THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 1016/22
In the matter between:
KING PRICE INSURANCE COMPANY LIMITED APPELLANT
and
SIZWE ANTONIO MHLONGO RESPONDENT
Neutral citation: King Price Insurance Company Limited v Mhlongo (Case no
1016/2022) [2023] ZASCA 152 (15 November 2023)
Coram: GORVEN, MABINDLA-BOQWANA and WEINER JJA and BINNS-
WARD and KEIGHTLEY AJJA
Heard: 6 November 2023
Delivered: 15 November 2023
Summary: Civil procedure – claim under insurance policy arising from motor
vehicle collision – market value pleaded – evidence led on shortfall of amount owed
to the financier – no evidence led on market value – incongruity between pleadings
and evidence – claim not proved.
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ORDER
______________________________________________________________________________
On appeal from: Gauteng Division of the High Court , Pretoria (Phooko AJ with
Khumalo J concurring, sitting as court of appeal):
1 The appeal is upheld with costs.
2 The order of the Gauteng Division of the High Court, Pretoria is set aside and
is substituted by the following order:
‘1 The appeal is upheld with costs.
2 The order of the Regional Court for the Regional Division of Gauteng,
Pretoria is set aside and is substituted by an order granting absolution from the
instance with costs.’
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JUDGMENT
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Keightley AJA (Gorven, Mabindla-Boqwana and Weiner JJA and Binns-Ward
AJA concurring)
[1] The respondent in this appeal, Mr Mhlongo, was a policy holder with the
appellant, King Price Insurance Company Ltd (King Price). The policy was for
comprehensive cover for his Mercedes Benz E200 motor vehicle. In 2018 ,
Mr Mhlongo’s vehicle was involved in a collision, and as a result, it was written off.
He duly lodged a claim under his policy with King Price. However, King Price
rejected the claim and cancelled the policy.
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[2] Mr Mhlongo then issued summons out of the regional court, Pretoria (the trial
court), averring a breach of the agreement by King Price. He claimed contractual
damages in the amount of R374 960.50 being ‘the fair, alternatively reasonable,
alternatively market related value of the motor vehicle’ (the market-related value).
In response, King Price pleaded that Mr Mhlongo had failed to comply with his
obligations under the agreement. He was thus not entitled to indemnity, and King
Price was entitled to avoid the agreement of insurance.
[3] The parties did not seek to separate issues in the matter, proceeding on both
merits and quantum. Much of the trial focused on whether King Price was entitled
to avoid the agreement. The only evidence adduced by Mr Mhlongo to establish the
quantum of the d amages he claimed to have suffered was a written settlement
quotation, supposedly from Standard Bank which had financed the purchase of the
vehicle, stating that the settlement amount due to the bank under the vehicle finance
agreement was R374 960.50.
[4] The trial court found in Mr Mhlongo’s favour . It awarded damages in the
amount pleaded. The matter went on appeal to a full bench of the Gauteng Division
of the High Court, Pretoria (the full bench), which upheld the trial court’s judgment
and order. On petition to this Court, leave to appeal was granted, although it was
limited to ‘[w]hether the respondent (Plaintiff) proved the quantum of the claim’.
[5] The nub of King Price’s case on appeal is that the evidence adduced by
Mr Mhlongo did not support his pleaded case on quantum. As noted above, he
claimed as damages the market-related value of his vehicle. He confirmed that this
was the basis of his claim in cross-examination. Yet he presented no evidence at all
on the market value of the vehicle. King Price point ed out that Mr Mhlongo
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conceded under cross -examination that he had no knowledge of its market value.
According to King Price, Mr Mhlongo’s reliance on the settlement amount due to
Standard Bank was misplaced, as it bore no relation to the case as pleaded. In the
absence of evidence which established the pleaded quantum of his claim, King Price
contended that the claim ought to have been dismissed by the trial court, and the full
bench ought to have upheld its appeal.
[6] The full bench dismissed King Price’s appeal on two bases. First, it found that,
correctly interpreted, the agreement between the parties obliged King Price to pay
the settlement amount, and hence Mr Mhlongo was entitled to claim that amount by
way of contractual damages. Second, it found that the onus lay on King Price to
plead and prove an alternative basis for the calculation of damages, and it had failed
to do so.
[7] The full bench erred in respect of the first basis for dismissing the appeal.
What was fundamentally at issue was not the correct interpretation of the agreement,
but rather the case as pleaded by Mr Mhlongo. He pleaded his damages based on the
market-related value of the vehicle. He did not plead damages based on the
settlement amount (nor, incidentally, did he even prove that amount adequately). It
was thus irrelevant to Mr Mhlongo’s case whether, on a particular interpretation of
the agreement, King Price was obliged to pay the settlement amount: this was simply
not the case that Mr Mhlongo pleaded, or King Price was asked to meet .
Consequently, the full bench ought not to have dismissed the appeal on this basis.
[8] As to the second basis for dis missing King Price’s appeal, here too, the full
bench erred. It is trite that it is for a plaintiff to prove its damages. Having
appropriately elected to frame his damages as the market -related value of the
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vehicle, Mr Mhlongo bore the onus of proving the damages so pleaded. King Price
elected to defend the action on the basis that Mr Mhlongo had not discharged his
onus. King Price was entitled to defend the action in this manner. As such, there was
no duty on King Price to plead or present evidence to prove an alternative quantum
of damages, as the full bench suggested. When Mr Mhlongo failed to prove his
pleaded damages, that should have been the end of the matter.
[9] Unfortunately for Mr Mhlongo, there was a fatal incongruity between the case
he pleaded and the case he presented to the trial court. In the absence of evidence to
establish the market-related value of his vehicle, it could not properly be found that
he had proved his claim. The claim ought to hav e failed for this reason. It follows
that the appeal must succeed.
[10] In the result the following order issues:
1 The appeal is upheld with costs.
2 The order of the Gauteng Division of the High Court, Pretoria is set aside
and is substituted by the following order:
‘1 The appeal is upheld with costs.
2 The order of the Regional Court for the Regional Division of Gauteng,
Pretoria is set aside and is substituted by an order granting absolution from the
instance with costs.’
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R M KEIGHTLEY
ACTING JUDGE OF APPEAL
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Appearances
For appellant: C Richard
Instructed by: Weavind & Weavind Inc, Pretoria
Matsepes Inc, Bloemfontein
For respondent: S Mahabeer SC
Instructed by: Mahomed Salek Inc, Durban
Phatshoane Henney Attorneys, Bloemfontein