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[2012] ZAWCHC 289
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AECI Ltd and Others v Dreyer (A559/2011) [2012] ZAWCHC 289 (13 August 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case Number: A559/2011
In the matter between:
AECI Limited and Six Others
...................................................................
Appellants
And
Magrieta Dreyer
.
.....................................................................................
Respondent
JUDGMENT DELIVERED 13
AUGUST 2012
Baartman, J
[1] On 16
December 1995,. a sulphur fire broke out in Macassar, in the Western
Cape. The respondent alleged that she had suffered
damage to her
property
(material claim)
arising
from the fire. On 23 April 1996, the respondent signed a release form
(“kwytskelding”) in which she accepted
R500 in full and
final settlement of any claim she might have arising out of the fire.
Subsequently, the respondent developed medical
problems that she
alleged were attributed to the fire. Her claim for medical damages
was met with a special plea in which the appellants
alleged that the
respondent had compromised any further claims she might have had. The
magistrate at Somerset West dismissed the
special plea. This Is an
appeal against that dismissal. The magistrate reasoned the dismissal
as follows:
Having heard
the evidence and having read through the transcript and heads of
arguments
,
I am satisfied that the
following is .fair and just
The reason for the court concluding
as follows is based fundamentally on the principal that the matter
should be ventilated and
adjudicated in an appropriate forum. The
court is not convinced on the argument put forward by the
defendantihat sufficient grounds
currently exist to close the door of
the court.for the plaintiff to have its case ventilated and
adjudicated
[2] It was common cause that the
respondent completed a claims form that made provision for both
medical and material claims. However,
the respondent only completed
the material claims section. The respondent met with Brett Herselman
(Herselman), an insurance assessor-loss
adjudicator, and in his
presence signed the release form. At the time the respondent signed
the release form, she had no medical
complaints. It is the
respondent’s case that Herselman “...specifically held
out to her that medical claims are specifically
excluded and that the
amount of R500 is only to cover her material damages such as
curtains”. The appellants have denied
that Herselman
misrepresented the nature of the release.
[3] The following are the common cause
surrounding circumstances:
(a) The first appellant, AEC1 Limited,
was the holding company of a group that included the second
appellant, AECI Operating Services
(Pty) Ltd, and the third
appellant, Cape Explosives Works Limited. The fourth to seventh
appellants held managerial positions within
the group.
(b) The first appellant owned and
operated a chemical plant in Somerset West and the second appellant
was. responsible for the management
of the site.
(c) Since 1967,
the first appellant has been stockpiling tons of sulphur on the site.
Between 13 and 15 December 1995, ..grass fires
broke out in the iarea
near the stockpile. On 16 December, a
:
further fire broke out which ignited the stockpile and consumed
approximately 7.250 tons of sulphur.
(d) The fire caused a sulphur dioxide
cloud, over the town of Macassar where, the respondent lived. During
the night of 16 December
many residents were evacuated. However,
despite the evacuation, many .residents:presented with adverse
physical reactions directly
related to the sulphur dioxide; exposure.
(e) Many residents suffered damage to
person, property or both.
(f) A judicial commission of enquiry
held that the first appellant had been negligent in failing to
prevent the fire. In January
1996, the first appellant/the group
started a claims evaluation process through which affected residents
could settle their claims
directly with it/them. (I presume the
group’s insurers.)
(g) The evaluation process was
conducted at the first appellants premises. The process was mainly as
follows:
(i) A claimant would collect and
complete a claim form;
(ii) Claimants would wait in line to
consult 1 of 4 claim adjudicators. In the consultation, the claim
would be.settled either in
full and final settlement or by a
conditional release. The latter release form was employed when the
possibility of future medical
claims were foreseen - when a claimant
either presented with a medical condition, complained of symptoms or
requested his/her medical
claim to be excluded.
(iii) Those claimants who settled
their claims received cheque payments on the day of settlement; The
process was popular and approximately
2 000 claimants settled their
claims via this process.
(iv) At least 1 notice board,
Herselman testified to more, was put up in the area where the process
was conducted to inform claimants
that they were not obliged to
settle their claims via the process because they were also entitled
to seek independent legal advice
or contact the Macassar Crisis
Committee for assistance.
[4] The release form that forms the
subject of this application, suggested that the parties to it
intended to put an end to all
claims arising from the fire. This is
so because the release form contained the following:
(a) An acknowledgment that the
respondent accepted the amount of R500 in full and final settlement
of any claim of whatsoever nature
against the appellants arising from
or in connection with the fire.
(b) A declaration that the respondent
had not been induced to sign the release by any representation.
(c) A warranty that the respondent
knew that the compromise precluded her from making any further claims
against the appellants
arising from the fire.
[5] In the
matter of
Wilson Bayly Holmes (Pty)
Ltd v Maeyane and Others
1995 (4) SA
340
(T) 345, the court held:
“
The contract in the present
case
was
one of compromise.
The nature of such a contract is that it is conciuded because the
rights of the parties are uncertain, and they
choose not to resolve
that uncertainty. By the very nature of such a contract, there can be
little room for finding that the parties
must have intended their
contract to
depend upon
the existence of one or other of the factors to their respective
rights. it is precisely to avoid testing them that
they compromise
However
;
the question is hot whether
the appellant would have compromised had it been aware of one or
other circumstance which excused it
from liability, ff the parties
would have contracted eyen if . they had known that the particular
state, of affairs did not exist,
then dearly it cannot be said that
they intended, thbir contract to depend thereupon, but the converse
is not equally true. The
real enquiry in each case is whether this
was a risk which tfi&y took. ”
[6] It follows
that the parties.to the release entered into an agreement of
compromise or settlement i accept that the respondent
did not know
that she would develop a medical problem due to her exposure to the
sulphur fire. However, that uncertainty did not
preclude a valid
agreement of compromise from coming into existence. Agreements of
compromise are intended to bring to an end the
uncertainty parties
face prior to concluding an agreement of compromise, (See
Gollach
& Comperts v Universal Mills & Produce Co
1978
(1) SA 914
(A)).
[7] However, if
as the respondent alleged, Herselman misrepresented the agreement,
she may avoid the consequences of the agreement.
I deal below with
the evidence led at the trial to determine whether there was any
misrepresentation. (See
George v
Fairmead
1958(2) SA 465 (A) at 471
A-D;
Brink v Humphries & Jewel!
(Pty) Ltd
2005 (2) SA 419
(HHA) para
[2])
EVIDENCE
LED IN THE COURT
A QUO
[8] The witnesses testified 15 years
after the event and expected memory lapses occurred. The respondent
confirmed that she had
applied for compensation for the damage she
had suffered in the fire via the process provided by the appellants.
[9] The
respondent and her husband, William Dreyer
(Dreyer)
,
met with Herselman who enquired into their respective damages.
Herselman assessed the damage to the respondent’s household
items at R400. However, when she pointed out that the family had had
to evacuate the house, Herselman; added R1Q0 for the- incorivenience
the family had suffered. The respondent said that Herselman explained
both the process and the release form that she signed.
[10] The respondent said that although
, she had no medical complaints at the time, Dreyer had asked
Herselman what would happerv
should they develop medical problems in
the futur^ ; She said that Dreyer had worked for “Sonchem”
and knew that they
could develop medical problems in the future. In
response to Dr&yer’s query, Herselman said that he was only
dealing
with their material claims.; He therefore gave them the
impression that they would still be able to claim should they develop
medical
problems in future. The respondent said that she did not read
the release form but that Herselman had explained it to her.
[11] Dreyer confirmed that they both
saw Herselman on 23 April 1996. Dreyer said that he had claimed R1
800 for damage he had suffered.
However, Herselman had thought his
claim was inflated therefore he received only R500. Furthermore,
Dreyer said that although neither
he nor the respondent had any
medical complaints on the day, he had enquired from Herselman what
their position would be should
they later develop medical problems.
Dreyer said that his concern had stemmed from his experience with
sulphur dioxide which he
had acquired through previous employment.
Dreyer said that he had posed the question 3 times because he was
surprise (verbaas)
when Herselman told him that the claims that they
were finalising only pertained to their material claims. He therefore
repeated
the enquiry because he wanted certainty because he knew the
exposure could cause medical problems later.
[12] Herselman had no independent
memory of his consultation with the couple; instead, he relied on the
process generally followed
in the claims adjudication process.
(a) The process lasted 6 months during
which approximately 2 000 claimants applied and had their claims
processed.
(b) He confirmed his handwriting on
the respondents claim form and assumed a discussion had preceded
finalisation of the settlement.
(c) He confirmed that the insert of a
claim for food was in his handwriting. He was sure that he would have
taken that initiative
following a discussion with the couple during
which he would have established that they had been out of their house
for 1 night,
which would have led him to assume that they had to have
eaten out.
(d) Herselman was certain that he had
explained that the amount offered was in full and final settlement of
all claims arising from
the fire.
[13] Herselman said that the claim
form had made provision for both medical and material claims. If a
claimant had not completed
the medical section but had presented with
symptoms he would have clarified their medical condition and would
have noted on the
claims form that they did have medical complaints.
He referred to 3 claim forms, those of Mrs Pholonskie, Mr Prins and
Mrs Jones,
as examples of the process followed where a claimant had
medical complaints. In each of the examples, the claims adjudicator
had
indicated that the claim had been settled in respect of the
material damages only.
[14] However, the record contains 21
examples of claimants who signed release forms similar to the
respondent’s, 7 of which
were limited to material claims only.
Herselman therefore showed that the claim adjudicators had received
instruction to entertain
medical claims and had in appropriate
circumstances indicated that a claim was settled only in respect of
the material damages.
[15] I accept
that the respondent developed medical problems after she . had
accepted the R500 and had signed the release form.
This court does
not have the benefit of the trial court’s credibility or
factual findings because the magistrate did not
deal with the
evidence led at all. in the matter of
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martel letcie
and Others
2003(1)
SA 11 (SCA), Nienaber JA described the evaluation process applicable
to this matter.
“
..
.[5]
On the central issue
,
as
to what the parties actually decided, there are two irreconcilable
versions
.
So,
too,
on b number of peripheral areas of dispute which may have a bearing
on the probabilities. The technique generally employed
by courts in
resolving factual disputes of this nature may conveniently be
summarised as follows. To come to a conclusion on the
disputed issues
a court must make findings on (a) the credibility of the various
factual witnesses; (b) their reliability; and
(c) the probabilities.
As to
(a)
,
the court's finding on the credibility of a particular witness will
depend on its impression about the veracity of the witness.
That in
turn will depend on a variety of subsidiary factors, not necessarily
in order of importance, such as (i) the witness' candour
and
demeanour in the witness-box, (ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence, (iv) external
contradictions with what
was
pleaded
or put on his behalf, or with established fact or with his own
extracurial statements or actions, (v) the probability or
improbability of particular aspects of his version, (vi) the calibre
and cogency of his performance compared to. that of other
witnesses
testifying about the same incident or events. As to (b), a witness'
reliability will depend, apart from the factors mentioned
under
(a)(ii),
(iv)
and
(v) above, on (i) the opportunities he had to experience or observe
the event in question and (ii) the quality, integrity and
independence of his recall thereof. As to (c), this necessitates an
analysis and evaluation of the probability or improbability
of each
party's version on each of the disputed issues. In the light of its
assessment of (a), (b) and (c) the court will then,
as a final step,
determine whether the party burdened with the onus of proof has
succeeded in discharging it The hard case, which
will doubtless be
the rare one, occurs when a court's credibility findings compel it in
one direction and its evaluation off he
general probabilities in
another. The more convincing the former, the less convincing will be
the latter. But when all factors
are equipoised probabilities prevail
”
[16] I have
applied the ..above test to the evidence, but without the benefit of
the trial court’s credibility or factual
findings. The
respondent has alleged that she was misled, it follows that she bears
the onus to prove that she was misled. In the
court
a
quo,
the appellants began leading
evidence that, procedure had been adopted as a. matter of convenience
and did not change the onus.
For the reasons that follow, I am of the
view that the respondent failed to meet the onus:
(a) The respondent did not have any
medical complaints when she settled her claim. She did not raise any
medical concerns with Herselman.
She said that Herselman had asked
what damages she had suffered and she indicated her material damages.
Nevertheless, the respondent
in her reply to the appellants’
request for further particulars said that she had “a cough,
chest tightness and a whistling
sound every evening” at the
time when she met with Herselman. The respondent was unable to
explain her reply; instead, she
confirmed that she did not have those
symptoms at the time.
(b) The respondent .said that she had
developed medical problems approximately 714 months after the fire.
That evidence was in contrast
to the medical report she filed, dated
27 August 2002 prepared by Prof EM Irusen, from which the following
appears:
“
1) Cough
,
chest tightness and
episodic wheezing.
The subject was perfectly
asymptomatic before the disaster.
Soon after
her exposure she developed cough, chest tightness and a whistling
sound in the chest every evening.
...”
(c) The respondent was unable to
explain the contradictions between her evidence and the medical
report.
(d) She confirmed that Herselman had
explained the release form prior to her signing it but that she did
not read it herself. There
appears to have been no reason for her
failure to read, the release form.
(e) I accept that Dreyer was aware
that exposure to sulphur could cause medical problems to develop post
the exposure. There is
therefore nothing untoward in him enquiring
into the fate of belated medical claims. Herselman said, on Dreyer’s
version,
that they were only dealing with materia! claims. Dreyer
said that Herselman’s answer had surprised him but he was
unable
to explain why. He was further unable to explain why it was
necessary to have repeated his enquiry 3 times.
(f) I accept that there was at least 1
notice board informing prospective claimants of their options.
(g) I find it improbable that Dreyer,
considering his professed knowledge, would in those circumstances
have signed a release form
and stood by while his wife did the same.
(h) Instead, the more probable version
is that the respondent indicated to Herselman that she only had a
material claim and that
was the basis on which she settled her claim
after Herselman had explained the content of the release form.
[17] The respondent presented with no
medical symptoms that would reasonably have required Herselman to
enquire into possible medical
complaints. There is no evidence that
Herselman induced the respondent either intentionally or innocently
into signing the release
form. It follows that the respondent is
bound by the terms of 1he release.
CONCLUSION
[18] I, for the reasons stated above,
propose the following order.
(a) The appeal is upheld with costs.
The magistrate’s order dismissing the special plea is set aside
and replaced with the
following order:
(i) The special plea succeeds;
(ii) The plaintiffs claim is dismissed
with costs.
Baartman J
SUPPLEMENTARY JUDGMENT
Blignautt
J
[19] I have read the judgment of
Baartman J and I agree with the orders proposed by her and her
reasons, i accordingly confirm that
orders are granted as proposed by
her.
[20] I wish to comment further on one
aspect of the matter, namely the judgment and reasons furnished by
the magistrate. The judgment,
described as a finding, is quoted in
para [1 ] above.
[21] The matter before the magistrate
was a special plea. The hearing was intended to dispose finally of
the respondent’s
special defence ... that the appellant’s
claim had been settled. A fair amount of oral and written evidence
was adduced by
both parties.
[22] In the
circumstances the magistrate’s statement that the matter
‘
should be ventilated and
adjudicated in an appropriate forum
'
does, not make any sense at all. There are furthermore no reasons to
support this finding.
[23] The
magistrate was requested to supply reasons for his/finding.
:
His response was: ‘
Nothing to
add to the finding dated 19 July 2011\
[24]
In
Regent Insurance Co Ltd v
Maseko
‘
.‘20.00
(3) SA 983 (W) the
court dealt with an analogous set of
facts. I do not propose to analyse that judgment. in . any depth. It
is sufficient for present
purposes to quote the following passages in
the. judgment:
[25] At 989B-E:
‘
Die landdros se gedrag in
hierdie saak verg kommentaar. Dit
was
'n jammerlike versuim
aan die landdros sekant dat daar geen behoorlike beredeneerde
uitspraak verskaf is met behoorlike feitebevindinge
soos die gebruik
is nie. Veral in die geva! soos die huidige waar botsende getuienis
deur die getuies van die partye gelewer is,
moet die verhoorlanddros
in sy uiteensetting van die gronde waarop sy feitebevindings berus,
vermeld waarom hy die getuienis van
'n sekere getuie of getuies
aanvaaren die van ander verwerp. Hy moet redes verskaf vir die
verwerping van getuienis, soos byvoorbeeid
die inherene
onwaarskynlikheid daarvan, selfweerspreking of weerspreking deur
andere, die bestaan van betroubaarder getuienis of
die indruk wat die
getuie gemaak het asook redes vir die aanvaarding van ander getuienis
soos dat daar in laasgenoemde nie weersprekings
was nie, dat die
getuies 'n goeie indruk gemaak het of dat dit waarskynliker is. As
die verhoorlanddros
se redes vir uitspraak nie
geloofwaardigheidsbevindings bevat nie, ontstaan daar onder andere
die risiko dat 'n Hof van appel die
redes vir uitspraak verkeerd kan
vertolk of bloot voigens die oorkonde oordeel en aidus beskouings
omtrent geioofwaardigheid wat
bereik is en in ag geneem behoort te
word, buite rekening laat Dit kan tot ongeregtigheid lei. ’
[26] At 990C-E:
‘
Die skriftelike verkiaring
van die ianddros ingevolge Reel 51(8) vorm 'n
integrale
en beiangrike komponent van die appelrekord. Reel.51 bepaal dat die
appellant in sy kennisgewing
van
appel met presiesheid
moet bepaal welke punte op gesteun word vir die appel. As dit gedoen
is stel dit die verhoorlanddros in staat
om sy verpligtinge ingevolge
Reel 51(8) na behore na te kom. Die hele bedoeling van hierdie skema
is om die spoedige en effektiewe
afhandeling van appelle te bevorder
deurdat die respondent met presiesheid in kennis gestef word ten
opsigte van welke punte hy
moet voorberei. Behoorlike nakomjng van
hierdie reels stel dan ook die Hof van appel in staat om spoedig,
doeltreffend en koste
effektief tot die hart van
7?
appel deur te dring
en af te handel. Versuim om daaraan te voldoen ondermyn en vertraag
effektiewe regsadministrasie. ’
[27] At 990H:
‘
Die landdros se voormelde
versuim kom egter op pligsversuim neer wat nader ondersoek behoort te
word deur die gepaste liggaam, te
wete, die Landdrostekommissie soos
ingestel ingevolge die Landdrostewet 90 van 1993. Ek is dus
voornemens om hierdie uitspraak
aan daardie liggaam voor te le vir
verdere aandag en ondersoek
.'
[28] In the
present circumstances I intend to follow the same procedure as in the
Regent Insurance
case, namely to forward this judgment to the Magistrates’
Commission established in terms of the
Magistrates Act 90 of 1993
,
for its attention and, if deemed necessary, further investigation.
A P Blignauit, J
I
concur
ED
Baartman, J