---

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NUMBERS: 46154/2013

46155/2013

DATE: 03 OCTOBER 2014

In the matter between:

KLENCOVLJEVIC, ALEXANDER..........................................Applicant

And

DISCOVERY LIFE LIMITED

(REGISTRATION NUMBER:)..............................................Respondent

J U D G M E N T

BECKER, AJ:-

THE APPLICATION FOR LEAVE TO APPEAL

[1] The respondent advanced thirteen grounds for its proposition that there is a reasonable prospect of success on appeal.[1]  Not one of these grounds were argued during the hearing of the application for leave to appeal.  During argument counsel for the respondent relied on three “grounds” not contained in the notice of application for leave to appeal.[2]  There was also no application at the hearing, for leave (or condonation) to add these further arguments.  As a result, these arguments hardly qualify as formal grounds for leave to appeal. 

[2] I shall nevertheless deal fully with the actual grounds which were before me (although not argued), as well as the subsequent arguments of which neither the applicant nor the court received any notice. 

[3] In some cases, quoting from the answering affidavit adequately demonstrates the lack of merit of the particular ground.  A number of grounds were also duplicated or, are at least so closely related that it should have been contained in one properly formulated ground of appeal.  While I appreciate that the scope and nature of a notice is limited, that its purpose is not to traverse the issues in minute detail and that drafting styles differ, I would nevertheless have expected a more structured and coherent notice.  A notice of application for leave to appeal has little value if there is no serious attempt to engage with the issues, content and import of the earlier judgment which it seeks to question.  The purpose of the notice is to appraise the other party and the court of the issues and brief reasons therefor, which is to be debated at the hearing.  It will not facilitate debate if it consists merely of a repetition of alleged erroneous rulings and findings.  Not only will the other party and the court be deprived of the opportunity to consider the propositions beforehand, but also, the debate may be decidedly one-sided and unengaging.  This could hardly be in the best interests of the potentially aggrieved party. 

[4] Rule 49(1)(b) of the Uniform Rules of Court requires of a notice of leave to appeal that “the grounds therefor” be furnished.  Rule 49(3) was previously couched in similar terms and required the notice of appeal to specify “the grounds upon which the appeal is founded”.  It is well-established that these provisions are peremptory.  It has further been held that grounds of appeal are bad if they are so widely expressed that it leaves the appellant free to canvass every finding of fact and every ruling of law made by the Court a quo, or if they specify the findings of fact or rulings of law so vaguely as to be of no value either to the court or to the respondent, or if they, in general, fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet.[3]

GROUNDS FOR APPLICATION FOR LEAVE TO APPEAL

[5] The following “grounds” were contained in the notice of application for leave to appeal filed by the respondent on 25 August 2014: -

“1.    His Lordship erred in finding (paragraph [11]) that, from the date of the submission by the applicant of the relevant claim forms, the respondent did not make ‘even the most basic enquiries’ regarding the progress of any of the cited investigations (‘the investigations’).

2.     His Lordship erred in finding that there was no evidence before him to suggest that the investigations would reveal the type of information necessary for the respondent to decide on the applications.

3.     His Lordship should have found that the admitted and common cause facts that the deceased had engaged in fraudulent conduct could reasonably support a repudiation of the policies given the fact that the deceased had positively misrepresented the facts in his application for insurance.

4.     In that context, His Lordship failed to give any of sufficient consideration to the following question in the application for insurance which the deceased had answered in the negative:

‘Are there any circumstances not already mentioned that may affect the risk relating to the proposed cover?  Such factors/circumstances could be that you have indulged in or consumed narcotics (that were not prescribed by a medical practitioner) or that you have engaged in illegal activities such as drug trafficking, extortion, gangsterism, robbery (armed or not).  If yes, please give details.’

5.     His Lordship should have considered that, had the deceased engaged in the admitted, fraudulent conduct at the time of that misrepresentation, the respondent would become entitled to repudiate the policy.

6.     In the result His Lordship erred in concluding (paragraph [16]) that there was no evidence available to support the proposition that the deceased had materially misrepresented the true facts at the time of his application for insurance,

7.     His Lordship erred in finding (paragraph [18]) that any discovery of illegal conduct on the part of the deceased subsequent to the issue of the policies would be irrelevant.

8.     His Lordship erred in finding (paragraph [24]) that, at the time of the issue of the applications in December 2013, the respondent’s claims assessor was in possession of all the documents and information necessary to process the claims.

9.     His Lordship erred in finding that the respondent refused to assess the claims.

10.   His Lordship erred in finding that it had been the respondent’s case that it was not required to make an election (to accept or repudiate the claims) until some indeterminate point in time.

11.   His Lordship erred in finding that it had not been the respondent’s case that the time period between the submission of the claims and the issuing of the applications was unreasonable.

12.   His Lordship erred in finding that the respondent had not, in the period available to it, undertaken any assessment of the claims and had simply adopted a supine attitude.

13.   His Lordship erred in finding that the respondent had not established any basis for withholding payment and, in the circumstances, erred in granting orders in favour of the applicant.”

[6] It should be readily apparent that the notice is mostly a list of alleged erroneous rulings and findings as if the entire application is to be reargued.

MOST BASIC ENQUIRIES NOT MADE

[7] The answering affidavit indeed demonstrates what I found, namely that not even the most basic enquiries as to the progress of any of the investigative processes were made (save for stating that two hearings were convened) and that when it was likely to be “finalised”, was indeed not canvassed.  The only relevant references in the answering affidavit to these processes are the following: -

1. “5. The respondent is advised by the attorneys representing the liquidators, Edward Nathan Sonnenberg, that those provisional liquidators have already convened two enquiries in terms of Sections 417 and 418 of the 1973 Companies Act and that further hearings are scheduled.  The respondent, of course, is not entitled to be present at those hearings nor is it entitled to a copy of the Record of those proceedings except with the consent of the Master of the Court as contemplated in Section 417(7) of the 1973 Act”;

2. “6. Once the relevant enquiries have been concluded, and through liaison with the attorneys representing the liquidators and, if necessary, through an application to Court, the respondent will seek to verify that Wiggill was, indeed, engaged in criminal activity in the conduct of the business of First Strut (amongst others) and that a large portion of his income can properly qualify as the ‘proceeds of unlawful activities’ as contemplated in the Prevention of Organised Crime Act, 121 of 1998”;

3. “9. The respondent is not in control of either the enquiries in terms of the Companies Act or the criminal investigation.  In the result, it is not in a position to determine the time-frame within which those enquiries are to be completed.  In order to avoid any potential prejudice to the applicant whilst those enquiries are undergoing, the respondent provides herewith a with-prejudice undertaking that, until the applicant is advised to the contrary, the respondent will not raise the defence of prescription against any action or claims that the applicant may institute on the policy of insurance”;

4. “21.    AD PARAGRAPHS 14, 15, 16 AND 17

I admit Wiggill died on 19 June 2013.  The circumstances surrounding Wiggill’s death remain the subject of a pending criminal investigation”;

5. “22.    AD PARAGRAPHS 18 AND 19

22.1   As I have said, the respondent does not dispute that Wiggill has died.  The circumstances of his death are unknown at present and will, no doubt, be revealed through the process of the criminal investigation referred to by the applicant.

22.2   Until such time as those investigations have been completed, the respondent is not in a position to say whether or not the applicant had any part to play in Wiggill’s death.  The respondent, however, is not in possession of any information which supports that proposition.”

6. “24.4 As far as I am aware, the inquest into the death of Wiggill has not yet been completed although the criminal investigation may supersede that inquest.”

7. “26.4 None of the facts referred to in these paragraphs, however, derogate from the respondent’s entitlement to await the outcome of the Section 417/418 enquiries and the criminal investigation before determining whether or not to void the policy.”

8. “27.2 The respondent awaits the outcome of the criminal investigation into Wiggill’s death and the outcome of the procedure currently being followed by the provisional liquidators of First Strut in order to determine the extent, if any, of the frauds and criminal activities in which Wiggill had been engaged.”

[8] It is hardly necessary to elaborate much further.  Clearly, a court on appeal will not find that any attempt had been made by the respondent to appraise the applicant (and the court) as to the expected duration and finalisation of the investigative processes.  As stated, these processes could take years to complete and then, the respondent would further have to assess this (possibly helpful) information.  Significantly, more than one year and three months have already expired since the submission of the claim by the applicant.

NO EVIDENCE THAT INVESTIGATIONS WOULD REVEAL RELEVANT INFORMATION, “COMMON CAUSE” FRAUDULENT CONDUCT COULD REASONABLY SUPPORT REPUDIATION AND QUESTION IN APPLICATION FOR INSURANCE FORM

[9] These grounds are without merit and there is absolutely no support therefor from the facts related in the answering affidavit.  Inexplicably, these grounds are raised despite the respondent’s own concession that it does not know if any information would be forthcoming which will entitle it to repudiate the claims.

[10] The respondent’s current logic appears to be this:  Since Wiggill is suspected of having been involved in illegal activities, the investigative processes will inevitably confirm that this was so at the time of the inception of the policies (in 2005 and 2010), which will entitle the respondent to void the policies because of the material non disclosure of such a risk-affecting fact, and therefore an order for payment of the proceeds should not be made.

[11] Conceivably, the respondent might be right.  That however, is precisely the problem.  In its answering affidavit it concedes that it might also be wrong.  It provided not a single shred of evidence for its conclusion and readily (if paradoxically), concedes that its expectation is only a possibility.  The nature, extent and duration of Wiggill’s alleged involvement in illegal or fraudulent activities and in particular, the causal connection between such alleged conduct and the consequential invalidity of the policies have not been dealt with (let alone demonstrated) at all in the answering affidavit.  As pointed out in my judgment, not only must the information obtained from the investigative processes be sufficient to found material misrepresentation or non-disclosure but also, it must have been germane at the inception of the policies.

[12] The very fact that the respondent has not formally repudiated liability, further conclusively dispels any notion that any evidence currently exists which entitles the respondent to refuse payment of the proceeds of the policies.  Had it existed, the Respondent would simply have repudiated liability.  Yet, it contends that a court should find that such evidence does exist, despite not disclosing any such evidence in the its answering affidavit.  The lack of merit of this assertion is so manifest that it actually only needs to be stated, to be rejected.

“ADMITTED” FRAUDULENT CONDUCT AT TIME OF MISREPRESENTATION WOULD ENTITLE RESPONDENT TO REPUDIATE

[13] This ground is similarly replete with supposition and speculation.  The fallacious and unfounded premise is that:  firstly, the fraudulent conduct (whatever form it consisted of – the respondent has not disclosed a single example or instance thereof) is allegedly admitted (which is simply not so, as the respondent concedes elsewhere[4]), secondly, that there had been a misrepresentation (non-disclosure) by the deceased at the inception of the policies (we are not told what) and thirdly, that it was (rather, must have been) material (again, we are not told why). 

[14] An appeal court (as did I), could conceivably entertain the possibility that information may indeed emerge at some indeterminate time in the future, which may found a repudiation.  However, I strongly suspect that such a court would not be prepared (and should not be expected) to speculate.  A court only deals with the evidence before it.  It does not partake in speculation.

NO EVIDENCE OF DECEASED MATERIALLY MISREPRESENTING FACTS AT TIME OF APPLICATION FOR INSURANCE

[15] A mere perusal of the answering affidavit reveals that absolutely no evidence was related in the answering affidavit for this positive assertion.  I repeat that the respondent’s case as articulated in the answering affidavit, was that the investigative processes may (possibly) reveal such evidence.  It expressly stated that it is not in possession of such information or evidence.

DISCOVERY OF ILLEGAL CONDUCT SUBSEQUENT TO THE ISSUE OF THE POLICIES IRRELEVANT

[16] My remark in this regard is a recordal of the legal position namely, that whatever subsequent illegal activities which the deceased may have been involved in subsequent to the inception of the policies, it would not vitiate the policies.  The legal position is trite and the wording of clause 18.5.1 of the policies clear.  Any risk-affecting fact which commenced after the policies were taken out, is indeed irrelevant.

CLAIMS ASSESSOR IN POSSESSION OF THE DOCUMENTS NECESSARY TO PROCESS THE CLAIMS

[17] Common cause facts obtain such status either by formal admission or by necessary inference.  I would have thought it obvious that in order to create a dispute about any particular fact, it should be raised by a litigant in its pleadings or affidavit.

[18] Significantly, clause 12.2.2 requires only the following documents and information necessary to process the claims: -

“12.2.2 In addition to the forms and protocols required, the beneficiary or cessionary will also be required to provide Discovery Life with the following details within sixty days of the date of death:

● the date and cause of death;

● the contact person responsible for completing the documentation.” 

[19] One appreciates that assessment of the claims includes both the assessment of compliance with formalities (i.e. ensuring that completed documents and essential information have been furnished) and also an assessment of the merits of the applicant’s entitlement to the proceeds of the policies (or put differently, whether the respondent is otherwise contractually liable).  The approach by the respondent in its answering affidavit was directed at the latter. It dealt with the compliance of the necessary formalities in a merely incidental manner.  In this regard it is apposite to quote paragraph 23 of the answering affidavit: -

“23. AD PARAGRAPH 20

23.1   The death claim form completed by the applicant is dated 3 July 2013.  A copy of that claim is annexed marked “GH5”.

23.2   The respondent received the claim form and subsequently called for and received from the applicant’s previous attorney, Mr Hunter Thyne, certain information including identity documents, death certificates and the like.  For example, on 10 July 2013 one of the respondent’s employees, Ms Amanda Snyman, communicated to Mr Thyne, a range of requirements necessary for the respondent to begin the process of the claim.

23.3   On 25 July 2013 Ms Snyman pertinently notified Mr Thyne that, although the respondent had received most of the documents it had requested from him, it had been advised by the South African Police Services that the investigation into Wiggill’s death had not been completed and that, in the circumstances, it would not be prudent for the respondent to pay out any claim (until the completion of that investigation).  Ms Snyman’s confirmatory affidavit is annexed marked “GH6”.

23.4   In the result, Thyne was notified that the respondent would withhold any further assessment of the claim until the requisite investigations had been completed – that included the enquiries into Wiggill’s dealings with First Strut to which I have referred above.

23.5   It is, in the circumstances, entirely inaccurate for the applicant to contend that the respondent has neither acknowledged receipt of this claim nor reacted thereto.  Mr Thyne was explicitly told that the respondent would not (and could not) make a final determination pending the outcome of the current investigations.”

[20]    Juxtaposed against these allegations should be the following facts which emerged from the applicant’s founding affidavit: -

1. In paragraph 4 of the founding affidavit the applicant stated the following: -

“… I am unsure as to the Policy terms and conditions as I have never had sight of same and an attempt by me to obtain it from Wiggill’s insurance brokers, Mrs Naude, was unsuccessful, i.e. she having advised me that the original of the Policy accompanied the claim form documents and that shortly after Wiggill’s death the Policy copy that she had was removed from her by a forensic investigator employed by the Respondent.”

2. The applicant explains in paragraphs 20, 21 and 22 the further steps he took in order to ensure compliance with the formalities pertaining to the claims in accordance with the policies: -

“20.    Shortly after Wiggill’s death I completed and signed certain claim documents (“the Claim Documents”) which the Respondent required to be completed, signed and submitted to it (unfortunately I have never retained and was never given a copy of these).  The Claim Documents were, to the best of my knowledge, furnished to the Respondent and notwithstanding this event the Respondent has never acknowledged receipt thereof and has never reacted thereto.

21.     Arising from the matter indicated in paragraph 20 I have employed Attorney John Finlay Cameron (‘Cameron’) in an effort to demand from the Respondent that it pay to me the Benefits.

22.     I annex hereto as annexure “B” a communication addressed by Cameron to the Respondent dated the 1^st November 2013 which Cameron personally delivered to the business premises of the Respondent.  I furthermore annex hereto as annexure “C” the autopsy report together with other relevant documents pertaining to the death of Wiggill and which accompanied annexure B (all of these documents were certified as a true copy of the originals, i.e on the reverse side thereof).  Cameron has advised me that he has received no response to Annexure B from the Respondent.”

3. Significantly attorney Cameron’s letter of demand (which was duly annexed to the founding affidavit) contains the following relevant paragraphs: -

“According to information at our client’s disposal, the Policies’ name our client as the beneficiary thereof (80 %). We have been instructed by our client that he has furnished you with the relevant claim statements that you required to be completed and signed and that the delay in effecting payment of the Policies proceeds is as a consequence of certain outstanding police reports and other documents including a medico-legal post-mortem examination report.

We attach hereto certified copies of the relevant documents obtained from the South African Police Services and which we have marked as Annexures “A1” – “A11”. 

It is our contention that you are now capable of processing the claims under the Policies and more particularly to effect payment of the benefits therein under.  By virtue of the aforegoing and by no later than close of business on Friday, the 8^th November 2013 you are to pay the proceeds arising from the Policies, on behalf of our client, and into our trust account, the details whereof are reflected at the foot of this communication.”

4. Not only did the respondent not respond to attorney Cameron’s letter of demand, but also, nowhere in the answering affidavit does the respondent deny that the documents and information necessary to process the claims are in its possession.  It would have been the easiest thing for the respondent (had that been so), to deny that the necessary documents and information were provided or formalities complied with in order for its claims assessor to have processed the claims.  Had the respondent done so, I might have been enjoined to dismiss the application or refer it to evidence on this issue as a result of such dispute of fact (by virtue of the well-known Plascon-Evans test to be applied to disputes of fact). 

5. There is also a further consideration.  The applicant sought in prayer 1 of the notice of motion, payment of the extent of the policy proceeds under the two policies.  In the alternative (prayer 2), it sought an order that the respondent within five business days of the order, advise the applicant’s attorneys in writing of any outstanding requirements or documents that the respondent reasonably and necessarily requires to finally process the claims under and in terms of the policy.  This prayer is coupled with a prayer 3, in which he seeks an order that such proceeds be paid within five days of the furnishing by the applicant of such information and documents.  These prayers (and their import) were similarly ignored by the respondent in its answering affidavit.  The respondent simply took no issue with the fact that it was in possession of the documents and information to process the claims. 

[21]    Given the aforesaid, I repeat that it is common cause that the respondent was in possession of the information and documentation necessary for its claims assessor to process the claims.  If not common cause, the irresistible and only reasonable inference is that it was the case by virtue of the respondent not denying or disputing it.  Either way, it makes no difference to my finding and there is no prospect that a court on appeal will find differently.

RESPONDENT DID NOT REFUSE TO ASSESS THE CLAIMS AND ADOPTION OF SUPINE ATTITUDE

[22]    Grounds 9 and 12 are in fact one ground for leave to appeal.  Suffice it to say that this is exactly what the respondent did.  The deponent to the answering affidavit says so expressly in the above quoted paragraph 23.  Whether the respondent refused, failed or deliberately omitted to assess makes no difference to the end result.  The fact is, it did not assess the claims (within a reasonable time or at all) and notified the applicant that it would not do so. 

RESPONDENT NOT REQUIRED TO MAKE ELECTION UNTIL SOME INDETERMINATE POINT IN TIME

[23]    Again, paragraphs 7 and 8 of the answering affidavit (quoted in paragraph 11 of my judgment) read with paragraph 23 quoted above, conclusively reveal and demonstrate that it was the respondent’s one and only defence to the application, namely that it is awaiting the outcome of the investigative processes (it does not state when this would be), before it would decide to pay the proceeds of the policies or repudiate liability. 

[24]    Significantly, in its heads of argument respondent’s counsel euphemistically states that: -

“It is clear that the investigation processes referred to above will take time.”

NOT THE RESPONDENT’S CASE THAT TIME PERIOD BETWEEN SUBMISSION OF CLAIMS AND ISSUING OF APPLICATION WAS UNREASONABLE

[25]    Indeed, it had never been the respondent’s case in its answering affidavit that this time period was unreasonable.  As stated in the judgment and repeatedly herein, its defence was that it was entitled to defer its decision until the finalisation of the investigative processes.  That was precisely the reason why I dismissed this argument of counsel on behalf of the respondent as being without any fact or foundation and in conflict with the asserted defence of the right to defer.

NO BASIS FOR WITHHOLDING PAYMENT ESTABLISHED BY THE RESPONDENT

[26]    It is axiomatic that the respondent failed to establish any basis whatsoever for withholding payment and this finding, in my view, has no prospect of being interfered with on appeal. 

MATTER SHOULD HAVE BEEN REFERRED BACK TO RESPONDENT FOR ASSESSMENT

[27]    The respondent’s first argument at the hearing of this application was that a court is not authorised to order payment of the policies in the circumstances of this matter and that, at best for the applicant, it should have been referred back to the respondent and it be placed on terms to make the necessary assessment.  As I understand the argument, the respondent asserts that as it is relying on the right to defer, the likely “outcome” of the investigative processes are (for the moment at least) irrelevant for purposes of adjudicating the application.  In other words, I am told that I am not now dealing with a defence on the merits pursuant to a repudiation of the claims or policies but, with the asserted and reasonable right to defer (irrespective of timeframes) due to inability to assess.  Should I find against the respondent, so the argument continues, I should order the respondent to assess the claims and I cannot simply order payment of the proceeds of the policies. 

[28]    Not only was this point not argued when the application was heard initially, but also, it was not raised as a ground in the notice of application for leave to appeal.  Strictly speaking, this failure renders this contention stillborn.  I will nevertheless deal with it herein lest it be said that in allowing it to be raised in argument somehow (however doubtful) overcomes this difficulty. 

[29]    In furtherance of the contention I was referred to the “analogous” position in administrative law in general and, to the matter of Vodacom (Pty) Ltd and Another v Nelson Mandela Bay Municipality and Others,[5] in particular, where it was reiterated that a court may only substitute, vary or correct a defective finding of a functionary in exceptional cases.  The court found that in general, a court should on review refer the matter back to the functionary in question with instructions to reconsider.

[30]    It is of course often prudent for a court to seek guidance in other fields of law when adjudicating a dispute which arises in a different area of law, particularly if the facts and circumstances are unusual and no direct authority for a particular proposition or principle exists.  The problem with an analogy however, is exactly that - it is only an analogy.  Unlike administrative law (and for that matter, any other public law discipline) the principles of private law are founded upon vastly different considerations.  The prime (if not, only) source of the rules governing the commercial relationship between contracting parties is the terms of their agreement.   The law of contract generally[6] does not permit a party to enlist a court to police or supervise the commercial playground to ensure that the other party behaves itself (as it were).  In public law it is the court’s very function to police, supervise and even correct misdirection, failure (or refusal) and abuse.

[31]    The terms of the policies in casu determine the rights and obligations of the parties in respect of each other.  Where, as here, valid policies are in existence in respect of which valid claims for payment have been submitted and the beneficiary in terms of the policies applies for an order for payment of the proceeds of such policies, a court will grant the order for specific performance in the absence of any defence to the claims for payment (provided all other jurisdictional requirements were met).  This is so irrespective of whether the insurer has formally repudiated liability or not.  This simple proposition was fully appreciated by the respondent which chose to defend the claim by relying on its right to defer its decision pending the outcome of the investigative processes.  The respondent’s heads of argument makes this quite plain: -

“12.      The true issue which serves before the above Honourable Court is whether the respondent’s conduct can be construed to be a repudiation of the applicant’s claim (there being no suggestion that the respondent has expressly repudiated that claim) or whether the applicant is entitled to delay that decision pending the outcome of the investigations referred to below.  By analogy, one can consider the analysis undertaken by Harms JA in Pharmaceutical Society of South Africa and Others v Tshabalala-Msimang and Another NNO;  New Clicks South Africa (Pty) Ltd v Minister of Health and Another 2005(3) SA 238 (SCA) in which the following was said:

‘Ineluctably, in the light of the nature and scope of the issues, the period of the delay, the lack of explanation, the urgency of the case, the content of Hlope JP’s judgment and the other factors mentioned, the only conclusion can be that the delay was not only regrettable, it was unreasonable – so unreasonable in fact that it could only be interpreted as a refusal of leave’.”[7]

[32]    In keeping with what I have stated earlier regarding the terms of the contract generally being the prime or only source which governs the commercial relationship between the parties, it is necessary to add these remarks:  if the law recognises (as an implied term) the fact that an insurer has a reasonable time to assess a claim, then, if it makes no assessment at all but could and should have and, a reasonable time had not yet expired, there may conceivably be an argument that a court should refer the matter back to the insurer for assessment (or, an application by the insured for payment may even be dismissed).  Where however, a reasonable time to assess had already expired and the insurer makes it plain that it nevertheless asserts the right to defer, then it must at least make out a case that it was an express, tacit or implied term of the insurance contract (policy) that it has such an unrestricted and unlimited right to defer irrespective of the time period involved or, that the law recognises such a right on some other contractual or legal basis.  In my view, no such unfettered right to defer exists either in law or with reference to the policy terms.  Such a contention would further be in direct conflict with the recognised right to undertake an assessment within a reasonable period of time and logically, the concomitant duty to elect within a reasonable time to either repudiate or abide.

[33]    It is therefore bad in law to contend that because the respondent’s right to defer is not objectively speaking unreasonable, it constitutes a defence to the applicant’s claims.  Even if the reliance on this defence appears to be imminently reasonable, this is entirely immaterial.  While unreasonable contractual terms are rendered unenforceable if they are found to be contra bonos mores, the converse does not follow.  The law of contract does not countenance the importation of contractual terms to a contract solely on the basis of reasonableness.  If that were to be so, a court would effectively be contracting for the parties. 

REVERSE ONUS

[34]    The second argument falling outside the ambit of the notice of application for leave to appeal was that, in making the findings in paragraphs [29] and [30] of my judgment, I employed an unwarranted “reverse onus” against the respondent. 

[35]    The onus is indeed on an insurer to demonstrate why it should not be ordered to pay the proceeds of valid policies pursuant to valid claims in terms thereof, once the jurisdictional facts have been met.  A primary onus rests on the insured to prove the jurisdictional facts.[8]  Once the insured has done so (or when it is common cause), the insurer then bears the onus of proving facts extraneous to the insurance contract, entitling it to repudiate due to, for instance, misrepresentation or non-disclosure[9] or fraud.[10]  In my view, no court on appeal will interfere with these trite propositions in law which I applied in my judgment. 

NO FINDING OF “DEEMED” REPUDIATION

[36]    The final argument which was also not contained in the notice of application for leave to appeal is that, if I understand it correctly, since I made no express finding that the respondent is deemed to have repudiated liability (referred to as “constructive” repudiation by the respondent’s counsel), I can not now make such a finding.  I am told that it should be left for a court of appeal to decide the matter on that basis, should it be so minded.

[37]    As legal practitioners know all too well, language is often the perfect medium to obscure or distort meaning.  Courts of law are consequently seldom blinded by form.  They will always endeavour to determine content.  This is true irrespective of the nature of the legal proceedings before it. 

[38]    Not only does the above-quoted portion from the respondent’s heads of argument clearly demonstrate that it appreciated fully the parameters of the issues for determination, but I would have thought that my judgment made it plain that the respondent cannot avoid liability by maintaining that it is not repudiating liability but asserting the (unlimited) right to defer its election.  The respondent cannot verbally maintain that it has not repudiated liability when in effect, and by its conduct, it does exactly that.  If an insurer fails to assess a claim within a reasonable time and asserts the right to defer assessment for an indeterminate time based on some vague notion of possibly unearthing some future basis for rejecting the claims and, in addition, fails or refuses to perform or undertake its own assessment of the claims, it is difficult to escape the conclusion that it has in effect repudiated liability.  There is simply no legal or conceptual basis for the transitionary position which it has adopted. 

[39] Whatever the conceptual framework which one may wish to apply to the issue for determination however, the net result would remain the same.  In my view, no court of appeal will find that I should have made an express finding of repudiation by the respondent before I could entertain an order for it to pay the proceeds of the policies.  Even if such a failure rendered my judgment vague or questionable, there can be little doubt that the respondent in truth and in effect, repudiated liability entitling a court to order it to pay the proceeds of the policies to the applicant.

ORDER

[40] I find no merit in any of the grounds referred to in the notice for leave to appeal and neither in any of the arguments raised at the hearing.

[41] As a result, the application for leave to appeal is dismissed with costs.

F J BECKER

ACTING JUDGE OF THE HIGH COURT

DATE OF HEARING: 19 September 2014

DATE OF JUDGMENT: 3 October 2014

FOR THE APPLICANT:

ADV D VETTEN

INSTRUCTED BY: -

JOHN JOSEPH FINLAY CAMERON ATTORNEYS

SANDTON

FOR THE RESPONDENT:

ADV A MUNDELL SC

INSTRUCTED BY: -

KEITH SUTCLIFFE AND ASSOCIATES INCORPORATED

JOHANNESBURG

---