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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 056972 /2024
REPORTABLE: No
OF INTEREST TO OTHER JUDGES:
REVISED:
DATE 31 JANUARY 2025
SIGNATURE
In the matter between:
TSHIPU KLEINBOOI NGAKO Applicant
and
BRYTE INSURANCE COMPANY LIMITED First Respondent
MOBILITY INSURANCE UNDERWRITING MANAGERS Second Respondent
This judgment is prepared and authored by the Judge whose name is reflected as
such and is handed down electronically by circulation to the parties / their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for handing down is deemed to be 31 January 2025.
JUDGMENT
INTRODUCTION
[1] The applicant , on application seeks amended relief as against the first
respondent only for the payment of R577,800.00, being the equivalent of the retail
value of the applicant’s insured motor vehicle , a Toyota Quantum / Hi Ace 2.5D
Sesfikile 2023 with registration number J[...] [the vehicle] for his loss as a direct
result of the theft of vehicle.
[2] The applicant’s counsel , during oral submissions on the date of the hearing
of the application moved for an amendment to the notice of motio n, moving only
for amended prayer 1 and prayer 4 option. Such amendment not opposed and
duly granted. The matter for adjudication confined to the first respondent ’s liability
and costs.
[3] The first respondent raises a point in limine on the basis that the papers are
littered with factual material disputes which cannot be resolved on affidavit, such
material factual disputes foreseeable and as such the matter stands to be
dismissed. Over and above the point i n limine , the first respondent disputes liability
on the basis that the applicant has failed to comply with the terms of the
agreement in that the applicant failed to demonstrate that a tracking device was
fitted and that it was operational on the date of loss being the 17 November 202 3.
COMMON CAUSE AND ADMITTED FACTS FOR CONSIDERATION
[4] It is common cause that the applicant and the first respondent entered into
a written agreement on the 6 November 2023 [agreement] in which the first
respondent insured the applicant’s vehicle from loss, including theft.
[5] The conclusion of the agreement was preceded by a proposal which
contained the following material questions: “ Is your vehicle fitted with a tracker? ”,
to which the applicant answered yes, and “ Is the Tracker certificate attached?
Note vehicles over R80 000.00 require a tracking device, should a tracking device
not be fitted & operational as date of loss, then Theft and Hijacking will not be
covered. Note? Proof required within fourteen days .”
[6] No tracker certificate was attached to the proposal form.
[7] On the 15 November 2023, the applicant took ownership of the vehicle.
[8] The applicant did not conclude an agreement with Cartrack.
[9] On the 23 November 2023, t he applicant lodged a claim in terms of the
agreement for the alleg ed loss of the vehicle , caused by robbery and hijack ing
occurring on the 17 November 2023 .
[10] No tracking records were provided for the vehicle’s whereabouts on the
date material of loss on the 17 November 2023 nor at the material alleged time of
such loss .
[11] The applicant’s claim was rejected on the 22 December 2023, in writing.
[12] The conclusion of the letter of rejection, set out the basis of the decision
taken by the first respondent. The first respondent sets out that a detailed
investigation of the claim was undertaken, and a compulsory requirement of the
insurance cover was highlighted being that an operational tracking device must
have been fitted; that such failure is material to the loss suffered and accordingly
formed the basis for the decision. The applicant was made aware that he could
contact the Ombudsman for Short -Term Insurance, that he could make further
representation within ninety (90) days requesting the review of the decision and by
providing additional information which he deemed necessary to assist and he
could seek legal advice.
[13] According to the letter of rejection, the claim was rejected on the basis that
no tracking device was installed. That conclusion was reached on the basis of a
decision taken by the first respondent. Such decision was set out in the letter of
rejection to which the applicant does not refer. The decision is clear that there was
a detailed investigation of the claim and that there was a compulsory requirement
of the insurance cover that an operational tracking device must have been fitted;
that such failure is material to the loss suffered and accordingly formed the basis
for the decision. The applicant was made aware that he could contact the
Ombudsman for Short -Term Insurance, that he could make further representation
within ninety (90) days requesting the review of the decision and by providing
additional information which he deemed necessary to assist and he could seek
legal advice.
[14] On the 8 March 2024 the applicant through his attorney of record,
Messieurs Makgopa Attorneys, informed the first respondent that the applicant
wished to review of the decision and as such, requested the transcribed records
from the first respondent. No review was initiated .
[15] On the 9 May 2024, the first respondent responded to the letter of the 8
May 2023, by requesting copies of further documents, stating the following:
“To this end, kindly provide us with:
1. Confirmation of the tracker company used;
2. Proof of installation;
3. Proof of monthly payment made on the tracking company;
4. The agreement between the insured and the tracking company; and
5. The tracking report for the 17th of November 2023.”
[16] The applicant did not supply further documents.
[17] On the 17 May 2024, the first respondent confirmed that they on their own
accord would obtain records from Tracker to make a final decision which would be
communicated to the applicant. On the same date the applicant’s attorneys
enclosed a consent form signed by the applicant in which they stated the following:
“We are of the view that our client has complied with all material terms
thereof (the terms of the insurance company – own emphasis) therefore
there is no need to take this matter to court which will result in unnecessary
costs. Should this matter not be amicably resolved by no later than
Wednesday the 22nd we hold instructions to file a court application.”
[18] This application was initiated on the 23 May 2024.
APPLICANT’S CASE
[19] The applicant contends that the first respondent is liable to pay him the
amount claimed , being the retail value of the vehicle in that he under oath stated at
paragraph 7.2 of the founding papers that “ I lodged and submitted a claim with the
respondents in terms of the insurance contract ” and that notwithstanding the
lodgement and submission of the claim in terms of the insurance contract, the first
respondent on the 22 December 2023 rejected and or repudiated his claim on the
basis that “ - I misrepresented the fact, when I said the insured vehicle was fitted
with a tracker ”. The applicant maintained at paragraph 8.13 of its founding papers
that that the material enquiry is “ -whether, the insu red vehicle at the time of the
theft ( 17 November 2023 -own emphasis) was fitted with a tracker or not, if we
accept the trackers records to be valid and proof that indeed the insured vehicle
was fitted with a tracker, then I have not made any misrepresentation and there is
no reason for the Respondent to refuse to comply with their obligations in terms of
the insurance contract. ” He further states under oath that t he applicant pursues its
claim on the basis that such repudiation has no meri t, and the first respondent is
merely attempting to evade the obligation in terms of the insurance contract.
[20] In support of the first enquiry on the applicant’s version, whether the vehicle
was fitted with tracker on the 17 November 2023 he, in reply attached an
installation certificate that a devi ce was fitted to a vehicle bearing registration
number C[...] on the 9 August 2023. The admissibly, veracity and nexus to the
applicant’s vehicle as at the 17 November 2023 was placed in dispute and not
dealt with in reply. A material disputed fact on the applicant’s own version.
[21] The second enquiry, if the tracker records for the 18 November 2023 are
accepted then, sufficient proof that the vehicle was fitted with a tracker has been
achieved . The tracking records relied on by the applicant, are not for the 17
November 2023, and do not illustrate the applicant’s vehicle’s registration number
let alone any vehicle registration number. The first respondent placed the
admissibility and veracity of the tracking records in dispute stating further that if the
Courts admit them into evidence, such record do not comply with the Electronic
Communication Transaction Act, 25 of 2002. The evidentiary challenge has not
been met by the applicant in reply.
THE FIRST RESPONDENT’ S CASE
[22] The first respondent raises a point in limine on the basis that the papers are
littered with factual material disputes which cannot be resolved on affidavit, such
material factual disputes foreseeable and as such the matter stands to be
dismissed. Over and above the point in limine , the first respondent disputes liability
on the basis that the applicant has failed to comply with the terms of the
agreement in that the applicant failed to demonstrate on the papers, that a tracking
device was fitted and was operational as at the date of loss, the 17 November
2023 and that the proof of its installation was furnished within fourteen (14) days of
signing of the proposal form. That although a claim form was submitted, the
veracity of the annexures were not admitted.
[23] The first respondent also relied on the undisputed term of the policy terms
and conditions document which would explain its enquiry of the 9 May 2023,
namely:
23.1. Paragraph 24 under the heading “C. TRACKING DEVICE
WARRANT ”, the provisions, inter alia contain:
23.1.1. The tracking device must always be in working order and
activated ;
23.1.2. The insured must have a legally valid contract with the
supplier of the tracking device and fees must be paid on time
to ensure continuity of the contract;
23.1.3. The device must be tested every six months or self -tested
regularly;
23.1.4. The theft or hijacking must be immediately reported to the
service provider / supplier of the tracking device.
[24] The first respondent also disputed that it was liable to pay the retail value as
claimed, referring to section 1 dealing with motor comprehensive and at paragraph
2 headed “ COVER LIMITS ” states that:
“The maximum Cover Limits will be the lesser of the adjusted retail value of
the vehicle and specified extras, which considers the said condition of the
vehicle and specified extras, and the sum insured, prior to the reduction of
the applicable excess. Please refer to the attached schedule of Cover Limits
and applicable excess amounts. ”
[25] The applicant’s Counsel did not raise any submissions to disturb the
application of paragraph 24 nor section 1 to the raised dispute .
CONCLUSION
[26] From the facts and from the vain repetition by the first respondent to
explicitly set out and explain in the answering affidavit the shortcomings of the
applicant’s case, the foreseeable outcome was missed. This is even so on the
applicants on material enquiry he posed in paragraph 8.13 of his founding papers.
The applicant has failed to prove his own case. T he application stands to be
dismissed.
[27] As to costs, costs are to follow the result on scale B. Counsel for the
respondent argued for Scale C on the basis of the quantum of the matter. This did
not elicit a rebuttal or objection from counsel for the applicant. However,
notwithstanding the same, the aspect of costs is in the discretion of the Court. The
Court has taken into consideration not only the quantum of the matter but the
complexity of the matter and considers that Scale B is fair and reasonable.
[28] Having regard to the aforesaid, the following order follows:
1. The applicant’s application is dismissed with costs, to be taxed on
scale B.
L.A. RETIEF
Judge of the High Court
Gauteng Division
Appearances :
For the Applicant : Adv Vutshilo Mukwevho
Cell: 083 313 3591
Email: mukwevho@rsabar.com
Instructed by attorneys: ME Makgopa Attorneys
Tel: 071 209 3448
Email: Admin@makgopaattorneys.co.za
Ref: MR NGAKO/T4/2024
For the First Respondent Adv F J Erasmus SC
Cell: 012 947 9426
Email: frik@clubadvocates.co.za
Instructed by attorneys: Prinsloo Attorneys
Tel: 012 329 7126
Email: adam@prinsloos.co.za
ansie@prinsloos.co.za
REF:MR A PRINSLOO/BP 699/AH
For the Second Respondent Adv F J Erasmus SC
Cell: 012 947 9426
Email: frik@clubadvocates.co.za
Instructed by attorneys: Prinsloo Attorneys
Tel: 012 329 7126
Email: adam@prinsloos.co.za
ansie@prinsloos.co.za
REF:MR A PRINSLOO/BP 699/AH
Date of hearing : 28 January 2024
Date of judgment : 31 January 2024