Louis Case Reports

LIFE INSURANCE AND INCAPACITY

CONTRACT – Life insurance – Repudiation – Stockbroker suffering post-traumatic stress disorder and bipolar mood disorder – Unable to perform in job – Permanent incapacity only determined after expiry of policy when therapy and treatment not succeeding – Insurer unreasonable in closing the door to this evidence when repudiating the claim – Found liable and ordered to pay out under policy.

PWR v Discovery Life [2023] ZAGPJHC 282 at [30]-[52]

Facts: PR was a very successful stockbroker, which was a high-pressure and high stakes jobs. He took out a policy with Discovery that had monthly premiums of R20,000 and which would pay out over R25 million in the event of permanent incapacity. In 2015 he was arrested in Mauritius and charged for his girlfriend’s murder. She had been found drowned in a swimming pool at the resort where they had stayed. He was eventually acquitted but on his return to South Africa he was hospitalised and diagnosed with post-traumatic stress disorder and major depression.

Claim: PR challenges the repudiation of his claim on the insurance policy held with Discovery.

Discussion: That the policy required Discovery to pay out a lump sum once it was satisfied that PR had become “totally and permanently unable” to work as a stockbroker; Discovery’s contentions that PR’s insurance cover expired on 30 November 2015 and that there was no evidence that he had become totally and permanently unable to perform as a stockbroker by that date, and even if he had become unable to perform, the question was whether the repudiation was reasonable on the information PR supplied to Discovery at the point that PR submitted his claim; and the appropriate test to be applied in assessing a life insurance company’s repudiation of a claim.

Findings: The evidence established that PR suffers from post-traumatic stress disorder and bipolar mood disorder, that any improvement with treatment has already taken place, and that his condition renders him totally and permanently unable to resume his occupation as a stockbroker. PR was “totally and permanently unable” to perform as a stockbroker on or before 30 November 2015. Discovery’s liability under the policy was triggered at the point that PR’s inability to perform as a stockbroker objectively became permanent. But its duty to pay out on the policy was only triggered once it could be reasonably satisfied that PR’s condition had become permanent.

Duty to pay out: PR’s incapacity could not have been diagnosed as permanent until an appropriate course of care and treatment had been administered. In this case, the kind of treatment required, in the form of drugs, psychotherapy and occupational therapy, can take months or years to perfect and to implement. In order to assess whether PR’s condition was permanent, Discovery had to have regard to evidence generated well after his policy expired. In closing the door to that evidence when it repudiated PR’s claim, Discovery was plainly unreasonable.

Order: Discovery is found liable under the policy and judgment is granted for R25,086,456.94 with interest.

WILSON J

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IN MEDIAS RES AND PROTECTOR

CONSTITUTION – Chapter 9 institutions – Removal from office – Public Protector – Role and functions of National Assembly and section 194 Committee – Application seeking to set aside decisions relating to recusal of chairperson and member and refusal to summon certain witnesses – In medias res – Not appropriate to permit piecemeal review of proceedings – No exceptional circumstances demonstrated – Application dismissed – Constitution, s 194.

Public Protector v Chairperson: Section 194(1) Committee [2023] ZAWCHC 73 at [36]-[60]

Facts: A motion was submitted on behalf of the DA under the revised Rules of the National Assembly which sought that a section 194(1) enquiry be initiated by the National Assembly to investigate the removal of the Public Protector from office on grounds of misconduct and/or incompetence.

Application: The Protector, Advocate Mkhwebane, seeks to set aside the decisions of the ensuing Committee to dismiss a recusal application, to dismiss an adjournment application and to continue with proceedings as presently constituted, and to refuse to summon, subpoena or recall relevant witnesses to testify at the enquiry, including the President.

Discussion: How the Protector sought the recusal of the Chairperson as well as the member, Mr Mileham; the contentions for the Protector that the decisions were in breach of PAJA or the principle of legality, were unconstitutional, unlawful irrational and invalid and should be subjected to a rationality review in being inconsistent with the rule of law; that the parliamentary Committee was established in terms of the National Assembly Rules; and that the Committee is required to reach a finding in a reasonable and procedurally fair manner, within a reasonable time.

Findings: The applicant retains effective remedies which remain available to her once the Committee has completed its work. She has not shown the existence of grave injustice or that any harm which may have been suffered by her will be material and irreversible if the Committee is permitted to proceed with its task. On the basis of in medias res, it would not be appropriate for the court to permit a piecemeal review of proceedings. With no exceptional circumstances demonstrated, the balance of convenience favours a decision to dismiss the application.

Order: The application is dismissed with costs.

ALLIE J, CLOETE J and SAVAGE J

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RESIGNING FROM PENSION FUND BEFORE DIVORCE

FAMILY – Divorce – Pension – Spouse resigning from fund after being served with summons – No adequate legal framework that allows non-member spouses to claim portions of pension benefits directly from the funds when member spouses exit their funds before divorce – Access by non-member spouse to benefits of member spouse is dependent, first on divorce, and secondly, on member spouse being active in the fund – Divorce Act 70 of 1979, s 7(8).

CNN v NN [2023] ZAGPJHC 208 at [19]-[36]

Facts: Two months after being served with the divorce summons, respondent resigned from his employment and exited his retirement fund. At the time the court granted the divorce order, respondent was not a member of a retirement fund and he did not have a pension interest from which the applicant could be allocated a portion. When applicant approached the fund to requesting payment of what she believed was due to her, the fund informed her that respondent’s benefit had accrued to him. She was told that she needed to provide to the fund with a divorce order directing the fund to pay a “pension benefit” as opposed to a “pension interest”.

Application: To amend the divorce order which incorporated the settlement agreement by amending the phrase “pension interest” and replacing it with “accrued pension benefit”.

Discussion: That neither the court nor the applicant was aware at the time the divorce order was granted that the respondent had already exited his fund; that the applicant only learnt that the respondent exited his fund when she sought to enforce payment in terms of the divorce order; whether the court can vary a settlement agreement by replacing a statutorily recognised and defined phrase “pension interest” with the phrase “accrued pension benefit” which is not defined in the Divorce Act 70 of 1979; and whether such an order can be enforced.

Findings: There is no adequate legal framework that allows non-member spouses to claim portions of the benefits directly from the funds when member spouses exit their funds before divorce. This has allowed member spouses to resign after being served with divorce summons to ensure that they keep these benefits out of the reach of their non-member spouses. This is a serious concern that the legislature is yet to address. Non-member spouses’ access to their member spouses benefits is dependent, first on divorce, and secondly, on whether member spouses are active in their funds, even though these benefits are still held by these funds.

Order: The application is dismissed.

MARUMOAGAE AJ

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ABOUT THE EDITOR

Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes.​ During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law

You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.

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