Jacobs NO v Braaff (603/05) [2006] ZASCA 115; [2006] SCA 142 (RSA); [2007] 4 All SA 966 (SCA) (24 November 2006)

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[2006] ZASCA 115
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Jacobs NO v Braaff (603/05) [2006] ZASCA 115; [2006] SCA 142 (RSA); [2007] 4 All SA 966 (SCA) (24 November 2006)

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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
REPORTABLE
Case
no: 603/2005
In
the matter between
JOHANNES
HERMANUS JACOBS N.O. APPELLANT
and
FREDERICK
JOHANNES BRAAFF RESPONDENT
Coram:
NAVSA,
NUGENT, CONRADIE, HEHER and PONNAN JJA
Heard:
6
NOVEMBER 2006
Delivered: 24
NOVEMBER 2006
Summary:
Insurance – motor vehicle extension clause – right in executor of
authorized driver to compel insured to submit claim
for indemnity to
insurer arising from tacit term of agreement for use of the vehicle.
Neutral
citation: This judgment may be referred to as Jacobs v Braaff [2006]
SCA 142 (RSA)
___________________________________________________________
JUDGMENT
___________________________________________________________
HEHER
JA
HEHER
JA:
[1] This
is an appeal with leave of the court
a quo
(Waglay J) against
an order dismissing the appellant’s claim with costs. The relief
which was sought was an order compelling the
respondent to submit a
claim on the appellant’s behalf to Santam Insurance Company
(‘Santam’) under circumstances which are
described below.
[2]
In
May 2000 a young woman, Ezelda Ann Fielding, caused a summons to be
issued against the appellant (as first defendant) and Frederick

Johannes Braaff (as second defendant). I shall hereinafter refer to
the parties by their designations in those proceedings.
[3]
The
first defendant was cited in his capacity as executor in the deceased
estate of Heinne Frederick Braaff. The deceased was the
son of the
second defendant.
[4]
The
plaintiff claimed payment from the defendants jointly and severally
of R722 581,60 as damages. It was common cause at the trial
of the
matter that on 29 November 1997 the plaintiff was a passenger in a
motor car driven by the deceased and of which the second
defendant
was the owner. By reason of the negligence of the deceased the
vehicle left the road between Robertson and Bonnievale
near Montagu,
crashed and caught fire. The deceased died in the accident. The
Plaintiff was severely injured.
[5]
The
plaintiff alleged in her particulars of claim that the deceased was
driving the vehicle at the relevant time with the second
defendant’s
authority, wholly or partly on his behalf or in his interest and
subject to his ‘retention of the right to control
the manner in
which the said vehicle was driven’.
[6]
The
plaintiff further averred, and it was not disputed, that she had
successfully lodged a claim against the Road Accident Fund
in terms
of the provisions of Act 56 of 1996 in respect of the damages she had
suffered but that her compensation had, by reason
of the provisions
of the statute, been limited to an amount of R25 000.
[7] The
first defendant denied all the material allegations made by the
plaintiff. He caused a third party notice to be served on
the second
defendant. In his annexure he alleged that prior to the date of the
collision the second defendant and Santam concluded
a written
agreement of insurance which was operative at the date of the
collision. He relied on two clauses in that agreement and,
not being
in possession of the policy, quoted equivalent provisions from a
standard policy. The actual clauses which were included
in the policy
were made available to the trial judge and it is convenient to quote
them in this context. It can first be noted
that section II of Part 5
of the policy afforded cover to the insured in respect of liability
to third parties.
[8]
Under
the heading ‘Uitbreidings ingevolge Artikel II’ the policy issued
by Santam in favour of the second defendant provided
as follows:
‘
(1) UITBREIDING
BETREFFENDE AANSPREEKLIKHEID TEENOOR DERDEPARTYE (Slegs van
toepassing indien die versekerde voertuig òf ‘n private
tipe
motorkar òf ‘n ligte afleweringsvoertuig is)
Indien
die Versekerde voertuig òf ‘n private tipe motorkar òf ‘n ligte
afleweringsvoertuig is, dan onderneem Santam om, ingevolge
en
behoudens die beperkings en by die toepassing van Artikel II van
Afdeling 5 van hierdie polis,
(a) enige
persoon wat sodanige versekerde voertuig op las van of met die
toestemming van die Versekerde bestuur of gebruik skadeloos
te stel
met dien verstande dat
(i) sodanige
persoon nie ingevolge enige ander polis op skadeloosstelling geregtig
is nie;
(ii) sodanige persoon
asof hy/sy die Versekerde is die bepalings uitsonderings en
voorwaardes van die voormelde Afdeling en van
hierdie polis vir sover
dit van toepassing kan wees nakom, uitvoer en daaraan onderworpe sal
wees;
geen
versekeringsmaatskappy of versekeraar sodanige persoon enige motor-
of motorvoertuigversekering of die voortsetting daarvan
geweier het
nie.’
[9]
The
first defendant alleged that the deceased had used and driven the
insured vehicle with the permission of the second defendant
as
contemplated in the quoted extension. Accordingly, the first
defendant averred, Santam was obliged to indemnify the authorised

driver in respect of the damages claimed by the plaintiff.
[10] The
first defendant further alleged that it was a tacit or implied term
of the agreement between the deceased and the second
defendant
pursuant to which the deceased used and drove the vehicle with the
second defendant’s permission, that in the event
of circumstances
arising whereunder the deceased became liable for damages to any
party arising from his use of the vehicle, the
second defendant would
claim the indemnity contemplated in the written agreement of
insurance from Santam. Accordingly, he averred
that the second
defendant was obliged to claim such indemnity on his behalf.
[11]
The
second term of the policy relied on by the first defendant was clause
(7) which, under the heading ‘GEEN REGTE AAN ENIGE PERSOON
BEHALWE
DIE VERSEKERDE’, provided as follows:
‘
Niks
wat in hierdie polis vervat is verleen enige regte teen Santam aan
enige persoon behalwe die Versekerde nie. Enige uitbreiding
van
Santam se aanspreeklikheid, ingevolge enige Afdeling van hierdie
polis, ten opsigte van enige persoon behalwe die Versekerde
verleen
aan sodanige persoon geen reg om ‘n eis ingevolge hierdie polis in
te stel nie, die bedoeling is dat die Versekerde in
alle gevalle vir
en namens sodanige persoon moet eis en die kwitansie van die
Versekerde sal Santam in enige geval geheel en al
van Santam se
aanspreeklikheid ingevolge hierdie polis onthef.’
[12]
The
first defendant alleged that the second defendant was in the premises
obliged to claim the indemnity from Santam on his behalf.
Despite
demand, the second defendant had failed to do so. The first defendant
therefore claimed
‘
An
order compelling [the second defendant] to claim, on behalf of [the
first defendant] an indemnity from Santam Limited in respect
of the
damages, costs and expenses claimed by the plaintiff from [the first
defendant] in the action by the plaintiff in the above
Honourable
Court under case number 2951/2000’.
The
first defendant also relied on an alternative claim which for present
purposes is not relevant.
[13]
In
his plea to the first defendant’s annexure to the third party
notice the second defendant denied all the material allegations
made
by the first defendant.
[14]
Prior
to the trial the plaintiff and the first defendant concluded an
agreement which at their instance Waglay J made an order of
court. It
provided as follows:
‘
(a) On 29
November 1997, and on the Robertson-Bonnievale Road, Western Cape,
the late Hennie (
sic
)
Frederick Braaff negligently drove a motor vehicle with registration
number CW 12199 (“the motor vehicle”) as a direct result
of which
a collision occurred in which the plaintiff, who was a passenger in
the motor vehicle at the time, sustained injuries.
(b) The defendant shall
be liable to the plaintiff for the payment of damages if any, that
the plaintiff may prove to have suffered
as a result of her said
injuries, after a deduction of R25 000, being the sum paid to
the plaintiff by the Road Accident Fund.
The issue of the quantum
of the plaintiff’s aforesaid damages, if any, will stand over for
later adjudication.
(d) The
defendant shall be liable to the plaintiff for payment of the
plaintiff’s costs in the cause as between party and party
insofar
as such costs relate to the determination of the aforesaid issue of
the merits of the matter.’
[15]
The
first defendant proceeded with his action to compel the second
defendant to claim an indemnity from the insurer. The main factual

issue dealt with in evidence was the terms under which the deceased
was driving the vehicle: did he do so with the permission of
the
second defendant, was there an agreement between them relating to its
use and, if so, did that agreement extend to him the
indemnity for
which the policy provided.
[16]
Waglay
J dismissed the claim. His principal findings were, in summary, that
the second defendant had granted permission to the deceased
to use
the car and that the extension clause did not afford the authorised
driver the right to enforce a claim against the insurer
in the face
of a refusal by the insured to assist him as provided in clause (7).
[17]
Before
proceeding to the merits of the appeal there is a further matter
which requires mention. The second defendant, who testified
at the
trial in his own behalf, did not offer an explanation for his
apparent refusal to assist the first defendant in the enforcement
of
his claim other than to say that he had left the matter in the hands
of his insurer. It was apparent from the evidence of the
plaintiff
and, to some extent, from his own, that he cherished neither sympathy
nor liking for the plaintiff and was not unhappy
to see her without a
remedy against the insurer. But counsel for the appellant submitted
that the probabilities favour the conclusion
that the insurer itself
was the mind behind the second defendant’s opposition and indeed
Santam’s representative stated in
an affidavit that ‘Ek hanteer
hierdie eis namens die versekerde, Mnr F J Braaff’. It is
unnecessary to reach a finding on this
submission but I venture the
comment that if counsel is correct such conduct is reprehensible
given the insurer’s undertakings
in the policy (not to mention the
slogan which is printed on the company’s letterhead ‘Actions
speak louder than words; Dis
wat ons doen wat tel’).
[18] It
is unnecessary to consider the correctness of the finding of the
trial court concerning the third party’s right to rely
on clause
(7). The appeal turns on the terms of the agreement between father
and son.
[19] As
Corbett AJA said in
Alfred McAlpine & Son
(Pty) Lt v Transvaal Provincial Administration
1974
(3) SA 506
(A) at 531H, a tacit term denotes
‘an
unexpressed provision of the contract which derives from the common
intention of the parties, as inferred by the Court from
the express
terms of the contract and the surrounding circumstances. In
supplying such an implied term the Court, in truth, declares
the
whole contract entered into by the parties.’
At
532A the learned judge pointed out that the court implies not only
terms which the parties must actually have had in mind but
did not
trouble to express but also terms which the parties, whether or not
they actually had them in mind, would have expressed
if the question,
or the situation, requiring the term had been drawn to their
attention.
[20] The
tests for a tacit term in the authorities are well-established and do
not need repeating. See
Delfs v Kuehne & Nagel (Pty) Ltd
1990
(1) SA 822
(A) at 827B-828B,
Wilkins NO v Voges
[1994] ZASCA 53
;
1994 (3) SA
130
(A) at 136H-137D;
Consol Ltd t/a Consol Glass v Twee
Jongegezellen (Pty) Ltd
2005 (6) SA 1
(SCA) at 18J-19F. It is
the application of the tests to the facts which may be contentious.
[21] The
telling evidence emanated from the first defendant himself. The
deceased was a 21 year old college student, not in employment
and
possessed of no worldly goods. He lived in his parental home and was
maintained by his father. He had been a licensed driver
since his
matric year but did not own a car. If he wished to use his father’s
vehicle he was expected to obtain permission in
advance. This
indulgence was also extended to his sisters. The second defendant had
been insured by Santam since about 1982 and
he had always regarded
the policy in question as one which would provide protection to his
wife and children in the event of a
mishap involving the vehicle,
including incidents relating to driving of the vehicle by one of
them. He had in turn made his family
aware that insurance cover for
them existed although he had not thought it necessary to spell out
the details. He conceded in cross-examination
that should an event
have arisen which fell within the terms of the policy he would have
had no hesitation in invoking the benefits,
particularly if by so
doing he avoided the involvement of a family member in litigation. He
regarded the deceased as a responsible
individual about whom he had
no serious reservations in allowing him the use of the vehicle.
[22] In
these circumstances this seems pre-eminently a case where, at the
time that the deceased arranged to borrow the car on the
fatal
weekend, if a disinterested hypothetical bystander had asked ‘What
will happen if Heinne is involved in an accident while
driving and a
claim is made against him by a third party?’, the overwhelming
probability is that both father and son would, without
hesitation,
have replied ‘There is insurance cover for that, and a claim will
be submitted in the eventuality’.
[23] For
these reasons, it seems to me, the first defendant proved at the
trial that the agreement to lend the car to the deceased
included, as
a tacit term, an undertaking to submit any claim against the deceased
arising in the course of his driving of the
vehicle to the insurer
for indemnification of the deceased. There is no reason why the first
defendant, as the executor in the
deceased estate, should not be
entitled to call on the second defendant to submit his claim to the
insurer.
[24]
In
the result the appellant should have succeeded in the court below:
1. The
appeal succeeds with costs.
2. Paragraph (b) of the
order of the court
a quo
is set aside and replaced with the
following:
‘
(b) The
third party (Mr Braaff) shall submit a claim to Santam Limited for an
indemnity in respect of the damages, costs and expenses
claimed by
the plaintiff against the defendant (the executor) in the Court
a
quo
under case no 2951/2000.
(c) The
third party is to pay the costs of the proceedings between himself
and the defendant.’
__________________
J A HEHER
JUDGE OF
APPEAL
NAVSA JA )CONCUR
NUGENT
JA )
CONRADIE
JA )
PONNAN
JA )