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[2008] ZAGPJHC 1
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Van Der Westhuizen v Hollard Life Assurance Company Limited (06/21491) [2008] ZAGPJHC 1 (10 December 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND
LOCAL DIVISION)
Case
No: 06/21491
In
the matter between:
FREISLICH
VAN DER
WESTHUIZEN
Plaintiff
and
HOLLARD
LIFE ASSURANCE COMPANY LIMITED
Defendant
MEYER,
J
[1]
The plaintiff instituted action against the defendant for payment of
a dread disease
benefit under a life assurance policy. The defendant
raised a special plea of prescription. The parties, by agreement,
made application
for the separate adjudication of the special plea,
and such separation was ordered in terms of Uniform Rule 33(4) at the
commencement
of the proceedings. The sole issue concerns the time at
which prescription commenced to run in respect of the plaintiff’s
claim for payment of the dread disease benefit under the policy.
[2]
For the purpose of the adjudication of the special plea, the facts
averred in the
plaintiff’s particulars of claim and
replication, as amplified by his trial particulars, were taken to be
admitted.
[3]
The parties entered into the written agreement of insurance on 15
November 2001. The
policy provides for the payment of death,
disability and dread disease benefits. The relevant provisions of the
policy relating
to dread disease benefits are the following:
(a)
Payment of claims
‘
In order to
claim on the policy, Hollard Life must receive a signed and completed
claim form, together with any additional information
that Hollard
Life may require in order to assess the claim. Production and
surrender to Hollard Life of this policy document is
also required.
Hollard Life must be satisfied that
the claim is valid, that the person making the claim is entitled to
receive the amount payable
and that the date of birth stated in the
proposal is correct. Hollard Life shall also be entitled to access
all medical and hospital
records of the insured person.’
(b)
Benefit
‘
The benefit
as specified in the schedule plus any benefit increase occasioned by
the premium escalation, shall be payable if the
life insured suffers
one of the conditions described hereunder.
The claim must be proved to Hollard
Life’s satisfaction within 3 months of the injury or onset of
the illness or disease.’
(c)
Definition and Conditions of Contingent Events
‘
The benefit
shall be payable on the confirmed diagnosis to the satisfaction of
Hollard Life of:
…
Coma
‘
State of
unconsciousness with no reaction to external stimuli or internal
needs, persisting continuously with the use of a life
support system
for a period of at least 96 hours which, in the opinion of Hollard
Life results in a neurological deficit of a permanent
nature.’
[4]
The following averments are
inter alia
made in the plaintiff’s
particulars of claim:
‘
5.
On 25 April 2003 the Plaintiff was involved in a motor vehicle
accident in which he
sustained
inter
alia
a traumatic brain injury, which
resulted in the Plaintiff being hospitalized where he was in a coma
for longer than 96 hours and
developed neurological deficits of a
permanent nature (hereinafter referred to as the “Occurrence”).
6.
The plaintiff has duly notified the
Defendant of the Occurrence and has, in all other respects, complied
with his obligations under
the contract.
7.
In the premises the Defendant is indebted
to the Plaintiff in the amount of R300,000.00, which amount or any
part thereof, the Defendant
has, notwithstanding demand, failed and
or refused to pay.’
[5]
It is common cause that the ‘occurrence’ or ‘condition’
occurred
on 25 April 2003 or no later than 25 September 2003. The
plaintiff’s trial particulars state that Dr Fingleson completed
and signed a dread disease benefit claim on 19 September 2003, and
the plaintiff signed a dread disease benefit claim form on 25
September 2003. Such claim form was submitted in respect of a dread
disease benefit arising from a ‘coma’ as defined
in the
agreement of insurance, and, in terms of the claim form the onset of
the illness or injury which led to the plaintiff’s
claim was
identified as 25 April 2003. The defendant conditionally repudiated
the plaintiff’s claim on 13 October 2003, and
finally on 18
November 2003. The plaintiff’s summons and particulars of claim
were served on the defendant on 29 September
2006.
[6]
In its special plea of prescription the defendant avers that the
plaintiff’s
claim has become prescribed in terms of
s 11
of the
Prescription Act 68 of 1969
since the plaintiff’s claim arose
when the condition occurred on 25 April 2003 or no later than 25
September 2003, which
was more than three years before the
plaintiff’s summons was served on the defendant on 29 September
2006. In his replication
the plaintiff avers that his claim as set
out in his particulars of claim only arose on 18 November 2008, which
is the date on
which the defendant finally repudiated the plaintiff’s
claim, and such date is less than three years before his summons was
served.
[7]
The plaintiff’s claim under the policy is, in terms of
s 11(d)
of the Act subject to a three year extinctive prescription period.
S
12(1)
provides that ‘prescription shall commence to run as soon
as the debt is due’. This means that the debt must be
immediately
claimable by the creditor in legal proceedings and be one
in respect of which the debtor is under an obligation to perform
immediately
[see:
Benson v Walters
1984 (1) SA 73
(A) at p 82;
Uitenhage Municipality v Molloy
[1997] ZASCA 112
;
1998 (2) SA 735
(SCA)]. In
Truter and Another v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA), para 16,
Van Heerden JA said this:
‘
For the
purposes of the Act, the term ‘debt due’ means a debt,
including a delictual debt, which is owing and payable.
A debt is due
in this sense when the creditor acquires a complete cause of action
for the recovery of the debt, that is, when the
entire set of facts
which the creditor must prove in order to succeed with his or her
claim against the debtor is in place or,
in other words, when every
thing has happened which would entitle the creditor to institute
action and to pursue his or her claim.’
[8]
The claim must be proved to the defendant’s satisfaction within
three months
of the injury or onset of the illness or disease. The
defendant must
inter alia
receive a signed and completed claim
form and the additional information that might be required in order
for it to assess the claim.
These terms relate to what must be done
if a claim is to be enforced. The plaintiff cannot, however, postpone
the running of prescription
by his own inaction. A creditor cannot
‘rely on his own failure to perform in order to delay the
running of prescription.’
[
Phasha v Southern Metropolitan
Local Council of the Greater Johannesburg Metropolitan Council
2000 (2) SA 455
(W) at p 469E-F and at p 472G-H]. ‘Our Courts
have consistently held that a creditor is not able by his own conduct
to postpone
the commencement of prescription.’ [per Van den
Heever J in
Benson and Another v Walters and Others
1981 (4)
SA 42
(C) at p 49G]. In
The Master v I L Back & Co Ltd and
Others
1983 (1) SA 986
(A), Galgut AJA said this at p 1005G:
‘
If all that
is required to be done to render the debt payable is a unilateral act
by the creditor, the creditor cannot avoid the
incidence of
prescription by studiously refraining from performing the act.’
[9]
The requirement to submit a completed claim form has, in my view,
accordingly no effect
upon the commencement of the running of
prescription. [Compare:
Kotzé v Ongeskiktheidsfonds,
Universiteit Stellenbosch
1996 (3) SA 252
(K)].
[10] In
terms of the policy, the dread disease benefit ‘shall be
payable if the life assured
suffers one of the conditions described’
in it. ‘Coma’ is one such condition. The debt accordingly
became due
within the meaning of
s 12(1)
of the Act once the state of
the defendant’s unconsciousness persisted for a period of at
least 96 hours in accordance with
the requirements of the policy and
resulted in a neurological deficit of a permanent nature. This, the
parties are
ad idem
, occurred by no later than 25 September
2003.
[11]
S
12(3)
of the Act provides that ‘[a] debt shall not be deemed to
be due until the creditor has knowledge of the identity of the debtor
and of the facts from which the debt arises: Provided that a creditor
shall be deemed to have such knowledge if he could have acquired
it
by exercising reasonable care.’ It is for the party raising
prescription to allege and prove these dates on which the
creditor
acquired such knowledge [see:
Gericke v Sack
1978 (1) SA 821
(A);
Drennan Maud & Partners v Town Board of the Township of
Pennington
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA)]. Adv R Strydom, who appeared
for the plaintiff, submitted that the defendant has failed to allege
these dates in its special
plea of prescription. It is correct that
such averments were not expressly made, but the issues have, however,
been traversed in
the request for trial particulars and in the trial
particulars that were furnished.
[12] It
is apparent from the pleadings and the trial particulars that the
defendant had actual or
deemed knowledge ‘of the material facts
from which the debt arises for the prescriptive period to begin
running’ [
Truter and Another v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA), at p 175B-C] by ‘no later than 25 September 2003’,
which is the date on which he signed the dread disease benefit
claim
form that was submitted in respect of his claim for the dread disease
benefit arising from his ‘coma’ as defined
in the policy.
[13] In
the result the defendant’s special plea of prescription is
upheld and the plaintiff’s
action against the defendant is
dismissed with costs.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
10
December 2008