Ndwandwa v Auto & General Insurance Co. Ltd. (CA149/2001) [2003] ZAECHC 6 (1 March 2003)

IN

THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

Case No.: CA149/2001

Date delivered:

In the matter between:

LUVUYO NDWANDWA Appellant

and

AUTO & GENERAL INSURANCE CO. LTD Respondent

J U D G M E N T

LEACH, J:

The appellant, the unsuccessful plaintiff in the court a quo, appealed to this Court against a decision in the civil magistrate’s court of East London upholding a special plea, the effect of which was to dismiss his claim against the present respondent. When the appeal was called, counsel for the appellant moved an application to condone both the appellant’s late prosecution of his appeal and the late filing of his heads of argument. The application was opposed and it is now necessary to decide whether condonation should be granted. The parties are agreed that if the application does not succeed, the appeal should be struck from the roll.

It is common cause that in February 1996 the parties entered into an agreement in terms of which the respondent, a short-term insurance company, insured the plaintiff against damage caused to a particular motor vehicle. The appellant thereafter instituted action against the respondent, alleging that the insured vehicle had been damaged on 4 May 1996, that the fair, necessary and reasonable costs of its repair amounted to R37 233,10 and that the respondent was therefore obliged to pay him that sum. In response to this, the respondent raised a plethora of pleas upon which it denied liability - including a special plea that the claim was unenforceable as action had not been instituted timeously in breach of a term of the insurance contract that no claim would be payable if legal proceedings were not commenced within 90 days of the respondent having denied or repudiated liability in respect of the claim.

The special plea was set down for hearing as a separate issue. It came to trial on 23 April 1999. In his judgment delivered the same day, the magistrate upheld the special plea, with costs – which the parties appear to have accepted amounted to an order dismissing the appellant’s claim, with costs. Reasons for judgment were then requested and came to hand on 8 June 1999. The appellant’s notice of appeal, which appears to be have been signed on 21 June 1999, was lodged with the clerk of the court and served upon the respondent’s attorneys on 2 July 1999. The appeal should therefore have been prosecuted in September 1999. In fact it was only prosecuted in April 2001, more than 18 months after it should have been. The reason for this delay appears to be some difficulty in obtaining a record of the proceedings in the court a quo.

It does not seem to me to be necessary to detail what steps were taken (or more properly what steps were not taken) by the appellant’s attorney in arranging to obtain a record. The appellant has contented himself in merely placing before us an affidavit from his attorney at the seat of this Court, one Basson, which, in truth, raises more questions than it provides answers. Noticeable by its absence is an affidavit from Basson’s correspondent who was responsible for preparing the record. What does appear from Basson’s affidavit is that there were long periods of time when it appears that nothing in fact was being done to obtain a record. It is suggested in correspondence between the attorneys of the respective parties that, as long ago as 17 March 2002, the appellant’s attorney, in response to an enquiry from the respondent’s attorney in regard to the missing record, stated that he was waiting for the trial magistrate, who was then on leave, to return to work to give him some direction. Thereafter the matter remained in limbo for about a year before the appellant’s attorney, in response to a further enquiry from the respondent’s attorney, stated that he had then been able to trace the tapes used to record the evidence. Eventually an incomplete record came to hand and, on 28 March 2001 the appellant’s local attorney, Basson, signed a certificate of correctness –

which he did well knowing that the record was not correct or in order as he knew that the exhibits were still outstanding. Eventually, on 22 March 2002, the appellant filed a further volume of the record containing the exhibits.. This, too, was still not in order and ultimately the respondent’s attorney forwarded the appellant’s attorney a set of the exhibits which was in order and requested him to file an amended appeal record in regard thereto. This the appellant’s attorney failed to do and it was therefore necessary for the respondent, at the hearing, to seek an order substituting the volume of the appeal record containing the exhibits with another volume containing the correct exhibits (an issue to which I shall return in due course).

That is still not the end of the difficulties arising from the neglect of the appellant’s attorneys. The notice of set down of the appeal was delivered at the offices of the appellant’s local attorney on 8 February 2002. The conduct of the matter had apparently been entrusted to one Mvulana, one of Basson’s employees, who left the firm at the end of March 2002. According to Basson, there is nothing on file to indicate what steps Mvulana took during that period but it certainly seems that he did not brief counsel to prepare heads of argument. Basson only became aware of the fact that the matter had been set down when the respondent’s heads of argument were served on his office on 30 April 2002. As Basson was at the time suspended from practising (so we were informed from the Bar) it was necessary for him to instruct another attorney in Grahamstown who, in turn, instructed counsel to draw heads of argument and to argue the appeal. Consequently, the heads of argument of the appellant were only filed on 6 May 2002 when they should of been filed by no later than 22 April 2002. .

It seems from this that Basson blames his former employee, Mvulana, for failing to take steps to ensure that heads of argument were timeously filed. However no explanation of this default, even of a hearsay nature, has been obtained from Mvulana and Basson does not explain how it came about that the matter was ignored in his office during the month after Mvulana left his employ until the respondent’s heads of argument arrived.

As Schutz JA pointed out in Langdale House (Pty) Ltd v The Standard Bank of South Africa Ltd (a recently unreported judgment of the Supreme Court of Appeal delivered on 23 May 2002) while the principles governing condonation applications have often been restated, they are nevertheless often ignored. The main principles were formulated as follows in Federated Employers Fire and General Insurance Co. Ltd & Another v McKenzie 1969 (3) SA 360 A at 362 :

“. . . the factors usually weighed by the Court include the degree of non-compliance, the explanation therefor, the importance of the case, the prospects of success, the respondent’s interest in the finality of his judgment, the convenience of the Court and the avoidance of unnecessary delay in the administration of justice”

Condonation is not a formality, merely there for the asking. In all cases, a full and acceptable explanation has to be given, both for the delay in prosecuting an appeal – see: Beira v Raphaely-Weiner & Others [1997] ZASCA 59; 1997 (4) SA 332 (SCA) – as well as for any delay in seeking condonation - and an appellant should, whenever he realises that he has not complied with a rule of court, apply for condonation as soon as possible - see Darries v Sheriff, Magistrate’s Court, Wynberg & Another 1998 (3) SA 34 (SCA).

In the present case, as I have said, there is no proper explanation for the delays. Instead he has placed the barest of information before this court, presumably in the hope that we would treat his application as a formality, which it is not. I am therefore of the prima facie view that this is one of those cases where, irrespective of the prospects of success on appeal, condonation should be refused. However it is unnecessary to reach a final decision on that issue as, if one has regard to the prospects of success, there can be no doubt that the appellant has not made out a proper case for the indulgence he seeks.

The essential issue between the parties was whether the insurance contract contained the time limitation clause relied upon by the respondents. In my view, notwithstanding the respondents having pleaded the existence of this clause, the appellant, as plaintiff in the court a quo bore the onus of establishing that the contract did not contain such clause. In his heads of argument, relying upon the well known dictum in Pillay v Krishna 1946 AD 946 at 952, counsel for the appellant submitted that the respondent, by pleading a special term constituting a special defence had attracted to itself the onus of proving it. However, I did not understand him to persist with this argument during the hearing. In my view, he was correct in altering his stance. It is now well settled that a party who relies upon a contract to claim relief is obliged to prove all its material terms, even though this may involve proving a negative i.e. that an additional term alleged by the defendant was not agreed to by the parties - see for example Stocks and Stocks (Pty) Ltd v T.J. Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A) at 762 G - H and the cases there cited. The appellant therefore had to negative the respondent’s assertion, and its duty to prove the contract was not alleviated in any way by the respondent undertaking to begin and adduce evidence in support of the disputed additional term - see Topaz Kitchens (Pty) Ltd v Naboom Spa (Edms) Bpk 1976 (3) SA 470 (A) at 474 A - B.

In considering whether the appellant had discharged this burden, it is necessary to bear in mind the circumstances under which the respondent issues its insurance contracts. Instead of receiving a formal written proposal, the respondent accepts telephonic instructions from its clients. The material particulars are then telephoned through to its Johannesburg office where the insurance contract is then issued. The respondent’s evidence, which could not be seriously disputed, was that the contracts are computer generated. An operator types in the relevant particulars which are inserted into a standard form insurance contract which is then printed out. The contract is issued in two parts: a basic contract headed “ Motor Policy” together with a schedule containing details of the insured and the particular motor vehicle insured (a separate schedule is issued for each vehicle insured). The name and address of the insured appears on the schedule but not on the policy document. On the schedule it is specifically recorded that the terms set out therein, together with those in the policy document, constitute the contract of insurance. The policy and its schedule are mechanically folded and placed in a window envelope in such a way that the name of the address of the insured reflected on the schedule is displayed in the window. The envelope is then posted to the insured.

Although there was no direct evidence that this procedure was followed in respect of the insurance issued to the appellant, there is no reason to think that the respondent, a country-wide insurance company, should suddenly adopt a different procedure in his regard.

The appellant however testified that he had received no more than a single page, being the front side of a schedule but which did not contain his name and postal address, sent to him in a brown envelope and not in a window envelope.

Not only is this most improbable for the reason already mentioned, but it becomes all the more improbable in the light of the respondent producing a copy of a policy and schedule issued on 6 February 1996 and a copy of a further policy and schedule issued on 12 February 1996 (the document relied upon by the appellant is a poor copy of the first page of the latter policy). Both these documents refer to the appellant’s motor vehicle to which his claim relates. The issue of two separate policies so close to each other was explained by the respondent’s witness, one Du Preez, the manager of the respondent’s Port Elizabeth branch, who stated that the respondent’s practice when a vehicle is initially insured is to issue a policy subject to a special endorsement that insurance cover will commence once the vehicle has been inspected by a representative of the respondent (this condition is indeed reflected in the respondent’s copy of the motor policy issued to the appellant on 6 February 1996) There is no such endorsement on the policy issued on 12 February 1996, the explanation from Du Preez being that, in the interim, the inspection had been carried out and, once that was done, the policy was re-issued without the endorsement contained on the initial policy and forwarded to the insured.

Accordingly, for the appellant’s version to be accepted, the respondent for some reason failed to forward him either of the two motor polices it had issued and, instead, sent him only a poor copy of the front page of the second policy.

The magistrate, who enjoyed the advantage of having seen the witnesses in the witness box, was satisfied on a balance of probabilities that the appellant’s version was unacceptable. In the light of the inherent probabilities, I am not surprised that he reached the decision that he did. Certainly the probabilities seem to me to be overwhelmingly in favour of the respondent and, that being so, the appellant has no realistic prospect of success on appeal.

In the light of that conclusion, and due to the unexplained delays surrounding the prosecution of the appeal, the application for condonation must fail. That being so, the appeal must also be struck off the roll.

One final matter remains to be mentioned. As I have stated, the appellant filed an incomplete record and, despite the respondent’s attorney attempts to persuade the appellant’s attorney to rectify the situation, it was necessary for the respondent, by way of an application launched on 30 April 2002, to seek an order from this Court substituting the volume containing the exhibits with a replacement volume. The matter was argued before us on the basis of the replacement volume and, at the end of the day, the respondent sought an order substituting the defective volume with the volume it had prepared. The appellant did not oppose such relief and it is therefore merely necessary to formally grant an order in the terms set out in the notice of motion dated 30 April 2002

I therefore make the following order:

(a) Volume two of the record of appeal containing the exhibits as prepared by the appellant is substituted by the record of appeal containing the exhibits prepared by the respondent.

(b) The costs of the application for substitution brought by the respondent under its notice of motion of 30 April 2002 are to be paid by the appellant.

(c) The appellant’s application for condonation is dismissed, with costs.

(d) The appeal is struck from the roll, with costs.

_____

L.E. LEACH

JUDGE OF THE HIGH

COURT

MAQUBELA, AJ:

I agree.

S.P. MAQUBELA

JUDGE OF THE HIGH COURT (Acting)