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[2008] ZASCA 114
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Rand Mutual Assurance Company Ltd. v Rand Accident Fund (484/07) [2008] ZASCA 114; 2008 (6) SA 511 (SCA) ; [2009] 1 All SA 265 (SCA) (25 September 2008)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No: 484/07
RAND MUTUAL ASSURANCE COMPANY LIMITED
Appellant
and
ROAD ACCIDENT FUND Respondent
Neutral
citation:
Rand Mutual Assurance Company Ltd v Road Accident
Fund
(484/2007)
[2008] ZASCA 114
(25 SEPTEMBER 2008)
Coram:
HARMS ADP, SCOTT, JAFTA JJA, LEACH AND KGOMO AJJA
Heard:
12 SEPTEMBER 2008
Delivered:
25
SEPTEMBER 2008
Corrected:
Summary:
Insurance – subrogation – right of
insurer to sue wrongdoer in own name – Compensation for
Occupational Injuries
and Diseases Act 130 of 1993 s 36(1).
ORDER
On appeal from:
High Court, Pretoria
(R D Claassen J
sitting as court of first instance).
1. The appeal is upheld with costs.
2. The order of the court below is substituted with the following:
(a) Judgment for the plaintiff in the sum of R 191 078,85 with 15,5%
interest a tempore morae.
(b) The defendant is to pay the costs including the preparation fee
of Dr du Plessis and Ms Vos.
JUDGMENT
HARMS ADP (SCOTT, JAFTA JJA, LEACH AND KGOMO AJJA concurring)
[1] The appellant, Rand Mutual Assurance Company Ltd, is an insurer.
It is, for purposes of the Compensation for Occupational Injuries
and
Diseases Act 130 of 1993 (COIDA), a mutual association, which means
that it is licensed to carry on the business of insuring
employers
against their liabilities under COIDA to employees (s 30(1)).
1
In that capacity it insured a company (presumably Harmony Gold Mining
Co Ltd). An employee of the insured, one Young, was injured
in a
motor vehicle accident, which was caused by the negligence of the
driver of another vehicle, one Maziya. The accident arose
out of and
in the course of Young’s employment. Young was consequently
entitled to the benefits provided for in COIDA (s
22(1)). Because of
the insurance policy the appellant, and not the Director-General, was
obliged to compensate Young in the sum
of R191 078,85 as determined
in accordance with COIDA by the Director-General.
2
[2] The respondent, the Road Accident Fund, is liable for the damages
caused by Maziya’s negligent driving. The appellant
sought to
recover the compensation paid to Young from the respondent, relying
on the provisions of s 36(1)(b) of COIDA,
3
which provides in essence that if an occupational injury was caused
in circumstances resulting in a third party (in this case the
respondent) being liable for them,
‘
the Director-General
or
the employer by whom compensation is payable
may institute action in a court of law against the third party for
the recovery of compensation that he is obliged to pay in terms
of
this Act.’
[3] The appellant is not an ‘employer’. Accordingly, it
was not covered by the wording of the provision although it
was a
party by whom, in terms of COIDA, compensation was payable. This,
said its counsel, was more than unfair because the appellant
is
entitled to be in the same position against third parties as are the
Director-General or the employer ‘by whom compensation
is
payable’. He accordingly submitted that we should by some or
other process of interpretation hold that the phrase ‘
employer
by whom compensation is payable
’ includes a mutual
association by whom compensation is payable. The argument was
premised on the proposition that a mutual
association would otherwise
be without a right of recourse against a wrongdoer. In support of
this, counsel argued that the employer
in casu
was not one by
whom compensation was payable. Accordingly, he said, the employer had
nothing which it could cede to the plaintiff
and that subrogation
does not apply. As I shall seek to show, since the premise is false,
the conclusion is also false.
[4] To understand the argument and my conclusion it is necessary to
turn to the repealed Workmen’s Compensation Act 30 of
1941,
the precursor of COIDA. Under that Act, compensation had to be paid
to any workman entitled thereto either (a) by the employer
individually liable, or (b) by the commissioner (s 37). The term
‘employer individually liable’ was defined to mean
an
employer who was exempt from paying contributions to the accident
fund (s 2). There were two types of employers individually
liable,
namely the state and certain other authorities and, secondly,
employers who had, with the approval of the commissioner,
obtained
from a mutual association a policy of insurance for the full extent
of their potential liability under the Act (s 70).
Compensation was
payable irrespective of the common-law liability of the employer (i
e, irrespective of negligence) and the Act
thereby increased the
rights of the employee but, on the other hand, the right to
compensation substituted all other remedies the
workman may have had
(s 7).
4
The commissioner or ‘the employer by whom compensation [was]
payable’ had a right of action against the third party
for the
recovery of the compensation they were obliged to pay (s 8(1)(b)).
The Act was ambivalent about who had to pay compensation.
In some
instances it had to be either the commissioner or ‘the employer
individually liable’ (e.g. s 40(2), s 46(2),
s 48, s 90) while
in other circumstances it was either the employer individually liable
or the mutual association (s 63). However,
the Act also said that the
association, that had to insure employers, had ‘liabilities
under this Act’ (s 95(5)).
[5] It is difficult to conceptualise the liability of the employer
towards the employee which could be insured against. This is
because
even an uninsured employer or one who had failed to pay contributions
to the commissioner had no potential liability towards
the employee
under the Act. An employer who had failed to pay the required
contributions may have had to pay a penalty but even
then no
common-law or statutory liability towards the employee arose (s 72).
[6] These inconsistencies were not only carried over to COIDA but
were in a sense exacerbated. This is because COIDA distinguishes
between employers individually liable (consisting of government
organs) on the one hand and, on the other, employers who have
obtained from a mutual association a policy of insurance for ‘the
full extent of their potential liability’ (s 84(1)).
Liability
is no longer attached to an employer as in the 1941 Act; instead it
is attached to either the Director General (who replaced
the
Commissioner), the employer individually liable or the mutual
association (s 29, 61, 62). The employer is also not liable to
the
employee unless the liability arises under COIDA (s 35).
[7] However, COIDA provides (as mentioned) for ‘insurance of
employers
against their liabilities to employees in terms of this
Act
’ by a mutual association (s 30(1) and (2)).
5
This implies that employers do have a liability under COIDA although
the nature and extent of their liability is not spelled out.
The
implication is that the liability is borne by either the
Director-General or the mutual association. (The position of the
employer individually liable as currently defined does not require
consideration.) Although the employee is the only person entitled
to
benefit under the insurance policy (he, and only he, receives
compensation) the legal effect of all this is that the employer
is
insured against this transient claim of the employee.
[8] Reverting to s 36(1)(b):
6
it provides, as mentioned, that either the Director-General
or the
employer by whom compensation is payable
may institute action
against a third party for the recovery of compensation. The
emphasised words would obviously include an employer
individually
liable but they go wider. They also include an insured employer. But
they do not include a mutual association. This
means that although
the insured employer does not pay, he is entitled to recover,
obviously on behalf of the insurer.
[9] I accordingly agree with the respondent’s counsel who
argued that an employer who obtains a policy of insurance for
the
full extent of its liability under COIDA is exempted from paying
assessments to the Director-General; that a mutual association
is
nothing other than an insurer; and that once the mutual association
has indemnified the employer by paying compensation in full
to the
employee, the association may exercise the right of recourse against
a third party by either obtaining a cession from the
employer or by
bringing a subrogated claim for recovery under s 36(1)(b).
[10] The insured’s indemnity claim has been paid in full. The
insured employer was accordingly entitled to recover from the
respondent, not only by virtue of s 36(1)(b), but also under ordinary
legal principles. However, the employer did not seek to recover;
the
appellant did not obtain a cession; and the appellant did not sue in
the name of the insured but in its own name. This, and
only this,
non-compliance with the subrogation doctrine was, according to the
respondent, fatal to the appellant’s claim,
and the court below
agreed.
[11] During argument the question was raised whether the rule that
the insurer must sue in the name of the insured forms part of
our law
and, if so, whether it could be justified. The answer requires a
consideration of the history of the reception of the English
law of
subrogation, the nature of the rule that a subrogated claim must be
brought in the name of the insured, and a reflection
of whether the
rule requires adaptation or amendment.
[12] Lord Hoffman once said that ‘the subject of subrogation is
bedevilled by problems of terminology and classification
which are
calculated to cause confusion.’
7
Bearing that in mind, it is useful to commence the discussion with
the following extract from the chapter in
Lawsa
8
on insurance:
‘
In its literal sense the
word “subrogation” means the substitution of one party
for another as creditor. In the context
of insurance, however, the
word is used in a metaphorical sense. Subrogation as a doctrine of
insurance law embraces a set of rules
providing for the reimbursement
of an insurer which has indemnified its insured under a contract of
indemnity insurance. The gist
of the doctrine is the insurer’s
personal right of recourse against its insured, in terms of which it
is entitled to reimburse
itself out of the proceeds of any claims
that the insured may have against third parties in respect of the
loss.’
The authors also mention (at para 374) that the doctrine as part of
insurance law was established only during the 18
th
Century
and that it was imported into South African law through
Ackerman v
Loubser
1918 OPD 31.
[13] The plaintiff in
Ackerman v Loubser
was an insured who
had been fully paid by the insurer and who sought to recover the loss
from the defendant on behalf of the insurer.
The defence was that
since the plaintiff’s loss had been made good by the insurer
the plaintiff had no further claim against
the defendant. In
rejecting the argument the court referred to the English law of
subrogation (as set out in the preceding paragraph)
and applied it to
the case before it. The court also mentioned that in English law,
should the insured refuse to litigate, the
court would allow the
insurer to do so ‘in the name of the insured whether the latter
likes it or not’ (at 34).
[14] What is easily overlooked is that when
Ackerman v Loubser
was decided the law of insurance applicable in the Orange Free State
was English law. The General Law Amendment Ordinance 5 of
1902 (ORC)
had introduced the law applicable in the Cape Colony. The General Law
Amendment Act 8 of 1879 (Cape), in turn, had introduced
the English
law of insurance and replaced the Roman Dutch law in the Cape Colony.
In other words, the court in
Ackerman v Loubser
was bound to
apply the English law of insurance and it did not purport to infuse
our law with English law principles.
[15] The next case that dealt with the issue was
Teper v McGees
Motors (Pty) Ltd
1956 (1) SA 738 (C). It,
too, was bound to apply English law being a Cape case. However, the
law in Transvaal
and Natal remained Roman Dutch, something not
considered in
Schoonwinkel v Galatides
1974 (4) SA 388 (T)
when it adopted the principle of subrogation as set out in
Ackerman
v Loubser.
Importantly, neither case held that the insurer may
not sue in his own name.
9
[16] The Cape and Orange Free State laws were repealed by s 1 of the
Pre-Union Statute Revision Act 43 of 1977 –
‘
with the result that the
English law (as it existed in 1879) concerning fire, life and marine
insurance is no longer binding authority
in the Cape Province or in
the Orange Free State Province. . . . Hence, the South African law of
insurance is governed mainly by
Roman-Dutch law as our common law.’
10
The effect of this repeal is that, subject to statutory law, our
courts are entitled to look at other legal systems in developing
our
law of insurance and that we are not bound to follow English law and
precedent.
11
[17] Nevertheless, this court,
12
with reference to the
Ackerman v Loubser
and
Teper
,
held that –
‘
an insurer under a
contract of indemnity insurance who has satisfied the claim of the
insured is entitled to be placed in the insured’s
position in
respect of all rights and remedies against other parties which are
vested in the insured in relation to the subject
matter of the
insurance. This is by virtue of the doctrine of subrogation which is
part of our common law.’
13
What this court had in mind in
Commercial Union
were the three
rules of the
lex mercatoria
(and not only of the English law
of insurance): that the wrongdoer is not entitled to benefit from the
fact that the person wronged
was insured; that the insured may not be
enriched at the expense of the insurer by receiving both the
insurance indemnity and damages
from the wrongdoer; and that the
insurer replaces the insured, i.e., the insured is subrogated by the
insurer, which entitles the
insurer to claim the loss from the
wrongdoer.
14
[18] In English law ‘the doctrine of subrogation in insurance
rests upon the common intention of the parties and gives effect
to
the principle of indemnity embodied in the contract.’
15
In our law it would be a case of implied terms (but in the sense of
naturalia
of the contract as opposed to tacit terms)
16
of the contract of insurance.
17
[19] Significantly, in formulating the doctrine of subrogation, this
court has not as yet held that the insurer is not entitled
to sue in
its own name.
18
Different laws deal with this aspect differently. The English common
law, as has been said, requires the insurer to sue in the
name of the
insured. This requirement gives rise to a number of procedural
anomalies.
19
American law apparently adopts a different approach: although it is
accepted that in strict law the action ought to be brought
in the
name of the insured, the insurer institutes the litigation in its own
name to protect litigants from harassment and to avoid
confusion over
the identity of the real plaintiff.
20
This appears to be similar to the position in Continental law.
21
[20] These differences may be due to legislative activities and,
especially as far as Continental law is concerned, to the fact
that
the effect of subrogation may differ from one legal system to
another. It may amount to something akin to cession of the
claim
against the wrongdoer
ex lege
or it may simply mean that
although the claim against the wrongdoer still vests in the insured,
the insurer has certain procedural
rights against both the insured
and the wrongdoer.
22
Locally, there is an academic debate about the correct approach to
the substantive aspect but this is not the case to decide the
matter.
23
For present purposes I shall assume that a transfer
ex lege
akin to cession does not take place. That does not, however, mean
that the procedural rule that the insurer has to sue in the name
of
the insured is in accordance with the general principles of our law.
24
[21] In
Freudmann-Cohen v
Long Tran
25
the Ontario Supreme Court had to consider whether an insurer, who is
a defendant in an action by an insured, would be entitled
to
institute third party proceedings (similar to those contemplated by
our Uniform rule 13) against a wrongdoer apparently on the
ground
that if the insurer were to be held liable, a declaration would
follow entitling the insurer to an indemnity from the wrongdoer.
The
insurer/defendant could hardly have issued the notice in the name of
the insured/plaintiff. The court held that it was entitled
to proceed
in its own name. The reason for the conclusion was that the rule in
question was a procedural rule of English origin
and not a
substantive rule whereas the other subrogation rules were of a
substantive nature. Courts are entitled to regulate their
own
procedure. It is therefore not surprising that common-law courts
outside Britain, on occasion, have permitted the insurer to
litigate
in its own name.
26
[22] J P van Niekerk points out that the rule ‘is hoogstens ‘n
noodwendige aanhangsel tot die skadeloosstellingsbeginsel
en die
gevolg van die gelding van daardie beginsel in ‘n besondere
geval.’
27
He refers to others who had stated that the rule is a ‘corollary’
or ‘consequence’ of the indemnity principle
and ‘not
a basic principle in itself’. More recently he said that
subrogation is ‘for a large part nothing more
than a procedural
device in the service of the indemnity principle.’
28
[23] This court is duty-bound to consider whether the procedural
requirement is consonant with our constitutional values and our
law
of procedure. I believe that it is not. To require a party to
litigate in the name of another appears to me to fly in the face
of
the requirement of transparency that underlies all litigation. The
rule serves no public interest in modern times, as appears
from the
position in the USA. It is formalistic and creates anomalies. It
enables the insurer to litigate in the name of the insured
without
taking any risks as far as litigation costs are concerned.
29
The supposed advantage, namely that the insurance company may be able
to retain its anonymity,
30
is clearly not to the advantage of the wrongdoer and also probably
not to that of the insured.
[24] It is safe to assume if regard is had to the prevailing practice
that insurance companies have been acting on the basis that
they have
to litigate in the name of the insured. Although this is in my view a
less than desirable practice it would be wrong
to abolish it by
judicial
fiat
.
This court is reluctant to
interfere with settled legal principles, even when they have their
origin in an incorrect interpretation
of the law because members of
the public may have arranged their affairs on the assumption that
they were settled.
31
Communis error facit ius.
Consequently,
t
his judgment does not hold that the insurer must litigate in
its own name and may not litigate in the name of the insured. What it
does hold is that the English rule in its stark form cannot be
justified and that, unless the wrongdoer will be prejudiced in a
procedural sense, courts may permit the insurer to proceed in its own
name. It might be necessary to adapt other procedural rules
in such
an event as requiring, by analogy with Uniform rule 35(5)(b),
discovery by the insured.
[25] I therefore hold that the plaintiff was not
non-suited by litigating in its own name, particularly where there is
no discernible
prejudice to the respondent. It may be noted that the
respondent did not file an exception to the claim and raised the
point only
at the trial. Consequently, the appeal has to succeed and
the appellant is entitled to judgment.
[26] The following order is made:
1. The appeal is upheld with costs.
2. The order of the court below is substituted with the following:
(a) Judgment for the plaintiff in the sum of R 191 078,85 with 15,5%
interest
a tempore morae
.
(b) The defendant is to pay the costs, including the preparation fee
of Dr du Plessis and Ms Vos.
_________________________
L T C HARMS
ACTING DEPUTY PRESIDENT
APPEARANCES:
For Appellant: J J Wessels SC
Instructed by:
Van Velden Duffey, Pretoria
Lovius Block Attorneys, Bloemfontein
For Respondent: B P Geach SC
Instructed by:
Maponya Incorporated, Pretoria
Honey Attorneys, Bloemfontein
1
Section 30(1): ‘The Minister may, for such period
and subject to such conditions as he may determine, issue
a licence
to carry on the business of insurance of employers against their
liabilities to employees in terms of this Act to a
mutual
association which was licensed on the date of commencement of this
Act in terms of section 95 (1) of the Workmen’s
Compensation Act: Provided that the Minister may, from time to time,
order that, in addition to any securities deposited in terms
of the
Insurance Act, 1943 (Act No. 27 of 1943), and the Workmen’s
Compensation Act, securities considered by the Director-General
to
be sufficient to cover the liabilities of the mutual association in
terms of this Act be deposited with the Director-General
or his or
her nominee.’
2
Section 29: ‘If an employee is entitled to compensation in
terms of this Act, the Director-General or the employer individually
liable or the mutual association concerned, as the case may be,
shall be liable for the payment of such compensation.’
3
Section 36: ‘(1) If an occupational injury or
disease in respect of which compensation is payable, was caused
in
circumstances resulting in some person other than the employer of
the employee concerned (in this section referred to as the
“third
party”) being liable for damages in respect of such injury or
disease—
(a) the
employee may claim compensation in terms of this Act and may also
institute action for damages in a court of law against
the third
party; and
(b) the
Director-General or the employer by whom compensation is payable may
institute action in a court of law against the third
party for the
recovery of compensation that he is obliged to pay in terms of this
Act.’
4
Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour
intervening)
1999 (2) SA 1
[1998] ZACC 18
; ,
1999 (2) BCLR
139
(CC) discussed the constitutionality and ratio of the
legislation is detail. It said (at para 14): ‘By way of
contrast
[to the common-law position] the effect of the Compensation
Act may be summarised as follows. An employee who is disabled in the
course of employment has the right to claim pecuniary loss only
through an administrative process which requires a Compensation
Commissioner to adjudicate upon the claim and to determine the
precise amount to which that employee is entitled. The procedure
provides for speedy adjudication and for payment of the amount due
out of a fund established by the Compensation Act to which
the
employer is obliged to contribute on pain of criminal sanction.
Payment of compensation is not dependent on the employer’s
negligence or ability to pay, nor is the amount susceptible to
reduction by reason of the employee’s contributory negligence.
The amount of compensation may be increased if the employer or
co-employee were negligent but not beyond the extent of the
claimant’s actual pecuniary loss. An employee who is
dissatisfied with an award of the Commissioner has recourse to a
court
of law which is, however, bound by the provisions of the
Compensation Act. That then is the context in which section 35(1)
deprives
the employee of the right to a common-law claim for
damages.’
5
See footnote 1 above.
6
See footnote 3 above.
7
Banque Financière De La Cité v Parc (Battersea) Ltd
[1998] UKHL 7
,
[1999] AC 221
,
[1998] 1 All ER 737
,
[1998] 2 WLR
475.
8
MFB Reinecke, SWJ van der Merwe, JP van Niekerk, PH Havenga and
J Church
Lawsa
(reissue) vol 12 para 373. See also D M Davis
Gordon & Getz on The South African Law of Insurance
4 ed
(1993) 257.
9
Also
Chi v Lodi
1949 (2) SA 507 (T).
10
Mutual & Federal Insurance Co Ltd v Oudtshoorn Municipality
1985 1 SA 419
(A) at 430F-G.
11
J P van Niekerk
Subrogasie in die versekeringsreg
(unpublished LLM thesis UNISA 1979) ch 1.
12
Commercial Union Insurance Co of SA Ltd v Lotter
[1999] 1 All SA 235, 1999 (2) SA 147 (SCA).
13
See also
Avex Air (Pty) Ltd v Borough of Vryheid
1973 (1) SA 617 (A) at 625H.
Samancor
v Mutual and Federal Insurance Company Limited
[2005] 4 All SA 193,
2005 (4) SA 40 (SCA)
is
not in point.
14
Somersall v Friedman
2002 SCC 59
(CanLII),
[2002] 3 SCR 109
, (2002) 215 DLR (4th) 577
at para 50: ‘
First, it is important to keep in
mind the underlying objectives of the doctrine of subrogation which
are to ensure (i) that the
insured receives no more and no less than
a full indemnity, and (ii) that the loss falls on the person who is
legally responsible
for causing it. The doctrine of
subrogation operates to ensure that the insured received only a just
indemnity and does
not profit from the insurance.
Consequently, if there is no danger of the insured’s being
overcompensated and the
tortfeasor has exhausted his or her capacity
to compensate the insured there is no reason to invoke subrogation.
Similarly,
if the insured enters into a limits agreement or
otherwise abandons his or her claim against an impecunious
tortfeasor the insurer
has lost nothing by the inability to be
subrogated.’ (Citations omitted.)
Castellain
v Preston
(1883), 11 Q.B. 380
at 386
-387.
See Visser & Potgieter
Skadevergoedingsreg/The
law of damages
2 ed (2003) para 10.4.
15
Banque Financière De La Cité v Parc (Battersea) Ltd
[1998] UKHL 7
,
[1999] AC 221
,
[1998] 1 All ER 737
,
[1998] 2 WLR
475.
16
Alfred McAlpine & Son (Pty) Ltd v
Transvaal Provincial Administration
1974 (3)
SA 506
(A);
Delfs v Kuehne & Nagel (Pty)
Ltd
1990 (1) SA 822
(A).
17
The MT ‘Yeros’ v Dawson Edwards & Associates
[2007] 4 All SA 922
(C) at 930
18
Goodwin Stable Trust v Duohex (Pty) Ltd
[1996] 3 All SA 119,
1999 (3) SA 353 (C) is not of assistance as it
dealt with cession.
19
MacGillivray on Insurance Law
10 ed (2003) para 22-43 to 22-51; E C Schlemmer ‘’n
Selfstandige reg van verhaal vir ‘n versekeraar gegrond
op ‘n
solidêre medeskuldverhouding’
1996
TSAR
68.
20
American Jurisprudence
2 ed (2001) vol 73 s v Subrogation para 82 (p 610-611).
21
H J Moll ‘Die subrogasieleerstuk in die
versekeringsreg’ 1977
TSAR
138.
22
For the position in the case of cession:
Homes for SA (Pty) Ltd v
Rand Building Contractors (Pty) Ltd
2004 (6) SA 373 (W).
23
E C Schlemmer ‘’n Selfstandige reg
van verhaal vir ‘n versekeraar gegrond op ‘n solidêre
medeskuldverhouding’
1996
TSAR
68
; J P van Niekerk ‘Subrogation and cession in insurance law:
a basic distinction confounded’ (1998) 10
SA
Merc LJ
58; J P van Niekerk ‘Insurance
subrogation, implied or expressed: in the name of the insured,
always’ (2007) 19
SA Merc LJ
502.
24
Locus standi
may
either be a purely procedural matter or it may impact on the
substance of the case. See the diverging views on the facts
in
Pentz
v Gross
1996 (4) SA 617 (SCA)
at 630G-H (per Corbett CJ) and 632B-G (my judgment). Also in
[1996] 4 All SA 63.
25
2003 CanLII 35516,
(2003)
66 OR (3d) 106.
26
J P van Niekerk
Subrogasie in die versekeringsreg
105-110.
27
Subrogasie in die versekeringsreg
at 62.
28
J P van Niekerk ‘Subrogation in terms of a marine insurance
contract governed by foreign law: the untraceable or no longer
existing insured creates a dilemma for insurers’
2008
TSAR
575.
29
Storegate Africa (Pty) Ltd v Airlink Cargo
International (Pty) Ltd
[2005] JOL
14054
(SCA).
30
J P van Niekerk ‘Subrogation and cession in
insurance law: a basic distinction confounded’ (1998) 10
SA
Merc LJ
58 at 59.
31
Business Aviation Corp (Pty) Ltd v Rand Airport Holdings (Pty)
Ltd
[2007] 1 All SA 421,
2006 (6) SA 605 (SCA) at para 38.