Absa Insurance Brokers (Pty) Ltd. v Lutting NO and Another (481/96) [1997] ZASCA 61; 1997 (4) SA 229 (SCA); [1997] 3 All SA 267 (A); (30 May 1997)

Absa Insurance Brokers (Pty) Ltd. v Lutting NO and Another (481/96) [1997] ZASCA 61; 1997 (4) SA 229 (SCA); [1997] 3 All SA 267 (A); (30 May 1997)

Section 20bis of the Insurance Act is clear and peremptory: brokers and agents must pay over all premiums received to the insurer, except for commission which may be set off. Any agreement purporting to allow a broker to deal with premiums in any other manner is prohibited and void. The statutory scheme is designed to protect the insurer, policyholders, and the public by ensuring premiums are under the insurer's control. Waiver of these statutory rights is not permitted, as it would undermine the regulatory purpose of the Act. The appellant's reliance on set-off, unjust enrichment, and in pari delicto fails, as the only permissible set-off is for commission, unjust enrichment is...

Citation
[1997] ZASCA 61
Parties
Appellant: Absa Insurance Brokers (Pty) Limited; Respondent: Jacobus Luttig NO.; Respondent: Cornelius Jacobus Oosthuizen NO.
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 May 1997
Case Number
481/96
Procedural Posture
Civil Appeal / Appeal From Exception Upheld in the Court a Quo
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Mahomed, Smalberger, Vivier, Zulman, Streicher
Legal Topics
Insurance Act Compliance, Agency Liability, Set Off, Unjust Enrichment, Statutory Nullity
Commercial and Corporate Civil Procedure Insurance Act Compliance Agency Liability Set Off Unjust Enrichment Statutory Nullity

Case Brief

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Parties

Absa Insurance Brokers (Pty) Limited

Appellant

Jacobus Luttig NO.

Respondent

Cornelius Jacobus Oosthuizen NO.

Respondent

Procedural Posture

Civil Appeal / Appeal From Exception Upheld in the Court a Quo

Legal Issues

  1. 1 Whether the agreement relied upon by the appellant is prohibited by section 20bis of the Insurance Act.
  2. 2 If prohibited, whether the agreement is nevertheless enforceable.
  3. 3 Whether it is permissible in law for the insurer to waive the benefits of section 20bis.

Ratio Decidendi

Section 20bis of the Insurance Act is clear and peremptory: brokers and agents must pay over all premiums received to the insurer, except for commission which may be set off. Any agreement purporting to allow a broker to deal with premiums in any other manner is prohibited and void. The statutory scheme is designed to protect the insurer, policyholders, and the public by ensuring premiums are under the insurer's control. Waiver of these statutory rights is not permitted, as it would undermine the regulatory purpose of the Act. The appellant's reliance on set-off, unjust enrichment, and in pari delicto fails, as the only permissible set-off is for commission, unjust enrichment is...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, such costs to include costs attendant upon the employment of two counsel by the respondent.