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[2017] ZAGPPHC 405
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Mehrez and Another v Ndwandwe (65685/13) [2017] ZAGPPHC 405 (23 March 2017)
/JM
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
23- 03 - 2017
CASE
NO: 65685/13
REPORTABLE:
NO
In
the matter between:
MOHAMMED
TAWFIR MOHAMMED MEHREZ 1
ST
PLAINTIFF
TRUDIE
MEHREZ 2
ND
PLAINTIFF
And
SIFISO
NDWANDWE
DEFENDANT
JUDGMENT
MAKHOBA,
AJ
[1]
Plaintiffs and the defendant are neighbours, plaintiffs' s
property is situated right adjacent to that of the defendant.
Plaintiffs instituted an action against the defendant and is
claiming an amount of R333 983.00 against the defendant. The
claim
arise out of the fire that started in defendant's property
and damaged the plaintiffs' s property.
[2]
During a pre-trial conference held at Groenkloof chambers
in Pretoria on the 20 February 2017 the parties agreed that
subject
to the consent of the court, the court will only adjudicate
on the special plea raised by the defendant and the merits and
quantum
will be postponed
sine die.
[3]
The special plea was argued before me on the 1st March 2017.
The special plea can be summarised as follows:
3.1
The defendant has a short term insurance cover for some of the
damages which form part of the plaintiffs claim.
3.2
Plaintiffs were informed of the said cover by the
defendant.
3.3
defendant's insurer is an interested party to the proceedings
as a result of which the plaintiffs ought to have joined the
defendant's insurer as a party to the proceedings.
[4]
Counsel for the defendant submitted to the court that the
insurer is the integral party to the proceedings and should have been
joined by the plaintiffs. Counsel for the defendant referred the
court to various decided cases.
[5]
For the plaintiffs their counsel objected to the special plea
and handed his heads of argument to the court. He submitted to the
court that:
5.1
Defendant did not annex the insurance agreement to his
pleadings and thus plaintiff is not aware of the contents of the
agreement
between defendant and his insurer.
5.2.
The insurance agreement was not discovered.
5.3
Plaintiffs have no obligation to join the insurer it is the duty of
the Defendant.
[6]
Reinecke, Van Niekerk and Nienaber South Insurance
law 2013
page 221 paragraph 11.23
the
learned authors say the following " where insurance cover arises
from a reciprocal insurance contract containing a stipulation
in
favour the third party will upon acceptance of the benefit be
entitled to enforce his right only if the primary insured has
paid
or tendered to pay the premium. This conclusion is based
in the view that the obligation for
instance to indemnify the
third party stems from the original contract and is part of the
performance agreed to by
the insurer in exchange
for the insured's undertaking to pay the premium" On page
388 paragraph 18.15 the
learned authors say the following on
subrogation " In this context subrogation is simply a
right the insurer has against
the insured, it has no right against
the third party. Subrogation involves only the insurer and the
insured and therefore
has no bearing on the third party
or its legal liability at all" In my view the authors
unequivocally say that
the third party has no connection or
obligation towards the insured only the insured has a
contractual obligation
with the insurer.
[7]
In Kohler Flexible Packaging (Pinetown) ) (Pty) Ltd v
Marianhil Mission Institute
2000 (1) SA 141
(D)
the court held
that third parties cannot be sued as joint wrongdoer unless they are
liable to the plaintiff in delict see also
OK Bazaar (1929) Ltd
and Others v Stern and Ekermans 1976 (2) SA521
(
C) at
530G-531A.
[8]
In my view it is clear from the case law and to Reinecke et al
referred to above that plaintiffs in this matter before me are not
party to an agreement between the defendant and his
insurer and therefore they are not obliged to
join the
insurer as a party to this proceedings. Only the defendant has the
power and obligation to join his insurer in this
matter.
[9]
The following order is therefore made: Defendant's special
plea is dismissed with costs.
DMAKHOBA
ACTING JUDGE OF THE
GAUTENG DIVISION, PRETORIA
Heard
on
: 15
March 2017
For
the
plaintiff
:
Adv J.G Van Der Merwe
For
the dfendant
:
Adv V.P Ngutshana
Date
of Judgment
: