Ossie Pretorius Landgoed CC v Heavy Commercial Vehicle Underwriting Managers (Pty) and Another (47468/2012) [2017] ZAGPJHC 363 (5 December 2017)

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 47468/2012

Not reportable

Not of interest to other judges

Revised.

5/12/2017

In the matter between:

OSSIE PRETORIUS LANDGOED CC Plaintiff

and

HEAVY COMMERCIAL VEHICLE UNDERWIRITING

MANAGERS (PTY) LTD First Defendant

LOMBARD INSURANCE COMPANY Second Defendant

JUDGMENT

MIA, AJ:

[1] The plaintiff’s claim in this matter arises from a collision which occurred on 29 May 2012 on the Setlagoli-Stella tar road at 13h00 at a stop-start construction portion of the road. The plaintiff instituted this action against the first and second defendants on the basis of an insurance agreement wherein the plaintiff was insured against certain losses in terms of the policy. The defendants repudiated the claim and relied on two exclusions in terms of the policy in their plea, namely the lack of roadworthiness of the insured vehicle and that the loss or damage incurred as a result of inadequate securing or protecting or packaging of the property insured in terms of clauses 3 and 8 of the policy. The parties agreed to separate the quantum from the merits in terms of Rule 33(4), and to defer the quantum for later adjudication. As is required by the rule, I make such an order.

[2] The plaintiff called five witnesses. Mr. Bakhang Isaac Ngamole the driver of the truck, Mr. William Aubrey Alberts the technician who serviced the vehicles, Mr. Willie Wilkens the broker who facilitated the insurance, Constable Diphae the police officer who arrived on the scene after the collision, Mr. Van Der Merwe the expert regarding the roadworthiness and Mr. Pretorius a member of the close corporation.

[3] The collision occurred between the insured vehicle and a vehicle conveying workers engaged in road works on a stretch of road which proceeded to incline and then curved and moved downward. According to the plaintiff the collision occurred as a result of a Tata bakkie executing a U-turn in front of the insured’s vehicle consisting of a horse and two trailers. The insured vehicle was carrying a full load of 78 cattle. The driver of the insured vehicle, Mr. Ngamole, hooted when he observed the Tata bakkie executing a U-turn. He then braked and swerved to the left. Mr. Ngamole explained during his evidence that the reason he braked and then swerved to the left was to avoid injury or death to the persons conveyed on the open Tata bakkie.

[4] After Mr. Ngamole applied brakes, the vehicle did not come to a stop, but the horse and trailer continued moving as the topography of the road had a downward slope. He had to take further action which led to him swerving to the left to avoid colliding with the Tata bakkie. There were seven workers on the back of the open Tata bakkie as well as two persons in the carriage with which he sought to avoid colliding.

[5] He described that the horse pulled a double decker interlinked trailer. All the components were also insured by the same company. As I have said, a result of the downhill slope the vehicle continued moving. The vehicle toppled over as it continued downward to the left and along the gravel. The trailers fell onto their left side and damaged the insured vehicle and the trailers themselves. The cattle conveyed in the trailers were trapped inside and toppled over. Some of the cattle were injured and others were killed. The brake marks stretched from the tarmac onto the gravel. A recovery vehicle was called to tow the vehicle away as it was not in a position to be driven back or to convey its load some of which was lost and some of which was damaged.

[6] The issues to be determined in light of counsels’ submissions are:

1. Whether the plaintiff had an insurable interest in respect of the vehicles?

2. Whether the vehicles were in a roadworthy condition prior to the collision?

3. Whether the animals were securely packed for conveyance?

4. A fourth issue appears from the submission made by counsel for the defendant namely whether the plaintiff proved that it had an

insurable interest in the goods conveyed.

I received useful heads of argument from both counsel in the matter by agreement between the parties. I invited further oral submissions to clarify certain points. I am thankful to counsel on both sides for the heads of arguments and the submissions made.

Plaintiff’s insurable interest

[7] On the first aspect regarding an insurable interest in the vehicle itself and the goods carried on it, the plaintiff led the evidence of one of the members of the plaintiff’s business as well as the evidence of Mr. Willie Wilken, the broker who assisted in issuing the policy and updates thereto. Mr. Pretorius is one of the members of closed corporation Ossie Pretorius Landgoed CC.

[8] The evidence of Mr. Wilken proved that the plaintiff had cover which included “Load and Care”. Mr. Vorster, for the defendant conceded the truck and trailer as a combination was treated as a vehicle for the purposes of cover. In my view the plaintiff successfully discharged the onus of proving that the vehicle was covered in terms of the policy of insurance.

[9] Mr. Vorster however submitted that the plaintiff failed to prove that it had an insurable interest to the extent of the loss. He submitted further that the plaintiff did not tender any evidence that it had any interest in the goods. The evidence led indicated that Mr. Pretorius was the owner of the vehicle even though he is a member of the plaintiff. His evidence suggested he was the owner of the truck in his personal capacity. In view hereof counsel for the defendant submitted that absolution from the instance should be granted.

[10] At the outset Mr. Pretorius testified that he is a member of the close corporation and that his brother is the other member. He testified further that he had insured vehicles with the defendants and specifically two trucks. Mr. Strydom submitted that Mr. Pretorius is a farmer, a lay person. His evidence must be seen in the context of the understanding that he is a member of the close corporation and he deals with all aspects of the business on behalf of the close corporation using the terms “his” loosely.

[11] Mr. Strydom argued that the evidence of Mr Alberts indicated that the vehicles were sent for testing and invoiced to Ossie Pretorius Landgoed Close Corporation[1] indicating that the ownership of the vehicles belonged to the close corporation. The licenses were issued to the close corporation and were paid for from the account of the close corporation. Mr. Wilken also gave evidence that the plaintiff Ossie Pretorius CC was insured for load and care to the value of R450 000 for fire, theft and collision and overturning.

[12] In considering the evidence it is clear that Mr. Pretorius is a member of the close corporation. He is a farmer and runs a business with his brother as a close corporation. His evidence when he testified was with regard to the interests of the close corporation. The documents and questions throughout indicated as much. The evidence of the witnesses Mr. Alberts and Mr. Wilken indicate they were engaged by Ossie Pretorius Landgoed Close Corporation and Mr. Pretorius as a member thereof. The accounts were settled by the close corporation as well through the agency of Mr. Pretorius. Mr. Vorster’s submission that Mr. Pretorius’s evidence suggested the vehicle was his own personal property ignores the remaining salient evidence pointing to ownership and capitalizes on an innocuous choice of words by the witness for the plaintiff. On the evidence before the court I am satisfied that the plaintiff successfully proved its case with regard to it having an interest in the load.

The vehicles’ roadworthiness prior to the collision

[13] The plaintiff led the evidence of Mr. Bakhang Isaac Ngamole, the driver of the horse and trailer on the particular journey. His evidence indicated that he had been a driver for thirty years and had received special training to drive such trucks on long journeys. He explained what precautions he took to check the vehicles, especially the brakes before embarking on a long journey. During the journey he stopped after 150 kms to check that the animals were not sleeping. He also checked the tyres by hitting them with a hammer. A loud sharp sound indicated they were in good condition whilst a dull sound indicated they were deflating. He did not encounter any problems with the state of the vehicle on the journey.

[14] Mr. William Aubrey Alberts is the main member of a business specializing in repairs of trucks and specifically wheel bearings,

alignment, air systems on trucks and ensuring trucks are road worthy. They attend to the brake drums and shoes on site. He indicated he had been working on trucks for fifteen years and was familiar with the particular model of vehicle. He also testified that he checked the plaintiff’s vehicles’ at his previous place of employment. When he commenced working for his own account the plaintiff brought the vehicles to him to work on them and to take them through the roadworthy testing each year as well as for servicing in between.

[15] He had checked the vehicles and prepared them for road worthy tests in May 2011. The tax invoices were made out to Ossie Pretorius

Landgoed Close Corporation. He had undertaken extensive work on the vehicles which included replacing slack adjusters, brake shoes and brake linings, s-cam rollers and clips and circlips as well as bushes and conducted repairs when the vehicles were involved in a collision. Mr. Alberts had passed the vehicles through the roadworthy test in May 2011 and in previous years. The road worthy certificate was still valid at the date of the collision.

[16] After it had been established that the roadworthy certificate was still valid, Mr. Vorster put to Mr. Wilken that the insurance policy required that the vehicle be road worthy at the time of the collision. If the vehicle had passed through a road worthy test in May 2011 it was possible that it was possibly not roadworthy in May 2012 and due for repair being toward the end of the roadworthy

period. Mr. Wilken’s response was that the insurance companies relied on a valid road worthy certificate to determine roadworthiness

to date. He was unaware of any other position to determine roadworthiness.

[17] The first basis on which the defendants repudiated the plaintiff’s claim in terms of the insurance policy was based on the roadworthiness. Arising from this it is necessary to determine whether the vehicles were in a roadworthy condition prior to the collision. Only the front trailer’s roadworthiness was placed in dispute. The experts had agreed that the horse and back trailer were roadworthy. None of the experts examined the trailers or vehicles immediately prior to the collision or immediately after the collision and before the vehicle component was towed away. Their evidence is thus based on a reconstruction of the collision and examination of the vehicles post the collision and after it was towed away and stored for a period of time.

[18] The evidence of the driver, Mr. Ngamole and the police officer, Constable Diphae, relating to the scene post the collision and the owner of the vehicle is relevant relating to the trailer pre- and post the collision. The roadworthiness of the vehicles was questioned by asking Mr. Ngamole what would happen if the brakes on the horse were working but the brakes on the trailer were not working. He explained that the trailer would push the horse causing it to move and it would result in what is known as a “jack-knife”

accident. The vehicle did not jack-knife on this occasion. During cross examination a further scenario was put to Mr. Ngamole.

He was asked what would happen if the brakes were only working on one side of the horse and trailer. His response was that the vehicle would sway and would swerve to the side which braked. This too did not occur as the evidence was that the brakes were present on the road and ran to the shoulder of the road.

[19] Mr. Salvatore Christaudi testified for the defendants. There was a joint minute signed by the expert for the plaintiff and the expert for the defendants, Mr. Christaudi, wherein they agreed that only the main trailer remained the subject of dispute with regard to it being unroadworthy. The minutes read as follows:

“5. Mr. Christaudi declares that the main trailer remain the subject of dispute in that he found it to be unroadworthy when he inspected it in Pretoria; 6. Mr. Van Der Merwe disagrees with this view and maintains that the trailer was roadworthy up to the accident.”

[20] Mr. Strydom for the plaintiff submitted that the credibility of the plaintiff’s witnesses who were on the scene at the accident and immediately after, carried greater weight than the opinion of the experts regarding the reconstruction. He referred to Van Eck v Santam Insurance Company Ltd 1996(4) SA 1226 (CPD) 1229 at p1230 at H-J where the Court per Van Zyl JA stated:

“It is not unusual for parties to tender expert evidence in cases such as the present. Their evidence, however, is inevitably based on reconstruction and cannot conceivably bear the same weight as direct, eye-witness testimony of the event in question. This has been stated emphatically by Eksteen J in Motor Vehicle Assurance Fund v Kenny 1984 (4) SA 432 (E) at 436H-I:

'Direct or credible evidence of what happened in a collision, must, to my mind, generally carry greater weight than the opinion of an expert, however experienced he may be, seeking to reconstruct the events from his experience and scientific training. Strange things often happen in a collision and, where two vehicles approaching each other from opposite directions collide, it is practically impossible for anyone involved in the collision to give a minute and detailed description of the combined speed of the vehicles at the moment of impact, the angle of contact or of the subsequent lateral or forward movements of the vehicles.'”

[21] Mr. Voster submitted that the terms of the insurancy policy agreement provided that the defendant “would not be liable in the event of the insured vehicle assessed separately, not being in roadworthy condition, as defined in the

legislation relating to roadworthiness at the time of the loss”. Mr. Christaudi assessed the vehicle and found same to be unroadworthy. Mr. Christaudi did not assess the vehicle immediately prior to the collision. The assessment was undertaken after the collision and after the vehicle was towed away by the recovery agent, Mr Marx, who loosened the brakes and towed the vehicles in that condition. Mr. Christaudi’ s examination and opinion does not take account of the fact that the recovery agent Mr. Marx was forced to loosen the brakes to facilitate towing the vehicle for 500 km back to town.

[22] According to the plaintiff’s expert and witnesses the towing of the vehicle with the “loosened” brakes would have caused damage and extraordinary wear and tear that was visible upon inspection when the vehicles were inspected subsequently. It was submitted that Mr. Christaudi’s opinion favored the defendant who paid for his report. The view expressed by Majiedt, JA in Jacobs and Another v Transnet Ltd t/a Metrorail and Another 2015(1) SA 139 (SCA) is apposite in this instance where the following was said:

“[15] It is well established that an expert is required to assist the court, not the party for whom he or she testifies. Objectivity

is the central prerequisite for his or her opinions. In assessing an expert's credibility an appellate court can test his or her

underlying reasoning and is in no worse a position than a trial court in that respect. Diemont JA put it thus in Stock v Stock:

'An expert . . . must be made to understand that he is there to assist the Court. If he is to be helpful he must be neutral. The evidence of such a witness is of little value where he, or she, is partisan and consistently asserts the cause of the party who calls him. I may add that when it comes to assessing the credibility of such a witness, this Court can test his reasoning and is accordingly to that extent in as good a position as the trial court was.'”

[23] Mr. Christaudi, despite not being present on the scene and not having viewed the vehicle before the collision, was willing to draw conclusions with regard to its condition before the collision without the benefit of all the knowledge. He conceded certain information reluctantly in cross examination. He did not have all the information regarding the brakes and was not aware that the vehicle had been towed away by Mr. Marx at the defendant’s instance, and that the brakes had to be “loosened” and towed for 500 km in that state.

[24] The defendant contended that the air pipe which was suffocated would not have passed a roadworthy test was conceded by Mr. Van Der Merwe. Mr. Van Der Merwe agreed that it would not pass the annual roadworthy test but it would pass a road side test.[2] He responded during cross-examination that where a pipe was loose during a journey it was preferable that it be tied rather than having it hanging and becoming damaged further. The defendant also relied on the assessment of Mr. Christaudi which indicated that he relied on the evidence that the s-cam rollers were shiny and were not working for some time. This was not the cause of the collision, and it was suggested it could have been due to the recovery and the brakes being loosened and the vehicle parked without being repaired for a period of time.

[25] The vehicles’ roadworthy certificates were still valid at the date of the collision. The evidence of Mr. Alberts indicates they had passed roadworthy tests in consecutive years and had been maintained by him regularly. Neither Mr. Christaudi nor Mr. Van Der Merwe had the opportunity to inspect the vehicle prior to the collision. Mr. Ngamole’s evidence indicated that he experienced no problems prior to the collision. In his view the topography of the road combined with the heavy load played a role in delaying the stopping of the truck and caused it to turn onto its side.

[26] I am not persuaded that the vehicles were not roadworthy where there were valid road worthy certificates in place and the vehicles were maintained by Mr. Alberts. Mr. Ngamole’s evidence indicates he stopped regularly to check the vehicle, tyres and animals. He reacted timeously when a bakkie executed a U-turn in front of him. The brake marks on the road extending onto the shoulder of the road indicate the brakes were engaged. The weight of the load and the slope of the road may have impacted the stopping distance and played a role in the vehicle overturning.

Were the animals securely packed for conveyance?

[27] The defendant’s second basis for repudiating the claim in terms of certain clauses in the policy was based on the insecure or improper packaging of the load. Flowing from this it is necessary to determine whether the animals were securely packed and protected for travel conveyance. The plaintiff’s evidence was that the mats and poles are welded in a block formation to facilitate removal and cleaning. They passed roadworthy testing in the previous four years during which the vehicles were insured with the defendants. The reason they were assembled thus was for ease of removal to enable the conveyance of loads of grain and compost. Mr. Strydom submitted that the repudiation was a mere clutching at straws to deny a claim. If the mats were welded as suggested by the defendant it would create a hazard and a complication in rescuing the live load of animals in the event of a collision. It would take longer to rescue the animals and would result in greater losses of animals and a larger claim to be paid out by the defendant.

[28] Mr. Ngamole’s evidence indicated the animals were packed securely and conveyed securely. He checked on them regularly during the journey. The defendant did not challenge this aspect successfully in cross examination or by leading evidence in rebuttal.

Interpretation of the policy and exclusion clauses

[29] In view of the evidence above Mr. Strydom submitted that the exclusion clause ought to be restrictively interpreted where the

defendant was the drafter of the policy. He referred to the decision in Van Zyl NO v KILN Non-Marine Syndicate No 510 of Lloyds of London 2003(2) SA 440 SCA at par 6 where the Court per Schutz JA stated the following about interpretation:

“[6] The main principles of interpretation of the policy applicable in this case are to be found in Fedgen Insurance Ltd v Leyds 1995 (3) SA 33 (A) at 38B - E:

'The ordinary rules relating to the interpretation of contracts must be applied in construing a policy of insurance. A court must therefore endeavour to ascertain the intention of the parties. Such intention is, in the first instance, to be gathered from the language used which, if clear, must be given effect to. This involves giving the words used their plain, ordinary and popular meaning unless the context indicates otherwise (Scottish Union & National Insurance Co Ltd v Native Recruiting Corporation Ltd 1934 AD 458 at 464 - 5). Any provision which purports to place a limitation upon a clearly expressed obligation to indemnify must be restrictively interpreted (Auto Protection Insurance Co Ltd v Hanmer-Strudwick 1964 (1) SA 349 (A) at 354C - D); for it is the insurer's duty to make clear what particular risks it wishes to exclude (French Hairdressing Saloons Ltd v National Employers Mutual General Insurance Association Ltd 1931 AD 60 at 65; Auto Protection Insurance Co Ltd v Hanmer-Strudwick (supra at 354D - E)). A policy normally evidences the contract and an insured's obligation, and the extent to which an insurer's liability

is limited, must be plainly spelt out. In the event of a real ambiguity the contra proferentem rule, which requires a written document to be construed against the person who drew it up, would operate against Fedgen as drafter of the policy (Kliptown Clothing Industries (Pty) Ltd v Marine and Trade Insurance Co of SA Ltd 1961 (1) SA 103 (A) at 108C).'

[30] Mr. Vorster submitted that the exclusion clause was clear and there was no ambiguity in that the clause “would not be liable in the event of the insured vehicle assessed separately, not being in roadworthy condition, as defined in the

legislation relating to roadworthiness at the time of the loss” would result in a repudiation. In Van Zyl(above) Schutz JA also refers to King J in Barnard v Protea Assurance Co Ltd t/a Protea Assurance 1998 (3) SA 1063 (C) at 1068B – C where King J states:

“Now it is an accepted principle in interpreting insurance contracts that it is the duty of the insurer to make it clear what particular risks he wishes to exclude. The principle is stated by May in the following terms: ''No rule in the interpretation of a policy is more fully established, or more imperative or controlling, than that which declares that, in all cases, it must be liberally construed in favour of the insured so as not to defeat without a plain necessity his claim to an indemnity which in making the insurance it was his object to secure.”

King J proceeded (at 1068D):

'From this it would follow that if a term in a policy (''term'' in the sense of designation) is capable of both a broader and narrower meaning it is that which is favourable to the insured, in other words to the upholding of the policy, which must be employed.”

On this basis Mr. Strydom submits the policy ought to be given a generous interpretation. This is so especially as the air pipe, s-cam rollers or brakes were not the cause of the collision and ensuing damage. The driver Mr. Ngamole’s evidence was clear on the steps taken to stop the vehicle. The topography namely the downward slope in the road, the weight of the animals and the swerving of the vehicles together may have accounted for the vehicles overturning. The brake marks on the road and continuing to the shoulder and off the road are a clear indication that the brakes were working.

[31] Having considered the evidence, and for the reasons indicated above the questions for determination are decided in favour of the plaintiff.

[32] In the result the following order is granted:

1. The plaintiff is entitled to compensation from the defendant under the policy for the loss suffered.

2. Costs of suit.

_________________________________________________

S C MIA

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

LOCAL GAUTENG DIVISION, JOHANNESBURG

Appearances:

On behalf of the applicant: Adv. WAF Strydom

Instructed by: DR Hardus Van Der Westhuizen Inc.

On behalf of the respondent: Adv. SPM Vorster

Instructed by: Smit Sewgoolam Inc.

Date of hearing: 27,28,31 October 2016; 1,2,3 November 2016

& 25 October 2017

Date of judgment: 5 December 2017

[1] Page 67 of Record 31 October 2016, line 7

[2] Record p296 line 15-20 and p297 line 20