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2024
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[2024] ZAECQBHC 70
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M.D.L v Liberty Group Limited (3387/2023) [2024] ZAECQBHC 70 (19 November 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FLYNOTES:
INSURANCE
– Salary protection cover –
Repudiation
–
Insurer
previously declined cover for applicant due to medical conditions
she disclosed – Later applying again and securing
cover –
Injured in attempted hijacking and losing employment – Claim
repudiated due to non-disclosure of pertinent
medical information
– Applicant contending insurer was in possession of her
medical information from previous applications
– New
assessment was done for new policy – Assessment was based on
her answers at that time – Application
dismissed.
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, GQEBERHA)
Case
Number.: 3387/2023
In the matter between:
M[…]
D[…]
L[…]
Applicant
and
LIBERTY
GROUP
LIMITED
Respondent
JUDGMENT
Beshe
J
[1]
The applicant approached this
court for an order in the following terms:
‘
1. It is declared
that the Respondent has failed to comply with Policyholder Protection
Rules promulgated under section 62 of the
Long Term Insurance Act,
Act 52 of 1998 when it repudiated the Salary Protection Claim and
cancelled Liberty Policy number SPA00375
by notice dated 1 July 2022;
2. In the event that this
Honourable Court makes an order in terms of prayer 1
supra
,
that the Respondent’s notice of repudiation and cancellation of
the Respondent’s policy number SA00375, which notice
is dated 1
July 2022, be and is hereby set-aside retrospective to date of issue
thereof (1 July 2022);
3. In the event that this
Honourable Court makes an order in terms of prayer 2, that the
Respondent be ordered:
3.1 to forthwith
reinstate the salary protection benefit provided for in the policy
retrospective to date of repudiation and/or
cancellation (1 July
2022);
3.2 to pay the Applicant
an amount equal to the amount payable in terms of the temporary
disability for the period from 31 March
2022 (date of last payment)
to date of this order as reimbursement of benefits for the same
period.
4. Costs of the
application.
5. Further and/or
alternative relief.’
The
parties
[2]
Applicant is an adult female
person who resides at 1[…] R[…] G[…],
M[…]
Street, Westering, Gqeberha. The respondent is Liberty Life Limited,
a public company and long-terms insurer duly registered
in terms of
the Company Laws of the Republic South Africa, with its principal
place of business being 1 Ameshoff Street, Braamfontein,
Gauteng.
Applicant’s
case
[3]
The policy in respect of which
applicant seeks to enforce her rights was taken with the
respondent
during 2021. She was issued with a copy of the policy dated 4
February 2021. In the said document the policy is described
as a
salary protection cover: injury only. She confirms that prior to the
issuing of the policy the insurer telephonically asked
her a number
of personal and health related questions. According to applicant,
during 2015 she had also applied for long-term insurance
policies
from the respondent, assisted by respondent’s agent Ms Munna.
For purposes of the 2015 application, she informed
the respondent of
all her pre-existing medical conditions generally and more
specifically of the fact that she had previously suffered
a heart
condition (cardiomyopathy) depression/anxiety disorder as well as
hearing loss. As a result of the disclosures she made,
she was
required to submit further information which she did. Her application
was declined due to medical reasons. Again in 2017,
she applied for
cover as aforementioned which she described as long-term indemnity
insurance. Her application was once again declined
for the same
reason as her previous application.
[4]
Regarding the policy under
consideration in this matter, applicant states that during August
2020 she contacted respondent’s agent, Ms Munna with a view to
apply for a long-term insurance polity with the respondent.
She was
provided with a pre-populated form and told to sign the last page of
the application which she did on the 2 September 2020.
She reminded
the agent she was dealing her medical conditions as disclosed in
respect of previously declined applications. The
underwriting
department required her to undergo further medical assessments. She
could not get round to undergoing the assessments
due to her workload
at the time. By so doing, she abandoned the application for this
cover.
[5]
In respect of quotations she
would receive from the respondent, she was required to sign
an
introduction letter. This contained a declaration where the insurer
agrees that “
the information contained in its declaration
applies to all products and services whereby you have entered into an
agreement with
us
”.
[6]
During December 2020 she felt
the need to obtain a cover against severe bodily injury.
In a bid to
secure such cover, whilst looking, she came across respondent’s
Website on the internet and found an advertisement
of a policy that
was underwritten by the respondent, being the same underwriter that
assessed her previous applications. She submitted
an application for
cover telephonically. During that telephone call she was asked a
number of personal and health related questions.
[7]
Her application was successful.
According to the letter addressed to applicant in this
regard dated 4
February 2021, the policy in question was “
a salary
protection cover: injury only
”. Attached thereto was a
document containing her answers to medical questions she was asked.
[8]
Having fallen victim to
attempted hijacking at her place of residence and injuring her
right
arm and hand I on 25 March 2021, her services were terminated by her
employer as a consequence of the injury. On 5 May 2021
she submitted
a claim to the respondent based on the insurance policy
aforementioned (salary protection against injury). The outcome
of her
claim was not forthcoming. This led to her lodging a complaint with
the Ombud for Long-Term Insurance in September 2021.
This had the
effect of interruption of prescription in respect of her claim. Her
complaint was closed by Ombudsman as per notice
she received in this
regard on 4 July 2023.
[9]
In a letter dated 1 July 2022,
she was informed by the respondent that the payment in respect
of the
policy has been stopped. She was informed that she does not have a
valid claim as the agreement between the parties is considered
null
and void on the basis of non-disclosure of pertinent medical
information. Further that, had she disclosed the information
concerned during underwriting in the quotation process, the insurer
would have been able to assess her risk more accurately.
[10]
It is applicant’s contention that this
information was at the respondent’s disposal due to the
fact
that she had disclosed same during her previous applications. Further
that, she correctly answered all the questions as they
were posed to
her in respect of this policy when applying for same. She also points
out that the respondent approved her application
for insurance cover
previously despite the medical conditions she had disclosed.
[11]
Applicant further contends that the policy only
provides for injury related disability not one arising from
illness
hence her application for illness related cover was not successful.
This therefore renders the cancellation of her policy
to be
unreasonable, unlawful and or unfair.
[12]
Applicant complains that the respondent’s
notice of cancellation did not contain sufficient details
of its
reasons for repudiation/cancellation relating to the “
non-disclosure
”
of information. Applicant asked the respondent in this regard why it
could not access information she had previously provided
which was
within its realm. Further that, failure to provide sufficient reasons
for the cancellation left her with no option but
to approach this
court. It is further contended by applicant that by failing to
provide her with sufficient reasons for cancellation,
the respondent
acted contrary to the Policyholder Protection Rules (PPRs). Section
17.6.3.(a) of which obliges the insurer to inform
the claimant in
plain language of the reason for its decision, in sufficient detail
to enable the claimant to dispute such reasons
if the claimant so
chooses. Applicant draws the court’s attention to other
provisions of the PPRs being
inter alia
Rule 20. Rule 20
provides for the termination of policies, and the periods provided
for giving of notices in this regard.
[13]
Applicant asserts that the respondent’s
conduct in the process of repudiating her claims and cancelling
her
policy infringed upon her constitutional rights, being:
Right to equality.
Right to human
dignity.
Right to access to
information.
This
because it caused her humiliation forcing her to rely on loans and
assistance from others even though she had taken insurance
to
safeguard herself should she be unable to work due to disability
caused by an injury.
Respondent’s
case
[14]
The answering affidavit is deposed to by Ms Kagiso
Elizabeth Klaas who describes herself as a Senior Specialist
Legal:
Dispute Resolution, attached to respondent’s legal department.
[15]
Ms Klaas confirms that in 2021 respondent issued
three policies to the applicant, two of which were disability
policies and the third one under consideration in this matter, a
salary protection policy. She further confirms that in July 2022
a
letter was addressed to the applicant repudiating her claim for the
salary protection benefit. The reason for such being the
non-disclosure/misrepresentation by her at the time that the salary
protection policy was issued.
[16]
Ms Klaas asserts that the relief sought by the
applicant is akin to a review of an administrative or public
law
decision yet the relationship between the parties was a contractual
one.
[17]
Regarding the allegation that the respondent
failed to comply with the Policyholder Protection Rules, Ms
Klaas
retorts as follows:
Applicant knows why
respondent issued the policy in question even though she had
disclosed certain facts in previous applications.
Something that was
comprehensively dealt with before the Ombudsman. Furthermore,
applicant did not make any representations as
contemplated in Rule 17
after receiving respondent’s letter of the 1 July 2022.
Instead, she proceeded with her case at the
Ombuds office. She cannot
now decide to revive the process she opted not to follow on receipt
of the 1 July 2022 letter.
[18]
According to the respondent, there exist a dispute
of fact which will require the evidence of witnesses/experts
as the
question whether respondent could raise non-disclosure as a reason
for repudiation. That, this can only be decided on a
balance of
probabilities and not in application proceedings.
[19]
That, in any event, even if respondent’s
letter is set aside, applicant will still need to show or
prove that
she falls within the insuring clause of the salary protection policy
by means of medical evidence.
[20]
Regarding facts relevant to applicant’s
case, the following is revealed:
Applicant
completed an online assessment on Liberty Direct, a division of
Liberty which used to trade as Frank.Net. Frank.Net was
an insurer
with a separate licence but became a wholly owned subsidiary of
Liberty. In 2016 Frank.Net policies were transferred
to the
respondent but administered by Frank Financial Services. From 2020
all communications were Liberty Branded. Ms Klaas states
that Liberty
Direct is different from Liberty’s “
intermediated
”
business where insurance brokers and financial advisors consult with
prospective insured in person. Whereas with Liberty
Direct policies
are concluded over the telephone and Frank Financial Services/Liberty
Direct does not have access to the systems
of Liberty. Having
completed an online assessment, applicant was contacted by an
employee of Frank Financial Services who asked
her certain questions
on 3 February 2021. This culminated in three insurance policies being
concluded, one of which was the policy
in question (the salary
protection policy). On 18 February 2021 applicant called Liberty
Direct to cancel one of the policies,
a Life Policy and to procure a
further Disability Policy. Once again, a Frank Financial Services
employee called her and posed
the same questions as were asked in
respect of her earlier concluded policies. A policy contract in this
regard was then sent to
applicant shortly after the 4 February 2021.
Regarding medical disclosures, the following was communicated to the
applicant in
the policy:
‘
CHECK YOUR ANSWERS
TO THE MEDICAL AND LIFESTYLE QUESTIONS
The medical and risk
assessment questions that you answered, during the telephonic call
when you took out the product, are the basis
for this agreement and
are included in the summary of cover. Please go through the answers
and make sure that you agree with them.
Contact us immediately if you
find any inaccuracies.
All calls are recorded to
ensure that we have a complete record of our conversations. A copy of
the call can be made available on
request. It is imperative that all
information given is honest and factual, as the answers that you give
during the call
will be verified in the event of a claim and any
errors could result in an unsuccessful claim
.’ [emphasis
supplied]
She
was also provided with the answers she gave when she was applying for
the policy.
[21]
On 8 May 2021 applicant submitted a claim for
disability cover alleging that she suffered the following
“
bruised
forearm, paralyzed hand
”. She further stated that she was
dismissed by her employer, who is her ex-husband, an advocate trading
as Labour Law South
Africa.
[22]
On 12 October 2021 applicant lodged a complaint
with the Ombudsman for long-term insurance. On 14 October
2021
respondent addressed a letter to the applicant regarding her
complaint to the Ombud. It is apposite to reproduce the said
letter
as it sets out the history of the dispute between the parties.
‘
COMPLAINT
OUTCOME
According to your
Long-Term Insurance Ombudsman complaint description, your complaint
is two-fold, we have investigated the merits
of your contentions
raised and our response is as follows:
1.
Claim Outcome Delays
On 08 April 2021, you
lodged a claim detailing that on 25 March 2021 were involved in an
attempted hijacking which resulted in a
severe injury to your right
forearm and hand rendering your right-hand thumb, index and middle
finger paralyzed inclusive of nerve
damage.
According to the email
sent to you by our claims team dated 15 September 2021 (Annexure 4),
the insurer is awaiting your UIF, IRP
and bank statements as part of
the validation process. We have stated that an alternative to the
outstanding information, your
employer may provide proof that
payments were made to SARS and UIF. Furthermore, we require the
details of your Physiotherapist.
2.
Insurer’s banking details
The insurer’s
billing option is Debit Order only. Regrettably we do not have any
options for direct deposits and therefore
there are no banking
details that we may avail to you in order to facilitate a direct
payment for your premiums.
3.
Lifestyle Choice Changes
The insurer refers to
page 7/12 of your agreement which states the following:
“
TELL US ABOUT
CHANGES TO YOUR LIFESTYLE OR OCCUPATION
Any changes to your
lifestyle (not your health) could affect this cover. Let us know if
any of the following changes.
·
Your smoking habits.
·
Your participation in any risky sports or activities
·
Your occupation.
·
Your intent to spend more than 30 consecutive days outside South
Africa
in one of the following regions: The Middle East, Asia, Suth
or Central America or in the rest of Africa.
After being informed of
any of these changes, we may adjust the agreed payout and monthly
payments or not be able to provide cover.
However, if you don’t
let us know, any future claims could be affected or even refused.’
[23]
Applicant’s claim was provisionally
accepted, and certain information was required from her. Applicant
refused to be examined by an occupational therapist appointed by the
respondent. Liberty decided to assess her claims based on
all the
information it had at its disposal. In addition to this information,
it also came to respondent’s attention (fortuitously)
that
applicant may not be disabled as she was sending correspondence on
behalf of her ex-husband, Advocate De Lange.
[24]
Regarding the merits of the application, it is
contended on behalf of the respondent that applicant misunderstands
the purpose and application of the PPRs. Further that, it was at
respondent’s right to avoid the policies in question due
to
non-disclosure/misrepresentation and notes that applicant does not
deal with the other policies, being the disability applications.
[25]
The letter addressed to applicant dated 1 July
2022 provided applicant with detailed reasons why Liberty
avoided the
Salary Protection policy and was in compliance with the provisions of
Rule 17.6.3 of the PPRs. Furthermore, it is asserted
that applicant
was not relieved of her duty to disclose material facts when applying
for the policy on the basis that respondent
was already in possession
of such information through her previous applications. That in any
event as it emerged also in relation
to the complaint to the Ombud’s
office though Frank Financial Services is part of Liberty Group, it
does not have access
to Liberty Group database at sales stage.
Besides, applicant did not refer the consultant she was speaking to
on the phone to refer
to information in respect of her previous
applications but answered the questions she was asked. So, there was
no reason for the
respondent to search its database for information
about applicant’s unsuccessful applications. Respondent insists
that applicant
did not answer truthfully to a number of questions.
[26]
It is contended that what she purports to be her
understanding of the questions posed and
vis-à-vis
what
was required from her itself constitutes a dispute of fact which
cannot be resolved on the papers.
[27]
It is common cause that the answering affidavit
was filed out of time even after an indulgence was granted
to the
respondent by those representing the applicant in this regard. To
this end, respondent is seeking condonation and fully
explains the
events that resulted in the late filing of the answer even though
respondent is of the view that it was not properly
served with the
application since service was by means of electronic mail and not
effected by the Sheriff as provided for in the
relevant Rule.
Applicant’s
reply and condonation application
[28]
In reply, applicant complains that the respondent
has failed to deliver a notice in terms of Rule 41A(2)(b)
relating to
mediation and asks that the court takes this into consideration when
making a costs order.
[29]
I note that the respondent was not called upon to
answer to this complaint in the founding affidavit.
[30]
Applicant once again places the nature of the
application into perspective when she states that it is concerned
with whether the respondent has breached applicant’s rights as
a policy holder to be provided with sufficient detail to place
her in
a position to dispute its allegation of material disclosure on the
part of the applicant.
[31]
Applicant also opposes respondent’s
application for condonation for the late filing of its answer,
citing
as grounds for opposition:
(a) The reason for delay
being the unavailability of counsel. A number of reasons were
provided by the respondent in this regard
and not only the
unavailability of respondent’s counsel.
(b) The degree of
lateness, the answering affidavit was filed approximately two months
outside the 20-day period provided by the
rules.
[32]
It is worth mentioning at this stage that both
parties filed a myriad of annexures to their respective papers,
applicant’s span from page 57 to 257 and respondent's span from
319 to 491. In my view, it would have required extensive
consultation
and procurement of volumes of documents on the part of the respondent
before they could file an answer. Whether all
the annexures were
necessary to support/prove applicant’s case in light of the
relief sought is something else. None of the
annexures are described
in the index. Both parties merely list an annexure with reference to
a number/letter e.g. annexure AA and
so on. This is in contravention
of Rule 9 of the Joint Rules of Practice for High Courts in the
Eastern Cape. This rule provides
that “
the index must
contain information to enable the court to identify every document
without having to refer to the document itself
”. This
practice is not acceptable, and it is decried.
[33]
I am however of the view that the respondent has
provided good reasons for the delay in filing its answer.
Respondent
accounted for the entire period when the answer was not filed. I am
of the view that the respondent has made out a case
for condonation
of the late filing of its answer.
[34]
In reply, applicant also points out that the PPRs
have the power of the statute and requires strict compliance
therewith in dealing with policyholders. This in order to ensure
fairness to them. Applicant further points out that not to comply
with any of the rules in the PPRs may attract a penalty or a fine.
Issue(s)
for determination
[35]
1. Whether the respondent, in repudiating the policy in question
complied with Policy Protection Rules promulgated
under Section 62 of
the Long-Term Insurance Act.
2.
Whether the respondent was entitled to cancel the policy on the basis
of non-disclosure of material facts given that such information
was
at the disposal of the respondent. This in view of the fact that the
information was provided in respect of applicant’s
previous
applications. Whether it was fair and reasonable for the respondent
to cancel the policy in circumstances where it accepted
applicant’s
request for cover despite having this information at its disposal.
Applicant,
although she asserts that this information was at respondent’s
disposal, she also claims that she answered the
questions as she
understood them. She also seems to be suggesting that her medical
conditions were not material to the cover provided
to her by the
respondent which was purely for injury related disability.
Legal
framework
[36]
Section 62 of the Long-Term Insurance Act
[1]
provides for the protection of policyholders and provides that the
Financial Services Conduct Authority may by notice in the Government
Gazette, prescribe rules not inconsistent with the Act aimed at
ensuring policyholder protection.
[37]
During 2018, the Deputy Registrar of Long-Term
Insurance promulgated the replacement of Policy-holder Protection
Rules (PPRs) in terms of Section 62 of the Long-Term Insurance Act.
Rule 17 of the PPRs provides for the Management of claims by
policy-holders. Applicant’s complaint is mainly directed at
Rule 17.6.3, the allegation being the respondent failed to comply
therewith. This subrule stipulates that:
‘
17.6.3
If the insurer repudiates or disputes a claim or the quantum of a
claim, the notice referred to in rule 17.6.2 must, in plain
language,
inform the claimant—
(a)
of the reasons for the decision, in sufficient detail to enable the
claimant to dispute such reasons if the claimant so chooses;
(b)
that the claimant may within a period of not less than 90 days after
the date of receipt of the notice make representations
to the
relevant insurer in respect of the decision;
(c)
of details of the internal claim escalation and review process
required by rule 17.5;
(d)
of the right to lodge a complaint to a relevant ombud and the
relevant contact details and time limitation and other relevant
legislative provisions relating to the lodging of such a complaint;
(e)
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 claimant; and
(f)
in the event that the relevant policy does not contain a time
limitation provision for the institution of legal action, of the
prescription period that will apply in terms of the Prescription Act,
1969 (Act No. 68 of 1969) and the implications of that Act
for the
claimant.’
Applicant
alleges that the respondent fell foul of this subrule by failing to
provide her with sufficient reasons for the repudiation
in plain
language.
Applicant’s
submissions
[38]
Applicant submitted that respondent has not made
out a case for condonation of its late filing of the answering
affidavit. It stands to reason that should condonation be refused,
the court will not have regard to the answering affidavit. Applicant
had raised
in limine
respondent’s alleged failure to
give consideration to the provision of Rule 41A of the Uniform Rules
of this Court (Mediation).
This objection was however abandoned as a
ground for the dismissal of respondent’s defence but relied
upon for purposes of
considering an appropriate costs order which
applicant submitted should be in her favour, whatever the outcome
would be. As far
as the merits are concerned, applicant points out
that the issue in this matter is whether the respondent complied with
PPRs when
it repudiated applicant’s policy. Applicant submits
that the respondent did not provide it with sufficient reasons for
the
repudiation. Further that the medical questions posed to her over
the telephone when she applied for cover did not include specific
questions relating to the conditions she is alleged to have failed to
disclose. Besides, she had disclosed to respondent that she
suffered
stress, anxiety, panic disorder, depression, agoraphobia as well as
sensory-neural hearing loss in writing in respect
of a previous
application for insurance cover during 2012. In any event, those
conditions are immaterial to physical injury. Applicant
submits that
her requests for further details relating to the reasons for the
respondent fell on deaf ears. Even though a list
of authorities was
attached by applicant and reference made to decided cases with copies
thereof provided, the heads of argument
did not direct my attention
to those parts of the judgment/s on which reliance was placed.
Respondent’s
submissions
[39]
As indicated earlier in relation to respondent’s
condonation application that a point was raised that
there was no
proper service of the application on the respondent. That there was
no compliance with Rule 4 of the Uniform Rules
of this Court. This,
the respondent submits also has a bearing on its condonation
application in that it would be prejudicial to
it in that the
starting date for the time period within which it was required to
file its reply would be difficult to determine.
[40]
Regarding the merits, respondent submits that
there was compliance with Rule 17.6 of PPRs. Namely that the
applicant was provided with sufficient reasons for the repudiation
which reasons enabled her to challenge or contest the decision
before
the Ombud for Long-Term Insurance as well as in respect of this
matter. It is further argued that Rule 17.6 only provides
a
procedural regime and does not require a court to “
look
through
” the reasons provided by the insurer. Furthermore,
that there is also no duty on the insurer to fossick around its
records
to unearth information which should have been disclosed to
it. In this regard the court was referred to the matter of Regent
Insurance
Company Ltd v King’s Property Development (Pty) Ltd
t/a King’s Prop
2015 (3) SA 85
SCA. In this matter it was held
that the law does not place a duty on an insurer to make inquiries,
that the insurer was not required
to “
fossick
”
around its records to unearth bits of information that had been
disclosed to it in he past. It was suggested that this was
inconsistent with the duty of disclosure. It was argued on behalf of
the respondent that applicant does not seem to be taking issue
with
the details provided on the repudiation letter, but rather why the
respondent did not have the recourse to information she
provided in
respect of her previous applications.
[41]
It was argued that it would have been different
had applicant referred to her previous applications for
cover when
she was questioned about her medical history or conditions.
Discussion
[42]
Respondent points out, correctly so in my view,
that the applicant does not seem to be impugning the details
provided
for the repudiation of her policy with the respondent or the language
used. But rather questions why respondent did not
access information
provided by her in respect of her previous applications for cover.
[43]
The question therefore is whether the respondent
complied with Rule 17.6.3(a) of the PPRs in relation to
the
repudiation letter. The following is recorded in the said letter
dated 1 July 2022:
‘
RE: SALARY
PROTECTION: INJURY ONLY – THE PAYMENTS HAS BEEN STOPPED.
This letter serves to
inform you that we have assessed the medical evidence in connection
with the claim on the policy number listed
above. Your Salary
Protection: injury only claim payout has been stopped as detailed
below.
As previously stated in
the Salary Protection: Injury only Approval Letter dated 11 March
2022.
It is important to
note that your claim is subjected to continuous and periodic reviews
.
According to medical
information received and assessed, it is noted that you were treated
for
Anxiety and Depression
.
In addition to this
it is noted that you had a previous claim for loss of hearing and we
refer to the Medical form that you signed
on 6 May 2009. It is noted,
that because of your hearing loss, you experienced “sound
direction loss, loss of balance”
and you state that you could
“not safely drive a vehicle or fluently converse with other
persons”. The total deafness
is confirmed by Dr Ritters in his
report dated 29 April 2009 who states that this condition is a
sensory neural hearing loss, and
it will not improve. He states that
it is permanent with total hearing loss. Renee Version, an
Audiologist confirms this.
A report by Dr JJ
Swartz dated 22 October 2009 refers to you being unable to work due
to issues with your hearing apparatus, Depression
and problems with
communication.
Dr Swartz further
confirms that you had notable Depression and that you were in the
care of Mrs Linda Grobler, a psychologist. The
treatment was
Serlife,
Urbanol and Ativan
.’
[44]
In my view, the repudiation letter is compliant
with the provisions of Rule 17.6.3(a) of the PPRs. Therein,
the
applicant is informed in plain language of the reasons for the
decision to repudiate her policy in sufficient detail. Hence
the
applicant does not assail the contents of the letter as it were. She
complains that the information she allegedly did not disclose
was
disclosed previously, a few years previously and respondent should
have same in its data reserves. That she did not disclose
the medical
conditions as demonstrated in the repudiation letter is not in
dispute. Applicant suggests two reasons why she did
not disclose the
said information. Firstly, she says she answered the questions as she
understood them. And did so honestly. The
second reason she suggests
that she had disclosed the information in respect of her previous
applications and questions why the
respondent did not access the
information. Let us examine these reasons,
vis-à-vis
what was required of the applicant. This must be viewed against the
backdrop of the history provided by the applicant regarding
her
previous applications, some of which were declined due to medical
reasons. This in circumstances where it is also common cause
that in
respect of the policy concerned, she was no longer dealing with
respondent’s consultants by the name of Ms Mnuna.
She also does
not suggest that she was. During the telephonic interview, her
interviewer made it clear that because they were dealing
with a new
policy, a new assessment was going to be done. During the interview
she was informed that the product is directly distributed
by Frank
Financial Services. The questions posed appear to be clear and
straight forward. For example, according to the transcript
of the
interview with Fahima, she was cautioned to think of everything
associated with her health and not only those conditions
that were
mentioned in previous questions. Later, the interviewer asked if
there is any other illness or symptoms, activity or
occupational risk
that she has not mentioned? Her answer was NO. It is also noteworthy
that during the interview she was informed
that she qualifies for the
cover she was applying for. As well as the fact that the medical and
risk assessment questions she answered
formed the basis of the
agreement. That she will be sent her policy documentation. Clearly
therefore, a deal was clinched there
and then. The assessment took
place there and then, based on her answers to questions posed to her.
This seems to have been the
case with her previous applications as
well. The materially or otherwise of the undisclosed conditions to
the cover sought by applicant
i.e. against disability as a result of
an injury, is raised “
by the way
” not prominently
as a basis for the relief sought. Besides, on the papers, I am unable
to determine whether or not the non-disclosed
medical conditions were
material to the cover sought or not. There is no prayer that the
court should declare them as being immaterial
to the cover. The
respondent was not provided with proper opportunity to refute
whatever reasons may have been advanced to show
that they were
material, if they were. I am inclined to agree with the respondent
that there was no reason for it to double check
or verify information
provided to it by the applicant, unless of course applicant had
referred them to information she provided
in respect of her previous
applications. Besides, it was made very clear that the cove she
qualifies for is based on the telephonic
assessment of the medical as
well as other information she provided during that telephone
interview.
[45]
I am not persuaded that the applicant has made out
a case for the relief she seeks.
Costs
[46]
Applicant submitted that the respondent should be
ordered to pay the costs of this application irrespective
of the
outcome thereof. This in view of the fact that it failed to consider
mediation and or failed to comply with Rule 41A(2).
By so doing,
leaving the applicant no other option but to approach this court for
relief. There is a dispute regarding service
of papers initiating the
proceedings on the respondent. In addition, the return of service
reflects that service was effected electronically
on 25 October 2023
(including the notice in terms of Rule 41A). The notice of motion
which does not contain the Rule 41A notice
bears the stamp of the
Sheriff, Port Elizabeth West of the 25 October 2023. The notice in
terms of Rule 41A filed separately two
days after the notice of
motion does not bear the Sheriff’s date stamp. It is not clear
whether the respondent was served
with a notice in terms of Rule 41A.
Respondent also makes the point that mediation would not have
resolved the matter as attempts
to do so by the applicant before the
Ombud failed. In my view, there is no reason why costs should not
follow the result.
Order
[47]
1. Respondent’s application for condonation of the late filing
of its answering affidavit is condoned.
2. The application is
dismissed with costs.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Applicant :
Adv: R De Lange
Instructed
by
:
MELANY
FOUCHE INC.
3 Kestell Street
Parsons Hill
GQEBERHA
Ref: MF/kn/DEL0121
Email:
melany@mfincorp.co.za
Tel.: 071 876 8995
For
the Respondent :
Adv: R Ismail
Instructed
by
:
MOODIE
AND ROBERTSON
C/o RUSHMERE NOACH INC
5 Ascot Park
Conyngham Road
Greenacres
GQEBERHA
Ref.: Mrs SL
Lubbe-Roberts/LH/MAT44834
Email.:
shelbyr@rushmere.co.za
Tel.: 041 – 399
6735
Date
Heard
:
15 August
2024
Date
Reserved :
15 August
2024
Date
Delivered :
19
November 2024
[1]
Number
52 of 1998 (LTIA).