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1990
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[1990] ZASCA 131
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Supermarket Leaseback (Elsburg) (Pty) Ltd. v Santam Insurance (329/89) [1990] ZASCA 131; 1991 (1) SA 410 (AD); (13 November 1990)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
CASE NO:
In the appeal of:
SUPERMARKET LEASEBACK
(ELSBURG) (PTY) LTD
APPELLANT
and
SANTAM INSURANCE
RESPONDENT
Coram
: HOEXTER, E.M GROSSKOPF, MILNE, STEYN et GOLDSTONE JJA.
Date heard
: Tuesday 13 November 1990
Transcript of extempore judgment delivered by Goldstone JA
and concurred in by Hoexter, E. M. Grosskopf, Milne and Steyn
JJA on Tuesday 13 November 1990.
2 JUDGMENT
GOLDSTONE
JA:
The appellant is Supermarket Leaseback (Elsburg) (Pty) Ltd ("the Landlord").
At all material times it was the owner of erven 45, 46,
and 47 in the township
of Elsburg, Germiston ("the premises"). The appellant let the premises in terms
of a written deed of lease
to Hoses and Hoses (Pty) Ltd. ("the tenant"). On 11
October 1983 a fire broke out at the premises causing extensive damage thereto.
The fair and reasonable cost of reinstating the premises amounted to R
40788,00.
In terms of clause 1.1 of schedule "A" to the lease, the tenant
undertook:
3 "in favour of the Landlord to insure the premises against fire... Any capital
sum receivable by the Tenant in respect of a claim
on the said insurance
policies shall be payable to the Landlord by the Tenant immediately on
demand."
Acting pursuant to that provision of the
lease, the tenant insured the premises with the respondent, Santam Insurance Ltd
("the Insurer").
In terms of the insurance policy issued by the insurer it undertook to
indemnify or compensate the tenant for damage caused to the
premises,
inter
alia
, by fire. The insurer admits that pursuant to the terms of the policy,
it became liable to pay the tenant the aforesaid amount of
R 40788,00.
On 17 April 1984, the tenant was wound up. In reliance
4 upon the
provisions of
section 156
of the
Insolvency Act, 24 of 1936
("the
Act") the
landlord claimed payment from the insurer of the amount of R 40788,00. In that
section it is provided as follows:
"Whenever any person (hereinafter called the insurer) is obliged to indemnify
another person (hereinafter called the insured) in
respect of any liability
incurred by the insured towards a third party, the latter shall, on the
sequestration of the estate of the
insured, be entitled to recover from the
insurer the amount of the insured's liability towards the third party but not
exceeding
the maximum amount for which the insurer has bound himself to
indemnify the insured."
By agreement no evidence was
led by either party at the trial.
5 The action proceeded on the basis of the
admissions made in the plea and at the pre-trial conference.
The claim was dismissed with costs by Coetzee J sitting in the Witwatersrand
Local Division. With leave of the Court
a quo
the landlord now comes on
appeal to this Court.
That the provisions of
section 156
apply in the winding up of a company
unable to pay its debts was not in issue. Indeed it follows from the provisions
of section 339
of the Companies Act 61 of 1973: see
Woodley v Guardian
Assurance Co. of S.A Ltd
1976 (1) SA 758
(W). However, Coetzee J non-suited
the landlord because he held that it had hot been established by the landlord
that there had been
compliance with the obligations resting upon it in terms of
General Condition A.3(a) of the policy. It is unnecessary to set out
those
provisions. Suffice it to say that it was there required
6 of the insured
that it should perform a number of acts and comply with a number of formalities.
It is unnecessary to consider the
correctness pr otherwise of this finding by
the trial Court because in my opinion the short answer to the claim of the
landlord is
that in this case the provisions of section 156 of the Act are not
of application. They apply only to the situation where an insurer
indemnifies an
insured "in rcspect of any liability incurred by the insured towards a third
party". The policy of insurance issued
by the insurer in the present case was in
favour of the tenant and in terms thereof the insurer undertook to indemnify or
compensate
the tenant for damage caused to the premises. It contains no
obligation to indemnify or compensate the tenant in repect of any liability
incurred by the tenant towards the landlord. Indeed in the policy one finds no
reference to or mention of the landlord at all.
7 It follows that the appeal
cannot succeed. The following order is made:
The appeal is dismissed with costs.
GOLDSTONE JA
HOEXTER )
E.M GROSSKOPF )CONCUR
MILNE )
STEYN )