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[2016] ZAGPPHC 94
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Westenraad v 1st for Women (Pty) Ltd (55354/2014) [2016] ZAGPPHC 94 (22 February 2016)
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
(GAUTENG DIVISION,
PRETORIA)
Case Number: 55354/2014
DATE: 22/2/2016
Not reportable
Not of interest to other
judges
Revised.
In the matter between:
LIEZL
WESTENRAAD PLAINTIFF
And
1
ST
FOR WOMEN
(PTY)
LTD DEFENDANT
JUDGMENT
Fabricius J,
1.
Plaintiff
and Defendant entered into a written agreement of insurance on 1
December 2009, which amongst others, indemnified Plaintiff
against
loss of property caused by theft. Relevant is the theft of certain
movable assets from her residential dwelling.
2.
On 17
October 2013 persons broke into her home whilst she was present and
removed a number of items. This incident was initially
disputed by
Defendant, but during argument Defendant’s Counsel wisely
conceded that it had occurred. This issue therefore
need not be
debated any further.
3.
She
lodged a claim in respect of the stolen items, specifying them and
providing a value for each. After investigations by a loss
adjuster
or “assessor”, a Zach Teubes, he recommended to his
employer that the claim be repudiated.
4.
He had
two long discussions with Plaintiff about the missing items such as
when were they bought, where, and for which price, as
well as by
whom. These interviews were recorded and transcribed, and both
parties admitted that these transcriptions were correct,
and examined
and cross-examined them. This obviously avoided unnecessary and
lengthy repetition of the two interviews which took
place on 22
October 2013 and 30 October 2013.
5.
After the assessor made
his recommendation, the Defendant wrote to Plaintiff on 5 November
2013 repudiating her claim in terms of
the policy. This letter reads
as follows:
“
Dear
Ms L. Westenraad,
Your claim number 03
against policy 55[…] for the incident that took place on 17
October 2013, has been given careful consideration,
but will
unfortunately not be paid.
This is due to the fact
that additional information, relevant to a fair and accurate decision
on settlement, came to light during
the processing of your claim. Had
these facts been disclosed initially, you would not have been
indemnified for the above incident.
Proof:
When you claim, you may
be asked to prove ownership and value of the things you claim for.
Providing true and
complete information is stipulated as an obligation of your contract
in the general terms and conditions section
of your policy book:
Your obligations:
If you do not fulfil any
of the following obligations, your cover may be cancelled. Your
obligations are to:
1)
Give us true and complete information
5)
Let it be known if any of the policy
details or declaration are incorrect or if any of these details or
declarations changes;
7)
Be open about anything you have not yet
disclosed, but that may be relevant in order to accept the policy, or
about anything that
changes that may be important for the
continuation of the policy being accepted.
We trust you understand
that your adherence to all endorsements, terms and conditions, is
vital in enabling us to deal accurately
and fairly with each claim.
Not having provided us with the correct claims details has resulted
in the company not being allowed
the opportunity to do so in this
instance. The file on your claim has been closed accordingly.
Kindly
note that the above reason for not paying your claim may not
necessarily be exhaustive”. This letter was signed by
the
assessor, Mr Teubes.
6.
What is immediately
apparent from this letter is the following:
6.1
The allegation that fair
and accurate information was not disclosed, appears to be the first
defence;
6.2
The failure to disclose
initially, as it was put, is a separate defence, which, if proven,
could have resulted in a refusal to enter
into the agreement, or its
lawful cancellation thereafter. This was however not pleaded and
therefore not debated during the trial.
6.3
In
respect of both defences set out in par. 6.1 and 6.2 above, no
details were provided.
6.4
Fraud
by the Plaintiff was not raised in this letter.
7.
As said, Plaintiff
thereafter instituted this action and Defendant’s Plea is the
first proper disclosure of what its defence
was:
7.1
Although a section of the
policy was quoted which deals with fraudulent claims, fraud was not
pleaded initially. This was done by
way of an amendment to par. 9.2.3
of the Plea, which I allowed.
7.2
The
real crux of the defence was that Plaintiff did not provide the
Defendant with an accurate list of items that were stolen and/or
their descriptions and/or their values. Details were provided in par.
9.2.3 of the Plea. It was also pleaded that Plaintiff had
not
provided proof of purchase and/or ownership in respect of one or more
or all of the items in respect of which she had claimed.
It was then
also blandly pleaded that “The Plaintiff stated that she owned
a 9120 Acer Laptop”, but no conclusion was
pleaded or anything
else pertaining thereto.
8.
Plaintiff
gave detailed evidence in respect of all of these items and was
cross-examined thoroughly in relation thereto, and with
reference to
her recorded comments with the mentioned loss adjuster, Mr Teubes. He
made a good impression in the witness stand
and also fully explained
the circumstances under which she had drawn the initial list of
missing items. Her explanations to Mr
Teubes were also detailed and,
where vague, explained that as well. Normal human experience is in
line with her evidence on most
items. If one possesses a sound system
for some years, one would normally not remember or even have known
its serial number, but
ought to be able to fairly accurately describe
its outside appearance and function. I could not really fault her
evidence, except
where it appeared from the transcript that she
insisted that she had owned a 9120 Laptop. It is common cause that
such a Laptop,
with that number, did not exist at the time, but when
she realised that this was an error, she forwarded to Mr Teubes the
correct
relevant invoice.
9.
Mr Teubes gave similar
detailed evidence about his two interviews with reference to his
notes, his comments and the recorded conversations.
After thorough
cross-examination he also readily conceded that with the exception of
the 9120 Laptop, his negative comments to
the insurer had not been
justified if one looked closely at the transcriptions of his
interviews with the Plaintiff. It is my view
that he ought to have
made a similar concession in respect of the laptop number as this was
fully and satisfactorily explained
by the Plaintiff.
Added to this is the
following:
Both the assessor and the
Defendant knew that a “9120” computer did not exist at
the time and could therefore not have
been misled in respect thereof.
Also, no warranty clause in respect of absolute accuracy is contained
in the policy. An inference
of fraud in this context can only be made
if it is the most evident and acceptable conclusion of a number of
possible conclusions.
See:
Santam Bpk v
Potgieter
1997 (3) SA 415
OPA at 423
.
The
onus in respect of its defences is clearly on Defendant and in my
view Mr Teubes ought to have accepted Plaintiff’s explanation
at the very least at the time when the real invoice was given to him.
The discrepancy in price also does not point to an intentional
misrepresentation because Plaintiff knew quite well that her version
would be fully investigated and debated. She also never intended
to
convey that her price was accurate at the time, nor was she
contractually bound to relay an absolutely accurate market price
for
this, or any other item. I cannot find that she acted fraudulently in
this context and by her providing the proper relevant
invoice, any
uncertainty ought to have dissipated.
10.
An insured is entitled to
recover the actual commercial value of what he or she has lost
through the happening of the event insured
against. As I have said,
the onus is on an insurer who seeks to avoid liability to prove his
defence relied upon.
See:
Walker v Santam Ltd
2009 (6) SA 224
SCA
.
11.
Returning to the topic of
an inflated claim in respect of items stolen, it has been held that
this does not per se prove fraud.
An insurer may pay what is actually
due, and in any event intent to defraud must be proven. Fraud is not
easily imputed.
See:
Schoeman v Constantia Insurance Co Ltd
2003 (6) SA 313
SCA at
par. 37
.
12.
I am
therefore satisfied that Plaintiff has brought herself within the
ambit of the policy, and that Defendant has failed to discharge
the
onus on it. I must also add however that I cannot find that Mr
Teubes, the loss adjuster, was mala fide. His factual conclusions
were merely wrong. This finding is relevant to a costs order.
13.
The
following order is therefore made:
1. The
Defendant is ordered to indemnify the Plaintiff for the loss suffered
as a result of the theft that took place on 17 October
2013;
2. The
Defendant is ordered to, within 20 days hereof, pay out the
replacement value of the stolen items, alternatively, replace
the
stolen items;
3. The
Defendant is ordered to pay the costs of this action including, but
not limited to, the costs for the transcriptions.
_____________________________
JUDGE H.J FABRICIUS
JUDGE OF THE GAUTENG HIGH
COURT, PRETORIA DIVISION
Case number: 55354/14
Counsel for the
Plaintiff:
Adv D. Keet
Instructed by: Chantel
van Heerden Attorneys
Counsel for the
Defendant:
Adv J. Van der Merwe
Instructed by: Savage
Jooste & Adams Inc
Date of Hearing:
16 – 18 February 2016
Date of Judgment:
22 February 2016 at 09:30