REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number: 17/2004
Reportable
In the matter between:
THE SOUTHERN LIFE
ASSOCIATION LIMITED APPELLANT
and
WILLIAM GERHARDUS MILLER RESPONDENT
CORAM
: SCOTT, FARLAM, CAMERON, VAN
HEERDEN JJA, et PATEL AJA
HEARD
: 4 NOVEMBER 2004
DELIVERED: 1 DECEMBER 2004
SUMMARY: Insurance – disability insurance – clause in policy to the effect that
insurer would only be liable if in its op inion claimant was totally and permanently
disabled – interpretation of – necessity for claimant to establish that insurer’s opinion on
the point unreasonable.
________________________________________________________
JUDGMENT
________________________________________________________
FARLAM JA
2
[1] This is an appeal from an order made by Hattingh J, sitting in
the Bloemfontein High Court. Th e learned judge ordered the
appellant, a registered in surer, to admit liabilit y for a claim brought
by the respondent against the tr ustees of a provident fund (who
were cited as the se cond defendant in the court a quo), together
with interest on the claim calculated from 12 October 1993, and to
pay the costs. The trustees of the provident fund were ordered to
pay the amount of R205 920 to th e respondent with interest, also
calculated from 12 October 1993.
[2] The claim in respect of whic h the appellant wa s ordered to
admit liability was for total and pe rmanent disability benefit brought
by the respondent again st the provident fund, of which he was a
member. The claim was based on the allegation that, as a result of
a serious knee injury sustaine d by him on 25 March 1991, when a
mandrill fell on his knees, he was totally and permanently
incapable of engaging in his own occupation or in any other
occupation for which he was (or could reasonably be expected to
become) qualified.
[3] The reason that the appellant was called upon to admit
liability for the respondent’s claim was the following. With effect
from 1 October 1991 the appellant had concluded a written
agreement with the trustees of the provident fund in terms of which
3
it agreed to provide them with risk benefit cover in respect of
claims made against the fund by its members. (In what follows I
shall refer to this agreement as ‘t he policy’.) The rules of the
provident fund, which co nstituted a contract between the trustees
and the respondent, co ntained a provision (c lause 7.2.2) to the
effect that payment to a member of a disability benefit would be:
‘subject to the Registered Insurer underwriting the benefit [in this case the
appellant] admitting liability for the clai m and subject to any restrictions
imposed upon the benefit by the Registered Insurer’.
The respondent was thus unable to claim the disa bility benefit to
which he alleged he was entitled fr om the trustees of the provident
fund unless and until the appellant had admitted liability for the
claim. Hence his prayer, which th e trial court grant ed, for an order
calling upon the appellant to admit liability to the trustees of the
fund for the respondent’s claim.
[4] Clause 3.1.0 of the policy contains a definition of
disablement. It reads as follows:
‘3.1.0 Definition of Disablement
3.1.1 A member will be regarded as totally and permanently disabled if in the
opinion of the Southern he has been so disabled by injury or disease
as to be continuously, permanently and totally incapable of engaging
for remuneration or profit
(a) in his own occupation or
4
(b) in any other occupation for which he is or could reasonably be
expected to become qualified by his knowledge, training,
education, ability and experience.’
[5] Clause 2.3.0 of the policy, described as the ‘actively at work
condition’, is also relevant. It reads as follows:
‘2.3.0 ACTIVELY AT WORK CONDITION
2.3.1 A member must be at work attending to and capable of attending to
all his normal duties on the first working day on which his cover is
due to start. If he is not so at work his cover will be delayed until he
submits evidence of his good health and insurability or completes
eight consecutive weeks’ service without absence.
2.3.2 The above condition applies separately at the commencement of
each type of risk benefit cover.’
[6] On 25 March 1991, when the respondent sustained his knee
injury, he was employed as a main tenance electrician by Unipipe
(Pty) Ltd in Bloemfontein. It was comm on cause at the trial that as
a result of the injuries sustained by him on 25 March 1991 the
respondent is unable to carry on the trade of a maintenance
electrician. He was unable to work for some time after the incident
on 25 March 1991 but he returned to his employer in January 1992
where he took up a post descri bed in the papers as that of a
‘draughtsman’. At this stage he became a member of the provident
fund. His duties included sorting and filing plans, tracing over plans
5
which had become faint, writing w ater meter readings in a book,
fetching post and pa rts, standing at a bo ard tracing drawings,
taking measurements and devel oping new control panels. He
himself said he would not descr ibe this job as being that of a
draughtsman, stating that he felt like a messenger at that stage.
He performed his duties in the post he took up in January 1992
until October 1993 when his post became redundant.
[7] On 30 October 1993 a letter was addressed to him by or on
behalf of his employer in wh ich an earlier discussion was
confirmed in which he had been advised that his post had become
redundant. He had been given the choice of taking a retrenchment
package on termination of his se rvice on 8 October 1993 or
requesting his employer to a pply on his behalf for disability
benefits from the provident fund and the Compensation
Commissioner. He had, according to the letter, chosen the second
option and unde rstood that, irrespective of the decision of the
trustees of the provident fund, his post had become redundant and
his employment was accordingly regarded as terminated whether
or not his claim was accepted.
[8] It is thus clear that the respondent’s employment was
terminated because his post beca me redundant. The respondent
himself said that his employers were not dissatisfied with his
6
performance in his position as a ‘draughtsman’.
[9] In his particulars of claim, as amended during the trial, the
respondent alleged that he became tot ally incapable of continuing
with his own or any alternative occupation on 25 March 1991 (ie,
the date he sustained his injuries), alternatively on 8 October 1993
[ie, the date on which his employment terminated when the post he
was filling was declared redundant].
[10] The main defences raised by the appellant in its plea were
the following:
(a) the respondent, no t being party to the insurance contract
between the appellant and the trustees of the provident fund, could
not pursue a claim against the appe llant arising out of his alleged
disability; and
(b) the respondent was not disabled as defined under the policy.
The appellant amplified this denia l by averring that the respondent
was employed as at 8 October 1993, when his employment
terminated, as a ‘draughtsm an’ and not as a maintenance
electrician (in respect of which occupation it was not denied that
the respondent was tot ally and permanently disabled). The
appellant also averred, relying on clause 2.3.1 of the policy
(quoted in para [5] abov e), that it only came on risk in respect of
the respondent, and th en only in relation to his position as a
7
‘draughtsman’ after he had comp leted eight consecutive week’s
service as a ‘draughtsman’, after he returned to wo rk in January
1992.
[11] In his replication th e respondent alleged, inter alia, that the
appellant was es topped from contending th at it only came on risk
in respect of him as regards hi s occupation as a ‘draughtsman’,
and not as a maintenance electr ician, by reason of certain
statements it made when handling his claim. He alleged further
that, as a result of these statements, he did not time ously institute
a claim in respect of his disability against the previous provident
fund of which he was a member on 25 March1991 and its insurer.
[12] The respondent testif ied at the trial a nd also adduced the
evidence of two expert witnesse s, Dr JJ Swar t, the orthopaedic
surgeon who treated him from s hortly after 25 March 1991 and
who performed severa l operations on his knees thereafter, and
Mrs Elana Human, an occupational therapist, who examined the
respondent during 1995 and again in 1998. Three witnesses
testified on behalf of the appellant, viz Professor JA Shipley, a
principal specialist and associate professor in the Department of
Orthopaedic Surgery at the Univ ersity of the Free State, Mrs
Hester van Biljon, an occupational therapist, and Mrs Lorraine van
Eeden, the senior manager of th e appellant’s ri sk management
8
consultancy.
[13] Dr Swart testified that the respondent could do sedentary
work or a light type of work whic h does not requir e much sitting
and standing; that he could perform the work of a draughtsman as
long as it was not necessary for him to stand or walk for any length
of time; that he could do office work, and that he could do what he
was employed to do af ter January 1992. Dr Sw art also testified
that the only thing that prevented the respondent from fully
carrying out what he regarded as all the duties of a draughtsman
was his inability to work standing up . Dr Swart’s evidence in this
regard was based n ot on the respondent’s actual duties when he
started working as a ‘draughtsman ’ in January 1992 but what he
understood the full d uties of an engineering draughtsman to be,
based on what he had observed in the office of his son (a
professional engineer).
[14] In examination in chief the respondent, in discussing the post
he occupied when he returned to work in January 1992, stated that
his employers told him that they would create a post for him so that
he could sit in an offi ce and work and they would then see if his
injuries stabilised so that he c ould resume his occupation as an
electrician. Describing what he did in this new post, he said that he
refiled some of the plans and retr aced plans that were faint. That
9
was his basic work. He also s tated that, when his employers were
informed by Dr Swart that he woul d never be able to resume his
occupation as an elec trician, they decided to declare the post they
had specially created for him redundant. He was given a choice of
(a) taking a retrenchment package , negotiated by hi s trade union
or (b) instituting a disability clai m against the prov ident fund and a
claim against the Workman’s Co mpensation Commissioner. He
chose the second alternativ e. At the outset of his cross-
examination the respondent c onceded he could do sedentary
work. He also stated that there was no dissatisfaction with the way
he did his work and that he thought that his employer was satisfied
with his work. Later he testi fied that he could not carry on the
occupation of a ‘draughtsman’ as a result of the standing that was
required.
[15] In her evidence Mr s Human stated tha t she was of the
opinion after examining the res pondent in 1995 that he could not
perform a full day’s work. In co ming to this opinion she was
influenced by the fact that, acco rding to her information, which she
acquired from a civil engineer, an electrical draughtsman has to
stand for about half of his worki ng day. She also stated that she
examined the respon dent again in 1998. Sh e found that his
condition had deteriorated since her earlier interviews with him
10
from the point of view of his f unctional and genera l capabilities.
She said that in her opinion he wa s not in a positi on to undertake
an occupation similar to that of an electrician. Mrs Human’s
opinion that the respondent was not able to perform a full day’s
work was based on his incapacity to endure pa in, particularly pain
in his knee joints.
[16] Evidence was led at the tria l regarding a videotape taken
without the respondent’s knowledge early one morning in August
1995, which apparently showed him walking with relative ease, in
a manner differing markedly fr om the symptoms previously
observed by Mrs Human. She ex plained the disc repancy on the
basis that it was probable that the respon dent’s pain fluctuated
from day to day. She conc eded, however, that a person with
osteo-arthritis, such as the respondent has, would have difficulty in
walking on first rising, which on the evidence was when the video
was taken.
[17] Professor Shipley’s evidence was based on the video, the
medical reports prepared by other experts who had examined the
respondent and the x-rays which Dr Swart had handed in during
his evidence. He stated that the medical reports to which he
referred as well as the video were sufficient to enable him to form
an opinion in relati on to the respondent’s condition. He was of the
11
opinion that the respondent ‘sho uld be able to cope with some
form of office work where a m oderate amount of sitting, standing,
moving around was required of him’ but not with wo rk where he
was ‘expected to perform any sort of heavy labour or to climb or to
get into difficult/awkwa rd spaces or positi ons’. Professor Shipley
was not aware of any reason that would prevent the respondent
from working a five-day working week, eight hours a day.
[18] Mrs Van Biljon testified t hat in her opinion although the
respondent could no longer work as a maintenance electrician, he
could perform an alternati ve sedentary occupation, such as that of
a draughtsman, electrician dealin g with small components or an
electronic technician. She stated that the re spondent tended to
malinger or exaggerate his symptoms. She said that in her opinion
there was nothing wron g with the respondent’s sitting endurance
and that his conduct was not affe cted by his pain level. She
testified further that the respondent needed psychiatric help to
alleviate his depressi on and to help him cope with and accept his
disabilities.
[19] Mrs Van Eeden testified about the appellant’s original
decision to repudiate the respondent’s total disability claim as well
as a temporary disability cl aim made on his behalf. (The
appellant’s decision to repudi ate the respondent’s temporary
12
disability claim was subsequently reversed after the appellant had
been incorrectly informed by r epresentatives of the respondent’s
employer, some four months after he was retrenc hed, that he was
‘battling at the moment as a draftsma n’. The appellant declined to
reverse its decision in respect of the re spondent’s permanent
disability claim.) Mrs Van Eeden also testified about the various
subsequent unsuccessful at tempts made on the respondent’s
behalf to persuad e the appellant to revers e its decision on the
permanent disability claim.
[20] In his judgment the judge found that th e policy between the
appellant and the trustees of the provident fund included a contract
for the benefit of a third party, namely the respondent, which he
could and did accept. It wa s on this basis that the judge rejected
the appellant’s defence that the respondent could not bring a claim
against it based on his alleged permanent disability because there
was no contractual privity between the respondent and the
appellant.
[21] The judge also held that the occupation in respect of which
the respondent was to be regarded as permanen tly disabled for
the purposes of his claim for tot al permanent disa bility benefits
was that of a maintenance electric ian. The judge’s decision on this
point was based on a finding that the respondent’s employer gave
13
him temporary office wo rk when he returned to work in January
1992 on the condition th at if his knees comp letely recovered he
could resume his occupation as an electrician. The judge also
found that the responde nt’s employer was of the view during
October 1993 that the re spondent as a result of his disability could
not continue as a ‘draughtsman’ and that the employer associated
itself with the medical report a ccording to which the respondent
was declared incapable of performing the work of a draughtsman.
He also said th at it appeared th roughout that the appellant
regarded the respondent’s occupation as that of an electrician for
the purposes of determin ing the benefits to which he was entitled
in terms of the insurance contract.
[22] As regards the respondent’s di sability, the judge accepted
the evidence of Dr Swart that the respondent is permanently
disabled from engaging in his occupation as an electrician or
another occupation wi thin the meaning of cl auses 3.1 .1(a) and
3.1.1(b) of the policy. He also accepted in it s entirety the evidence
of Mrs Human, who (it will be recalled) had testified that in her view
the respondent was unable to perform a full day’s work.
[23] The judge held that the evidence of Professor Shipley did not
derogate from that of Dr Swart. He based this on a concession
made by Professor Shipley that in the absence of a clinical
14
examination his opinion would be less accurate than that of Dr
Swart and that he coul d not pronounce upon inter alia Dr Swart’s
findings in regard to the mobility that the respondent retained in his
knees. He also stated that Pro fessor Shipley had stated that he
was not in a position to ex press an opinio n regarding the
respondent’s ability to perform tasks in his workplace. (In saying
this he erred. Professor Shipley in fact said - and his evidence on
the point was not challenged - that he was able to express an
opinion on the point.) The judge also stated that Professor
Shipley’s evidence had not been put to Dr Swart and said that as a
result of this Dr Swart’s evid ence had actually been admitted.
(Here again he erred. Professor Shipley’s evidence was put to Dr
Swart during cross-examination.)
[24] The judge rejected the evidence of Mrs Van Biljon, finding it
to be unreliable. In particular he strongly criticised a statement that
she made that although the respon dent was unable to engage in
his occupation as an electrician it could reasonably be expected of
him by means of his knowledg e, training, education, ability and
experience to become qualified in another occupati on. In this
regard she had said th at the respondent could join a pain clinic for
treatment and therapy in respect of pain, could undergo extended
and multi-professional psychiatr ic treatment for the stress and
15
depression which results from his disability, and could study further
and qualify amongst other things as a dr aughtsman. He described
this as ‘’n skynwerklikheid van wat moontlik kan wees’.
[25] He found corroboration for the fi ndings of Dr Swart and Mrs
Human in the fact that since the respondent left the service of his
employer in October 1992 he ha d not engaged in any occupation
and had not had any fi xed employment and he remarked that Mrs
Human had pertinently testified th at the respondent was very keen
to work but was not able to do so.
[26] Mr Sholto-Douglas, who appeared for the appellant,
contended that the judge had erroneous ly found that the insurance
contract had included a contract for the benefit of a third party,
which it was open to the respondent to ac cept. He accordingly
submitted that there was no contr actual privity between the
respondent and the appellan t, with the result that there was no
basis on which the re spondent could sue th e respondent on the
insurance contract. He also argue d that the respondent had in any
event not succeeded in sh owing that he was ent itled to any total
and permanent disability benefits un der the policy. In this regard
he contended that the judge ha d erred in finding that the
occupation in respect of whic h the respond ent could claim
disability benefits from the app ellant was that of a maintenance
16
electrician. He also submitted th at the judge had fa iled to address
the correct question on this part of the case because in order for
the respondent to succeed he had to show that the appellant had
not acted reasonably in forming the opinion tha t he was not
disabled within the meaning of the policy. This, he contended, the
respondent had not done. Counsel submitted further that the judge
had erred in preferring the evidence of Dr Swart and Mrs Human to
that of Professor Shipley and Mrs Van Biljon.
[27] As I am satisfied for the reas ons that follow that the judge
erred in holding that the resp ondent had succeeded in showing
that he was entitled to total permanent disability benefits from the
appellant, it is unnecessary to decide if the judge’s finding that the
policy contained a contract for the benefit of a third party, namely
the respondent, was co rrect. I shall assume in what follows,
without deciding the point, that this portion of th e judge’s decision
was correct.
[28] It is convenient to d eal first with the judge ’s finding that the
appellant had continu ously regarded the respondent’s occupation
as being that of an elec trician. In support of th is finding the judge
referred to a disability claim ad mission form dated 11 November
1993, an internal do cument relating to the processing and
assessing of the respondent’s claim based on his alleged total and
17
permanent disability. It is followed in the record by another internal
document relating to the respondent’s temporary disability claim. In
both documents the respondent’s occupation is reflected as that of
a maintenance electrician. It is clear, however, that the claims
were assessed on the basis that the respon dent was a
draughtsman. That this is so appe ars from the fact that as part of
the assessment process a letter was sent on 19 November 1993
by a claims assessor in which it was said that before the claim
could be assessed ‘a full job description of [the respondent’s]
occupation as a draftsman with reference to time spent walking
and standing’ (my emphasis) wa s required. The judge also
referred, in regard to the finding pres ently under discussion, to a
confidential evaluation report prepared some time in approximately
November 1994 (the ac tual date is illegible) by a occupational
therapist, Ms Wilna Potgieter, who, at the request of Mr RJ
Ferreira, acting on the res pondent’s behalf, saw the respondent
and reflected the respondent’s occupation in her report as that of a
maintenance electric ian. The fact that Ms Potgieter thought that
the respondent’s occupation was that of a ma intenance electrician
is not evidence to support a fi nding as to how the appellant
regarded the respondent’s occupation.
[29] Among the documents emanating from the appellant in the
18
court record is a ‘synopsis form’ dated 10 February 1994 provided
for the respondent by one of its assessors, in which his occupation
is described as ‘Electrician/D raftsman’. In his summary the
assessor says:
‘Post-Traumatic Osteo-Arthritis Both Knee joints.
Underwent a reconstruction both knee ligaments
Has performed office work (Draftsman) ever since.
Cannot perform his initial work of electrician well
but was able to work as a draftsman.
Scheme commenced : 01.10.91
Joined Scheme : 01.01.92
Date of Accident : 25.03.91
Date of Disability : 28.09.93
. . .
I think that member works industriously as a draftsman.
. . .
And I find him not totally and permanently disabled from following that
occupation.’
[30] On 15 February 1994 a lette r was written on behalf of the
appellant to Alex ander Forbes Consultants and Actuaries, the
administrators of the provident fund, in which it was stated that the
respondent’s disability claims (both permanent and temporary) had
been repudiated. The re ason given was that the resp ondent was
‘able to perform his own occupation ’. The writer of the letter went
19
on to say:
‘This member [ie, the respondent] has been working as a draughtsman since
March 1991 [this was, of course, incorrect: the correct date was January
1992], and this is the occupation for which this member was underwritten at
the commencement of this scheme (1 October 1991)’.
[31] The judge also relied on a lett er sent by Mrs Van Eeden on
13 October 1994 to Mr Ferreira in which Mrs Van Eeden said that
‘the medicals only indicate that [the respondent] is disabled from
the occupation of an electric ian’. She went on to say that the
appellant agreed that the respondent’s disab ility was ‘probably
permanent’ but added th at ‘the medicals do n ot indicate that his
disability totally prevents him from performing an alternative
occupation’.
[32] This letter does indicate a measure of confusion on the part
of Mrs Van Eeden, who at that stage appeared to regard the
respondent’s position as a draftsman as an alternative occupation
within the meaning of paragraph 3.1.1(b) of the policy. But this
cannot alter the fact that the respondent was injured on 25 March
1991, over six months before the policy came into effect and that
in para 2.3.1, the ‘a ctively at work condition’, of the policy the
appellant only came on risk in respect of the respondent as
regards the occupation of ‘draughtsman’ at about the beginning of
20
March 1992 when he had compl eted eight weeks service as a
‘draughtsman’. His cover did not start on 1 October 1991, when
the policy came into force, because he was absent. He returned to
work in January 1992, when his normal duti es were those of a
‘draughtsman’. He did not work as a maintenance electrician at
any time after the policy came into operation and could never have
enjoyed cover in respec t of that occupation. The correspondence I
have quoted certainly refutes the jud ge’s finding that the appellant
throughout regarded th e respondent’s occup ation as that of an
electrician. It is clear on the eviden ce that the appellant was only
on risk in relation to the respondent in his occupation as a
‘draughtsman’.
[33] In support of his co ntention that the judge er red in not
considering the question whether the appellant acted
unreasonably in forming the opini on that the respondent was not
disabled within the meaning of the policy, Counsel for the
appellant referred to Edwards v The Hunter Va lley Co-op Dairy Co
Ltd (1992) 7 ANZ Ins Cas 61-113, a decision of McClelland J,
sitting in the Supreme Court of Ne w South Wales, Equity Division.
In this case reference was made, inter alia, to a series of decisions
given in Englan d in the 19 th century in which it was held that
where, as here, a policy provides that an element of the insurer’s
21
liability depends on its being of a certain opinion, a claimant to
succeed in obtaining judgment against the in surer must show that
it did not act reasonably in formin g or declining to form an opinion
on the matter. Among th e cases cited were Moore v Woolsey
(1854) 4 E & B 243 (119 ER 93) and Braunstein v Accidental
Death Insurance Co (1861) 1 B & S 782 (121 ER 904). In addition
reference was made to dicta by Lord Blackburn and Lord Selborne
LC in London Guarantie Co v Fearnley (1880) 5 App Cas 911
(HL(I)) at 916 and 921, from which it is clear th at they agreed with
the law as laid down in the earlier cases cite d. Another case cited
on the point was Doyle v City of Glasgow Life Assurance Co
(1884) 53 LJ Ch 527, in which North J said (at 529):
‘The only question in the action is whether the dissatisfaction of the directors
with the evidence of death adduced is unreasonable. Now, in respect of that,
it must be observed that reasonable persons may reasonably take different
views. It constantly happens that a Judge sitting in the Court below takes one
view of evidence and the Judge sitting in the Court above takes another. But
no one could suggest for a moment that the view taken by either the one or
the other was unreasonable.’
McClelland J put the point thus:
‘Unless the view taken by the insurer can be shown to have been
unreasonable on the material then before the insurer, the decision of the
insurer cannot be successfully attacked on this ground.’
22
The legal position se t out in these decisions is in accordance with
our law: see, eg, Machanick v Simon 1920 CPD 333 at 338-9,
where Braunstein’s case was cited with approval.
[34] Counsel also referred to Damsell v Southern Life Association
Ltd (1992) 13 ILJ 848 (C) in which a claim for disability relief based
on a similarly worded disability scheme was successfully resisted
by the insurer, as it happens th e present appell ant, on the ground
that it had not been sh own that the insurer’ s opinion that the
claimant was not disabled was not reasonable. In his judgment
Foxcroft J referred to an earlier unreported judgment given on
exception in the same matter in which Marais J, with whom Fagan
J concurred, held that there was room for implying ex lege a term
in the scheme that the insurer wa s required to exercise the
judgment of a reasonab le man. At page 13 of his judgment Marais
J said:
‘… I consider that those words do preclude plaintiff from seeking to challenge
defendant’s adverse opinion in legal proceedings simply because it is said to
be wrong. That is, in my view, the true and only import of the words “in the
opinion of the Southern” in clause 6.1.1. If the defendant’s opinion is both
honestly held and one which a reasonable person could arrive at on the
evidence, then it seems to me that the opinion must stand. The mere fact, if
fact it be, that the Court before which the question comes, would have
decided it differently is not necessarily of itself sufficient to show that
23
defendant’s opinion is one which cann ot reasonably be held thus enabling
plaintiff to avoid the consequences of defendant’s adverse opinion.’
[35] In the circumstances Counsel wa s correct in submitting that
the question which has to be addressed, which was not considered
by the judge, was wh ether the appe llant was unreasonable in
forming the opinion that the respondent wa s not totally and
permanently disabled with in the meaning of t he relevant clause of
the policy.
[36] I do not think that it is poss ible to hold that the appellant was
unreasonable in coming to the conc lusion it did. What is important
to bear in mind is that the question to be c onsidered related to the
respondent’s ability to perform the du ties of the job he held in
January 1992: ie, the ‘draughtsman’ duties he was called upon to
perform at that stage. He was cl early not a full engineering
draughtsman of the kind considered by Dr Swart or an electrical
draughtsman of the kind consider ed by Mrs Human. As I have
said, it was not shown that he di d not function a dequately in the
job he had or that his employme nt was terminated because of
problems he was encounterin g. The respondent’s evidence on the
point was contradictory. As I have said his employment terminated
for no other reason than because he was retrenched.
[37] As far as the resp ondent’s attempt to invoke the doctrine of
24
estoppel is concerned, I am satisfied that his counsel’s contentions
in this regard cannot be upheld. I say this for the simple reason
that nowhere in his ev idence did th e respondent state that he
relied on any representation by the appellant to the effect that it
was on risk as regards his occupation as a maintenance electrician
or that he did not ti meously institute a clai m in respect of his
disability against the previous pr ovident fund (of which he was a
member on 25 March 1991) and its insurer because of anything
said by the appellant.
[38] In the circumstances I am of the view that the appeal should
be allowed.
[39] The following order is made:
The appeal succeeds with costs.
The order of the court a quo is set aside and altered to read:
‘The plaintiff’s claim is dismissed with costs.’
…………….
IG FARLAM
JUDGE OF APPEAL
CONCURRING
SCOTT JA
CAMERON JA
VAN HEERDEN JA
PATEL AJA