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[2021] ZAGPPHC 478
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Monametsi v Miway Insurance (83091/2019) [2021] ZAGPPHC 478 (22 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 83091/2019
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
NOT
REVISED
22
July 2021
In
the matter between:
KAONE
MONAMETSI Plaintiff
and
MIWAY
INSURANCE Defendant
JUDGMENT
MOGALE,
AJ
INTRODUCTION
[1] This
is an application for a specific performance in which the plaintiff
has instituted a claim against the
defendant (MiWay short term
Insurance) seeking an order compelling the defendant to honor its
contractual obligations
[2] Parties
concluded the agreement of insurance with the commencement date of 19
December 2018, in terms of which
the defendant undertook to insure
Mazda 3 1.6 Dynamic 2018 subject to the terms and conditions of the
insurance agreement.
[3] The
defendant further undertook to indemnify the plaintiff for
third-party liability arising from a motor vehicle
collision he might
be involved in, subject to the terms and conditions of the insurance
agreement.
ISSUES TO BE DETERMINED
[4] This
court has to determine whether the plaintiff failed to comply with
the terms and the conditions of the
insurance agreement and whether
the defendant is contractually obliged to perform in terms of the
agreement. Whether the defendant’s
correctly repudiated the
plaintiff’s claim. The court needs to determine the issue of
merits.
[5] The
trial resumed on 19
th
till 22
nd
July 2021 and
both parties gave viva voce evidence in support of their case.
EVIDENCE
[6] The
plaintiff, Mr. Kaone Monametsi testified that he is from Moshana
village, Zeerust in the North West Province,
that he has entered into
an agreement with the Insurance for a Red Mazda 3 1.6 Dynamic 2018
model and further that he complied
with the terms and conditions of
the contract by honoring the premiums.
[7] 29
December 2018 around 16h00 he traveled from Moshana village to visit
a friend in Driefontein village, which
is 20km apart. The speed limit
on the road he was traveling was 120km per hour. Around 20h00 he
drove back from Driefontein to
Moshana Village, but before Moshana
village, he had to pass through Rietpan Village and it was dark.
[8] As
he approached Rietpan, driving to Moshana, there is a speed limit
sign indicating 80km per hour, and the
next speed limit sign
indicates 60km per hour. He passed Rietpan, the patrol filling
station then the speed limit sign indicates
100km per hour and as he
travels further, the speed limit increased to 120km. From the Index
and paginated bundle for discovered
documents, pages 131-142 depict
photos of speed limits sign the plaintiff testified about.
[9] He
testified that after the filling station he passed a carve and
immediately saw a herd of cattle on the road.
He was driving around
90km per hour at that stage. He tried to apply brakes to avoid
collision but a cow and a calf appeared from
the other side of the
road, entered the road, and ended up colliding with both of them.
Airbags came out and affected his view,
as a result, he lost control
of the vehicle. His Mazda ended up colliding with Ford Figo which was
stationary on the other side
of the road.
[10] The
two cattle he collided with were not part of the herd he saw in the
middle of the road. He testified that
the road was dark, there are no
warning board signs about animals in the area, and further that no
one alighted him of the animals
on the road. He testified further
that he was traveling with speed limit around 90km/h, which is within
the maximum speed limit
of 120km per hour. The motor vehicle was not
in good condition to drive and was assisted to tow it.
[11] He
contacted the defendant two days after the accident to lodge the
claim. The assessor was appointed to investigate
the matter and on
30
th
January 2019, he received the repudiation letter from
the defendant repudiating his claim on the basis that, he failed to
adhere
to the terms and conditions of the insurance agreement,
further that the defendant was not contractually obligated to perform
in
terms of the contract. He appeals and also referred the matter to
the Ombudsman but the repudiation was upheld on 10 July 2019
[12] The
plaintiff accepts the findings by the expert, Mr. Walter Pretorius
that the plaintiff’s vehicle
speed at the time of the impact
with the cow was in the order of 95- 105km/h. He maintained that he
was driving the maximum speed
limit and the defendant is
contractually liable to perform in terms of the contract
[13] During
cross-examination, the plaintiff informed the court that the photos
131- 141 depicting the road signs
speed limit were taken by his
Attorney in April 2021. That during the accident, the road surface
was not fixed, it was only fixed
after the accident. He agrees that
the road depicted in the photos is not the same as on the day of the
accident. He further confirms
that, at the time of the accident, the
road conditions were not good, it was parched with some potholes,
though driveable.
[14] The
plaintiff is adamant that the place from where he joined the main
road in Driefontein, leading to Moshana,
there is no sign showing a
speed limit of 60km/h. He is aware that there is a sign showing a
speed limit of 60km/h, but he did
not see it on the day in question
as he used a different road to join the main road. That the assessor
during his investigation
uses a different road which might be the
road showing a speed limit of 60km/h sign. He did not see any sign
indicating the speed
limit until at the scene of the accident further
agree that the last sign from the accident was 60km/h though he did
not see it.
Mr. Wiese confronted the plaintiff that the speed limit
was 60km/h due to the bad condition of the road but the plaintiff
responded
that he saw a speed limit sign indicating 120km/h when he
was driving from Moshana to Driefontein, the opposite line. Plaintiff
closed their case, then the defendant’s also proved their case
by presenting viva voce evidence.
[15] The
defendant called Walter Pretorius, the accident reconstruction
specialist whose duty is to reconstruct,
investigate and report on
motor vehicle accidents. He testified that he possesses skills,
knowledge, and experience that qualify
him to be an expert in this
field. Mr. Pretorius conducted an investigation and construction
relating to the speed at which the
plaintiff vehicle was traveling
during the accident. His conclusion reads as follows: “
The
speed limit for this section of the road is 60km/h and is indicated
so by a speed limit sign in the insured driver’s direction
of
travel. The insured vehicle's speed at the approximate area of impact
with the cows was in the order of 95-105km/h. Thus, the
speed at
which the insured opted to travel was in excess of 65% higher than
the speed limit. Had the incident driver opted to travel
at the speed
limit then he would have been in a better position to observe
animals, reduce the vehicle speed and take evasive action
or bring
the vehicle to a complete stop. The high speed at which he opted to
travel at resulted in a greater stopping distance.
In my opinion, the
speed at which the insured opted to travel was the main contributing
factor to this collision occurring"
[16] He
confirmed that the road conditions were not good, the road was
uneven, some parts were cracked, it had
some bumps, road shoulder
towards the gravel without a yellow line, from tar to gravel as
depicted in photo’s 078-24 to 078-30
of the defendant’s
photographs. That there is no other speed limit sign for about 4km
between a 60km/h sign and the scene
of the accident. Exhibit 1 is a
photo depicting a speed limit sign of 60km/h. Based on his evaluation
and observation, the claim
was correctly repudiated.-
[17] During
cross-examination, by Mr. Mfazi the witness agree that the conclusion
that the speed limit was 60km/h
emanated from his observation. He was
further confronted that
National Road Traffic Act, 1996
, Exhibit B,
according to its provisions, the speed limit of 60km/h is not in line
with the Act because the accident did not take
place in a build-up
area, the witness content that the accident occurred between two
villages.
[18] Queen
Meno stays at Driefontain, Lehurutshe. She is the owner of Ford Figo
and on 29 December 2018, she was
traveling from Moshana to
Driefortain when she saw a taxi in front of her indicating. The area
is near the farms and animals are
always on the road, as a result,
people are aware that when a vehicle indicates on the road, it is a
warning. She saw a herd of
cattle’s crossing the road and she
stopped. The taxi also stopped but managed to drive away. She waited
for the cattle to
cross and saw a red vehicle coming from the front
on the opposite line. Suddenly she heard the sound of cattle, then
the red vehicle
collided with her stationary vehicle. Before the
collision, the driver of the red vehicle swift his vehicle towards
hers because
he was trying to avoid a herd of cattle that were coming
from the side of the road. Because the area is known to always be
roaming
with animals and the fact that it was dark, she drove with a
speed limit of 40km/h. During cross-examination, she maintained that
the speed limit on that road was 60km/h when the accident took place.
[19] Justice
Maluleka confirmed that he is employed by Miway Insurance as an
assessor claim investigator. The matters
that are referred to him for
investigations are those with raising flag validation. He
investigated the plaintiff's claim and visited
the scene of the
accident. The main road where the accident took place had only one
60km road sign, which is 4km away from the
scene and he did not see
any other road signs. During cross-examination, he was confronted
with the contents of the provisions
of the
National Road Traffic Act.
1996
that 60km/h speed limit was not in accordance with the
provisions of the Act but he contended that, the accident took place
close
to two villages and the speed limit was in line with the Act.
He further explains that according to his opinion when one sees a
sign of a speed limit, that person must follow that speed limit until
he sees a sign showing a different speed limit.
The
defendant’s closed the case
SUBMISSIONS BY COUNCILS
[20] Mr.
Mfazi submitted that the main road in which the accident took place
is regulated by provision 292 of the
National Road Traffic Act 93 of
1996
and the fact that the accident occurred between two villages
which is not an urban area as defined by the act, the speed limit of
60km/h is not in line with the Regulations. The defendant’s
plea, paragraph 5 thereof, states that “the law of the
Republic
of South Africa will apply to this contract” therefore the
speed limit which is inconsistent with the law misconstrues
the
insurance policy. In addition, the defendant’s witnesses'
opinions about the speed limit of 60km/h are inconsistent with
the
terms Traffic Act. He argued that there is no evidence presented by
the insurer to support the allegations that the plaintiff
failed to
use all the reasonable care and carefulness when he collided with the
cows and other vehicles. There is no evidence presented
to suggest
that the plaintiff was driving at an excessive speed. It has been
argued that according to the principle of sudden emergency
the
plaintiff encountered an unexpected sudden emergency during the time
of the accident and cannot be found to be negligent. The
plaintiff
further submitted that the defendant is liable for the plaintiff's
proven and/or agreed damages and the costs of the
suit.
[21] Mr.
Wiese accepted that the plaintiff’s vehicle was damaged in a
collision. He argued that the enforceability
of the claim by the
plaintiff for indemnification depends upon the plaintiff taking all
reasonable care and take all reasonable
steps, with the same degree
of carefulness which can be expected from the reasonable man on the
street to prevent or minimize loss,
damage, death or injury. That the
plaintiff drove recklessly, exceeded the speed limit of 60km/h, and
was involved in a collision
that could have been avoided. He argued
that driving at night, on a dark unlit road, known to have animals
roaming around and bushes
around, a reasonable person would have
taken all the reasonable steps and care to prevent damage, loss, or
injury. It was further
submitted that the plaintiff tried to mislead
the court by testifying that he saw a 100km speed limit sign on the
road he was traveling
on, the day of the incident, then later concede
that the signs he was referring to were only placed after the road
was fixed.
As
a result, the defendant submitted that Miway correctly repudiated the
plaintiff's claim as the plaintiff was reckless and further
that the
defendant does not have a contractual obligation to perform in terms
of the agreement. The defendant request that the
plaintiff's action
is dismissed with costs.
TERMS AND CONDITIONS OF
THE CONTRACT
[22] Annexure
“P2” to the defendant’s plea contain the terms and
conditions of the insurance
agreement entered into by the parties.
For the plaintiff to continue being covered and have a valid claim
against the insurance,
the plaintiff must:
“
use all
reasonable care and take all reasonable steps, with the same degree
of carefulness which can be expected from the reasonable
man on the
street, to prevent or minimize loss, damage, death, injury, or
liability
Based
on the evidence of the defendant’s three witnesses that the
road where the accident took place the speed limit thereof
is 60km/h,
and the plaintiff's email indicating that he did not see 60km sign on
the road, Miway investigated and repudiated the
plaintiff’s
claim. The plaintiff agrees with the conclusion of Mr. Pretorius that
he was traveling at a speed between 95-105km/h
when the accident took
place. The basis for the repudiation is that the plaintiff failed to
comply with the terms and conditions
of the contract.
THE SPEED LIMIT AND THE
CONDITION OF THE ROAD
[23] The
speed limit on the main between Driefontein and Moshana village was
60km/h on 29
th
December 2018. This was confirmed by three
witnesses for the defendant. They corroborated each other that the
speed limit was 60km/h
and Exhibit A1 depicts a sign showing 60km/h
speed limit. The plaintiff is also aware of the same speed limit sign
of 60km/h except
for the fact that on the night in question he did
not see it.
[24] Three
defendant witnesses also confirm that there was no other road sign
from a 60km sign to where the accident
took place. This aspect was
also confirmed by the plaintiff that he did not see any speed limit
signs on the road until he was
involved in a motor vehicle. The road
signs which are depicted on the said road according to photos on
pages 131-134 of the plaintiff's
discovery were only places after the
accident.
[25] Evidence
is that the conditions of the road were not in a good state, though
driveable. The road had some
potholes, patches, the road was bumpy,
uneven with no yellow line to demarcate the tar and the gravel. The
area is surrounded by
farmers, as a result, it is well-known that
animals will sometimes be on the road. Because the conditions of the
road were not
good and the fact that the road was passing through two
villages, the speed limit of the road was 60km/h
[26] I
would like to emphasize that, the plaintiff was aware of the 60km
speed limit sign but he testified that
he did not see it as he used a
different road to join the main road. From where he joined the road
until he collided with cows
and a vehicle, according to him, he did
not see any other road sign indicating otherwise. The only 120km sign
he saw was earlier
when he was driving to Driefontein.
LEGAL PRINCIPLE
[27]
In
Datacolor
International v Intamarket
(
Pty)
Ltd
[1]
,
Nienaber JA, observed that:
‘
Repudiation has
sometimes been said to consist of two parts: the act of repudiation
by the guilty party, evincing a deliberate and
unequivocal intention
no longer to be bound by the agreement, and the act of his adversary,
“accepting” and thus completing
the breach’.
In
addition, as pointed out at 294E-H:
“
The emphasis is
not on the repudiating party’s state of mind, on what he
subjectively intended, but on what someone in the
position of the
innocent party would think he intended to do; repudiation is
accordingly not a matter of intention, it is a matter
of perception.
The perception is that of a reasonable person placed in the position
of the aggrieved party. The test is whether
such a notional
reasonable person would conclude that proper performance (in
accordance with a true interpretation of the agreement)
will not be
forthcoming. The inferred intention accordingly serves as the
criterion for determining the nature of the threatened
actual
breach
.”
[28]
In
Barnard
v Protea Assurance Co Ltd t/a Protea Assurance
[2]
,
King J held as follows
“
Now it is an
accepted principle in interpreting insurance contracts that it is the
duty of the insurer to make it clear what particular
risks he wishes
to exclude. The principle is stated 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 favor 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."
[29]
In
Qilingele
v South African Mutual Life Assurance Society
[3]
it was
held as follows:
“
The object of
the enactment is manifest, namely to protect claimants under
insurance contracts against repudiations based on inconsequential
inaccuracies or trivial misstatements in insurance proposals. An
insurer’s right to repudiate liability on the basis of the
untruth of a representation made to it, whether elevated to a
warranty or not, was curtailed.”
EVALUATION OF EVIDENCE
[30] The
issue to be determined by this court is whether the plaintiff had the
right to drive with the speed limit
between 95km/h-105km/h during the
time of the accident. Whether the plaintiff’s common knowledge
of the law about the place
that it was not an urban area entitled him
to drive with the speed limit of 95km/h-.105km/h
[31] I
find the plaintiff not to be an honest witness. During evidence in
chief, he gave this court an impression
that when he was driving
approaching Rietpan, he passed a signboard showing 80km, then 60km as
he was passing through villages,
after passing the filling station,
he saw a board showing 100km. He only changed his testimony during
cross-examination by the
defendant that on the day of the accident
there were no signboard in the direction he was traveling. The signs
pictures he was
testifying about were taken by his Attorney in April
2021, after the road was fixed. He further confirmed that the road on
the
pictures was new, it is a different road from the road on 29
December 2018 when the accident took place. Three defendants
witnesses
corroborated each other in all material aspects and the
plaintiff also confirms their version. I find that the plaintiff
tried
to mislead this court to believe that where the accident took
place there were road signs. He wants this court to make findings
based on the present condition of the road not based on the condition
of the accident.
[32] The
road is passing through two villages which are surrounded by bushes,
animals roaming around from the nearby
farms, the road condition were
not good, the road has patches, some potholes, uneven and without a
yellow line demarcating between
the gravel and the shoulder of the
tar, that is the reason why the speed limit was 60km/h. I am alive
with the provisions of the
National Road Traffic Act, 1999 that
100km/h speed limit should apply in respect of every public road or
section thereof situated
outside an urban area. But if proper
consideration is given to the conditions of the said road, the fact
that animals roam around
and further that the road passes through two
villages, I agree with Mr. Wiese argument that Local Authorities can
exercise their
discretion to determine the speed limit to suit the
surrounding circumstances and motorists.
[33] Plaintiff
had knowledge of the 60km/h sign. There is no other sign indicating
otherwise until at the scene
of the accident. I am not persuaded by
Mr. Mfazi’s argument that the plaintiff is correct to have used
his common knowledge
that, as he was not driving in an urban area he
can drive around 100km/h because that speed limit is consistent with
the law. The
rules are there to be respected, even if the area is not
in an urban area the surrounding circumstances of the place and the
conditions
of the road warranted the Authorities to place a 60km/h
speed limit sign, the plaintiff was obliged to comply, not to use his
assumptions.
As long as there was a 60km speed limit sign and no
other sign indicating otherwise, the plaintiff was obliged to comply
with the
rule.
[34] Considering
the surrounding circumstances of the area, the conditions of the
road, the speed limit of 60km/h
he knew of, and further that the
place was dark, I am of the view that the plaintiff should have taken
all reasonable care and
take all reasonable steps, with the degree of
carefulness which can be expected from the reasonable man on the
street to prevent
or minimize loss, damage, death, injury or loss.
The plaintiff should have foreseen that driving during the night, in
an area of
those circumstances and without a speed limit sign
instructing him otherwise, that he might cause him to be involved in
an accident
and breach the terms and conditions of the contract.
Would the plaintiff opted to travel within the stipulated speed
limit, he
would have been in a better position to observe animals and
take evasive action or control the vehicle.
[35] Considering
the evidence in totality, I find that the plaintiff drove recklessly
on 29 December 2019 and failed
to comply with the terms and
conditions of the insurance agreement by taking all reasonable care
and take all reasonable steps,
with the degree of carefulness that
can be expected from the reasonable man on the street to prevent or
minimize loss, damage,
death, injury or loss. I also find the
defendant is not contractually obliged to perform in terms of the
agreement entered with
the plaintiff and correctly repudiated the
plaintiff’s claim
COSTS ISSUE
[36] The
defendant requested this court to be award the wasted costs occasion
for the incorrect enrolment of the
hearing on the 4
th
May
2021 and the costs of this application. The plaintiff on the other
had informed the court that the incorrect enrolment of the
hearing on
the 4
th
May 2021 was not on the part of the parties but
the Registrar of the court, as a result, the plaintiff cannot be
punished for the
mistake caused by the Registrar.
[37] The
submission by the plaintiff was not disputed by the respondent as a
result, I agree with the plaintiff’s
submission that the
plaintiff cannot be punished for a third party mistake
Consequently, the
following order is made
:
31.1. The plaintiff’s
action is dismissed.
31.2. The plaintiff is
ordered to pay the cost
31.3. No cost order is
made for the proceedings of the 4
th
May 2021
K J MOGALE
Acting Judge of the
Gauteng Division, Pretoria
Heard
on: 19-22
July 2021
For
the Plaintiff: Adv
L Mfazi
Instructed
by: Z
& Z Ngogodo INC
For
the Defendant: Adv
Maelane E H Wiese
Instructed
by: Badenhost
Date
of Judgment: 22
July 2021
[1]
2000] ZASCA 82
;
2001 (2) SA 284
para 1
[2]
1998 (3) SA 1063(C)
at 1068B-C
[3]
1993(1) SA 69(A) at 74B