Jacobs NO v Braaff (603/05) [2006] ZASCA 115; [2006] SCA 142 (RSA); [2007] 4 All SA 966 (SCA) (24 November 2006)

Jacobs NO v Braaff (603/05) [2006] ZASCA 115; [2006] SCA 142 (RSA); [2007] 4 All SA 966 (SCA) (24 November 2006)

The court found that, based on the evidence, the agreement to lend the car to the deceased included a tacit term that the insured (second defendant) would submit any claim arising from the deceased's use of the vehicle to the insurer for indemnification. The deceased was a family member who used the vehicle with permission, and both parties would have understood that insurance cover existed for such eventualities. The executor of the deceased estate was therefore entitled to compel the insured to submit a claim to the insurer. The extension clause in the policy, together with the surrounding circumstances and the parties' conduct, supported the existence of the tacit term. The trial court...

Citation
[2006] SCA 142 (RSA)
Parties
Appellant: Johannes Hermanus Jacobs N.O.; Respondent: Frederick Johannes Braaff
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
24 November 2006
Case Number
603/05
Procedural Posture
Civil Appeal / Appeal From Court a Quo
Outcome
Appeal upheld; order of the court a quo set aside and replaced.
Judges
NAVSA, NUGENT, CONRADIE, HEHER, PONNAN
Legal Topics
Insurance Indemnity, Tacit Terms, Executor Rights, Motor Vehicle Extension Clause
Commercial and Corporate Civil Procedure Insurance Indemnity Tacit Terms Executor Rights Motor Vehicle Extension Clause

Case Brief

Summary, issues, holding and outcome

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Parties

Johannes Hermanus Jacobs N.O.

Appellant

Frederick Johannes Braaff

Respondent

Procedural Posture

Civil Appeal / Appeal From Court a Quo

Legal Issues

  1. 1 Whether the agreement between the deceased and the second defendant included a tacit term obliging the insured to submit a claim for indemnity to the insurer on behalf of the authorized driver.
  2. 2 Whether the extension clause in the insurance policy afforded the authorized driver the right to enforce a claim against the insurer through the insured.
  3. 3 Whether the executor of the deceased estate is entitled to compel the insured to submit a claim to the insurer for indemnification.

Ratio Decidendi

The court found that, based on the evidence, the agreement to lend the car to the deceased included a tacit term that the insured (second defendant) would submit any claim arising from the deceased's use of the vehicle to the insurer for indemnification. The deceased was a family member who used the vehicle with permission, and both parties would have understood that insurance cover existed for such eventualities. The executor of the deceased estate was therefore entitled to compel the insured to submit a claim to the insurer. The extension clause in the policy, together with the surrounding circumstances and the parties' conduct, supported the existence of the tacit term. The trial court...

Court Disposition

Appeal upheld; order of the court a quo set aside and replaced.

Orders

  • The appeal succeeds with costs.
  • The third party (Mr Braaff) shall submit a claim to Santam Limited for an indemnity in respect of the damages, costs and expenses claimed by the plaintiff against the defendant (the executor) in the Court a quo under case no 2951/2000.