THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case no: 898/2024
In the matter between:
AIG SOUTH AFRICA LIMITED FIRST APPELLANT
OLD MUTUAL INSURE LIMITED SECOND APPELLANT
BRYTE INSURANCE COMPANY LIMITED THIRD APPELLANT
GUARDRISK INSURANCE COMPANY LIMITED FOURTH APPELLANT
INSURANCE UNDERWRITING MANAGERS (PTY) LTD FIFTH APPELLANT
and
AZRAPART (PTY) LTD FIRST RESPONDENT
ACCELERATE PROPERTY FUND LIMITED SECOND RESPONDENT
Neutral Citation: AIG South Africa Limited and Others v Azrapart (P ty) L td and
Another (898/2024) [2025] ZASCA 172 (14 November 2025)
Coram: MOTHLE, KGOELE and KOEN JJA and STEYN and HENNEY AJJA
Heard: 4 September 2025
Delivered: 14 November 2025
Summary: Insurance law – antecedent insurance agreements – whether the
insurance contract falls to be rectified – whether antecedent agreements were
concluded between the appellants and the respondents, and if so, what the terms of
those antecedent agreements were – whether the insurance policy ought to have
been rectified, by the deletion of the clause providing for Infectious and Contagious
Disease cover.
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___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from : Gauteng Division of the High Court, Johannesburg (Manoim J
sitting as court of first instance):
The appeal is dismissed with costs, including the costs of two counsel.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Mothle JA (Kgoele and Koen JJA and Steyn and Henney AJJA concurring)
Introduction
[1] This is an appeal against the judgment and order of the Gauteng Division of
the High Court, Johannesburg (the high court), delivered on 3 May 2024. The issues
in this appeal arise from a dispute over the terms of an insurance contract,
concluded by the insurers (the appellants) and the insured (the respondents). It
concerns the question whether the contract of insurance stands to be rectified, as
pleaded by the insurers.
[2] The insurers, with different percentages of the assumed risk, are the first to
fifth appellants, namely, AIG South Africa Limited (AIG) with 70 per cent risk, Old
Mutual Insure Limited (OMI) with 14 percent risk, Bryte Insurance Company Limited
(Bryte) with 8 percent risk, Guardrisk Insurance Company Limited (Guardrisk) with
3 percent risk and Insurance Underwriting Managers (Pty) Ltd (IUM) with 5 percent
risk, respectively. The insured are Azrapart (Pty) Ltd and Accelerate Property Fund
Limited, cited as the first and second respondents in this appeal.
In the high court
[3] The respondents (as plaintiffs in the high court) had claimed indemnification
under the insurance contract, against the appellants (as defendants) , based on the
loss suffered consequent to the outbreak of the COVID-19 pandemic. The terms of
the insurance contract under the item ‘Business Interruption’, provided for a clause
which included cover against Infectious and Cont agious Disease (the ICD cover).
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The appellants denied liability, claiming rectification in their answering affidavits. The
rectification, as pleaded by the appellants, contends for the deletion of the clause
providing the ICD cover under business interruption.
[4] On 3 May 2024, the high court dismissed the appellants’ plea of rectification
of the insurance contract and granted a declaratory order in favour of the
respondents, to the effect that, on a proper interpret ation, the insurance contract
under business interruption includes the ICD cover . On 23 July 2024 , on application
by the appellants, the high court granted leave to appeal to this Court. On the eve of
the hearing of the appeal in this Court , the first to fourth appellants concluded a
settlement agreement with the respondents. As a result, the first to fourth appellants
delivered a notice to withdraw their appeals. The appeal proceeded only with the
fifth appellant against the respondents.
Background facts
[5] The background narrative to the cause of the dispute, stated succinctly, is the
following. The respondents were co-owners of Fourways Mall (the mall), a shopping
complex located in Fourways, Sandton , Gauteng . The y conducted the business of
letting out store premises to tenants who trade d from the mall. In July 2019, the
respondents engaged Marsh (Pty) Ltd (Marsh), a local affiliate of an international firm
of insurance brokers , with the same name , to secure insurance for the mall. The
respondents needed an insurance policy that, amongst others, would provide cover
against factors that would cause business interruption, from which losses would be
incurred. The ICD cover was one such factor . Marsh accepted the mandate and
appointed its employee , Mr Andrew Stockton (Mr Stockton) , the new business
development manager in South Africa, to the project.
[6] Mr Stockton, who was the only witness to testify in the high court, stated that
he had approached the first appellant because they had the largest capacity to
he had approached the first appellant because they had the largest capacity to
underwrite this type of insurance. As the largest insurer, the first appellant took on
the role of lead insurer, conducting negotiations as to the terms of the contract on
behalf of other insurers participating in the deal. In order to provide a better context
of the genesis of the dispute, it is apposite to explain , in a simplified manner, the
procedure through which the negotiations were conducted.
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[7] It is c ommon practice in the insurance industry, that the negotiations for an
insurance contract of this magnitude are conducted through a set of ‘governing
rules’. These rules are recorded as ‘Drafting Instructions’, which entail the agreed
base wording for the draft proposal, in this case, the drafting Assets All Risks
Policies (POLDRA) . Broadly stated , the negotiations commence with the insured
requesting a quotation on the terms of insurance it requires. This request is made in
the insured broker’s standard form or template, named a ‘ Quoting Slip’. This
document contains the standard terms and conditions for that kind of contract. The
Quoting Slip would also provide space for the parties to state their preferred
subjectivities and conditions.
[8] Of importance is that the system envisages all parties communicat ing their
proposals, subjectivities and conditions, as well as counter-proposals on the same
Quoting Slip, exchanged between the m. The use of the Quoting Slip is governed by
the POLDRA rules, which are binding on all parties to the negotiation. As an
example, a ny subjectivities and conditions, additions and amendments or counter
proposals would be stated and highlighted by the author , for the receiving party to
easily identify them from the detailed text, as it will be highlighted in the designated
area in the Quoting Slip. Anything not highlighted will be taken as accepted. The
exchange will continue until the final text is agreed upon by the insurer and the
insured. The negotiations end with the insured issuing a ‘Placing Slip’ for signature
by the parties , indicating acceptance of th e ant ecedent agreement from the
Quotation Slips. The wording of the signed Placing Slips would be the basis on
which the insurance contract or policy would be drafted and provided to the parties. I
will later in this judgment, revert to some of the rules that were applicable to this
process.
process.
[9] On 23 July 2019, Mr Stockton sent a request for quotation to Ms Valerie Wide
(Ms Wide), then employed by the first appellant as the senior underwriter.
Mr Stockton and Ms Wide knew each other, having conducted business as
representatives of brokers in similar roles before. Ms Wide, as the representative of
the first appellant, was the lead broker for the first to fourth appellants, though each
appellant had an underwriter to cater for the interests of the insurer on behalf of
which they acted. In the case of the fifth appellant, the underwriters comprised a
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team which included Mr Ryan Shepherd (Mr Shepherd) and Mr Lekang Motaung
(Mr Motaung).
[10] Mr Stockton initiated the request for a quotation , using the Marsh’s form of
Quoting Slip, for the insurance in respect of the mall. On page 8 of the first Quoting
Slip, under the heading ‘Business Interruption: specific extensions’, he included the
phrase ‘Infectious/Contagious Disease ’. The invitation to quote reflects in a
highlighted block on the front page, the following instruction:
‘Please quote in accordance with the underwriting information, coverage, terms and
conditions as reflected below. Should you require any restrictive/unusual/different terms,
conditions or exclusions please indicate this clearly on the document.
Any amendments made by the Insurer to the slip which are not highlighted shall not apply to
this quotation.’ (My emphasis.)
[11] This Quoting Slip included the ICD cover in the text block, stating the terms of
Business Interruptions : specific extensions cover. The fifth appellant entered the
negotiations later in the year . I will return to the negotiation with the fifth appellant
later in this judgment, since the source of the confusion which led to the dispute in
this appeal, arose from the first quotation sent by Ms Wide, before the fifth appellant
was invited to participate as one of the insurers.
[12] In response to the Request for Quotation (RFQ), Ms Wide sent a quotation to
Mr Stockton on 5 August 2019 , using a different Quoting Slip from the one sent by
Mr Stockton . This Quoting Slip, sent by Ms Wide , did not include the ICD cover,
under the block on Business Interruptions: specific extension cover. Significantly, the
omission of the ICD cover was neither specifically highlighted nor signalled by a
strike-through on the Quoting Slip, as required by the governing rules. It could thus
not be detectable to a reasonable reader unless they painstakingly checked every
not be detectable to a reasonable reader unless they painstakingly checked every
word against the initial Quoting Slip sent by Mr Stockton . In addition, Mr Stockton
sent the Quoting Slip in Word format, but Ms Wide returned hers in PDF format.
[13] It has not been definitively determined why Ms Wide ’s Quotation Slip
excluded the ICD cover . Ms Wide did not testify at the hearing in the high court,
though, in her sworn statement presented to the court, she denied having acted
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deliberately. Of importance, and contrary to the governing rules, there was no
iteration in the document or highlighted portion of the text, to indicate the exclusion of
the ICD cover from her Quoting Slip. Consequently, n either Ms Wide nor
Mr Stockton appears to have taken notice of this critical error. The consequence was
the use of two Quoting Slips, interchangeably including or excluding the ICD cover.
This reality, which went undetected, is the factor on which the appellants hung their
defence of rectification.
[14] The two Quoting Slips were used interchangeably during the negotiation
phase. The negotiations were conducted mainly through the exchange of emails.
The focus of the discourse through the emails, was on the determination of the risk
capacity percentage for each insurer. The risk capacity was determined on the
concept of ‘follow the line of the lead insurer ’. This meant that the first appellant as
the lead insurer, assumed the greater risk capacity percentage. The other appellants
had to negotiate theirs in line with the terms negotiated by the first appellant. The risk
capacity percentage having been broadly agreed, Marsh sent a Quoting Slip dated
14 November 2019 to each representative of the appellants to confirm, by signature,
the final risk capacity percentage . This Quoting Slip, for some inexplicable reason,
excluded the ICD cover. The first to fourth appellants signed it, confirming the risk
capacity percentage as allocated. The first appellant, as lead insurer, accepted a risk
capacity of 70 percent. The second and subsequent other appellants made various
proposals or offers to Marsh on capacity percentages, eventually settling their offers
at 14 percent, 8 percent, 3 percent and 5 percent respectively. I will return to the
latter case of the fifth appellant’s 5 percent risk capacity, later in this judgment
[15] On 11 December 2019, Marsh sent the Placing Slip to all parties for signature.
[15] On 11 December 2019, Marsh sent the Placing Slip to all parties for signature.
The Placing Slip included the ICD cover . The representatives of the first to fourth
appellants signed the Placing Slip, with Mr Shepherd signing the Placing Slip for the
fifth appellant on 13 January 20 20. On 12 March 2020, Marsh sent the final Policy
document (insurance contract) , which was accepted by the appellants. Like the
Placing Slip, the insurance contract included the ICD cover.
[16] On 21 November 2022, two years after the insurance contract was concluded,
the responden ts instituted an action against the appellants, wherein they claimed
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business interruption losses. The claim arose from the outbreak of the 2020 C OVID-
19 pandemic, which resulted in the promulgation of emergency regulations . The
regulations, published by the government in order to curb the spread of this
contagious disease , sought to restrict the movement of the population in South
Africa, mainly from public places . The restrictions affected, amongst others, the
conduct of trade and business overall , including th at of the tenants at the mall. The
tenants could not trade and consequently, could not afford the payment of rental of
the premises. Th us, the loss allegedly suffered by the respondents ar ose from
COVID-19, which was in essence ‘an infectious and contagious disease’, which
caused the business interruption.
[17] The respondents thus raised their claims for indemnity under the clause of the
ICD cover. In response, the appellants raised the defence of the rectification of the
insurance contract, contending that the contract should be read as excluding the ICD
cover.
[18] In the high court, the first to fourth appellants and the respondents agreed to
request the court to order a separation of three issues, ‘on the basis that if any one
of the three was resolved in the [appellants’] favour, that would end the claim ’. The
high court considered it prudent to grant an order of the separation of issues. The
first separated issue was whether the contract of insurance consisted of the policy in
its final form or whether it consist ed of the final Quoting Slip of 14 November 2019.
The second separated issue concerned the rectification defence raised by the
appellants. The third separated issue concerned only the first to fourth appellants,
who raised the contention that the respondents had not paid their premiums in full,
and therefore, were not entitled to an indemnification.
[19] The fifth appellant did not consent to the granting of the order for separation of
[19] The fifth appellant did not consent to the granting of the order for separation of
issues, but nevertheless participated in the second s eparated issue, rectification,
which is the basis of its appeal before this Court. I now turn to deal with the fifth
appellant’s case as presented in the high court and in this Court.
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The Fifth Appellant’s case
[20] The defence of rectification raises the question : what was the common and
continuing intention of the parties? The intention of the parties is determined on the
basis of the facts of each case. The following are the facts of the case in so far as
the fifth appellant is concerned. About two months after Mr Stockton sent the first
request for quotation to Ms Wide on 23 July 2019 , he sent an initial request for a
quotation by email to Mr Shepherd, on 13 September 2019, inviting the fifth appellant
to participate with a 10 percent risk capacity. In that email, he referred Mr Shepherd
to the then ‘current terms agreed to ’ with the first appellant. This could only have
meant the first appellant’s Quoting Slip dated 19 August 2019, which included the
ICD cover. Mr Shepherd responded on the same day by stating : ‘[t]hat sounds do -
able. We will send you our formal quotation by latest COB on Monday’.
[21] On 16 September 2019 , Mr Motaung sent an email to Mr Stockton, stating:
‘[A]attached please find in principle our follow line capacity confirmation’. At that
stage, the fifth appellant had been offered 10 percent risk capacity. On 15 November
2019, as with all the appellants, Mr Shepherd received from Mr Stockton the
14 November 2019 Quoting Slip, which required a signature, confirming the
participation of the fifth appellant at 5 percent capacity risk. This Quoting Slip did not
have the ICD cover . Significantly, the fifth appellant did not sign this last Quoting
Slip. In this regard, the fifth appellant, in its heads of argument, quoted from
Mr Stockton’s oral evidence:
‘[The fifth appellant] responded in an email on 21 November 2019 to my correspondence of
15 November 2019 by attaching its correspondence of 16 September 2019 containing the
original signed Quoting Slip (which contains the R5 000 000.00 sub -limit and the
“infectious/Contagious Disease” wording) and detailed subjectivities. [The fifth appellant] did
not sign the 14 November 2019 Quoting Slip.’ (Own emphasis)
[22] Instead of the fifth appellant signing the 14 November 2019 Quoting Slip,
Mr Motaung sent two emails dated 21 and 29 November 2019, to Ms Lesego Lydia
Motala (Ms Motala) and Ms Nokwanda Mbilase (Ms Mbilase) respectively of Marsh.
In particular, in the email to Ms Mbilase dated 29 November 2019, Mr Motaung
confirmed that the fifth appellant would take 5 percent capacity, and there and then,
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Mr Motaung also requested a Placing Slip. Nothing was raised in the emails
concerning the inclusion or exclusion of the ICD cover.
[23] The first to fourth appellants all signed the 14 November 2019 Quoting Slip ,
effectively signalling an end to the negotiations. The appellants went on risk from
1 December 2019. On 13 December 2019, the appellants received the Placing Slip,
which included the ICD cover. Mr Shepherd was then on leave and indicated to
Marsh that he would attend to the Placing Slip sent to the fifth appellant on his return
in January 2020, which he in fact did and signed on 13 January 2020. It needs to be
noted that it appears that the Placing Slip was the first document of POLDRA , which
the fifth appellant signed. There appears to be no evidence of a signed Quoting Slip
from the fifth appellant. The fifth appellant was negotiating mainly through exchange
of emails.
[24] It was only two years later, after the respondents claimed indemnity, that the
first appellant, in its answering affidavit, raised the defence of rectification concerning
the inclusion of the ICD cover in the policy wording of the insurance contract .
Throughout the negotiation, n one of the parties raised the issue concerning the
inclusion or exclusion of the ICD cover. This is evidenced by the fact that none of the
appellants ever highlighted in any Quotation Slip or raised any objection to the ICD
cover in the emails.
[25] The fifth appellant’s pleaded case for rectification relies on an ‘alleged
insurance contract concluded on or about 1 December 2019, consisting of allegedly
four documents’, which in fact were three. These documents, stated in paragraph 7.3
of its plea, were:
(a) The Final Quoting Slip by AIG dated 14 November 2019 (which excluded the
ICD cover and was not signed by the fifth appellant);
(b) The quotation, subjectivities and conditions to cover , sent on 15 November
2019 (the same document as in (a) above);
2019 (the same document as in (a) above);
(c) The Final Placing Slip (which included the ICD cover); and
(d) The Policy Wording (which included the ICD cover).
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[26] The fifth appellant con tended that these documents are contradictory and
wholly irreconcilable with one another, as regards the ICD c over. Therefore, the
clause on the ICD cover ‘. . . was included in the policy wording as a result of a bona
fide mutual error in the drafting of the policy wording and it should not have been
included in the policy wording at all. The policy wording stands to be rectified
accordingly’.
The law
[27] The onus to prove rectification lies with the party seeking it. The fifth appellant
must prove the factors required to sustain rectification. This Court, in Propfokus 49
(Pty) Ltd and Others v Wenhandel 4 (Pty) Ltd,1 held that in order to succeed with a
defence of rectification, a party must prove the following five factors:
‘(a) that an agreement had been concluded between the parties and reduced to writing;
(b) that the written document does not reflect the true intention of the parties – this requires
that the common continuing intention of the parties, as it existed at the time when the
agreement was reduced to writing, be established;
(c) an intention by both parties to reduce the agreement to writing . . .;
(d) a mistake in drafting the document, which mistake could have been the result of an
intentional act of the other party or a bona fide common error; and
(e) the actual wording of the true agreement.’
[28] The facts and evidence relied on must, in this case, also be considered within
the context of the POLDRA governing rules that applied during the negotiations. The
POLDRA governing rules in Realty Assets All Risk s are stated as clauses in the
Quoting Slip. Clauses 8 and 9, which are applicable and relevant to the issues in this
case, will be referred to later in this judgment.
Analysis of the fifth appellant’s case
[29] The background facts concerning the communication between the fifth
appellant and Marsh, indicates the following:
(a) In the first instance, t he first appellant became aware of the intention to
(a) In the first instance, t he first appellant became aware of the intention to
include the ICD cover in the request for quotation sent by Mr Stockton on
1 Propfokus 49 (Pty) Ltd and Others v Wenhandel 4 (Pty) Ltd [2007] ZASCA 15; [2007] SCA 15
(RSA); [2007] 3 All SA 18 (SCA) para 13.
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13 September 2019, when the first appellant received its invitation to participate in
the deal. By that date, the ICD cover was in the Quoting Slip of 19 August 2019 to
which Mr Shepherd was referred. The fifth appellant never raised any issue
concerning the inclusion of the ICD cover. It never highlighted an objection or
proposed an amendment to the contrary, as invited to do so, if necessary, which
appears on page 8 of the request for quotation.
(b) Clause 8 of POLDRA is instructive. It recognises the Placing Slip as the policy
wording which must be contained in the insurance contract. Clause 8 provides: ‘the
policy must be drafted in accordance with the terms, conditions, exclusions, etc
reflected in the signed Placing Slip. Do not deviate from the Placing Slip without first
renegotiating with Insurers. If changes are negotiated with Insurers, a Placing Slip
endorsement reflecting th ose changes must be issued and signed by the relevant
Insurer’. The fifth appellant was the last party to sign the Placing Slip, a month after it
was sent. In so signing, the fifth appellant did not signify any changes.
(c) The fifth appellant alleges a contradiction between two (in fact one) Quoting
Slips of 14 November 2019 on the one side , and a Placing Slip a s well as the
ultimate insurance contract, on the other side. First, the Quoting Slips referred to by
the fifth appellant under (a) and (b) are one and the same document. The Quoting
Slip sent to all the parties, is dated 14 November 2019 . The fifth appellant received
its copy on 15 November 2019, but unlike the first appellant, it never signed it. It
seems to me that , the Quoting Slip , within this context , served as received
confirmation of the risk capacity allocations to all the participating insurers. The fifth
appellant confirmed this fact by email of 29 November 2019, from Mr Motaung to Ms
Mbilase. The obvious fact is that the initial Quoting Slip to reach the fifth appellant, is
Mbilase. The obvious fact is that the initial Quoting Slip to reach the fifth appellant, is
the one dated 19 August 2019 , as an attachment to the September 2019 invite to
participate, dated. That Quoting Slip of 19 August 2019, came from the first appellant
and had ICD cover included. The fifth appellant accepted the terms contained
therein, at 10% risk participation.
(d) Clause 9 provides for measures to ensure that the intentions of the parties are
correctly reflected in a Placing Slip. After having received a Placing Slip for a month,
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the fifth appellant’s brokers should have checked the wording of the Placing Slip
before they signed. The email invited them to comment or sign. Clause 9 provides:
‘In cases where clauses are not included in this document [a reference to the Placing Slip ]
but are required on a client specific basis, these clauses should be referred to the Sandton
wordings team who will work with you to ensure that they correctly reflect intention and are
aligned with the balance of the policy.’ (My emphasis.)
(e) The intention of the respondents has always been that under Business
Interruptions there is a need for the ICD cover. Ms Wide would attest to this fact , as
the very first request for a quotation sent to her on 23 July 2019, included the ICD
cover. The 19 August 2019 Quotation Slip, which she sent on behalf of the fifth
appellant, and referred to the fifth appellant by Marsh , in the email of invitation to
quote dated 13 September 2019, also included the ICD cover. The fifth appellant
made no reference to this vital evidence. Apart from seeking to limit its cover liability
to R1million, there was no issue relating to the terms of insurance cover on ICD, that
was raised by the fifth appellant, that would have affected the intention of the fifth
appellant and the respondent to contract.
(f) The respondents’ claim was lodged in April 2020. The appellants only raised
the alleged rectification concerning the inclusion of the ICD cover for the first time in
the answering affidavits in 2022 , nearly two years after the claim was lodged. In
addition, the fifth appellant failed to call a witness to testify in support of the
rectification. The latter would have enabled the high court to be better placed to
determine Mr Shepherd’s intention when he signed the Placing Slip.
(g) In answering the first question of the separated issues, the high court invoked
the Parol evidence rule2, and concluded that the contract between the parties is the
the Parol evidence rule2, and concluded that the contract between the parties is the
last document, the contract of insurance, distributed and signed for acceptance by all
parties in March 2020. The terms and conditions of the contract of insurance
reflected those of the Placing Slip, signed by the parties before the contract of
2 In Union Government v Vianini Ferro -Concrete Pipes (Pty) Ltd 1941 AD 43 at p 47, The parol
evidence rule is: ‘that when a contract has been reduced to writing, the writing is, in general, regarded
as the exclusive memorial of the transaction and in a suit between the parties no evidence to prove its
terms may be given save the document or secondary evidence of its contents, nor may the contents
of such document be contradicted, altered, added to or varied by parole evidence.’
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insurance, the last party being the fifth appellant in January 2020. These last two
documents contain the terms and conditions of the agreements concluded during the
negotiations between the insured and insurers , and their intention to enter into an
insurance contract. It is therefore these last two documents that have to be properly
interpreted to consider whether there is a ‘mistake common to the parties’, that
would raise the question of rectification. The fifth appellant has not proved any
existence of a mistake between any of the two documents.
[30] Having regard to the conspectus of the evidence and the factors stated
above, it is clear that the fifth appellant l atched on to a defence which the first to
fourth appellants have raised. In Soil Fumigation Services Lowveld CC v Chemfit
Technical Products Pty Ltd 3 this Court held: ‘It is a settled principle that a party who
seeks rectification must show facts entitling him to that relief “in the clearest and
most satisfactory manner”…In essence, a claimant for rectification must prove that
the written agreement does not correctly express what the parties had intended to
set out therein. ’ The fifth appellant’s communication with Marsh did not yield any
‘mistake’ common to it and the respondents. The fifth appellant has not proved, ‘in
the clearest and most satisfactory manner,’ that the written contract of insurance is
contrary to the Placing Slip . Further, no evidence was provided that there exists ‘a
mistake common to the parties ’ concerning the two documents , such that these
documents do not correctly express the intention of the contracting parties.
[31] The fifth appellant was the last party to join the deal and negotiated its part
through an exchange of emails . The terms of agreement were negotiated on the
basis of the Quotation Slip of 19 August 2019, concluded with the first appellant
which included the ICD cover. Apart from the question of risk capacity and monetary
which included the ICD cover. Apart from the question of risk capacity and monetary
limitation of cover, the fifth appellant did not negotiate for anything else. The wording
in the Placing Slip and the insurance contract is the same, and indicates that the
parties were of the same inten t. Therefore, the defence of rectification has no merit ,
and the appeal must therefore fail. The costs should follow the result.
3 Soil Fumigation Services Lowveld CC v Chemfit Technical Products (Pty) Ltd [2004] 2 All SA 366;
2004 (6) SA 29 (SCA) para 21.
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[32] I make the following order:
The appeal is dismissed with costs, including the costs of two counsel.
_________________
S P MOTHLE
JUDGE OF APPEAL
15
Appearances
For the fifth appellant: E J Ferreira SC
Instructed by: Engelbrecht Attorneys Inc., Johannesburg
McIntyre Van der Post Inc., Bloemfontein
For the respondents: M C Maritz SC with G Elliot SC
Instructed by: Thomson Wilks Inc., Cape Town
Honey Attorneys, Bloemfontein.