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[2020] ZAGPJHC 163
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Anabella Resources CC v Genric Insurance Company Limited (A5025/2019) [2020] ZAGPJHC 163 (2 July 2020)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO: A5025/2019
In
the matter between:
ANABELLA
RESOURCES CC
Appellant/Plaintiff
and
GENRIC INSURANCE
COMPANY LIMITED
Respondent/Defendant
JUDGMENT
CRUTCHFIELD
AJ:
Insurance
– Indemnifiable event – Insurance policy provided for
armed robbery, theft and hijacking as indemnifiable
events –
Policy did not contain a definition of armed robbery – Policy’s
definition of theft and hijacking required
‘actual lawful
control‘ of seized property - Victim of force had effective
remote control of seized property -
Force and unlawful seizure
occurred at different places – Link between force and unlawful
seizure established - Robbery occurred
at more than one place –
Events constituted armed robbery and theft / hijacking as defined –
Defendant liable to indemnify
plaintiff as claimed.
[1]
This appeal comes before us with leave of the Court
a quo
. The
parties
,
for the sake of convenience
,
are referred to herein as they were at the trial. At the conclusion
of the trial the, plaintiff’s claim was dismissed with
costs.
The plaintiff was aggrieved and launched appeal proceedings against
the entirety of that judgment
,
including
the costs order.
[2]
Neither party wished to make oral submissions at the appeal hearing
and the matter was determined on the papers in terms of
paragraph 3.2
of the Judge President of the Gauteng Division’s Consolidated
Practice Directive date 11 May 2020.
[3]
The parties concluded an insurance contract during March 2013, (the
‘contract’), in terms whereof the defendant
undertook to
indemnify the plaintiff for loss or damage which it suffered in the
event of the occurrence of an indemnifiable event.
The contract
comprised the policy schedule and the wording of the policy.
[4]
The plaintiff alleged it had suffered a loss arising out of the
occurrence of an indemnifiable event which occurred on 26 January
2017 (hereafter referred to as the “event”) and claimed
indemnification from the defendant in an amount of R2 400 000.00,
interest thereon and costs.
[5] The contract was in
full force as at 26 January 2017.
[6]
The sole issue for determination on appeal was whether the event
constituted an ‘indemnifiable event’ as contemplated
by
the terms of the contract.
[7]
The facts of the plaintiff’s claim were not disputed at the
trial. Briefly stated, they comprised the following:
7.1 The plaintiff traded
in gold, cash and diamonds from its business premises located at
Suite 701 DC Jewel City, 225 Main Street,
Johannesburg (the
‘premises’). The gold, cash and diamonds were secured and
stored in a safe on the premises.
7.2 Mr Hadife was the
plaintiff’s Financial Manager and Ms Mathebula, a member and
the manager of the plaintiff. The latter’s
duties included
accessing the cash in the safe in order to pay the plaintiff’s
suppliers of scrap gold jewellery.
7.3 Ms Mathebula
controlled the safe and gained entry to it by way of two keys and the
combination to the lock. Ms Mathebula
kept the keys in her
possession or hidden in a place known only to her and the plaintiff’s
majority member, one Mr Chammas.
7.4 Mr Hadife also had
access to and control of the safe and the cash stored within it in
two ways. He could ask Ms Mathebula for
the keys and the combination
which Ms Mathebula would give him or he could ask her to open the
safe and remove what he required.
7.5 If he asked her to
open the safe and remove cash he would do so verbally, either by way
of an intercom announcement at the plaintiff’s
premises, or
telephonically, or, via WhatsApp voice note. He would, on occasion,
use a text message. This practice was regarded
as acceptable
and was the standard manner in which he obtained access to cash
within the safe.
7.6 On the day the event
occurred
,
Mr. Hadife was driving to work
when he was pulled over by a man in a Metro Police vehicle. Whilst
the driver of the Metro Police
vehicle inspected Mr Hadife’s
driver’s licence, three men (the ‘men’), appeared
from another car that had
stopped in front of Mr Hadife’s
vehicle. They approached Mr Hadife, threatened him with a firearm,
forcefully removed him
from his vehicle, placed him in their vehicle
and drove to an unknown destination where they held him captive.
7.7 The men were familiar
with the plaintiff’s business practices. In particular
,
they knew what Mr Hadife had to do to gain access to the contents of
the safe.
7.8 They threatened to
kill Mr Hadife unless he contacted Ms Mathebula via WhatsApp and
ascertained how much money was in the safe.
7.9 Mr Hadife did so. He
was told that there was cash amounting to R2 424 700.47 in
the safe.
7.10 The men instructed
Mr Hadife to inform Ms Mathebula to remove R2 400 000.00
from the safe, to place it in two
boxes and instruct Mr Phakoago, an
employee of the plaintiff, to take the two boxes to the parking lot
and give them to a man he
would find there in a silver BMW 5
Series motor vehicle.
7.11 It was acceptable
practice for the plaintiff both to receive instructions in this
manner as also to take large amounts of cash
and hand it over to
customers parked in the parking lot. This had occurred previously and
neither Ms Mathebula nor Mr Phakoago
considered the instructions
untoward.
7.12 The cash was duly
removed from the safe, taken to the parking lot and placed in the
boot of a silver BMW 5 Series vehicle that
was waiting there. The
driver of the vehicle informed Mr Phakoago that he had been sent by
Mr Hadife. All appeared normal.
7.13 Subsequently Mr
Hadife was released and he explained what had happened. Only then did
it become apparent that the cash had
been taken unlawfully.
[8]
The force applied by the wrongdoers to Mr Hadife to coerce him to
perform the acts leading to the loss of the cash, was not
applied at
the premises. That force was directed to cause Mr Hadife to act in
such a way as to lead the plaintiff’s employees,
who were at
the plaintiff’s premises, to believe that he was acting freely
and voluntarily and that he intended them to act
as if they were
following a lawful instruction received in accordance with the usual
practice.
[9]
The plaintiff duly notified the insurer of the event as required
under the contract, describing it as ‘hijack / kidnap
/ ransom
employee was stopped and kidnapped held ransom. Money then stolen
from safe by threatening employee life. Employees forced
to hand over
2.4 million’.
[10]
The police docket characterised the event as ‘kidnapping and
car hijacking’.
[11]
The defendant rejected the plaintiff’s claim.
[12]
The relevant terms of the contract provide that:
12.1 The defendant
would indemnify or compensate the plaintiff by payment, or, at the
option of the plaintiff, by replacement,
reinstatement or repair in
respect of the defined events occurring during the period of
insurance up to the sums insured and subject
to the limits of
indemnity compensation and subject to the terms and conditions of the
contract.
12.2 The subject matter
was cash, gold and diamonds (the ‘property’).
12.3 Cover was limited to
the risk of fire, accidental damage, hijacking, theft and armed
robbery whilst the property was in the
custody and care of the
insured and/or its authorised employee or approved security provider,
subject to the terms and conditions
of the contract.
12.4 The property, was
insured only whilst it was in the static vault at the premises.
12.5 The limit of
indemnity was R4 million.
12.6 There is no
definition in the policy, for armed robbery.
12.7 Theft and hijacking
was defined in the vault and static cover section of the policy as
the ‘seizure of the insured property
whilst stored and secured
on the premises … where such seizure is accompanied by
unlawful removal of the Insured property;
or accomplished by means of
violence or threat of violence on or against the person or persons
who are employed by the Insured
/ or the Insured whom, at the time of
such seizure, are in actual lawful control of such insured property’.
[13]
It was
common cause at the trial that the wording of the contract was clear
and unambiguous, and was to be afforded its ordinary
grammatical
meaning
,
regard
being had to the context and purpose of the contract. This is in any
event the test which is to be applied.
[1]
[14]
The plaintiff alleged that the conduct of the wrongdoers during the
event constituted theft and / or armed robbery and amounted
to an
indemnifiable event.
[15]
The parties
agreed that the general principles of onus relevant to insurance
contracts
[2]
applied in the
matter. The plaintiff bore the onus to prove that its claim fell
within the primary risk covered under the contract.
[16]
The issue to be determined
,
so it was
submitted
,
was whether the wording of
the clause limited indemnifiable events to events
,
the components of which all had to take place at the premises or
whether an indemnifiable event could incorporate events
,
some of which occurred on the premises and some of which occurred off
the premises.
[17]
The defendant submitted that all the acts that had occurred at the
premises were believed by the employees to be lawful. An
instruction
believed to be lawful and in keeping with the plaintiff’s
business practice had been received and acted upon.
That the
instruction had been given in consequence of force applied was
unknown to the employees at the premises. Hence the armed
robbery did
not occur at the premises. The employees at the premises were
in control of the cash. There was no seizure of
the cash at the
premises pursuant to violence or the threat of violence directed
towards the employees at the premises. The violence
had been directed
towards the employee off the premises.
[18]
The Court
a quo
found that the definition of theft and
hijacking in terms of the contract required that the violence was
directed towards an employee
in ‘actual control’ of the
seized property. The employee who was in actual control of the
property was the employee
at the premises. As no threat had been
directed to her
,
the plaintiff was
non-suited.
[19]
The learned
Judge
a
quo
referred to the meaning of ‘seizure’ as connoting ‘an
element of physical force in taking’.
[3]
[20]
Accordingly, the court a quo held that the violence or threats
thereof, had to be perpetrated at the premises from which the
property was removed, against an employee who was in ‘actual
control’ of the property at the time of the removal of
the
property from the premises.
[21]
The
approach to interpretation is to be found in
Natal
Joint Municipal Pension Fund v Endumeni Municipality,
[4]
namely that consideration be
given t
o
the context and language
,
including the meaning of all the words used in a contract.
[22]
It is the role of the court, and not the witnesses, to interpret a
document. The evidence of the defendant’s witness,
Mr
Snyder, as to the context and purpose of various portions of the
contract, was irrelevant and inadmissible.
[23]
In my view, the plain meaning of the words of the contract were
clear, ascertainable and without ambiguity.
Armed
Robbery
[24]
Given the absence of a definition of ‘armed robbery’ in
the contract, the ordinary meaning of armed robbery under
the common
law applies.
[25]
The common
law definition of robbery
[5]
provides that:
“…
..Robbery
is the theft of property by unlawfully and intentionally using
violence or threats of violence to take the property from
someone
else. The elements of robbery are: the theft of property; through
violence or threats of violence; unlawfulness; and intent..”
It
is customary to describe the crime briefly as ‘theft by
violence’. Though incomplete, such a description does reflect
the essence of the crime.’
[6]
[26]
According
to Burchell
[7]
‘Robbery
consists in the theft of property by intentionally using violence or
threats of violence to induce submission to
the taking of it from the
person of another or in his presence.’
[27]
The common
law definition of robbery is not place specific. The force applied to
the victim need not be applied in the same place
as the place where
the taking of the property occurs. What is required is only that the
link between the application of force and
the taking be established.
The property taken during a robbery need not be uplifted from the
person of the victim of the violence,
or, even in the presence of the
victim.
[8]
[28]
It suffices for the purpose of robbery, if the removal of the goods
is not from the person of the victim, or, that it occurs
elsewhere
and not in the presence of the victim.
[29]
Accordingly, the force may be exercised remotely, away from the place
where the goods are removed. The robbery occurs at two
places, the
place where the violence occurs and the place where the taking of the
property occurs. The robbery constituting the
event occurred where
the employee was threatened, at the plaintiff’s premises where
the cash was removed from the safe and
at the parking lot where the
cash was handed over to the wrongdoers. All the constituent
components of the robbery were governed
by the threat of violence to
the employee.
[30]
Thus, the event constituted a robbery. The wrongdoers were armed with
a firearm. The robbery was accordingly an armed robbery.
The robbery
was an indemnifiable event.
[31]
As a robbery
a fortiori
comprises both theft and assault, the
plaintiff established both a robbery and a theft of the cash taken
during the event.
[32]
The cash was stored on the premises in a safe. The cash was seized
and removed from the premises in consequence of violence
directed
towards an employee. The employees of the plaintiff were both in
control of the property as Mr Hadife was able to lawfully
give
directions to Ms Mathebula who was obliged to execute them in
accordance with usual business practice. The removal was unlawful
as
it was obtained by force and against the will of the plaintiff
represented by Mr Hadife.
[33]
Accordingly, the events met the common law definition of robbery,
and, pursuant to the wrongdoers’ use of a firearm for
the
purposes of executing violence against Mr Hadife, or threatening to
do so, the events constitute an armed robbery - an indemnifiable
event in terms of the contract.
[34]
The defendant, in my view, was liable to indemnify the plaintiff on
the basis of armed robbery.
Theft
and Hijacking
[35]
An analysis of the definition of ‘Theft & Hijacking’
provided in the contract demonstrates the requirements
necessary to
comply with that definition, as being:
35.1 The seizing of the
insured property;
35.2 Whilst the property
was stored and secured on the premises;
35.3 Where such seizing
was:
35.3.1
Accompanied by the unlawful removal of the property; or
35.3.2 Accomplished by
means of violence or the threat of violence on or against the
person/s employed by the insured;
35.3.2.1. Who, at the
time of such occurrence;
35.3.2.2. Were in actual
lawful control of the insured property.
[36]
Paragraph 35.3.2 is referred to herein as ‘the alternative’.
[37]
Two options existed under the definition of theft and hijacking;
firstly, where the seizing was accompanied by the force used
to cause
it; and secondly, where the seizing was accomplished by violence
against the person/s employed by the insured.
[38]
The
ordinary grammatical meaning of ‘accompany’ is ‘to
supplement’ or ’to go with’ or ‘be
put with’;
whilst that of ‘accomplished’ is to ‘succeed in
doing’.
[9]
[39] Accordingly, in
order for the unlawful seizing of the property to fall within the
definition of theft and hijacking:
39.1 The seizing of the
property and the violence used to effect the seizing both had to
occur at the premises where the property
was located; alternatively,
39.2 The seizing of the
property had to be achieved by way of violence against an employee/s
of the plaintiff, who was in ‘actual
lawful control’ of
the property at the time of the seizing thereof.
[40]
The alternative did not require that the force or threat thereof
occur at the premises where the seizing of the goods occurred.
It
sufficed if the force occurred at a location remote from where the
taking of the property occurred.
[41]
It follows that the alternative accorded with the common law
definition of robbery. Neither required that the violence occur
at
the premises from where the seizing of the property occurred.
[42]
The alternative required, however, that the employee victim be in
‘actual lawful control’ of the property at the
time of
the seizing.
[43] ‘Actual lawful
control’ was interpreted by the Court
a quo
as meaning
‘actual physical control’ of the property, such control
to be exercised at the premises.
[44]
The defendant argued that properly understood in the context of the
purpose of the contract, ‘actual control’ was
required,
being real or concrete control in terms of controlling access to the
premises in which the safe was housed, and to the
safe itself. Such
control was achieved by access to the key to the safe, and, being in
charge of the safe (at the premises) at
the time of the seizure.
[45]
The plaintiff referred to the dictionary meaning of ‘control’
as having ‘power over’, and, of ‘actual’
as
‘existing, in fact or in reality’. To these meanings I
would add, as I do, ‘effective’.
[46]
The plaintiff contended that it sufficed for the purposes of an
indemnifiable event under the alternative if the employee was
in
‘actual’ control (as opposed to ‘physical
control’), of the property at the time of the seizing.
[47]
The evidence indicated that Mr Hadife had control of and access to
the safe in which the cash was secured, by various means,
as alluded
to afore, including by instructing Ms Mathebula, using WhatsApp voice
notes or text messages, to pay plaintiff’s
suppliers of scrap
gold jewellery from the cash secured in the safe.
[48]
Accordingly, notwithstanding Mr Hadife’s absence from the
plaintiff’s premises at any given time, he retained effective
control of, and access to, the cash in the safe, be it telephonically
or by way of the WhatsApp mobile application.
[49]
As a result, Ms Mathebula and her colleague Mr Phakoago, complied
with Mr Hadife’s WhatsApp instructions to remove cash
of
R2 400 000.00 from the safe and hand it to the wrongdoers
waiting in the parking lot.
[50]
The facts reflected that Mr Hadife was in effective control, or,
‘actual lawful control’ of the property albeit
remotely.
[51]
In so far as the defendant contended that an indemnifiable event
required that the force against the employee occur at the
premises
where the property was secured, and, from where it was removed, the
relevant provisions did not provide for such a requirement.
[52]
The
obligation lies with the insurer, the author of the contract, to give
certainty to the risks it wishes to exclude from the cover.
Absent
such certainty, the relevant provision/s will be construed in favour
of the insured in accordance with
the
maxim verba fortius accipiuntur contra proferentem,
(the
‘
contra
proferentem
rule’).
[10]
[53]
In the circumstances, the events comprised armed robbery and / or
theft or hijacking as defined for the purposes of indemnification
under the contract, and the defendant was liable to the plaintiff
accordingly.
[54]
The plaintiff served summons on the defendant pursuant to the
latter’s rejection of the claim, on 5 September 2017.
[55]
It follows that the appeal must be upheld with costs including the
costs of the application for leave to appeal and an order
granted as
claimed for by the plaintiff in the Court
a quo.
[56]
Accordingly, I grant the following order:
1.
The appeal is upheld with costs including the costs of the
application for leave to appeal.
2.
The order of the Court
a quo
is set aside and substituted with
the following:
2.1.
Judgment is granted against the defendant for:
2.1.1.
Payment of the amount of R2 400 000.00;
2.1.2.
Interest on the amount of R2 400 000.00 at the rate of
10.5% per annum from 5 September 2017 to date of final payment,
both
dates inclusive;
2.1.3.
Costs of suit.
________________________
A
A CRUTCHFIELD
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG.
I
agree
________________________
C
G LAMONT
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG.
I
agree
________________________
A
MAIER-FRAWLEY
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG.
Counsel for the
plaintiff: Mr L Hollander.
Attorneys for the
plaintiff: Swartz Weil Van der Merwe
Greenberg
Inc.
Counsel for the
defendant: Mr NH Maenetje SC.
Attorneys
for the defendant: Cliffe Dekker Hofmeyr Inc.
Date
of the appeal: 1 June 2020.
Date
of the judgment: 2 July 2020.
[1]
Coopers
& Lybrand and Others v Bryant
[1995] ZASCA 64
;
1995
(3) SA 761
(A) at 767E;
The
City of
Tshwane
Metropolitan Municipality v Blair Atholl
Homeowners
Association
2019
(3) SA 398
(SCA) at para 61.
[2]
Walker
v Santam Ltd and Others
2009 (6) SA 224
(SCA) at para 16.
[3]
Judgment
a
quo
18 line 3.
[4]
2012
(4) SA 593
(SCA) (‘Endumeni’) at para 18.
[5]
Minister
of Justice and Constitutional Development and Another v
Masingili
and Others
2014
(1) BCLR 101
(CC) at para 34.
[6]
CR
Snyman
Criminal
Law
6 Ed (2014) at 508-512.
[7]
J
Burchell
Principles
of Criminal Law
3 Ed (2005 at 817-825.
[8]
Ex
parte Minister van Justisie: in re S v Seekoei
[1984] ZASCA 89
;
1984 (4) SA 690
(A);
S
v Dlamini and Another
1975 (2) SA 524 (D).
[9]
The
Concise Oxford Dictionary of Current English
6
th
ed J.R Sykes (1976).
[10]
Fedgen
Insurance Ltd v Leyds
1995 (3) SA 33
(AD) at 38 D-E.