REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE No:  10351/2004

In the matter between:

and

JUDGMENT DELIVERED : 4 AUGUST 2009

[1] On 24 July 2004 at approximately 18:30, the plaintiff and certain members of his family, were returning home to Riversdale from a rugby match in George when the Mercedes vehicle driven by the plaintiff, overturned. The collision occurred at the intersection of the road leading from Blanco to the N2 and the old road leading from Mossel Bay to George, near the George Airport. The vehicle came to rest in the old Mossel Bay/George Road. People arrived on the scene soon after the collision and assisted the passengers who were trapped in the car to get out of the car. One of them was Edward Mans ("Mans"), a security officer and former police Inspector. Another person who was travelling in his vehicle behind the Mercedes and stopped at the scene of the collision, was former Regional court Magistrate, Bertus Louw ("Louw").

[2] The passengers in the Mercedes were Eddie Ten Hoope ("Ten Hoope"), the brother-in-law of the plaintiff and Johnny Swart ("Johnny Swart"), the father of the plaintiff; there were two children in the car as well; they were the six-year old son of plaintiff, John Charles Swart ("John") and the 11 year old son of the plaintiff's sister, Andre Ten Hoope ("Andre"). After the collision John was found walking around outside and Andre was found lying on the ground. Andre was apparently thrown out of the car and died at the scene of the collision. It does not appear that the plaintiff and the other passengers required medical attention at the scene of the collision. The Mercedes was a complete wreck. After the collision another vehicle travelling on the old Mossel Bay/George Road, collided with the wreck, left the road and landed in a ditch next to the road. Nothing, however, turns on the second collision.

The Proceedings
[3] It is common cause that the plaintiff's Mercedes was insured by the defendant in terms of an Insurance Policy which indemnified the plaintiff against any loss or damage arising from a collision ("the Policy"). Plaintiff submitted such claim, but the defendant repudiated the claim on the ground that plaintiff drove the vehicle while under the influence of liquor. The plaintiff then instituted these proceedings against the defendant for the recovery of the loss and/or damage suffered by him arising from the said collision. The defendant opposed these proceedings.

The Defences

[4]      The defendant raised two defences. The first is that the plaintiff drove the vehicle at the time of the collision while he was under the influence of intoxicating liquor. The second is that it was a tacit, alternatively an implied term, of the Policy that the plaintiff would, at all times during the currency of the Policy, display good faith and act in good faith towards the defendant, failing which the defendant would be entitled to repudiate any claim arising from such breach. The defendant pleaded that the plaintiff had failed to act in good faith and/or display good faith towards the defendant in that he left the accident scene before the SA Police Services or other emergency services had arrived on the scene.

The Issues in Dispute
[5] The parties agreed that the only issue in dispute which this court has to determine is whether the defendant, as the insurer, is liable to indemnify the plaintiff for the loss and/or damage suffered by him arising from the collision in the light of the two defences raised by the defendant. The parties further agreed that should the court find in favour of the plaintiff, the quantum of the loss and/or damage shall be the agreed sum of R300 000,00. The parties further agreed that the onus is on the defendant to prove that the plaintiff drove under the influence of intoxicating liquor at the time of the collision as pleaded in paragraph 2.2, read with paragraph 7.1 of its Plea, alternatively, that there was a tacit and/or an implied term which was breached by the plaintiff as pleaded in paragraph 2.3 read with paragraph 7.2 of the Plea. I will evaluate the two defences separately in the light of the evidence placed before me.

Whether the Plaintiff was under the influence of intoxicating liquor at the time of the collision?
[6] The first defence raised by the defendant is that the plaintiff drove the vehicle at the time of the collision while he was under the influence of intoxicating liquor. In this regard, the promise to pay in terms of the Policy concluded by the parties is qualified by an exception, the relevant portion of which reads as follows:
"3.  Ons is nie aanspreeklik nie vir enige verlies, skade, besering of aanspreeklikheid veroorsaak, opgedoen of aangegaan
3.1. ...
3.2. terwyl die voertuig bestuur of gebruik word

3.2.1. ...
3.2.2. ...
3.2.3. deur u terwyl onder die invloed van bedwelmende drank of verdowingsmiddels of terwyl die alkoholpersentasie in u bloed die statutere perk oorskry..."

[9] In support of its case that the plaintiff was under the influence of liquor at the time of the collision, the defendant relied on the evidence of Mans and on circumstantial evidence. The plaintiff relied on the direct evidence of himself, Ten Hoope, Louw, Ane Silva and Adrie Swart. The defendant asked me to draw an inference from certain circumstantial evidence and the probabilities that the plaintiff was under the influence of intoxicating liquor at the time of the collision. I am going to evaluate the evidence as a whole to determine whether the defendant has discharged the onus of proving, on a balance of probabilities that the plaintiff, at the time of the collision, drove while he was under the influence of intoxicating liquor. In doing so, I will assess the credibility of the witnesses and examine the probabilities. Before embarking on that route, I want to set out the legal principles and approach when reliance is placed on an inference to be drawn from circumstantial evidence.

"Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation and conjecture."

202-203J.

[13] Mans testified that he assisted the passengers to get out of the Mercedes in which they were trapped. The plaintiff got out of the vehicle without his assistance, but he spoke to the plaintiff and noticed that his speech was slurred, he smelt of alcohol and he slipped when he tried to get out of the vehicle. The plaintiff testified that he had consumed one beer before the match started and had another during half-time. The last beer he had was more than two hours before the incident. He testified that he was sober at the time of the collision. The evidence of the defendant is corroborated by Ten Hoope, the brother-in-law of the plaintiff.

[14] The evidence of Mans with regard to the sobriety of the plaintiff is also materially contradicted by Louw. Louw testified that the plaintiff spoke and walked normally and he could not smell liquor on his breath immediately after the collision. Louw testified further, that other than for overtaking him at and unbroken traffic line in the road at a relatively high speed, the driver of the Mercedes was driving in a normal manner and not one that appeared to be under the influence of intoxicating liquor. The probability that the plaintiff lost control of the vehicle when he entered the sharp S-bend on the road cannot be discounted. The plaintiff testified that he remembers entering the S-bend, but everything else is a blank until he came to his senses after the collision. He remembers the Mercedes lying on its side and him clambering out of the vehicle.

[15] Ane Silva ("Silva") testified that she met the plaintiff, his passengers and the two children under the pavilion at the rugby stadium in George after the match and soon before they left for home. She did not see anyone with liquor in their hands and did not smell liquor on the breath of the plaintiff when she greeted him by kissing him. She knew the plaintiff for a long time and he was completely normal to her. This evidence was uncontested. Adrie Swart, the spouse of plaintiff ("Adrie") testified that when she found the plaintiff near the N2 turnoff to the airport, he was sober, but in a state of shock and confusion. Other than the evidence of Mans, there is overwhelming evidence that immediately before, during and after the collision the plaintiff was sober.
[16] In my view, Mans was not a very credible and reliable witness; he did not create a good impression as a witness; he contradicted himself; his evidence in court was at variance with his statement to the police in certain important respects; he adapted his version when confronted with certain inherent improbabilities; he could not give a reasonable explanation for certain inconsistencies and contradictions in his evidence; his evidence in certain important respects was inconsistent with the objective facts and probabilities and more importantly, his evidence with regard to the visit of Adrie to the airport with her son, John, is highly suspect, contradicted by Silva and is directly in conflict with the objective facts and inherent probabilities.

[17] Louw, on the other hand, was a credible and reliable witness: at the time of the incident he was a serving as a Regional Court Magistrate; Louw subsequently suffered a stroke as a result of which his speech was impaired; by agreement between the parties, his spouse assisted with relaying his evidence to the court; his evidence in court did not materially differ from his statement to the police; there were minor discrepancies, but this could possibly be ascribed to the fading memory because of the passage of time from the date of the incident to the date that he testified in court. His evidence is not only corroborated by the plaintiff and his witnesses, but is also consistent with the objective facts and inherent probabilities.

Did the Plaintiff Breach the Tacit and/or Implied Term of the Insurance Policy?

[24]     The learned judge at para 32 went on to say;

	.. While a court is not entitled to superimpose on the clearly expressed
intention of the parties its notion of fairness, the position is different when a contract is ambiguous. In such a case, the phnciple that all contracts are governed by good faith is applied and the intention of the parties is determined on the basis that the parties negotiated with one another in good faith..."

"...And perhaps the deliberate submission of a false claim is a breach of that duty entitling the insurer to terminate the policy. But if that is so then on the ordinary principles of our law the insurer would be relieved of liability only from the time of termination, and the rights and obligations that had accrued before then, would remain extant... What the appellant seeks, however, is the recognition of something more: It seeks the recognition of a right to terminate the policy with retrospective effect from the date of the attempted fraud, with the result that the insured would forfeit rights that accrued before the termination."

"It appears that there is no authority in the Roman-Dutch law for the implication ex lege of what is in essence a penal term. Nor, in my opinion, is there a compelling social need for the adoption of such a doctrine as an incident of the common law. That its adoption would serve the ends identified in the English cases is of course so but, if the cost of doing so, would be that cases would arise in which great inequity would be the consequence, that is good reason to hesitate."

[29]     The learned judge went on to say at para 24:
"When there is added to that the fact that insurance companies are master of their own policies in the sense that they are free to unilaterally devise them, the insured has no say in the process, and that it is a simple matter to include an appropriate clause to protect the insurer against fraudulent claims by providing for forfeiture, there does not appear to be any pressing need for the law to provide such protection."

Tacit Terms

"You must only imply a term if it is necessary in the business sense to give efficacy to the contract; that is, if it is such term that you can be confident that if at the time the contract was being negotiated someone had said to the parties: What will happen in such a case?' they would both have applied: 'Of course, so-and-so. We did not trouble to say that; it is too clear'."

[35] The two clinical psychologists, one for the plaintiff and the other for the defendant, agreed that the plaintiff suffered a significant trauma, exacerbated by the two accidents and the death of his nephew and which triggered the flight response. In the light of such evidence it would be difficult to make a factual finding that the plaintiff had failed to display good faith by not remaining at the scene of the collision in breach of the alleged implied and/or tacit term.

Conclusions
[36] It follows therefore, that the defendant had failed to discharge the onus of showing that the plaintiff drove the vehicle under the influence of intoxicating liquor at the time of the collision as pleaded in paragraph 2.2 read with paragraph 7.1 of its Plea, alternatively, that there was a tacit/and or an implied term which was breached by the plaintiff as pleaded in paragraph 2.3 read with paragraph 7.2 of the Plea. In the circumstances, the defendant is liable to indemnify the plaintiff for the loss suffered by him arising from the said collision.

Order
[37]     In the result the following order is made:
(a)	The defendant is liable to pay the plaintiff the sum of R300, 000,00 (three hundred thousand rand), in terms of the Insurance Policy, which indemnified plaintiff for the loss suffered by him arising from the collision;
(b)	The defendant shall pay interest on the sum of R300, 000.00, at the prescribed rate, as from 8 September 2004 to date of payment;
(c)	The defendant shall pay the costs of the plaintiff, including the qualifying expenses of the experts, Messrs Schkolne and Nel.
(d)	No order is made in respect of the wasted costs occasioned by the postponement of the matter on 14 March 2008.