpreting and applying section 52 of the Act, to promote the
spirit, purport and objects of
the Bill of Rights.
[71]
Section 52 is a composite provision.
[72]
The purpose of the grace period envisaged
therein, speaks for itself. It functions to permit the insured a
reasonable opportunity
(within the confines of the policy), to make
good upon the arrear premium and thus prevent the lapse of the
policy.
[73]
The grace period incepts, in terms of
section 52(1), with effect from the date of notice to the insured of
non-payment of the premium.
[74]
Section 52(2) of the Act, which provides
for the lapse of the policy upon non-payment of the premium within
the grace period, is
triggered, in the first instance, by notice to
the insured of non-payment of the premium. The notice functions in
addition, to
inform the insured of the termination date of the grace
period, prior to which the arrear payment must be made.
[75]
If section 52 is to be interpreted so as to
promote the values inherent in the Bill of Rights, which include
those of good faith,
bona-fides and ubuntu,
[11]
all relied upon by the applicant, the grace period provision must be
applied in accordance with the purpose
[12]
thereof, in a manner that affords the insured a reasonable
opportunity, (within the confines of the terms of the policy),
to pay the arrear premium.
[76]
The provision for notice to the insured
gives effect inter alia, to the fundamental value of fairness. Logic
dictates that an insured,
who received notice of the non-payment of a
single premium, within a reasonable time of such non-payment, would
be better able
to pay the arrear premium than the insured who
received notice of the non-payment of more than one premium,
simultaneously.
[77]
Indeed, section 52(1) of the Act refers to
‘arrear premium’ in the singular. The wording of section
52 indicates that
the section envisages that notice of non-payment of
a single premium be given to the insured within a reasonable time of
such non-payment,
and, that such notice be afforded in respect of
each non-payment as and when it occurs.
[78]
Thus, an insurer may not delay giving
notice of non-payment until more than one
premium
is
in arrears. Indeed, to do so
would impact negatively upon the insured’s ability to make good
upon the arrears within the stipulated
grace period and would run
counter to the purpose of the grace period.
[79]
Section 52 is unambiguous. The plain
meaning thereof as set out above, does not serve to create a result
that is contrary to the
purpose of the statute itself, nor does it
give rise to an absurd result.
[80]
In addition, such an interpretation accords
with the provision of the policy to the effect that the insured is
entitled to the grace
period in respect of each arrear premium.
Pacta
sunt servanda
applies equally to the
respondent as it does to the applicant.
[81]
Thus, I am obliged to give effect to the
plain meaning of the section read together with the policy, which I
intend to do hereunder.
[82]
I have already referred to the fact that
the respondent failed to give notice to the applicant of non-payment
of the November 2012
premium, until 20 December 2012. The respondent
delayed until non-payment of the December 2012 premium in addition,
prior to giving
notice of the non-payment of both premiums
simultaneously, which it was not entitled to do.
[83]
The policy read together with the
provisions of section 52 of the Act, obliged the respondent to
furnish notice of the non-payment
of the November 2012 premium within
a reasonable time of such non-payment, and not delay until 20
December 2012, at which stage
both the November 2012 and the December
2012 premiums were in arrears.
[84]
The respondent itself failed to comply with
the terms of the policy read together with section 52 of the Act.
Hence, the respondent’s
insistence upon compliance with the
grace period, and its lapsing of the policy upon the applicant’s
non-compliance, was
in itself unreasonable, and, comprised a breach
of the terms of the policy.
[85]
In the circumstances, the lapse of the
policy by the respondent stands to be set aside.
[86]
It was common cause at the hearing that the
costs, including the costs of senior counsel or two counsel wherever
employed, should
follow the merits of the application.
[87]
In the circumstances I make the following
order:
87.1
The respondent’s cancellation of
policy number 5……… is declared unlawful.
87.2
The respondent is ordered to reinstate
policy number 5………. on the same terms and
conditions as applied at 17
January 2013, subject to the applicant
paying the instalments due in terms of the policy for the period
between 1 November 2012
and the date of reinstatement of the policy.
87.3
The respondent is ordered to pay the costs
of this application including the costs of senior counsel or two
counsel wherever employed.
A
A CRUTCHFIELD
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR APPLICANT Mr R Stockwell SC and
Mr D van Niekerk
INSTRUCTED BY Kevin Cross & Affiliates
COUNSEL
FOR RESPONDENT Mr E L Theron SC and Mr H P Van Nieuwenhuizen
INSTRUCTED BY Marques Soares Fontes
Attorneys
DATE OF HEARING 28 January 2016
DATE OF JUDGMENT 22 July 2016
[1]
Venter v Venter
1949
(1) SA 768
(A) at 778-779.
[2]
Botha and another v Rich NO and others
2014 (4) SA 121
(CC)
(‘
Botha
’) at para 23.
[3]
Bock and Others v Duburoro Investments
(Pty) Ltd 2004 (2) SA 242 (SCA).
[4]
2014 (4) SA 124
(CC) at 145.
[5]
Potgieter & Another v Potgieter NO &
Others
2012 (1) SA 637
(SCA)
(‘
Potgieter
’)
at paras 32 - 34 (references omitted).
[6]
Barkhuizen v Napier
[2007] ZACC 5
;
2007
(5) SA 323
(CC) (‘
Barkhuizen
’).
[7]
Juglal NO & Another v Shoprite Checkers
(Pty) Ltd t/a OK Franchise Division
2004
(5) SA 248
(SCA) at para 12.
[8]
Barkhuizen
above n 6 at para 58.
[9]
Botha
above n 2 at para 23.
[10]
Id at paras 28 – 29.
[11]
Everfresh Market Virginia (Pty) Ltd v
Shoprite Checkers (Pty) Ltd
2012 (1)
SA 256 (CC).
[12]
Natal Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at paras 18 – 19.