Supermarket Leaseback (Elsburg) (Pty) Ltd. v Santam Insurance (329/89) [1990] ZASCA 131; 1991 (1) SA 410 (AD); (13 November 1990)

Supermarket Leaseback (Elsburg) (Pty) Ltd. v Santam Insurance (329/89) [1990] ZASCA 131; 1991 (1) SA 410 (AD); (13 November 1990)

Section 156 of the Insolvency Act only applies where the insurer indemnifies the insured for liability incurred towards a third party. In this case, the insurance policy indemnified the tenant for property damage and did not create any obligation to indemnify the tenant for liability towards the landlord. The policy made no reference to the landlord, and the statutory provision was therefore not applicable. The landlord could not claim directly from the insurer under section 156, and the appeal was dismissed.

Citation
[1990] ZASCA 131
Parties
Appellant: Supermarket Leaseback (Elsburg) (Pty) Ltd; Respondent: Santam Insurance
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
13 November 1990
Case Number
329/89
Procedural Posture
Civil Appeal / Appeal From Trial Court
Outcome
Appeal dismissed with costs.
Judges
Goldstone, Hoexter, E.M Grosskopf, Milne, Steyn
Legal Topics
Insurance Liability, Company Winding Up, Third Party Claims, Insolvency Act Section 156
Commercial and Corporate Civil Procedure Insurance Liability Company Winding Up Third Party Claims Insolvency Act Section 156

Case Brief

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Parties

Supermarket Leaseback (Elsburg) (Pty) Ltd

Appellant

Santam Insurance

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court

Legal Issues

  1. 1 Does section 156 of the Insolvency Act entitle the landlord to claim directly from the insurer after the tenant's liquidation?
  2. 2 Was the insurance policy issued by the insurer in respect of liability incurred by the tenant towards the landlord?
  3. 3 Did the landlord comply with the policy's general conditions required for a claim?

Ratio Decidendi

Section 156 of the Insolvency Act only applies where the insurer indemnifies the insured for liability incurred towards a third party. In this case, the insurance policy indemnified the tenant for property damage and did not create any obligation to indemnify the tenant for liability towards the landlord. The policy made no reference to the landlord, and the statutory provision was therefore not applicable. The landlord could not claim directly from the insurer under section 156, and the appeal was dismissed.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.