About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 823
|
|
Tarring Corporation CC v New National Assurance Company Limited (30226/2014) [2016] ZAGPPHC 823 (9 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 30226/2014
Date:
9 September 2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
TARRING
CORPORATION
CC PLAINTIFF
and
NEW
NATIONAL ASSURANCE COMPANY
LIMITED DEFENDANT
JUDGEMENT
DU
PLESSIS. AJ
1.
The
Defendant is an Insurance Company. Under a written policy, it insured
a new 2013 Model Case Uni-Loader, also known as a Skid
Steer. It may
be described as a smaller version of a front-loader, belonging to the
Defendant.
2.
The
principle risk underwritten was defined as:
".....the items
(or any part thereof) entered in the schedule, whilst at the location
or in the geographical area mentioned
therein, suffer any unforeseen
and sudden physical loss or damage from any cause not specifically
excluded in a manner necessitating
repair or replacement."
See
Exhibit "A", page 59 (Contractor's Plant and Equipment
Insurance Police).
3.
There
are certain exclusions included in the policy document, where it
appears in Exhibit "A", page 60 to page 62. The
relevant
exclusions are the following:
" 12. Loss or
damage directly or indirectly caused by, or arising out of, or
aggravated by the willful act or willful negligence
of the insured or
its representatives;
17. Loss of damage due
to absconsion."
4.
In
addition hereto, certain conditions appear in the policy document on
page 61 of Exhibit "A", namely:
"3. The insured
shall, at his own expense, take all reasonable precautions and will
maintain and service the insured property
to prevent loss of damage
and comply with statutory requirements and manufacturer's
recommendations and
maintain suitable service records." ;
On
page 70 of Exhibit "A" and under the heading 'GENERAL
EXCEPTIONS': Special Extensions To The Above General Exception'
in
paragraph 6, the following special extension of the general
exceptions to the Defendant's liability appear:
6. This exception does
not cover any liability whatsoever arising out of any claim hereunder
as
a
result of any dishonest, malicious or illegal acts of any
party to the insured."
THE
FACTS:
5.
The
Plaintiff is in the business of performing smaller civil contractual
work. The Plaintiff acquired the Case Uni-Loader referred
to above in
order to assist with his work. On 24 November 2013, this Uni-Loader
was stolen from a building site located in Pretoria-Glen,
close to
Soweto, Gauteng. The detail of the circumstances leading the theft
will be dealt with hereunder. The Plaintiff duly lodged
a claim with
the Defendant on or about 27 November 2013. The Defendant disputes
that the Plaintiff actually lodged the claim with
the Defendant and
alleges that the claim was lodged with the Insurance Broker. The
Defendant nevertheless rejected the Plaintiff's
claim in writing on
17 January 2014, citing three reasons for the rejection namely:
" 1. The loss is
excluded in terms of exclusion 17, which states that: 'The insurers
shall not be liable for Joss or damage
due to absconsion';
2. The insured had
failed to perform the necessary checks to confirm the legitimacy of
the hirer. The insured had thus failed to
adhere to condition 3 of
the policy, which requires that:
'The insured, shall at
his own expense, take all reasonable precautions and will maintain
and service the insured' property to prevent
loss or damage....';
3. The insured had
informed insurers that the nature of their business as being civil
contractors. Insurers were not advised that
the insured' machinery
would be hired out, which is vital, as certain underwriting
considerations would have to be taken into account
when granting
cover."
6.
Page
2 of the rejection letter of the Defendant records:
"Our policy
requires you to institute legal action within three months after
receiving this notice. If you do not institute
legal proceedings
within that time, you will no longer be entitled to claim the benefit
under the policy." ;
7.
7.1 The Plaintiff called
one witness, a certain Mr Nick Deen, the owner of the Plaintiff. Some
time (this witness is not sure, it
could be two to three weeks) prior
to the 24th of November 2013, Deen of the Plaintiff, was contacted by
a certain Mr Ndlovu with
a request from Ndlovu, to hire certain
equipment for use at a construction facility. Mr Deen, however,
informed Mr Ndlovu, that
the Plaintiff does not hire, rent or let
equipment, but that the Plaintiff' company could perform the work
requested. No further
communication from Mr Ndlovu was received for
the moment.
7.2 In the week prior to
the 24th of November 2013, Mr Ndlovu again contacted Mr Deen of the
Plaintiff and requested the services
of the Plaintiff from Monday the
25th of November 2013. Mr Deen is adamant that this services was for
the Plaintiff company to
perform certain work for Mr Ndlovu and that
it was not the hiring of the front loader by Mr Ndlovu. Deen was
challenged by
Counsel for the Defendant about the nature of the
arrangement with Ndlovu. The Defendant suggested that the arrangement
was for
the hiring of the Uni-Loader. This was vehemently denied by
Deen, whose evidence was that his company does not perform the hiring
and letting of his equipment. The reason for the suggestion as to the
hiring and letting of the Uni-Loader when it got stolen,
was of
course that the Defendant would be entitled to repudiate the claim,
had the Uni Loader been hired by Ndlovu.
7.3 Deen required
telephonically of Ndlovu, to provide him with:
7.3.1. a copy of his ID
document, a copy of his business on a letterhead, including the
address where the front-loader would be
utilised and where the
front-loader had to be established;
7.3.2. payment of R 5,
198.40, such amount representing the establishment costs according to
Mr Deen.
7.4 In the absence of
these documents, Deen was not prepared to do business with Ndlovu.
The three requested documents, namely the
Ndlovu Construction
letterhead with the address where the Plant was established, a copy
of Ndlovu's ID Document and the proof of
payment were provided by
Ndlovu to Deen and were dealt with in evidence. They all subsequently
proved to be fraudulent documents.
7.5 The proof of payment
purporting to be a cash deposit, is dated 22 November 2013 at 13:08
at FNB Southdale Bank. On face value,
the document appears legitimate
and certainly does not create suspicion. Deen's evidence was also
that he had no reason to be suspicious
of the deposit slip. On close
scrutiny in Court, the deposit slip appeared legitimate. Counsel for
the Defendant criticised Deen
for not ensuring the legitimacy of the
deposit. Deen explained he was provided with the documents after
close of business and given
his discussions with the fraudster
Ndlovu, had no reason at that stage to doubt the deposit. The deposit
was for a relatively small
amount of R 5,198.40, such amount
representing the establishment costs of the Uni-Loader on the
building site.
7.6 The letterhead of
Ndlovu Construction CC contains its physical address, the company
registration number , his VAT number an
e mail address and two
telephone numbers. Mr Deen's evidence was that prior to the theft, he
never had any difficulty contacting
Ndlovu on any of the telephone
numbers that appear on the letterhead. On scrutiny, the letterhead is
certainly no corporate letterhead,
but I cannot agree with Mr
Berlowitz' (Counsel for the Defendant) remark, that the letterhead is
an amateurish letterhead. The
letterhead appeared to be printed with
different letter fonts and sizes and all the required information of
a letterhead appears
on the document.
7.7 The next day, on
Sunday morning, Mr Deen and his employee, the operator of the
front-loader, a certain Mr Mucheri, took the
front loader to the
address that appears on the Ndlovu Construction letterhead. On their
arrival at the indicated address,
they found the following:
7.7.1. A construction
yard fenced in with a steel palisade. I was referred to a photograph
of the site which photograph was taken
by the assessor appointed by
the Defendant. According to Mr Deen, the only access to the fenced-in
construction site, was via a
gate, which was locked with a padlock.
The Palisade was in a good condition. A certain Mr Gardner, an
Assessor appointed by the
Defendant and who also visited the building
site two to three days after the theft of the Uni-Loader occurred,
described the building
site as in a good area of Soweto and that no
reason existed to regard the area and/or the site as high risk. This
was also the
evidence of Deen.
7.7.2. On his way to the
particular address, or as Mr Deen conceded in cross-examination, it
might even be as he arrived at the
address of the construction site,
he telephonically confirmed with Mr Ndlovu that the front loader
would be accepted at the
site and that he would be able to establish
the front-loader on the indicated site.
7.7.3. Mr Ndlovu
confirmed that the front-loader may be established at the site and
that Mr Deen would be met by a certain
"Mike"
(his
foreman) on the site.
7.7.4. The arrangement
was that his employee Mr Mucheri, the operator of the front-loader,
would remain at the site with the front-loader
and assist with the
loading of sand onto a lorry during the Sunday. This sand would then
be transported to a building site, where
after the operator (Mr
Mucheri) would be excused and may leave the premises, to return on
Monday morning to continue the intended
work. According to Mr Deen,
Mr Mucheri would at all times remain in possession of the key of the
front- loader.
7.7.5. On the site Mr
Deen was indeed met by a certain
"Mike"
who
introduced himself as Mr Ndlovu's foreman, he was wearing a shirt
with the company logo on the front of the shirt. On the outside
of
the premises (on the gate) there were company branding of Ndlovu
Construction CC, there was a bakkie on the inside of the site,
also
branded with the Ndlovu Construction CC logo, as well as a big
container on the site branding the Ndlovu Construction CC logo.
Mr
Gardner, the Assessor referred to above, in his evidence, confirmed
that this Ndlovu Construction and its
modus operandi
was known
to Mr Gardner, as he had been confronted with two similar incidents
of Ndlovu Construction where the same
modus operandi
was
followed. Gardner, however, said that this was the first time that it
was alleged that Ndlovu Construction displayed a company
logo and/or
any company branding. Because of this, Mr Berlowitz urged me to find
that Deen's evidence regarding the logos and the
company branding, is
a fabrication. The reason advanced, was that Gardner has never found
this to be present at his previous encounters
with Ndlovu and also
because this evidence about the logos and the company branding, does
not appear in the statement that Deen
made to the Police. I do not
agree that Deen's evidence in this regard appeared to be fabricated.
He was to a large extent not
challenged on the remainder of his
observations. This included proper fencing, a locked gate, sand that
was fenced in by proper
danger tape. I also do not agree with the
Defendant, that Deen, in his attempt to justify the absence of his
version on the logos
and company branding, from the Police statement:
"eventually fell back on an alternative version that his son
was ill and that he was not focused on this regard."
Deen
was not challenged on the fact that he was upset at that stage and
that his son was in actual fact ill. Similarly, Gardner's
evidence
was never that he consulted and asked Deen as to the circumstances
and his observations on the building site. I accept
Deen's evidence
in this regard to be probable.
7.7.6. On the inside of
the site, there was a fairly substantial pile of sand that had to be
loaded onto a lorry. According to Mr
Deen, the sand was cordoned off
with prescribed health and safety ribbons. Mr Deen got the impression
that the entirety of the
site where he was to leave the front-loader,
complied with the health and safety regulations. This evidence
remains unchallenged.
Deen's evidence that he particularly looked
around on the site to establish how safe his front-loader would be on
the site, remains
unchallenged. Deen's evidence that he observed two
security guards on the site and even spoke to one of the guards,
similarly remains
unchallenged.
7.7.7. The sand was never
loaded onto the lorry, as the lorry driver was drunk, but this
Mr Deen only learned the next morning
on the 25th of November 2013.
7.7.8. On Mr Deen's
version, his operator (Mr Mucheri) then left the premises on 24
November 2013 with the key of the front-loader.
Although Mucheri
never gave evidence (he returned to Zimbabwe ) Deen insisted this was
the instruction (a standing instruction)
to all operators that work
for the Plaintiff. Mr Deen had no reason to believe that Mr Mucheri
did not take the key with him, nor
was it alleged. It was alleged by
Counsel for the Defendant in Cross-examination that it is not
possible to move the loader without
a key but this was denied by Mr
Deen and it later appeared during the evidence of Mr Gardner, the
Assessor of the Defendant , that
he determined from the Manufacturers
of the front loader that it is possible to
"hot wire"
the loader and that would enable the loader to be moved. The
Plaintiff was criticised by Mr Berlowitz for not calling Mucheri as
a
witness. Deen explained that Mucheri returned to Zimbabwe and that
they could not locate him. The criticism from the Defendant
that
Plaintiff should have known that Mucheri was a necessary witness and
that they should have made the necessary precautions
to call him as a
witness, is not totally unjustified, but the failure is by no means
fatal for the Plaintiff's case. The Defendant
introduced the evidence
of Mucheri to a large extent through the evidence of Gardner to
Court. It was never alleged that Mucheri
ever knew the circumstances
of the arrangement between Deen and Ndlovu and also under what
circumstances he operated the Uni-Loader.
The fact that Mucheri told
Gardner that he did not know what happened to the key to the machine,
is neither here nor there. Deen's
evidence was that Mucheri would
have taken the key back to the work and Gardner certainly presented
no evidence suggesting that
the key could not be located at Deen's
work.
7.7.9. The next morning,
Mr Deen of the Plaintiff, received a telephone call from the operator
(Mr Mucheri) who informed him that
the front-loader had been stolen
from the particular site where they left the front-loader the
previous day. This evidence remains
unchallenged.
7.7.10. When Mr Deen
arrived at the site at 08:00 on the Monday morning of 25 November
2013, he found only one person (a black women
that he had not seen
before) on the site. She informed him that during Sunday 24 November
2013 the person known as
"Mike"
and some other
person, loaded the front-loader onto a truck and left the premises
7.8 Unsurprisingly,
during that week it emerged that nothing had been deposited in the
FNB account as represented by the deposit
slip, that the ID document
of Ndlovu is false and that the address of Ndlovu Construction, does
not exist. Despite Mr Deen's best
efforts, he could no longer make
telephonic contact with Mr Ndlovu. Mr Deen reported the matter to the
Police on the same day and
to the Defendant . The Police, to date
hereof, never found the front-loader.
8.
The
loss of the front-loader is not in dispute and Mr Gardner (the
assessor that investigated the loss of the front-loader on behalf
of
the Defendant) confirmed in his evidence that the
modus operandi
of Ndlovu, was known to him and that this particular incident is
in fact the third that he had to investigate on behalf of insurers
and that the modus operandi has been exactly the same in each
incident, except that the company logos of Ndlovu Construction are
a
new addition.
9.
The
Defendant allege that Mr Deen, was in breach of exclusion 17, in that
the Plaintiff suffered the loss of the front-loader due
to
absconsion, and that the Plaintiff was in breach of condition 3 of
the policy i.e. he failed to take all reasonable precautions
to
prevent the loss of the front-loader.
10.
The
Defendant bears the onus of proving a breach of the conditions.
Ogilvy Thomson JA, in Autoprotection Insurance Company Limited
v
Hanmer Strudwick
1964 (1) SA 349
(A) at 354 A - F:
"As was pointed
out, in relation to this very same condition number 6, now invoked by
Appellant, in
Resisto Diary (Pty) Ltd v Autoprotection Insurance
Company Limited
1963 (1) SA 632
(A) at 643 - 5
, the so-called
conditions of the policy are in truth terms of the contract, and the
onus rests upon the insurer invoking a condition
to prove the breach
upon which it relies."
11.
Both
exclusions 17 (loss or damage due to absconsion) and the risk insured
namely a failure to take reasonable precautions are wide
enough to
include loss or damage caused by the negligence of the Plaintiff or
someone acting on its behalf.
12.
Mr
Berlowitz referred me to the test for negligence as set out in
Kruger
v Coetzee
1966 (2) SA 428
(N) at 430 E - F
. Although condition 3
obliges the Plaintiff to take all reasonable steps and precautions to
avoid a loss of the Uni Loader,
I do not agree that this
condition can be construed as an exclusion of liability where loss or
damage is caused by the insured's
negligence, in the delictual sense
of Kruger v Coetzee, as this would negate a primary component of the
cover afforded by the definition
of the risks. Smalberger JA, in
Fedgen Insurance Limited v Leyds
1995 (3) SA 33
(A) at 38 8 - E
,
remarked:
" The ordinary
rules relating to the interpretation of contracts must be applied in
construing
a
policy of insurance. A Court must therefore
endeavor to ascerlain the intention of the parties. Such intention
is, in the
first instance, to be gathered from the language used
which, if clear, must be given effect to. This involves giving the
words
used their plain, ordinary and popular meaning unless the
context indicates otherwise (
Scottish Union and National
Insurance Company Limited v Native Recruiting Corporation
1934 AD 458
at 464
-
5
). Any provision which
purporls to place
a
limitation upon
a
clearly expressed
obligation to indemnify must be restrictively interpreted
(Autoprotection Insurance Company Limited v
Hanmer-Strudwick
1964 (1) SA 349
(A) at 354
C – D
);
for it is the insurer's duty to make clear what particular risks
it wishes to exclude (
French Hairdressing Saloon
Limited v National Emplover's Mutual General Insurance
Association Limited 1931 (ADJ
60 at 65; Autoprotection
Insurance Company Limited v Hanmer-Strudwick supra at 354 D
-
E
). A
policy normally evidences the
contract and an insured's obligation, and the extent to which an
insurer's liability is limited, must
be plainly spelt out. In the
event of a real ambiguity, the contra-proferentum rule, which
requires a written document to be construed
against the person who
drew it up, would operate against Fedgen as drafter of the policy
(
Kliptown Clothing Industries (Pty ) Ltd v Marine Trade
Insurance Company of South Africa Limited
1961 (1) SA 103
(A) at
108
)."
13.
Comrie
J referred to various authorities in
SANTAM Limited v CC Designing
CC
1999 (4) SA 199
(C) in his judgement dealing with the
interpretation of a condition in an insurance policy similar to
condition 3 as referred to
above, regarding the so-called all
reasonable precautions clause at 204 - 210. With reference to
Paterson v Aegus Insurance Company Limited
1989 (3) SA 478
(C)
Comrie J referred to the remark of King J, where the latter said on
483 F
:
" The condition
here is not clear, certainly insofar as it purports to apply to the
all-risk section, it should not be construed
so as to entitle the
insurer to avoid liability where the insured been negligent, for that
would be to render the cover for the
accidental loss nugatory and
manifestly this was not the intention of the parties; the object of
the insurance must not be defeated
or rendered practically illusory
as it would indeed be if an accidental loss occurred and the insurer
was able to avoid liability
by the application of the reasonable
precautions provision in such a way as to abrogate its obligation to
make good the loss merely
on the basis of the negligence of the
insured."
14.
The
loss or damage referred to above, are however, more pertinently
described in the exclusions and in particular item 12, describing
that loss or damage directly or indirectly caused by, or arising out
of, or aggravated by the willful act or willful negligence
of the
insured or his representatives, and the loss or damage due to
absconsion, would be excluded. This should be read with condition
3
that determines:
"3. The insured
shall, at his own expense, take all reasonable precautions and will
maintain and will maintain and service
the insured property to
prevent loss of damage and comply with statutory requirements and
manufacturer's recommendations and maintain
suitable service
records."
15.
The
exclusions
"loss or damage due to absconsion"
and
"reasonable precautions ",
does not specifically
refer to negligence. At best does the exclusion in item 12 describe
loss or damage as -
"directly or indirectly caused by ....the
willful act or willful negligence of the insured or his
representatives ......".
To construe the exclusion as an
exclusion of liability where the absconsion is caused by the
Plaintiff's negligence and only his
negligence, would deprive the
Plaintiff of virtually the entirety of the cover afforded him by the
description of the risks within
the policy document.
16.
In
Scottish Union and National Insurance Company Limited v Native
Recruiting Corporation Limited
1934 AD 458
at 464
, it was said
that:
"An insurance
contract is a contract to indemnify a person against loss, and if
vague language is used in a condition or exception
of risk, the Court
must give a reasonable meaning to such vague language.."
See
also a reference hereto in
Santam Limited v CC Designing CC
1999
(4) SA 199
(CPD) at 4A - B
.
17.
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. (See
Kliptown Clothing Industries (Pty) Ltd v
Marine & Trade Company of South Africa Limited
1961 (1) SA 103
(A))
. To this end and purpose, the exclusion in paragraph 17 for
loss of damage due to absconsion, is perfectly clear, not vague or
open to interpretation, but for the definition of absconsion.
18.
The
term absconsion must be interpreted in the context of the contract of
insurance as a whole and with due regard to the nature
and object of
the contract. See Swart & Ander v Cape Fabrix (Pty) Ltd
1979 (1)
SA 195
(A) at
202 C
.
19.
Clearly
"absconsion"
cannot be read in isolation without
taking cognisance of the exception clause appearing under the heading
'general exceptions' at
page 70, paragraph 6, that reads:
" 6. This
insurance does not cover any liability arising out of any claim
hereunder as a result of any dishonest, malicious
or illegal acts of
any party to the insured."
20.
Corbett
JA, (as he then was) in
Arus Enterprises (Finance) (Pty) Ltd v
Protea Assurance Company {Pty) Ltd
1981 (3) SA 274
{A) at 289 - 290
,
remarked as follows:
" The term
'absconsion' as used in the memorandum, might have caused some
difficulty (the only meanings given in the Oxford
Dictionary are
hiding, 'concealment) were it not, common cause
-
and also
clear from the evidence, that it refers to the theft of items of
insured property by
a
Jessee and/or their employees. It is
clear, too, reading the memorandum
in the context of the
policy as
a
whole, that the words 'the Jessee's and their
employees' referred to the Jessee's with whom lease agreements
falling under memoranda
3 and 4 of the policy are concluded by the
Appellant and the employees of such Jessee's."
When
the absconsion clause is read with the
"dishonest, malicious
or illegal acts of any party to the insured'
clause, it appears
to attempt to exclude all forms of theft. All forms of theft entails
an element of dishonesty, maliciousness
and illegality towards the
insured. Such an interpretation would render the policy unworkable
and deprive the Plaintiff of the
entirety of the cover afforded him
by the description of the risks within the policy document.
21.
Mr
Berlowitz, on behalf of the Defendant, submitted that I should
interpret these two clauses on a more limited basis, in order
to
prevent an injustice to the insured event clause. He suggested - so
the argument goes - that the dishonest, malicious or illegal
acts are
those acts that are to be associated with a party associated with the
insured, either as employee or contractually or
sociably. I was
referred to the example where an employee would steal the machine,
then in that event in the absence of employee
theft cover, the loss
would not be recoverable and the insurer would be excused from
liability. In that sense - so the argument
continues - must Ndlovu
Construction, the fraudulent party, be regarded as a party to the
insured based on an oral subcontract.
As a result, Mr Berlowitz
argues the Plaintiff's claim is excluded under this clause.
22.
I
do not agree with this approach. Had the insurer wish to avoid the
unworkable understanding of clause 6 above, the language used
had to
be clear that theft simpliciter would be covered by the insurance
policy, but theft through a fraudster
"attaching itself'
to
the insurance policy and by implication the insured, would not be
covered and would result in the insurer being excused from
liability.
Such an approach would negate the intention of the parties. Such
intention is gathered from the language used in the
policy and in
particular the principle risk underwritten as defined on page 1 of
the contractor's plant and equipment insurance
policy, where it is
stated as:
"The insurers
hereby agree with the insured that if at any time during the period
of insurance stated in the schedule or during
any subsequent period
....the items (or any part thereof) entered in the schedule, whilst
at the location or in the geographical
area mentioned therein, suffer
any unforeseen and sudden physical loss or damage from any cause not
specifically excluded in
a
manner necessitating repair or
replacement."
23.
Absconsion
that occurs during the willful act or willful negligence of the
insured, would surely assist the Defendant. Once it is
accepted that
willful or willful negligence is nothing more than reckless conduct
by the insured. Absconsion, that is nothing more
than a particular
manner of theft, that comes about as a result of dishonest, malicious
or illegal acts of
"any party to the insured'
is a
provision that purports to place a limitation on the clearly
expressed obligation to indemnify. I therefore interpret the
absconsion clause as read with the dishonest, malicious or illegal
acts of any party to the insured clause restrictively. Even should
I
accept that these clauses are ambiguous in its meaning, then the
contra proferentum
rule applies, which requires a written
document to be construed against the person that drew it up and this
would then operate against
the Defendant as drafter of the policy.
See in this regard,
Kliptown Clothing Industries (Pty) ltd v
Marine and Trade Insurance Company of South Africa Limited
1961 (1)
SA 103
(A) at 108 C
and
Autoprotection Insurance Company
Limited v Hanmer-Strudwick
1964 (1) SA 349
(A) at 354 C - D
for
the restrictive interpretation.
24.
To
determine whether the absconsion clause as read with the reasonable
precautions clause assists the Defendant, one would need
to consider
the conduct of Deen.
25.
I
hold that the Plaintiff had not breached exclusion 17 and that the
theft of the front-loader cannot be viewed as absconsion and
the
Defendant's reliance on exclusion 17, accordingly fails.
26.
Condition
3 of the policy reads that the Plaintiff shall take all
"reasonable
precautions ....to prevent Joss or damage".
This must be
read with exclusion 12, which describes
"Joss or damage
directly or indirectly caused by the willful act or willful
negligence of the insured or its representatives"
.
27.
The
condition referred to above exclude liability if there was a willful
act or willful negligence on the part of the insured Plaintiff,
or if
the insured Plaintiff did not take reasonable precautions to prevent
the loss.
28.
In
Paterson v Aegus I nsurance Company Limited
1989 (3) SA 478
(C)
,
all risks cover was subject to a condition which read:
“
The policy
holder must take all reasonable precautions for the maintenance and
safety of the property insured under this policy
and the company will
not be liable for any loss, damage, injury or liability rising
from
a
deliberate or fraudulent act by the policy holder."
King
J held on the facts that the Plaintiff insured was not negligent.
At
483 (F)
, King J concluded:
“
The condition
here in not clear, certainly insofar as it purports to apply to the
all-risks section; it should not be construed
so as to entitle the
insurer to avoid liability where insured has been negligent for that
would be to render the cover for the
accidental loss nugatory and
manifestly this was
not the intention of the parties; the
object of the insurance must not be defeated or rendered practically
illusory as it would
indeed be if an accidental loss occurred and the
insurer was able to avoid liability by the application of the
'reasonable precautions'
provision in such
a
way as to
abrogate its obligation to make good the loss merely on the basis of
the negligence of the insured.
"
29.
In
the Hanmer-Strudwick case
supra,
the policy oblige the insured
to maintain the insured vehicle in an efficient condition, coupled
with an obligation to take all
reasonable steps to safeguard it from
loss or damage. Referring to the duty to maintain Ogilvie Thompson
JA, expressed an opinion
at 355 H:
"Adopting what
was said in
Lewis
and
Barker's
cases supra, the obligation to take all reasonable steps to maintain
'in efficient condition' imposed by clause 6, should in relation
to
tires
-
with which alone this appeal is concerned
-
be
construed as meaning no more than an obligation to take
all
reasonable steps to keep the vehicles' tires in such
a
state
as the
ordinary reasonable man, would consider adequate for
the purpose of negotiating the hazard normally encountered on the
streets and
highways."
30.
James
J commented on
"reasonable precautions "
requirement
in an insurance policy in
Aetna Insurance Company v Dormer Estates
(Pty) Ltd
1965 (4) SA 656
(N) at 659 H - 660 A,
as follows:
"It is not easy
to define with any degree of exactness what the
'reasonable
precautions' were which should have been taken by Pyper; but it is, I
think, clear that his conduct should be tested
by comparing it with
what the ordinary reasonable man would consider adequate in the
circumstances. See Autoprotection Insurance
Company v Hanmer
Strudwick
1964 (1) SA 349
A at 356."
31.
In
this regard,
lsando Foods (Pty) Ltd v Fedgen Insurance Company Ltd
2001 (3) SA 1278
(SCA)
, finds application. Here the question
arose as to whether a plant that had been specified in the insurance
policy, taken out by
the Plaintiff with the Defendant and then
destroyed by fire, was property
"for which they (the insured)
are responsible",
the Plaintiff (by reason of dispute with
the seller) at the time of the fire not yet having taken transfer
thereof i.e. not yet
been the owner thereof. Nugent AJA (with whom
Heifer ACJ and Howie JA, concurred) held as follows at 1284 - 1285:
"Upon taking
occupation of the property in anticipation of becoming the owner, it
must follow, in my view, that the Appellant
assumed the risk of
damage to the property caused by its own fault....for that was not a
risk that the seller took upon itself
..... In my view, that would
indeed be a loss for which the Appellant would be responsible "for
purposes of the policy".
Mr Burger SC for the
Respondent, submitted that the policy could not have been intended to
insure against the risk of loss of that
nature, because that would be
in conflict with general condition 3, which provides that the insured
shall take all reasonable steps
and precautions to prevent accidents
or losses."
The
effect of construing the insuring clauses to include loss caused by
negligence, it was submitted, would at the same time negate
the
insurance because it would conflict with that condition. That seems
to me to beg the question what is meant by the insuring
clause. If,
properly construed, it insures against negligence (and in my view, it
does for I can see no other meaning), then the
condition must
necessarily be construed in another way for otherwise, as pointed out
by Lord Gadad in
Woolfall and Rimmer Limited v Moyle and Another
(1941) 3 ALL ER 304
(CA) at 311
:
"....it would
follow that the underwriters were saying, 'I will insure you against
your liability for negligence on condition
that you are not
negligent"'
He
went on to say of such a clause that:
It is a condition that
is put in for the protection of the underwriter, or perhaps one might
say to limit the field of the underwriter's
liability to the extent
that he is saying: 'I will insure you against the consequence of your
negligence, but understand that I
am insuring you on the footing that
you are not to regard yourself, because you are insured, as free to
carry on your business
in a reckless manner. You are to take those
reasonable precautions to prevent accidents which ordinary business
people take. That
is to say, you are to run your business in the
ordinary way, and not in a way which invites accidents."'
32.
In
Roos v SA Eagle Insurance Company Limited and Another
2002 (2) ALL
SA 315
(T)
, a purchaser agreed a purchase price with the
Plaintiff for his bakkie, and undertook to pay a bank-guaranteed
cheque into the
Plaintiff's account. The "purchaser" was a
fraud. The cheque was stolen and fraudulently altered. When the
purchaser
phoned the Plaintiff to tell him that he had paid a bank
guaranteed cheque into the Plaintiff's account, the latter telephoned
his bank and asked whether the amount had indeed been paid in. He did
not ask whether the cheque was guaranteed, what the particular
effect
of a bank guaranteed cheque was, etc. He merely received the
assurance that an amount had been paid in and on the strength
of that
assurance, handed the bakkie to the purchaser, never to see it again,
and of course, never to see any money.
The
First Defendant raised general condition 5. On the strength of
CC
Designing
above and subsequent unreported judgment of Van
Dijkhorst J in
van der Westhuizen v Santam {BPK) TPD 22 May 1997.
Case Number 16800/96
, de Villiers J accepted that the issue
was
(at 328 E - F)
whether the Plaintiff was aware of the
risks to which he was exposing himself and if so, whether he
nevertheless knowingly exposed
himself to those risks,
appreciating that he was taking insufficient precautions. He
concluded that:
"Eiser het, na my
oordeel, eenvoudig nie omgegee of die maatree/s wat hy geneem het,
voldoende was of nie en a/dus roekeloos
opgetree".
Professor
JP Van Niekerk commented on the
Roos
matter at 53 - 54 of
(2002) (5) Outas Insurance Law Bulletin 53 as follows:
"The decision is
certainly correct. It has now firmly been established that a term in
an insurance contract which simply requires
the insured to take
reasonable steps to avoid loss or damage, will not allow the insurer
to
escape liability if the insured was merely negligent. He
must at least have acted recklessly, something the insurer will have
to
prove on a balance of probabilities. Recklessness, being a form of
intent (do/us eventua/is), involves a subjective test and
investigation.
The question is not whether a reasonable person
would have acted where the insured did not, but whether the insured
had acted
or failed to act knowing or not caring what the
consequences would be."
33.
The
question to be answered, is whether Deen had taken reasonable
precautions to prevent the theft of the Uni-Loader.
"Reasonable"
means reasonable as between the insured and the insurer, having
regard to the commercial purpose of the contract, which is
inter
alia
to indemnify the insured against the liability for his
"the
insured's"
personal negligence.
In
an English decision,
Fraser v BN Furman (Productions) Limited
(Miller Smith and Partners. Third Parties) [19671
3 All ER 57
(CA)
,
Diplock LJ, said at 60 I:
"What in my
judgement is reasonable as between the insured and the insurer,
without being repugnant to the commercial purpose
of the contract, is
that the insured, where he does recognise
a
danger, should not
deliberately court it by taking measures which he himself knows are
inadequate to avert it. In other words, it
is not enough that the
employer's omission to take any particular precautions to avoid
accidents should be negligent; it must be
at least reckless, i.e.
made with actual recognition by the insured himself that
a
danger
exists, not caring whether or not it is
averted."
Deen
had several discussions with the fraudulent Ndlovu and was
subjectively impressed with the manner in which Ndlovu displayed
his
knowledge about the construction industry. Ndlovu provided him with
the deposit slip that, on face value, cannot be said to
be a
fraudulent deposit slip. He also provided him with, on face value, a
legitimate letterhead. Subsequent to receiving the letterhead,
Deen
succeeded on several occasions to contact Ndlovu on the telephone
numbers provided on the letterhead. The building site where
Deen
established the Uni-Loader was not in an apparent dangerous or
suspicious location and was properly prepared, fenced in and
had the
appearance of a legitimate building site. Although the Defendant
doubted Deen's observations about the logos and the company
brand
being displayed on the building site, the mere say-so of the
Insurance Assessor that he had not previously encountered the
presence of logos in his investigation to similar incidents where
Ndlovu was involved, is not enough to reject Deen's evidence
in this
regard as untruthful. Deen was observant enough to ensure that the
premises where he left his Uni-Loader was locked when
he arrived at
the building site, that the building site appeared to comply with the
safety regulations applicable to building sites
and that he was met
by the employee Ndlovu said will meet him on the premises. There was
no evidence whatsoever that the building
site appeared to be a
temporary building site. Deen's evidence that there were two security
guards on the premises was never seriously
challenged, if at all.
Deen's evidence that he personally elected to establish the
Uni-Loader on the building site together with
his employee, who he
left in attendance and with the key to the Uni-Loader at the building
site, cannot be said to be reckless
conduct with this regard of the
dangers of the realities of the commercial environment, within which
Deen operated.
It
is well to remember that the question is predominantly one of fact.
It is not what Deen should reasonably have foreseen or how
he ought
prudently to have acted, but what he actually foresaw, how he in fact
reacted, and his state of mind in conducting himself
as he did.
34.
Although
Deen was asked penetrating questions by Counsel for the Defendant,
and although Deen could not provide entirely satisfactory
answers,
especially with regard to the presence and the whereabouts of the
keys to the Uni-Loader, the clarity of his answers and
his demeanor
in Court does not warrant a finding that Deen was not a credible
witness.
Deen
was criticised by Counsel for the Defendant and confronted with the
fact that the Uni-Loader was hired by Ndlovu and that he
(Deen) in
actual fact rented out the Uni-Loader in contravention of the
conditions of the insurance contract.
35.
The
failure by Deen to check whether the money was actually paid into his
bank account, might be an omission by Deen and he might
even be
blamed for it and in retrospect should have checked, but his
explanation that it was only the establishment costs of approximately
R 5,000 and that it was paid in cash, and that he subjectively had no
reason at that stage to doubt the legality of Ndlovu, although
not
entirely satisfactory, certainly does not warrant a finding that Deen
lied about events or his state of mind on the preceding
Saturday and
Sunday. I am of the view that Deen's evidence in other respects can
be accepted as being truthful.
36.
It
follows that the Mr Berlowitz' contention that Deen, when he
established the Uni-Loader on the site, must have had a serious
doubt
about the authenticity of not only the deposit, but also the site and
the transaction as a whole and that indifferent to
the danger posed
thereby, he proceeded with the transaction, can't be accepted. I
accept that on the discussions of Deen with Ndlovu,
the receipt of
the deposit slip, the company letterhead and the process of
establishment of the Uni-Loader on the site on Sunday,
Deen's
satisfaction in his own mind that the transaction was a legitimate
transaction and that he is not exposing himself and/or
his equipment
to an undue risk, was subjectively reasonable. It cannot be said that
Deen acted recklessly.
37.
A
further matter to be determined is the defense of the Defendant that
the summons was not properly served on the Defendant and
that this
Court does not have jurisdiction to entertain the action and even if
the Court does have
jurisdiction,
that the Plaintiff's action had prescribed in regard to the statutory
requirements to file such claim, within a period
of six months from
the date of the Defendant's repudiation of the claim.
38.
The
Defendant repudiated the claim on 17 January 2014, but it is common
cause that the Plaintiff only received the letter on 30
January 2014.
Service of the summons was effected at the offices of AC & E on
24 April 2014 and again on 2 May 2014.
39.
The
insurance contract at paragraph 9, determines that any action must be
commenced with within three months after the disclaimer
of liability:
"9(b) In the
event of the insurer's disclaiming liability in respect of any claim
and if an action or suit is not commenced
within three months after
such disclaimer or (in the case of arbitration taking place in
pursuance of condition
7
of the policy) within three months
after the arbitration or the umpire have made their award, all
benefit under the policy in respect
of such claim, shall be
forfeited.
"
40.
The
letter of repudiation dated 17 January 2014 states that the
"policy
requires you to institute action within three months after receiving
this notice."
41.
Paragraph
9(b) of the insurance contract, refers to
"commenced'
whilst
the letter of repudiation requires the action to be
"instituted'
.
In both instances, the time limitation is three months.
42.
I
was referred to a variation of the Policy Holder Protection Rules
(short-term insurance) 2004 in terms of Section 55 of the Short-Term
Insurance Act, Act nr. 53 of 1998, that amended Rule 7.4 of the Rules
relating to
"decisions relating to claims and time
limitations provisions for the institution of legal
claims."
The relevant Rule provides as follows:
" 7.4 (c)(ii) If
the insurer reject or disputes
a
claim or the quantum of
a
claim, the notice referred to in paragraph b, must inform the
policy holder
–
(ii) That the policy
holder may, within
a
period of not less than ninety days aff
er the date of receipt of the notice,
make representations to
the relevant insurer in respect of the decision;
(iii)
(iv) In the event that
the relevant policy contains
a
time limitation provision for
the institution of legal action, of
that provision and the
implications of that provision for the policy holder in an easily
understood manner;"
This
requirement is then qualified by Rule 7.4(h)(i) and (ii) and 7.4(i)
that provides as follows:
" 7.4(h)
Any
time limitation provision for the institution of legal action that
may be provided for in
a
policy entered into on or after 1
January 2011
–
(i)
May
not include the period referred to in (c)(ii) in the calculation of
the time limitation period; and
(ii)
Must
provide for
a
period of not less than six months after the
expiry of the period referred to in paragraph
(c)(ii) for the
institution of legal action.
7.4(i) Despite the
expiry of the period allowed for the institution of legal action in
a
time limitation clause provided for in
a
policy
entered
into before or after 1 January 2011, a policy holder may request the
Court to condone non-compliance with the clause if
the Court is
satisfied, among other things, that good cause exists for the failure
to institute legal proceedings and that the
clause is unfair to the
policy holder."
43.
The
Defendant submits that the Plaintiff's summons was served at the
offices of their duly authorised underwriters AC & E, on
24 April
2014 and 2 May 2014, but that as the address of AC & E
Engineering Underwriting Managers, is not the address of the
Defendant, this Court will not have jurisdiction as the Court derives
its jurisdiction where a summons is served on a Defendant.
44.
The
Applicant obtained default judgement against the Respondent on 14
July 2014. This was however rescinded by this Court on 12
October
2014. In the supporting affidavit filed on behalf of the Defendant,
the Deponent declared in paragraph 3 thereof that:
"3.
On 3
September 2014, under cover of a letter from the Respondent's
attorneys, the Applicant learned for the first time that a default
judgement had been entered against it in favour of the
Respondent......
Upon receipt of the
said letter, I immediately requested a copy of the Respondent's
summons and particulars of claim as well as
the Sheriff's return of
service.
4.
On
5
September
2014, the said documentation requested by me from the Respondent's
attorney, was forwarded under his letter bearing such
date."
45.
It
is then after this date that the Defendant drafted and served their
plea to the Plaintiff's particulars of claim on 6 November
2014. I am
satisfied that the summons and the particulars of claim came to the
attention of the Defendant, well within the time
limitations
prescribed by Rule 7.4 as referred to already. In terms hereof, the
Plaintiff had until at least 30 October 2014 to
institute legal
action.
46.
The
Defendant furthermore submits that should this Court accept that the
summons and particulars of claim came to the attention
of the
Defendant on 5 September 2014, it does not save the day for the
Plaintiff, as the term
"service"
as meant in Rule
4(1)(a) of the Uniform Rules of Court means that service had to be by
the Sheriff. I was referred to the fact that,
provided a summons has
been properly issued, that there is no objection from a purely
procedural point of view to a re-service
thereof, where, by reason of
a defect in the original service, the Plaintiff's claim cannot be
enforced by those proceedings. I
was referred to various authority in
this regard, including
Evins v Shield Insurance Company Limited
1980 (2) SA 814
(A) at 832 C
.
47.
In
addition hereto, the Defendant referred this Court to Dada v Dada
1977 {2)
SA 287 (T) at 288 C - E
, where it was found that if
proceedings have begun without due notice to the Defendant, the
subsequent proceedings are null and
void, i.e. any judgement is of no
effect and may be disregarded without the necessity of a formal order
setting it aside.
48.
The
Plaintiff did serve summons reflecting the correct Defendant, but
served same on the Underwriter at the Underwriter's address.
Due to
no reaction from the Defendant, default judgement was obtained. When
the current Defendant learned of the default judgement,
and when the
Plaintiff learned of the improper service, the Plaintiff agreed to
the rescission of the judgement and as a consequence,
such an order
was made on 14 October 2014. Subsequent thereto, the Defendant
pleaded, discovered its documents and took part in
the trial in its
entirety. The reference in
Dada v Dada
1977 (2) SA 287
(T)
supra,
is no authority to regard a subsequent trial in which
the Defendant participated, as null and void. Had the Defendant wish
to rely
on the non-service of the summons and the particulars of
claim on the Defendant, the Defendant should not have pleaded to the
particulars
of claim, but should have regarded the summons and the
particulars of claim as an irregular step and should have approached
the
Court to have the particulars and summons set aside in terms of
Rule 30. The Defendant was not prejudiced by the late receipt of
the
summons and particulars of claim whatsoever.
49.
I
find that the initial failure to serve the summons properly on the
Defendant, is in this particular matter, of no consequence.
50.
As
far as jurisdiction of this Court is concerned, the Defendant
submitted that this Court's jurisdiction is ousted due to the lack
of
proper service of the summons. This has already been dealt with above
and is no authority to oust this Court's jurisdiction.
51.
The
Defendant also submits that
Section 21(1)
of The
Superior Court's Act
10 of 2013
, that "a
division has jurisdiction over all
persons residing in or living in and relation to all causes
arising....within its area ofjurisdiction
.... "
do not
assist the Plaintiff and then relies on the absence of a proper
service of its summons. It is common cause that the incident
occurred
in an area known as Protea Glen, in the area of Johannesburg, within
the area of jurisdiction of this Court. It is furthermore
common
cause that the contract of insurance was entered into Johannesburg,
where the questionnaire was completed, where the insurance
quotation
was issued and where the policy schedule was sent from to the
Plaintiff.
52.
Mr
Snyman, Counsel for the Plaintiff, referred me to
Bison Board
Limited v Braun Woodworking Machinery (Pty) Ltd
[1990] ZASCA 86
;
1991 (1) SA 482
(A)
at 487 A - C
:
"In regard to the
connecting factors or rationes jurisdictionis recognised by our
common law, a convenient starting point is
the classic statement of
de Villiers CJ in Einwald v The German West African Company
(1887) 5
SC 86
at 91: 'what then are the grounds upon which the jurisdiction
of this Court can be exercised, in respect of any contract over any
Defendant without his consent, express or implied?' The grounds are
threefold; Viz by virtue of the Defendant's domicile been there,
by
virtue of the contract being entered into here or having to be
performed here, and by virtue of the subject matter in the action
in
rem being situated in this colony."
As
a result, the argument of the Defendant, that the lack of service of
the summons on the Defendant, ousted this Court's jurisdiction,
must
fail.
53.
The
Defendant also raised the defense that the Plaintiff did not, in
terms of condition 5(a) of the insurance contract
"immediately
notify the insurers by telephone, telegram, fax, e-mail or in
writing, giving an indication as to the nature and
extent of the Joss
or damage."
and
"the insurers shall on no account be
liable for Joss or damage of which no notice has been received by the
insurers within
fourteen days ofits occurrence....".
54.
The
theft occurred on the 24th of November 2013 on the Sunday and the
Plaintiff was informed hereof on the Monday, the 25th of November
2013. It is common cause that he reported this to the Police Station
on the 25th of November 2013, that he requested a claim form
from the
Insurance Broker and completed this claim form on the 27th of
November 2013. It is furthermore common cause that immediately
after
completing the claim form, the Plaintiff sent the completed claim
form under cover of an e-mail to the Insurance Brokers
on 27 November
2013. On the same day, he conveyed the particulars of the Police
docket and the Police Investigation Number to the
Insurance Brokers.
55.
It
is of course important that insurers be either immediately or within
a reasonable time be informed of the potential claim for
obvious
reasons. This would enable the Insurance Companies to investigate and
limit their losses in the most effective manner.
Jones J, in
Snodgrass v Hart (Santam Limited. Third Party)
2002 (1) SA 851
(SE)
said:
"The object of
requiring notice of an event which may give rise to a claim whilst to
overcome the disadvantage of an insurer
in relation to the facts and
circumstances which gave rise to its liability to indemnify. Notice
of the accident enables the insurer
to investigate the circumstances
of the event and
so
to
assess
the nature and extent of
its liability to pay an indemnity. An insurer that failed to follow
up such a notice, had itself to blame
if it subsequently found itself
at a disadvantage for not investigating the accident and any claims
that could arise from it."
56.
Mr
Tyrone Gardner, the witness called by the Defendant, is an Assessor
appointed by the Defendant to investigate the circumstances
of the
incident. His evidence was that he was appointed by a certain Mr
Lught to investigate the theft and visit the building site
where the
Uni-Loader was stolen from. He took photographs of the site and this
was provided to Court. On his evidence, he visited
the site within a
day after he got instructions. Although he never told this Court as
to the exact date that he started his investigation,
this appears to
have been within days from the 271h of November 2014, after the theft
was reported to the Insurance Broker. The
purpose of an immediate or
timeous report of the incident to a Defendant is to prevent
prejudice. The Assessor had opportunity
to not only visit the site
literally within days of the theft occurring, but also had
opportunity to consult with Mr Deen (the
Plaintiff) as well as Mr
Ferrai Mucheri (the employee of the Plaintiff) that remained with the
Uni-Loader on this site from where
the Uni-Loader was stolen from.
This witness never suggested that he was prejudiced in his
appointment, his mandate or the
manner in which he conducted his
investigation due to any late appointment or instruction. The
Defendant similarly did not suggest
such prejudice. It follows that
this defense must fail.
57.
The
further defense of the Defendant, that notice was not given within
fourteen days of the occurrence of the theft to the Defendant,
must
similarly fail. It has never been disputed that Mr Gardner
investigated the loss of the front-loader on behalf of the Defendant.
It has never been suggested that Mr Gardner performed his
investigation subsequent to fourteen days from the date of the
occurrence.
It was similarly his evidence that he was instructed by a
certain Mr Lught of the Defendant. This has never been disputed by
the
Defendant.
58.
Finally,
the Defendant relies on a submission that the Plaintiff hired out the
machine and as a consequence, is not covered by the
policy. For this
the Defendant relies on a Police statement of the Plaintiff, Mr Deen,
wherein he purportedly informed the Police
that Ndlovu wanted to hire
a Case Skid Steer Machine. Mr Deen denied that he referred to hiring
a machine, he also explained that
he is aware of the additional
requirements in the policy should he want to rent and/or hire out his
machines. He explained that
he simply does not hire out machines, but
work on a contract basis.
59.
Gardner,
the Assessor appointed by the Defendant, also gave evidence that Deen
telephonically informed him, after the incident,
that he hired out
the machine. This was denied by Deen and he advanced the same
reasons. Gardner could not provide his contemporary
notes in this
regard, as he averred that his computer was stolen and that the
contemporary notes are no longer available. Deen
explained the
inconsistency between his prior Police statement and his evidence in
chief, relating to the hire agreement.
He explained that, when
his business is busy, he would rent-in equipment to assist with
contracts, but that he would not hire out
his own machines. Be that
as it may, the Court has no reason to reject Deen's evidence as
false. He was throughout the trial confronted
with the insurance
contract and he appeared to be conversant with the contents thereof.
He was especially aware of the fact that
he is not covered by a
clause should he hire out any of his equipment and he was aware of
the fact that, should he want coverage
from the Defendant for the
hiring out of equipment, it would have cost him more in terms of his
monthly premium. Gardner had a
copy of Deen's Police statement prior
to speaking to Deen. Mr Deen emphatically denied that he ever told
the Police that he hired
out machines. The statement of which the
Police was the author, was referred to but never formally proven. I
accept that Deen,
on the probabilities, did not hire out the machine
relevant to this claim.
60.
At
the commencement of the trial, the parties requested a separation in
terms of
Rule 33(4)
of the determination of the liability issue from
the determination of the quantum. Such separation was ordered.
61.
61.1. For the above
reasons, I find that the Defendant is liable to compensate the
Plaintiff for its loss occasioned by the theft
of a new 2013 Model
Case Uni-Loader SR 200 Skid Steer on 24 November 2013.
61.2. Costs to be paid by
the Defendant.
______________________
DU
PLESSIS AJ
Case
number :
30226/2014
Matter
heard on : 20 April 2016
For
the Plaintiff : Adv M
Snyman
Instructed
by
: Albert Hibbert Attorneys
For
the Defendant : Adv JK Berlowitz
Instructed
by
: Shapiro-Aarons Inc
c/o
Corne Nel Incorporated Attorneys.
Date
of Judgment : 9 September 2016