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[2022] ZAECQBHC 40
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Slabbert v Liberty Group Limited (3281/2019) [2022] ZAECQBHC 40 (31 October 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
CASE NO: 3281/2019
In the matter between:
SHAUN
SLABBERT
Applicant
and
LIBERTY
GROUP
LIMITED
Respondent
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
JUDGMENT
POTGIETER
J
Introduction
[1]
The applicant is seeking the following relief in his notice of
motion:
“
1. Ordering the Respondent
to pay the Applicant the permanent impairment benefit referred to in
Clause 1.1
of Liberty Life Policy Number
[....]
in the amount of R3 000 000.00 (THREE MILLION RANDS).
2. Interest at the prescribed legal
rate a tempore morae.
3. Costs of this application, only
in the event of unsuccessful opposition.
4. Further and/or alternative
relief.”
Factual
background
[2]
The material facts are largely common cause and can be set out
briefly as follows. The applicant is the insured under insurance
policy number [....] issued by the respondent on 16 September 2017,
with a commencement date of 1 October 2017.
[3]
The applicant submitted a claim on 14 February 2018 for a 100%
impairment benefit in terms of the policy. The policy specifies
various impairment benefit categories linked to a list of health
conditions or disorders and the sequelae thereof. The benefit
is
payable if the insured is diagnosed as having been permanently
impaired due to one of the specified health conditions or disorders
and its sequelae. The last category set out in clause 15 of the
impairment section of the policy is a catch-all provision dealing
with the inability to perform Activities of Daily Living (“ADLs”).
This benefit category covers all diseases, disorders
or injuries
which cause a permanent functional impairment but which may not be
covered in the list of specific health conditions
or disorders. The
impairment is measured by assessing the ability of the insured to
perform, what is referred to as Basic and Instrumental
ADLs. The
former includes activities such as washing, dressing, eating and
mobility while the latter refers to housekeeping, communication,
food
preparation, transport, handling finances and the like. To qualify
for a 100% benefit 3 or more Basic ADLs or 4 or more Instrumental
ADLs must be permanently impaired.
[4]
The applicant’s claim was assessed under clause 15 in respect
of the impairment of ADLs. The medical report section of
the claim
form was completed on 31 January 2018 by Dr Groenewald, a general
practitioner practising in Kimberly in the Northern
Cape Province
where the applicant was resident, after he conducted a consultation
with the applicant on 24 January 2018. According
to the medical
report, the applicant was diagnosed with Malignant Hypertension and
blackouts (syncope). These conditions are not
included in the list of
health conditions or disorders covered under the policy. The report
further indicated that the applicant
was unable to continue
performing his work as a transport operator due to the blackouts. He
had attended the clinic at the Kimberley
Hospital in the past for
hypertension and copies of the medical records of Kimberley Hospital
were attached to the claim form.
The consultation notes of Dr
Groenewald dated 24 January 2018 indicated that no answer was
received as yet from Kimberley Hospital
with regard to their
diagnosis. The Kimberley Hospital records indicated that the special
investigations, including blood tests,
a brain scan and a Doppler
study of the applicant’s carotid artery, which were performed
pursuant to his complaints of blackouts,
dizziness and headache, were
all normal. The applicant was restricted from driving and he was
referred for a social grant. The
section of the social grant
application form which was completed by a medical doctor at Kimberley
Hospital indicated that the applicant’s
job involved driving
and that his condition has limited his ability to drive.
[5]
The respondent wrote to the applicant on 7 March 2018 indicating that
the medical evidence received to substantiate the claim
was assessed
and the claim was declined. The reasons given for this decision were
that Malignant Hypertension was not included
under the listed benefit
categories and that only one (as opposed to 4 or more) of the
Instrumental ADLs, namely driving (transport)
was restricted. The
letter indicated that the applicant was at liberty to dispute the
decision and could,
inter-alia,
provide more information,
request a review or lodge a complaint with the Long-Term Insurance
Ombudsman.
[6]
The applicant responded on 16 April 2018, objecting to the stance
adopted by the respondent and effectively requesting that
the matter
be reviewed. In addition, the respondent received a note from Dr
Groenewald indicating that the applicant was unable
to do his work as
a truck driver and he could no longer do his basic daily tasks around
the house due to blackouts, which affect
every aspect of his life.
The respondent wrote to the applicant on 10 April 2018 indicating
that the claim could not be reviewed
in the absence of medical
evidence confirming that despite maximum medical treatment, the
applicant was permanently unable to perform
ADLs. The letter
indicated that the respondent would obtain an updated medical report
from Dr Groenewald regarding the applicant’s
current medical
status, upon receipt whereof the applicant may be referred for an
independent assessment by a specialist physician
at the respondent’s
expense. The updated report was requested from Dr Groenewald in the
form of a questionnaire.
[7]
The respondent received a letter of demand from the applicant’s
attorneys of record dated 16 April 2018 for payment of
the full
impairment benefit of R3 million under the policy. The respondent
replied to the attorneys on 17 April 2018 explaining
why the claim
was declined and indicating that further information was being
obtained from Dr Groenewald. The attorneys responded
on the same day
vehemently disputing that the applicant had failed to establish the
grounds for his claim to be met and repeating
their demand for
payment.
[8]
On 4 May 2018 Dr Groenewald provided the requested updated medical
report indicating that he had last consulted with the applicant
on 24
January 2018. He had referred the applicant to Kimberley Hospital
where the applicant was seeing doctors and receiving treatment.
In
response to the question why the applicant’s hypertension was
not controlled, Dr Groenewald replied that his medication
should be
adjusted at Kimberley Hospital. The updated report now indicated that
the applicant was permanently unable to perform
4 Instrumental ADLs.
[9]
Pursuant to receipt of the updated medical report, the respondent
wrote to the applicant’s attorneys on 9 May 2018 indicating
that its Chief Medical Officer considered the report and suggested
that a second opinion be obtained from an independent specialist.
The
letter provided the names and contact details of 2 specialists in
Kimberley and requested that the applicant make a suitable
appointment with the specialist of choice for an assessment which
would be paid for by the respondent. The attorneys responded
on the
same day reiterating their earlier stance that the respondent had
already been provided with all the necessary information
and was in a
position to take a final decision pursuant to the applicant’s
request for a review without the need for a second
medical opinion.
The letter indicated that if a final decision was not be made on the
review request, the applicant was not willing
to cooperate to obtain
a further medical opinion. The respondent wrote to the attorneys on
11 May 2018 basically repeating what
was set out in earlier
correspondence that an independent assessment by a specialist
physician was required to clarify the applicants
condition and its
impact on his ADLs. The attorneys responded on 24 May 2018 basically
repeating their earlier demands and alluding
to legal action being
considered. The respondent wrote back on 4 June 2018 repeating that
it was unable to finalise the matter
without a specialist medical
report. The parties had reached a deadlock.
[10]
Applicant’s attorneys wrote to Dr Groenewald on 7 June 2018
requesting a report on specific aspects of the applicant’s
condition. Dr Groenewald responded on 19 June 2018 and also provided
the respondent with copies of the letter of the attorneys
and his
reply. Dr Groenewald indicated in his reply that he was not the
applicant’s regular treating doctor and that he made
it clear
to the applicant that the respondent required specialists’
reports, not a report from a general practitioner such
as himself. He
pointed out that the applicant was not taking his hypertension
medication every day as required and that he was
declared unfit by
the doctors at Kimberley Hospital and not by Dr Groenewald. He had no
evidence of the applicant’s daily
black-outs as his request for
the family to video record the episodes of blackouts, remained
unheeded. On 21 June 2018 Dr Groenewald
penned a further letter to
the attorneys indicating that objectively speaking further
adjustments to the applicant’s medication
could improve his
hypertension, that the applicant’s high blood pressure readings
could cause blackouts, in his opinion the
applicant suffers from
resistant hypertension, and on the information at his disposal he
could not expressly confirm whether applicant’s
condition had
reached maximum medical improvement or not.
[11]
Applicant’s attorneys wrote a further letter to the respondent
on 22 June 2018 basically restating the argument in favour
of paying
out the applicant’s claim on the strength of the reports of Dr
Groenewald and Kimberley Hospital. The respondent
replied to this
letter on 5 July 2018 indicating that the applicant’s claim was
again deliberated with the Claim’s
Review Committee, the
Assessor and the medical doctors. The outcome was that the claim
should be deferred for a minimum period
of three months to allow the
recent adjustments of the applicant’s hypertension medication
by Dr Groenewald to take effect
given the recent report that after
initial non-compliance, the applicant was now compliant with his
treatment. The deferral would
allow a determination to be made
whether the applicant was on optimal treatment and had reached
maximum medical improvement. The
letter confirmed that after the
expiry of three months the claim would be reviewed upon receipt of an
up-to-date medical assessment
and report from the treating
specialist, a medication compliance report, and documentation
supporting any impaired ADLs. The respondent
reiterated that the
applicant’s claim was correctly assessed and declined on the
medical evidence received from his treating
doctor.
[12]
The applicant did not submit the requested reports after the expiry
of three months. He did lodge a complaint with the Long
Term
Insurance Ombudsman which was eventually dismissed. The applicant
subsequently launched the present proceedings.
Applicant’s
case
[13]
The applicant contended in essence that the respondent breached its
duty to treat him fairly by refusing to pay out his claim.
The thrust
of his case was that there is a statutory duty imposed on the
respondent by the Policyholder Protection Rules (“PPRs”)
issued in terms of section 62 of the Long-Term Insurance Act, 52 of
1998 (“LTIA”). The crux of his contention is that
this
duty precluded the respondent from relying on any reasons for
repudiating the claim that were not expressly set out in the
letter
of repudiation dated 7 March 2021 (“March letter”). The
applicant referred to this letter as a “
statutory notice”.
This is not entirely correct, since there was no operative PPR or
other statutory provision that required the respondent in March
2021
to provide a “
notice”
of repudiation.
[14]
The applicant’s position is that the respondent was absolutely
bound by the reasons set out in the March letter and cannot
add any
further reasons. The respondent must accordingly stand or fall on the
following reasons advanced in the March letter:
“
The medical information
received indicates that you were diagnosed with Malignant
Hypertension and placed on medication. Your condition
is not covered
under any of the listed benefit categories, thus no claim is payable.
We have therefore assessed your
claim under the Activities of Daily Living Catch all category benefit
definition. The medical information
also indicates that you may have
suffered with a possible TIA (Transient Ischaemic Attack) on 24
October 2017, which fully resolved
and there is no reported evidence
of any neurological limitations. We noted that you complained of
ongoing dizziness, blackouts
and headaches and due to the risk
associated with these symptoms you are no longer allowed to drive.
In order to qualify for a 50%
payment under the Impairment Catch all benefit definition, there must
be evidence that you have a
permanent inability to perform one or
more Basic ADLs (Activities of Daily Living) and 2 or more
instrumental ADLs. Based on the
evidence provided, you are still able
to perform all the basic ADLs independently (washing, dressing,
feeding, continence, mobility
and transfers). You are not allowed to
perform one of the instrumental ADLs, driving (transport). There are
no limitations of any
of the other listed instrumental ADLs. Your
condition therefore does not meet the impairment definition under the
ADL Catch all
or any other benefit definition.”
[15]
The subsequent report dated 17 April 2018 obtained by the respondent
from Dr Groenewald indicated that 4 Instrumental ADLs
were indeed
permanently impaired. This brought the applicant’s claim within
the 4 corners of the policy and rebutted the
reason for the
repudiation that is set out in the March letter, namely that only one
Instrumental ADL was impaired. This further
report was obtained
during the review of the decision to repudiate the claim, which was
requested by the applicant. The respondent
was thus compelled to pay
out the claim for a 100% impairment benefit of R3 million. Requiring
further independent medical assessments
amounted to shifting the
goalposts and circumventing the March letter which, together with the
refusal to pay the claim, amounted
to unfair treatment of the
applicant in breach of particularly PPR 1.4 (f) and 17.6.3 of the
2017 PPRs. The latter provide as follows:
“
FAIR TREATMENT OF
POLICYHOLDERS
1.4 An insurer must have
appropriate policies and procedures in place to achieve the fair
treatment of policyholders. The fair treatment
of policyholders
encompasses achieving at least the following outcomes:
…
(f) policyholders do not face
unreasonable post-sale barriers to change or replace the policy,
submit a claim or make a complaint.
CLAIMS MANAGEMENT
17.6 Decisions relating to
claims and time limitation provisions for the institution of legal
action
17.6.1 An insurer must accept,
repudiate or dispute the claim or the quantum of a claim for a
benefit under the policy within a
reasonable period after receipt of
a claim.
17.6.2 An insurer must within 10
days of taking any decision referred to in rule 17.6.1, notify the
claimant in writing of its decision.
17.613 If the insurer repudiates or
disputes a claim or the quantum of a claim, the notice referred to in
rule 17.6.2 must, in plain
language, inform the claimant –
(a) of the reasons for the
decision, in sufficient detail to enable the claimant to dispute such
reasons if the claimant so chooses.”
[16]
The applicant therefore contended that he was entitled in the
circumstances to the relief being sought in the notice of motion.
Respondent’s
case
[17]
The respondent contended that the applicant has failed to establish
that he suffered a permanent impairment in order to qualify
for
payment of a benefit under the insurance policy. This required the
presentation of
viva voce
expert medical evidence to resolve
the dispute between the parties, which the applicant has failed to
do. The matter is therefore
not capable of resolution by way of
motion.
[18]
According to the respondent, the applicant’s reliance on the
PPRs for the contention that the respondent was absolutely
bound by
the March letter, was misplaced. Firstly, PPR 17.6.3 which was relied
upon was not in force in March 2018. Secondly, the
rule does not
provide that the insurer must state “
all”
its
reasons when initially declining to pay a claim at pain of
“
forfeiting”
or “
waiving”
its
right to raise further reasons. Thirdly, the claim was declined on
the strength of the reports that the applicant provided
when
submitting the claim. The applicant does not rely on these reports
for the contention that the claim fell within the requirements
of the
policy, but relies on the reports submitted after the claim was
declined. The flaw in the submission that the respondent
was legally
bound by the initial reasons for rejecting the claim which have
subsequently turned out to have been unfounded, is
that in order to
support this assertion the applicant must rely on the reports that
were submitted after the March letter. This
is illogical. Lastly, the
respondent submitted that rule 17.6.3 does not alter the common law
position that an insurer or a contractual
party need not state all
its reasons for rejecting a claim or cancelling a contract at the
risk of being seen to have waived other
rights that it may have to
reject or cancel. It is submitted that a party terminating an
agreement and relying on the wrong reason
for such termination may
rely on any valid reason that was available to it even if such reason
was not originally relied upon (
Matador Buildings (Pty) Ltd v
Harman
1971 (2) SA 21
(C) at 28A;
Stewart Wrightson (Pty) Ltd
v Thorpe
1977 (2) SA 943
(A) at 953G;
Putco Ltd v TV and Radio
Guarantee Company
1985 (4) SA 809
(A) at 832C-D). It further
submitted that this trite principle of contract is applied to
insurance contracts (
Shimi v Mutual and Federal Insurance Company
of Namibia Ltd (2269/2007)
[2008] NAHC 109
(28 July 2008) at
paragraph 13). Furthermore, the well-established rule of
interpretation applies that a statute is not to be understood
to vary
the common law unless it plainly does so and that rule 17.6.3 (if it
applied) accordingly does not clearly alter the common
law on any
interpretation thereof (
Gordon NO v Standard Merchant Bank Ltd
1983 (3) SA 68
(A) at 94;
Fedlife Assurance Limited v Wolfaardt
2002 (1) SA 49
(SCA) at paragraph 16).
[19]
The respondent contended that the application should be dismissed for
the further reason that the applicant has failed to present
affidavits by the doctors who diagnosed him. The reports that he
annexed to his founding affidavit constituted hearsay. No reason
was
proffered for this failure, which could even have been cured in a
replying affidavit which the applicant elected not to file.
Contrary
to the applicant’s contention, these reports were in fact
disputed by the respondent. The applicant erroneously
conflated the
authenticity of the reports with proof of the veracity of their
contents.
[20]
The reports, even if admitted, do not meet the policy’s
criteria for a successful claim for benefits. No report was submitted
by an appropriate specialist. Dr Groenewald is a general practitioner
and by his own admission not a specialist.
[21]
The respondent argued further that the applicant failed to comply
with the policy conditions by refusing to submit to an examination
by
an independent specialist. This was a requirement and material term
of the policy, the binding nature whereof was unrelated
to
considerations of reasonableness and the like.
[22]
The respondent thus contended that the application should be
dismissed with costs.
Assessment
[23]
It is clear that PPR17.6.3 of the 2017 PPRs was not in operation when
the applicant’s claim was dealt with. In terms
of clause 2.2 of
Chapter 8 of the 2017 PPRs, Rule 17 commenced on 15 December 2018
i.e. 12 months after publication of the PPRs
in the Government
Gazette. It accordingly finds no application in this matter.
[24]
PPR1.4(f) on the other hand, was in operation and applied to the
claim. On its plain reading, this rule neither supports the
contention that there was a statutory duty on the respondent to
disclose all the reasons for declining the claim nor the contention
that the rule precluded respondent from relying on any further
reasons. The non-applicability of PPR17.6.3 renders it unnecessary
to
deal with the effect of this provision on the duty of the respondent
to provide reasons for repudiating the applicant’s
claim. It is
also not necessary to consider the applicability of the principle
relating to the discovery of further post-cancellation
reasons
justifying the prior cancellation of a contract. I similarly need not
finally comment on the cogency of the conclusion
of the Namibian High
Court in the
Shimi-matter
referred to above in paragraph [18]
that this principle also applies to contracts of insurance, save to
indicate that the conclusion
commends itself as eminently sensible.
[25]
PPR1.4(f) clearly imposed a duty on the respondent to treat the
applicant fairly so that he “
does not face unreasonable
post-sale barriers to… submit a claim”.
Although the
rule appears to deal only with the process of submitting claims,
which is not in issue in these proceedings, I am
prepared to accept
for present purposes that it also regulates the assessment of claims,
as the applicant seemed to contend. On
this premise, the respondent
would have been bound on the strength of PPR1.4(f) to treat the
applicant fairly in assessing his
claim.
[26]
The respondent accepted that it was bound to treat the applicant
fairly in assessing his claim as evinced by the contents of
the March
letter which confirmed that “
we follow a rigorous process to
ensure that decisions are fair in terms of Treating the Customer
Fairly (TCF) and in line with the
terms and conditions of your policy
and industry regulatory standards”.
[27]
The crisp issue therefore is whether the applicant has established
that the respondent acted in breach of the duty of fairness
in
repudiating his claim. The applicant in effect contended that the
fairness standard required that the respondent should be held
to the
initial reasons for repudiating the claim and should not be allowed
to raise any further reasons. The initial reasons have
been
demonstrated to be unfounded by the subsequent report dated 17 April
2018 of Dr Groenewald which confirmed that 4 Instrumental
ADLs were
in fact permanently impaired. The respondent is therefore compelled
to pay the claim. On this approach, it would not
amount to fair
treatment to allow the respondent to go on a fishing expedition for
other reasons to repudiate the claim.
[28]
It is readily apparent that PPR1.4(f) is aimed at preventing the
mischief of introducing unreasonable post-sale barriers to
frustrate
a policyholder. The provision is clearly aimed at curbing the
imposition of unreasonable requirements outside of the
policy terms.
The latter represent the bargain that was struck between the insurer
and the policyholder at the point-of-sale of
the policy. The
applicable standard of fair treatment of the policyholder proscribed
such conduct on the part of the insurer.
[29]
By the same token, the implementation of the express terms of the
policy can hardly be characterised as unfair treatment on
any
approach.
[30]
It is not in contention that the applicant’s claim was assessed
on the evidence that was submitted in support of the
claim. The
diagnosis of Malignant Hypertension is not covered in any of the
benefit categories. The respondent therefore correctly
determined
that no claim was payable pursuant to this diagnosis. This was in
line with the policy terms. The applicant does not
assail this
conclusion. He was well advised in this regard.
[31]
The remaining leg of the claim resorted under clause 15 relating to
the permanent impairment of ADLs. In this regard the March
letter
indicated that on the evidence provided, the applicant was not
allowed to perform one Instrumental ADL, namely driving (transport).
There were no limitations of any Basic ADL nor of any of the
remaining Instrumental ADLs. The applicant’s condition
therefore
did not meet the impairment definition under clause 15.
This conclusion was strictly in accordance with the policy terms and
in
line with the evidence provided by the applicant. It therefore
cannot be assailed as being unfair or unfounded. The applicant does
not impugn the decision based on this reasoning. Its case is based on
what transpired in the subsequent review of this decision
that was
requested by the applicant.
[32]
In the course of the subsequent review of the respondent’s
decision to repudiate the claim, the respondent obtained the
further
report of Dr Groenewald which for the first time indicated permanent
impairment in respect of 4 of the Instrumental ADLs.
On the
applicant’s argument the respondent should be bound by the
reasons set out in the March letter where it accepted the
report of
Dr Groenewald that only one Instrumental ADL was impaired. On this
reasoning the respondent should now accept that on
the further report
of the same doctor, 4 of the Instrumental ADLs were permanently
impaired. This falls within the definition of
clause 15 and qualifies
the applicant for payment of a 100% impairment benefit. The initial
repudiation should therefore be reviewed
in the light of the new
evidence and the claim must be paid out. It is accordingly not in
line with the applicable fairness standard
for the respondent to be
allowed to interpose further barriers to the claim such as
independent assessments by medical specialists
in an attempt to
discover new reasons to repudiate the claim.
[33]
While the applicant’s argument is beguiling, it is not
sustainable in my view. It is readily apparent that the respondent
had assessed the claim as submitted on face value. The claim patently
did not fall within the 4 corners of the policy and required
no
further investigation in accordance with the policy terms which
regulate the submission and assessment of claims. It was correctly
declined. The review process required a reconsideration of the claim.
The new evidence presented by Dr Groenewald prompted a further
investigation of the claim. This was regulated by the express policy
terms which required that the diagnosis and management of
all
impairments be confirmed by appropriate medical specialists. The
respondent’s request for medical evidence from the applicant’s
treating specialist confirming his condition was thus not
unreasonable and was in line with the policy terms. The same applies
to the request that the applicant arrange for an assessment at the
respondent’s expense, by a specialist of his choice in
Kimberly
from the list of 2 names provided by the respondent. None of this can
be characterised as a breach of the duty to treat
the applicant
fairly. No adequate reason was provided why the applicant refused to
give his cooperation. The respondent was not
obliged to simply accept
the new evidence provided by Dr Groenewald on face value. It was
entitled and in fact required by the
policy to have this new evidence
confirmed by appropriate medical specialists. This is particularly so
in view of its own medical
advice that hypertension is an eminently
treatable condition that generally does not result in permanent
impairment. Moreover,
the specialist assessment could only have been
to the applicant’s benefit. His failure to submit to the
specialist assessment
was the real reason why the review of his claim
could not be finalised by the respondent.
[34]
It follows that the applicant has failed to establish that the
respondent acted in breach of the policy terms or the duty to
treat
the applicant fairly, in repudiating the claim or not having
finalised the review of such repudiation.
Costs
[35]
It is apparent that this application has been brought in the form of
a test case in an attempt to clarify the obligations of
a long-term
insurer with regard to providing reasons for repudiating a claim in
the light of the 2017 PPRs. The proper interpretation
of the relevant
provisions of the PPRs is a vexed question as pointed out by leading
authors in this field (cf Joubert et al
LAWSA Vol 12(1) Insurance
Part 1
2ed Institution of the Insured’s Claim).
[36]
The fact that the non-applicability of PPR 17.6.3 in this instance
obviated the need to grapple with these challenges, does
not detract
from the broader objective of the application which was not confined
only to the present parties.
[37]
In view of its special circumstances, it is not a case where the
normal rule with regard to the award of costs should apply.
In
exercising my discretion with regard to the award of costs, I take
into account that the objective of the application had the
potential
to also benefit the respondent (let alone other policyholders) as
well as other long-term insurers in providing guidance
with regard to
the ambit of the duty imposed by PPR17.6.3 on the insurer to provide
reasons for repudiating a claim. I also take
into account that these
entities, like the respondent, are all endowed with substantial means
compared to the applicant who is
unemployed. As submitted in his
Parthian shot by the applicant’s counsel, this is a
quintessential David and Goliath encounter.
These proceedings are
analogous to litigation for the protection of fundamental rights
against the State by individual litigants
who lack comparable
resources to those that are available to the opponent. Cases abound
where the courts have been slow to make
adverse costs orders against
such parties. The same approach is indicated in this matter.
[38]
In my view, it would not be just and equitable to mulct the applicant
in costs in the present circumstances, notwithstanding
the fact that
the application falls to be dismissed. I accordingly exercise my
discretion against making an adverse costs order
against the
applicant in the particular circumstances of this case.
Conclusion
[39]
In the result I make the following order:
(a)
the application is dismissed;
(b) there
shall be no order as to costs.
D.O.
POTGIETER
JUDGE
OF THE HIGH COURT
APPEARANCE
Counsel for the
plaintiff:
Adv R de Lange, instructed
by Molenaar & Griffiths, 28-5th
Avenue, Newton Park, Gqeberha
For the
defendants:
Adv R Ismail, instructed by Rushmere Noach, Conyngham Road,
Greenacres, Gqeberha
Date
of hearing:
01 September 2022
Date
of delivery of judgment: 31 October
2022