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2024
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[2024] ZAECELLC 44
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Ngqeleni v Outsurance Insurance Company Limited (EL933/2022) [2024] ZAECELLC 44 (14 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT
Case
No: EL933/2022
MBUYISELI
NGQELENI
Plaintiff
and
OUTSURANCE
INSURANCE COMPANY LIMITED
Defendant
(
Reg
No: 1994/010719/06)
JUDGMENT
B
B Brody
[1]
On the 15
th
of August 2024 the parties agreed to a stated
case in terms of rule 33.
[2]
One of the facts agreed upon was that there was an insurance
agreement between the
parties in terms of which the plaintiff’s
property was covered against certain loss or damage, as per an
insurance policy
attached to the stated case as annexure “A”.
I will deal more fully with the relevant paragraphs in the insurance
policy
below.
[3]
A further fact was that a wall above the ceiling of the insured
property collapsed,
and fell through the ceiling, causing damage to
the plaintiff.
[4]
The parties agreed that the aforesaid incident occurred due to
defective and/or poor
workmanship during alterations done before the
plaintiff had even bought the property, and which he was not aware
of, in accordance
with an expert opinion attached as annexures “C1”
and “C2” of the stated case.
[5]
The plaintiff contended that the aforesaid incident constituted an
insured event and
that the defendant was liable for the plaintiff’s
damages. The defendant, on the other hand, contended that the
incident,
and damages, were not an insured peril, or event. It
alleged that the defendant was not liable for the plaintiff’s
damages
in that the plaintiff could and should have foreseen the poor
workmanship, and in any event, this issue was not relevant to the
terms of the contract of insurance.
[6]
The issue for determination by this court was the following:
“
3.1
Whether the incident was an insured peril or event in terms of the
policy resulting in the liability
of the defendant.
3.2
Plaintiff submits that a further issue for determination is whether
plaintiff could have
foreseen that there was poor workmanship and
failed to disclose it to the defendant.”
[7]
The policy (annexure “A” to the stated case) indicated
that the policy
was effective from the 5
th
of August 2021
and the relevant clause of the policy, to the stated case, was the
following:
“
WHAT IS NOT
COVERED under Comprehensive Buildings cover. ..
…
Where any of
the following cause or contribute to damage
…
·
defects in the design or construction of the building, or where the
structure
would not have been approved by the relevant local
authority at the time of construction
·
construction, alteration or repairs, defective workmanship or
materials…”
[8]
In the defendant’s repudiation letter dated the 15
th
of November 2021 (annexure “B”) the defendant indicated
that it was repudiating as defective workmanship allegedly
contributed to the damage and that this was not covered by the
insurance policy. The letter emphasised the following wording in
the
policy:
“
Where any of the
following either cause or contribute to damage:
-
construction, alteration or repairs, defective workmanship or
materials”
[9]
In the expert opinion summary Mr Peter John Maker, an architect of
forty two years
of experience stated
inter alia
the following:
“
(iii)
It would have been impossible for the plaintiff to have been aware
that a wall had been removed which
made the firewall brickwork
unstable. …
…
(ix)
He is in agreement with the defendant’s assessor as to the
cause of the failure however the plaintiff would
have had no
knowledge of the impending collapse.”
[10]
Prior to the matter being called, and when it was apparent that there
were no heads of argument
on behalf of the defendant, various
enquiries were made with the legal practitioners acting on behalf of
the plaintiff and the
defendant, and no explanation was given why the
defendant had not filed heads of argument.
[11]
When the matter was called, there was no appearance on behalf of the
defendant. Sometime later,
and on the 25
th
of October
2024, a letter was received from the defendant’s attorneys of
record which indicated
inter alia
that “Due to an
oversight, the defendant’s counsel did not appear at the
hearing.” The defendant’s legal
representative also then
requested that this court have regard to the defendant’s heads
of argument “to avoid the potential
for further litigation.”
Whatever that means, I will not have regard to the defendant’s
heads of argument as they were
not served and filed timeously and,
despite enquiries made, the heads were not made available on
request, or in terms of
the rules of court.
[12]
The plaintiff’s heads of argument were filed timeously and Mr
Maswazi appeared on behalf
of the plaintiff, and argued the matter
fully.
[13]
I do not intend repeating Mr Maswazi’s argument, however, I am
in agreement with him that
it is now trite law that in considering
the interpretation of a contract, consideration must be given to the
language used in the
light of the ordinary grammar and syntax.
[1]
It is further trite law that the process of interpreting contracts is
objective, not subjective and a sensible or businesslike
result is to
be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose of the contract.
[2]
[14]
This court is bound by the four corners of the stated case, as read
with the annexures thereto.
[15]
There can be no doubt that the defendant’s contention is
primarily that the plaintiff could,
and should, have foreseen the
poor workmanship and that for this reason the claim was not relevant
in terms of the contract.
[16]
The expert report by the architect makes it abundantly clear, as set
out above, that the plaintiff
would not have been aware of the poor
workmanship, and in fact, it was “impossible for the plaintiff
to have been aware that
a wall had been removed, which made the
firewall brick unstable.” This is emphasised twice by the
expert when he stated
inter alia
that “the plaintiff
would have had no knowledge of the impending collapse.” As part
of the stated case, this was apparently
the defendant’s
assessor’s view as well.
[17]
The exclusion referred to in the policy that “defects in the
design or construction of
the building, or where the structure would
not have been approved by the relevant local authority at the time of
construction”,
and “construction, alteration repairs,
defective workmanship or materials” cannot be considered in
isolation. This
exclusion must be read in the context of the stated
case, which raises pertinently the prior knowledge, or
foreseeability, of the
poor workmanship by the plaintiff.
[18]
I am therefore in agreement with Mr Maswazi that the exclusions are
only applicable to defective
workmanship where the plaintiff was
“aware” prior to entering into the contract. This is what
is raised in the stated
case, together with its annexures, and there
was no other facts, or annexures, which disputed the issue of a lack
of knowledge.
[19]
Accordingly, the issues for determination, and as determined by this
court are that:
[19.1]
The incident, in the context of the stated case,
was an insured
peril, or event, in terms of the policy, resulting in the liability
of the defendant;
[19.2]
The plaintiff, in the context of the stated
case, and its annexures
thereto, could not have foreseen that there was poor workmanship,
which he failed to disclose to the defendant.
[20]
In the result the following order is made:
[20.1] Both issues
for determination are answered in favour of the plaintiff.
[20.2] The
defendant is ordered to pay the plaintiff’s costs on scale C as
contemplated by rule 69(7).
B
B BRODY
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
For
the PLAINTIFF
: MR
MASWAZI
Instructed
by
:
MGWESHE
NGQELENI INC.
NO.1 CAVENDISH ROAD
VINCENT
EAST LONDON
TEL: 043 704 6400
REF: MN/N130/22
EMAIL:
mbuyiseli@mniattorneys.co.za
For
the DEFENDANT
:
NO
APPEARANCES
Instructed
by
:
VAN
BREDA & HERBST INC.
LAKE VIEW CRESCENT
OFFICE PARK
KWIKKIE CRESCENT
ZWARTKOP EXT 7
CENTURION
TEL: 012 848 1011
EMAIL:
vanrooyenk@legalinc.co.za
REF: MAT108915
c/o
: ANDRE
SCHOOMBIE ATTORNEYS
39 VINCENT ROAD
VINCENT
EAST LONDON
TEL: 043 743 1267
Matter
heard on
:
24
October 2024
Judgment
delivered on :
14 November 2024
[1]
Natal Joint Pension Funds vs Endumeni Local Municipality 2012(4) SCA
593, paragraph 18 and Jaga vs Donges 1950(4) AD 653 at 662
[2]
Natal Joint Pension Funds
supra