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[2013] ZAKZDHC 34
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Govender v New National Assurance Company Ltd (1737/2008) [2013] ZAKZDHC 34 (5 July 2013)
IN THE
KWAZULU- NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 1737/2008
In the
matter between
STANLEY
GOVENDER
............................................................................................................
PLAINTIFF
AND
NEW
NATIONAL ASSURANCE COMPANY LTD
.................................................................
DEFENDANT
JUDGEMENT
DATE: 5
July 2013
RADEBE
J
INTRODUCTION
[1.]
The Plaintiff brought action against the Defendant for the payment of
a sum of
R71 250.00
in
respect of the loss suffered by him as a result of the theft by
hi-jacking of his motor vehicle,
to
wit,
a Volvo,
1997
model. The cause of action arose
on
28
June
2007
when
the vehicle was allegedly hi-jacked at Chatsworth, Durban, and has to
date not been recovered. As at that date, the vehicle
was insured by
the Defendant
for
the
sum of
R75 000.00, being
the maximum limit of indemnity
under the insurance agreement
[2.]
After the said hijacking the
Plaintiff lodged a claim with the Defendant on
12
July
2007,
for the insured amount of
R75
000
less
5%
which represents the excess of
R3
750
deductible, hence a net value
of
R71 250.
The
claim was repudiated by the Defendant, on the basis,
inter
alia
, that the insurance
policy was in the given circumstances of the hi-jacking, not ‘in
force' to the extent that it is contended
that such hi-jacking did
not take place; and, that the Plaintiff failed to comply with his
obligations under the policy, in that
he did not comply with
condition 4 of the insurance which stipulates that:
"The
insured must display the necessary caution and take all reasonable
precautions to prevent or minimise any possible loss,
damages, death,
injuries or liabilities.
1
and
was therefore in breach of the said condition by failing: to ensure
that at all material times the insured vehicle's tracking
device was
duly maintained
alternatively
timeously activated;
Alternatively
... the Plaintiff was in breach of the aforementioned condition in
that he failed to ensure that at all material times the place
where
the vehicle was parked was reasonably secure.”
[3.] At the
commencement of the trial the issues were separated by consent.
Therefore the matter proceeded on the issue of liability
only. To
prove its case the Plaintiff led the evidence of two witnesses, viz.,
himself and once Sanesh Singh who is a representative
of Netstar
Tracking. To dispute Plaintiffs claim the Defendant led the evidence
of three witnesses: D.G. Botha who is an insurance
assessor and
investigator; Harry Roberts, a polygraph examiner and S. Frank, who
was a manager of the Ridge Shopping Mall from
which the vehicle was
stolen.
[4.] It is common cause
from the pleadings and evidence that:
4.1. the Plaintiff is
the registered owner of the motor vehicle;
4.2.
the Defendant is the insurer, and that the insurance schedule
includes the motor vehicle having comprehensive cover as appears
in
the policy schedule compiled by the Defendant.
2
4.3. the Plaintiff
lodged the claim with Defendant for the loss through hijacking
and the Defendant repudiated the claim.
[5.] The issues for
decision by this Court are two-fold, but mutually exclusive namely;
5.1. whether the
hijacking did in fact occur. If so then:
5.2. whether the
Plaintiff did or did not take reasonable precautions to prevent the
theft and therefore the loss.
SUMMARY
OF EVIDENCE
[6.] SANESH SINGH, as
Plaintiff’s witness, testified that he is employed by Nestar
and that he occupies a position of an operations
supervisor, He
confirmed that Plaintiff was the owner of the vehicle and that at the
time of the incident the vehicle had a functional
tracking device. On
28 June 2007 at 20h19 he received a report of the hijacking and
immediately dispatched ground and air search,
However Netstar was
unable to recover the vehicle, and could not recovered it despite it
remaining on a 24-hour monitoring system.
Further, he testified that
the first hour of loss is critical in that it gives Netstar a greater
chance of recovering the motor
vehicle. The incident in question was
reported outside the critical hour. Further, he told the Court that
the statistics of recovering
within the critical hour is at 70% - 80%
success rate. After the critical hour it becomes difficult to recover
a stolen vehicle.
[7.] STANLEY GOVENDER,
the Plaintiff, testified that he is the registered owner of the
vehicle. The vehicle was insured with the
Defendant since 2002 and
was fitted with a Netstar tracker, had a gear lock and an alarm
immobilizer.
He
had installed the tracking device on his own accord as an additional
security measure. According to him the vehicle was hijacked
on 26
June 2007.
3
On that day no one at his home could cook and he was alone. He
decided to go to the KFC at the Ridge Shopping Complex at Shallcross
to buy himself a burger, He arrived there at about 18h45, parked his
vehicle at an open parking lot, engaged a gear lock which
is
concealed with a key at the bottom and engaged the immobiliser, thus
locking the car when he got off. The parking lot is fenced,
with two
entrances and two exits. He proceeded to the KFC where he purchased a
take-away burger. He confirm that the time of the
purchase, according
to the KFC receipt was 18:34.
4
He then proceeded back to his vehicle with an aim to sit and eat his
burger. When he approached his vehicle he pressed the immobiliser.
It
was then that a male person who had been at the KFC approached him
from the back. He took from him 2 rings, a watch and a sum
of R2 400
plus some change. The attacker warned him not to shout. The Plaintiff
then handed over his burger. He testified that:
’’
They
took his car as well. The accomplice drove his car, a red Mazda or
Tracer or something like that.'
5
[8.] The Plaintiff, as
a road runner, ran to the Chatsworth Police Station to report the
incident. The police station is less than
two (2) kilometres away. He
made a report after having to wait in the queue as Chatsworth is a
very busy police station. He made
this report to “a guy”
and the police phoned Netstar, He confirmed that the report he made
at Chatsworth Police Station
is the one contained in the Affidavit,
written by him and which was attested to at 20h00 on 28 June 2007, It
reads as follows:
“
on
2007/06/28 whilst parked at the Ridge Shopping Centre in Shallcross I
was robbed
of motor vehicle, driver’s licence and personal belongings by
twoBlack males. Case No./06/2007."
6
[9.]
He further testified that he also lodged a claim with the Defendant
on 4/7/2007 and he confirmed the claim details contained
in the Motor
Claim Form document.
7
In paragraph 11 of the claim form, the Plaintiff gives details of how
the hijacking took place on 28 June 2007 at about 19h00.
He states
that he had parked on the boundary of the parking lot so that he
could have his burger in private. As he approached his
vehicle two
Black males approached him as he was about to enter the vehicle. Both
had big knives and one of them pressed at the
back of his spine
whilst telling him not to shout, scream or cry and threating to kill
him as demanded him to hand over his valuable.
Thereafter they pushed
him aside and one of the ‘robbers’ drove off in his
vehicle whilst the other drove off in a
red Mazda or Tracer. After
reporting the incident at the police station, he then contacted
Netstar, reporting the incident. The
Chatsworth police notified 10111
of the hijacking.
[10.]
The Plaintiff was cross-examined extensively on
inter
aiiat
about who of his family
were in Johannesburg and who had remained behind; the reason why he
had to get a burger for himself; why
he had selected to go to the KFC
situated 2 km away at Shallcross and not to the KFC closer home and
which was 100 m away from
his home; and the reason he chose to walk
2km from Shallcross to the police station after being hijacked
instead of going back
into the KFC or shopping centre to report. It
was established under cross-examination that the parking bay chosen
by the Plaintiff
was furthest from the KFC; the number of the Black
men who were inside the KFC; and the number that hijacked him; the
contradictions
between the evidence he gave in court and the evidence
according to his statement in paragraph 11 of the Claim Form on page
21;
his exact position vis-a-vis the vehicle when the hijacking took
place; the position of the knife put against his neck or in the
back
of his spine; the identification of the hijackers; how he or the
hijackers left the parking lot; and generally, the time factors
in
regard to the purchase of the burger, the hijacking* the reporting to
the police and ultimately to Netstar.
[11.]
DEAN GEORGE BOTHA testified as a defence witness. He had compiled a
report after having been instructed to do so in his capacity
a
private assessor and investigator. On 9 July 2007 he interviewed the
Plaintiff at his work offices in Winder Street Durban. He
referred to
the Plaintiffs claim statement contained in paragraph 11 of the claim
form (see para 9
supra).
The Plaintiff had informed him that: (1) the reason why he (the
Plaintiff) had parked near the fence of the parking lot was that
he
did not want his vehicle starched; (2) on Black male approached him
and a second black male came from the red Tracer; (3) the
two Black
males had put him into his vehicle in the passenger side and they
drove off with him, dropping him off at the entrance
of the parking
lot where it meets the road. (4) that the reason why he was alone,
and having to purchase a burger was that his
family were fasting.
[12.] Further, Mr Botha
testified that after having viewed the surveillance camera footage
and having noticed certain disparities
in regard to the time factors
stated by the Plaintiff, he sought to set up a second interview with
the Plaintiff, and to possibly
view the footage with him. However,
the Plaintiff could not avail himself. According to the footage of 28
June 2007 viewed, Botha
testified that he saw the Plaintiff depicted
as entering the KFC at approximately 18h20-18h30. He compared this
time factor to
the till slip which was supplied to him by the
Plaintiff, showing a time factor of 18h34. In the footage, it was
clear that KFC
was not very busy at that time as there were only the
Plaintiff and couple of a boy and a friend. The Plaintiff, who looked
nervous
and fettish bought a burger and left the KFC. Nobody was seen
following him.
[13.]
Mr Botha testified under cross-examination and stated that he had
compiled the Photo Album.
8
He had compared this to Plaintiffs insurance claim statement and to
the notes of his interviewing of the Plaintiff.
9
He had realised that there were material contradictions, leading him
to conclude that he did not recommend that the Defendant should
accept liability for the Plaintiffs loss.
[14.]
MR HENRY ROBERTS was called as the second defence witness. He
testified that he is a polygraph examiner with a company called
Polygraph and Truth Verification Services, He conducted an interview
with the Plaintiff on 24 October 2007 and prepared a typed
report,
10
page 2 only thereof being used to refresh his memory.
11
When he compared the Plaintiffs responses to his questions during the
pre- examination interview, to the statement that the Plaintiff
had
submitted when he lodged his claim to the Defendant, he concluded
that there were material discrepancies,
inter
alia
as follows:
(a)
the Plaintiff had “mentioned being confronted by one man armed
with a knife at that time.”
12
(b)
the Plaintiff had “stated that he was asked by this individual
to get into the vehicle and, of course, fearing for his
life he did
as instructed, the one man then drove his vehicle with him in the
passenger seat outside of the parking area and on
exiting the parking
...he stopped and ordered Mr Govender to leave the vehicle, He then
did as he was told and Mr Govender’s
vehicle, the Volvo, then
drove off being followed by Mazda... which had the second person in
it.”
13
(There
are of course other features of the Plaintiffs responses that were of
concern to this witness)
14
[15.]
Mr Roberts was extensively cross examined on probabilities in
relation to time, distances, sitting positions, his interview
notes
that were written on short hand
15
part of which were read into the record.
[16.] MR SUBRAGASEN
FRANK was called as the last witness for the defence. He testified
that he is a Central Manager of the Ridge
Shopping Mall depicted in
photo D of Exhibit B. He confirmed that there are at least 16
surveillence cameras, the chief of which
he marked as situated in
points like X1, X2 & X3 in photo's D & E of Exhibit B of the
record. He had verified that all
the cameras were in good working
order during the period in question. He could no longer find the
footage for the 28th June 2007,
which he had been requested to find.
This request was made to him about four weeks prior to the trial.
According to him, the Shopping
Centre is not crime -infested. Each
footage lasts of 30 days whereafter it is automatically deleted if it
had not been saved.
EVALUATION
[17.] The Plaintiff,
bears the onus of proof, the test of which is to prove on a balance
of probabilities that the hijacking did
in fact take place. If the
Court finds that the hijacking did indeed take place, then the second
issue, viz, whether the Plaintiff
complied with the requirements of
Clause 4 of the conditions of the insurance policy has to be
deliberated on. If the Court finds
against of the Plaintiff in
respect of whether the hijacking took place or not, then the second
issue falls away.
[18.] The Plaintiff
contradicted himself from the very start of his evidence before
Court. In comparing his previous statements
which he had made when
submitting his claim; when he was interviewed by BOTHA as well as
when he was interviewed by ROBERTS, there
are material
inconsistencies. To pick but a few the following aspects are looked
at.
18.1. The Plaintiff
initially testified that everyone else of his family, including his
wife, had gone visiting in Johannesburg.
It later turned out under
cross-examination that his son and daughter- in-law were around but
that he, Plaintiff could not readily
get into the house as his keys
had been stolen with the vehicle whereas his son had gone out to
fetch the daughter-in-law.
18.2. Despite being
afforded an opportunity to rectify the contradiction after a
transcription of the record was furnished to him,
the Plaintiff did
not cease that opportunity.
18.3. The Plaintiff had
given versions to BOTHA and to ROBERTS which differ materially to the
version given to Court in regard to:
18.3.1. his testimony
that he parked on the far side of the parking lot next to a red Mazda
or Tracer, from which one of hijackers
later emerged from and drove
it off, following his vehicle which had by then been hijacked. The
reason advanced to the Court was
that he so parked in order to enjoy
his burger in private. However, according to what BOTHA’S
testimony would be, the reason
given to him was that the Plaintiff
had parked there because he did not want his vehicle scratched. When
confronted with this version
the Plaintiff did a somersault by saying
indeed that was one of the reasons he had parked near the fence.
18.3.2.2. If it is true
that the Plaintiff wanted privacy while he enjoyed his burger, this
Court finds it strange, and indeed improbable,
that he would leave
all the other empty bays and go and park right next to a Mazda from
which a ‘robber’ would later
emerge.
18.4.
The Plaintiff failed to explain the contradiction between his
evidence in chief regarding him seeing one Black man inside
the KFC,
and his evidence as contained in paragraph 11 of the insurance claim
wherein he stated that “
they*
followed him. To come out of the corner, the Plaintiff fabricated a
version that these hijackers must have phoned each other, alerting
each to the movement of the victim. That leaves more than one version
to be deducted: either there was one inside the KFC, one
outside and
one waiting in the Mazda; or, alternatively two in the KFC and one in
the Mazda; or alternatively no one waiting in
the Mazda. Plaintiff
failed to explain these inconsistencies, which remain glaring. The
only reasonable inference, looking at the
evidence as a whole, is
that no one followed the Plaintiff to his vehicle.
18.5.
The Plaintiff testified that he was confronted by one Black man who
had a knife. Similarly he had started to BOTHA and to
ROBERTS that he
was confronted by one man armed with a knife. However, in his
statement contained in Exhibit A, page 21 he stated
that two Black
males approached him and both had long knives. This particularity is
lacking in his very first statement which he
made to the police when
the event was supposedly fresh in his mind.
16
Again, this points to a
fabrication of the events and of what exactly took place on 28 June
2007 when the hijacking allegedly took
place.
18.6. Plaintiff gave
contradicting versions about the hijacking itself. He testified that
as he was half way towards his vehicle
he was confronted by the
hijacker(s). A second version is that it happened in the car. He
testified as follows in this respect:
"I
came out of Kentucky, halfway to the car this guy sticks a knife into
me and says, listen, don’t shout, I will Kill you,
I want your
money and I want your jewellery"*
17
This evidence differs
to the evidence he gave earlier on when he testified as follows:
“
As
I approached the car I disarmed the car and when I got to the car,
before I can get to it, that guy that was in the Kentucky
approached
me from the rear and he stuck a knife into my back and he said do not
shout, do not make any noise we
(my
emphasis)
will
kill you if you shout, all we need is your money and your jewellery.
I said be my guest (singular), take it. and my burger”
18
In his statement to the
Defendant, he stated:
“
As
I approached my vehicle with my burger two black males approached me
as I was about to enter my vehicle. Both had long big knives.
One
pressed at the back of my spine whilst telling me not to shout,
scream or cry, but to hand over my money cards, watch and ring
or
else they would kill me".
Clearly there are
discrepancies as to where exactly the vehicle was hijacked if at all.
In all three instances quoted above, the
Plaintiff does not even
mentioned that the so-called hijackers demanded his vehicle, and if
so, at what point such demand was made.
The items demanded seem to
have been money and jewellery. On his own accord he gave them his
burger (see footnote 18). When prompted
by the Court to itemised what
was taken from him, he then mentioned the vehicle
81.7. The Plaintiff
testified that upon arrival at the Centre, he parked his vehicle,
engaged the gear lock and the alarm immobiliser.
In engaging the gear
lock
“
you
put the key in the bottom and just turn it. It is concealed, you
can’t even see the gear lock on top. You put the key
in the
botton, turn it and it locks."
19
Yet in his claim
statement to the Defendant he states that after robbing him of his
possessions ‘the robbers’ pushed
him aside and one Black
male drove in his vehicle. The Plaintiff omitted to explain how this
Black male managed to unlock the concealed
gear lock. Even if the
Court were to accept one of his versions, namely that he was pushed
into the passenger seat and that the
hijackers drove off with him,
there would still be a question as to how and when the gear lock was
then unlocked to enable the
vehicle to be driven.
[19.] There are so many
other discrepancies, inconsistencies, improbabilities and
contradictions in the Plaintiff’s evidence
as a whole that this
Court can safely reject his evidence as unreliable, false and as a
fraudulent misrepresentation of the truth
Plaintiff is not a credible
witness. The unreliability of his evidence is so great that it cannot
be cured even by the minor criticisms
and inadequacies that may be
levelled against any of the defence witnesses. His version(s) of
events are rejected with the contempt
they deserve.
[20.] In the premises,
I come to the conclusion that no hijacking of the Plaintiff’s
motor vehicle took place. There is therefore
no need to deal with the
second alternative issue, hence no need to deliberate on the time
factor discrepancies in detail.
[21.] In the result, I
make the following order:
1. The Plaintiffs claim
is dismissed.
2. The Plaintiff is
ordered to pay the Defendant costs on a High Court scale.
RADEBE, J
DATE: 4 JULY 2013
DATE OF HEARING : 16
May 2011
DATE OF JUDGEMENT : 5
July 2013
COUNSEL FOR APPLICANT
: MR S. MORGAN
INSTRUCTED BY :
GOVENDER, PATHER & MORGAN
COUNSEL FOR THE
RESPONDENT : MR BOULLE
INSTRUCTED BY : HASSAN
PARSEE & POVAUNGAM
1
Index
to Pleadings, page 35, clause 4.
2
Index
lo Pleading, Annexure B, page 12.
3
Record,
Vol.l page 12, line 1.
4
Exhibit
A. Plaintiffs Bundle, page 23.
5
Record,
Vol.l page 14 lines 10-25; page 15 line 1-3
6
Exhibit
A- Plaintiffs Bundle, page 22
7
Plaintiffs
Bundle, pages 19-21
8
.
Exhibit B of the record
9
.
Exhibit C of the record,
10
.
Exhibit E of the Record
11
.
Record Vol. 2 page 97, line 5-25.
12
Record
Vol. 2 page 100, lines 8-9
13
Record
Vol.2 page 100 lines 10-20
14
Record
Vol 2 page 1QU lines 1-25; p. 102 line 1-5
15
.
Exhibit F of the Record
16
^Exhibit
A, page 22
17
.
Record* Vol. 1 page 23, lines 7-9
18
.
Record* Vol. 1 page 14, lines 4-10
19
.
Record, Vo.l page 13, lines 3-6