Wyno Construction and Projects (Proprietary Limited v Miway Insurance Limited (48046/20) [2022] ZAGPPHC 437 (13 June 2022)

Wyno Construction and Projects (Proprietary Limited v Miway Insurance Limited (48046/20) [2022] ZAGPPHC 437 (13 June 2022)

The court found that the exclusion clause in the insurance policy, which denies cover for theft or attempted theft by an employee, is reasonable and not contrary to public policy. The applicant voluntarily chose to exclude driver dishonesty cover to reduce the premium, exercising contractual autonomy. There was no evidence of coercion or uneven bargaining power. The clause does not attribute fault to the applicant but simply excludes claims under specified circumstances. The evidence established, on a balance of probabilities, that the applicant's employee stole the truck, thereby triggering the exclusion clause. The applicant failed to discharge the onus of proving that the clause was...

Citation
[2022] ZAGPPHC 437
Parties
Applicant: Wyno Construction and Projects (Proprietary Limited); Respondent: Miway Insurance Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
13 June 2022
Case Number
48046/20
Procedural Posture
Civil Application / Final Judgment
Outcome
Application dismissed with costs.
Judges
G Malindi
Legal Topics
Insurance Policy Exclusion, Public Policy, Contractual Freedom, Driver Dishonesty, Onus of Proof
Commercial and Corporate Civil Procedure Insurance Policy Exclusion Public Policy Contractual Freedom Driver Dishonesty Onus of Proof

Case Brief

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Parties

Wyno Construction and Projects (Proprietary Limited)

Applicant

Miway Insurance Limited

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the exclusion clause in the insurance policy that excludes liability for theft by an employee is unconstitutional and contrary to public policy.
  2. 2 Whether the respondent proved that the theft was committed by the applicant's employee, thereby triggering the exclusion clause.
  3. 3 Whether the applicant is entitled to indemnification under the insurance contract despite the exclusion clause.

Ratio Decidendi

The court found that the exclusion clause in the insurance policy, which denies cover for theft or attempted theft by an employee, is reasonable and not contrary to public policy. The applicant voluntarily chose to exclude driver dishonesty cover to reduce the premium, exercising contractual autonomy. There was no evidence of coercion or uneven bargaining power. The clause does not attribute fault to the applicant but simply excludes claims under specified circumstances. The evidence established, on a balance of probabilities, that the applicant's employee stole the truck, thereby triggering the exclusion clause. The applicant failed to discharge the onus of proving that the clause was...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The applicant is ordered to pay the costs of the application on the scale as between party-and-party.