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[2024] ZAFSHC 43
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Shezi v Santam Limited (1109/2023) [2024] ZAFSHC 43 (16 February 2024)
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,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
NO
Of Interest to other
Judges: NO
Circulate to
Magistrates: NO
Case No: 1109/2023
In
the matter between:
SIYABONGA
SHEZI
Plaintiff
and
SANTAM
LIMITED
Defendant
HEARD
ON:
17 NOVEMBER 2023
JUDGMENT
BY
:
MHLAMBI, J
DELIVERED
ON:
16 February 2024
[1] The
plaintiff instituted an action against the defendant for the payment
of the amount of R 385 573.16
together with interest in respect
of damages caused to his motor vehicle, a Mercedes Benz, which was
involved in a collision on
26 February 2022 with another motor
vehicle at the corner of Victoria Road and Elar Street, Bloemfontein.
His vehicle was insured
by the defendant.
[2] The
defendant excepted to the plaintiff’s particulars of claim on
the basis that they lacked averments
necessary to sustain a cause of
action against the defendant.
[3] The
factual background is largely common cause. The plaintiff and the
defendant entered into a policy contract
on 01 October 2021. In terms
of the insurance contract:
3.1 The defendant would
provide a comprehensive insurance cover of R 644 556.00 over the
plaintiff’s motor vehicle, a
2021 Mercedes Benz A200 Automatic
with registration number EVG […];
3.2 The plaintiff would
pay the defendant a monthly premium of R 3 341.99 for the
comprehensive cover over the motor vehicle;
3.3 Upon occurrence of an
event resulting to a claim, the plaintiff would submit a claim in
writing to the defendant within 30 days
after such event occurred.
[4] The
plaintiff had to comply with certain time limits in terms of the
contract which were set out as follows:
“
Time
limits
(a)
If we reject your claim or dispute
the amount of your claim, which decision was communicated to you in
writing, you may within 90
days from the date of our communication
make a written representation to us.
(b)
If we still reject your claim or
dispute the amount of your claim despite your written representation,
you may institute legal proceedings
against us within six months from
the date we communicate to you the rejection of your written
representation.
(c)
We are not liable after 12 months
from the date of the event that gives rise to a claim unless the
claim is the subject of pending
court action or arbitration or for
amounts of which you may become legally liable.”
[5] On
03 March 2022, the plaintiff lodged a claim with the defendant for
the damages caused to his motor vehicle.
The defendant rejected the
claim on 06 April 2022 on the basis that the information provided by
the plaintiff was not true, not
complete and was fraudulent. The
plaintiff lodged an internal appeal with the defendant which was
dismissed on 07 May 2022. The
plaintiff issued summons against the
defendant for the payment of the damages caused to his motor vehicle.
[6] In
its notice of exception, the defendant stated that the plaintiff did
not comply with his obligations in
terms of the policy contract upon
which he relied in that he did not allege that he complied with the
time limit requirements of
the policy contract set out in annexure
“SS1” to the particulars of claim. A period of more than
six months had lapsed
between the rejection of the written
representation for the internal appeal (07 May 2022) and the issue of
the summons on 02 March
2023. Service was only effected on/or about
26 April 2023.
[7]
More than 12 months had elapsed since 26 February 2022 when the
collision occurred. The summons was issued
and served more than six
months after the rejection of the plaintiff’s written
representation. The plaintiff failed to comply
with the time limit
conditions reflected in the policy contract that excluded the
defendant’s liability.
[8] The
plaintiff contended in his heads of argument that he complied with
the provisions of Rule 18 of the Uniform
Rules of Court in that he
pleaded the facts he intended to rely on in the trial as well as
annexed a copy of the policy contract
to the pleadings. The
plaintiff’s particulars of claim made out a cause of action in
that his claim was based on a motor
collision and the vehicle was
insured by the defendant who declined to pay the claim. He contended
that the defendant was wrong
by suggesting that he should have
pleaded the time frames contained in the contract. Such an assertion
should be dismissed as it
is wrong in fact and law.
[9]
He contended furthermore that the exception should not be entertained
as the issuing of the summons outside
the prescribed period did not
equate to prescription; evidence could be adduced in due course
explaining why the late filing should
be condoned. The plaintiff
relied on
Sun
Packaging (Pty) Ltd v Vreulink
[1]
and
Rahim
Khan N.O. v Max Prop Holding (Pty) Ltd and another.
[2]
The principle was mentioned in the former case that an excipient had
the duty to persuade the court that upon every interpretation
which
the pleading in question, and in particular the document on which it
is based, can reasonably bear, no cause of action is
disclosed;
failing which, the exception ought not to be upheld.
[3]
In the latter case, it was stated that an exception that the cause of
action is not disclosed by a pleading, cannot succeed unless
it is
shown that,
ex
facie
the
allegations made by the plaintiff and any document upon which the
cause of action may be based, the claim is bad in law.
[10]
The defendant contended that an exception is a useful mechanism for
weeding out cases without legal merit, however, they
must be dealt
with sensibly.
[4]
Where an
exception is raised that a pleading lacks averments that are
necessary to sustain an action, the purpose of such an exception
is
to dispose of the matter without leading evidence at the trial.
Consequently, such an exception must go to the root of the claim.
[5]
[11] In its heads of
argument and oral address, the defendant moved for an order that the
exception be upheld and the plaintiff
granted a period of 20 (twenty)
days to amend its particulars of claim, failing which, leave be
granted to the defendant to enrol
the matter for the dismissal of the
claim or the granting of absolution from the instance. The defendant
also sought a costs order
for the exception.
[12]
The plaintiff contended that it was trite that courts were reluctant
to decide upon exception questions concerning the
interpretation of a
contract. The defendant was dragging the court to look into whether
the parties' contract allowed the plaintiff
to issue the summons. In
Sun
Packaging
[6]
,
it was stated that even though, as a rule, courts were reluctant to
decide upon such questions, this was only where the meaning
was
uncertain. The terms of the contract in the present case are neither
difficult to interpret nor ambiguous. The terms relating
to the claim
procedure to be followed and the exclusion of liability are not
difficult to understand. The disagreement of the parties
does not
render the meaning uncertain.
[13] Consequently,
I make the following order:
Order:
1.
The exception is upheld.
2.
The plaintiff is granted 20 days to amend
his particulars of claim, failing which leave is granted to the
defendant to enrol the
matter to have the plaintiff’s claim
dismissed.
3.
The plaintiff is to pay the costs of the
exception.
MHLAMBI, J
On
behalf of the Plaintiff:
Adv.
X. Nyoka
Instructed
by:
Mlozana
Attorneys Inc.
66
Kellner Street
Westdene
Bloemfontein
On
behalf of the Defendant:
Adv.
GC Steenkamp
Instructed
by:
Kramer
Weihmann Inc.
KW
Building
24
Barness Street
Bloemfontein
[1]
1996 (4) SA 176 (A).
[2]
(084/2018)
ZASCA 171 (30) November 2018.
[3]
Lewis v Oneanate (Pty) Ltd and another 1992 (4) SA 811 (A).
[4]
Telematrix (Pty) Ltd t/a Metrix Vehicle Tracking v Advertising
Standards Authority of South Africa
2006 (1) SA 461
(SCA) para 3.
[5]
Vermeulen v Goose Valley Investment (Pty) Ltd 2001 (3) SA 986 (SCA).
[6]
Supra,
p186-187.