INSURANCE AND REPUDIATION

CONTRACT – Insurance – Repudiation – Alleged failure to take reasonable precautions – Motor collision in wet weather – Alleged that insured speeding – Evidence showing that water running across road – No evidence that insured knew or foresaw that road conditions could cause him to lose control of the vehicle – Judgment in insured’s favour.

Govender v Guardrisk Insurance [2023] 64633-2019 (GP) at [27]-[37]

Facts: Mr Govender and his mother were driving along William Nicol Road in Johannesburg in his red Ferrari California when they had an accident. Plaintiff lost control and collided with a lamp pole on the island and the vehicle was almost split in half, damaging it beyond repair. The insurer repudiated on the basis that plaintiff failed to “take all reasonable precautions to prevent loss, damage, accidents” as required by clause 3 of the general terms and conditions of the policy.

Claim: For payment under the policy for the damages to the insured vehicle.

Discussion: How it was raining heavily that evening; that Ferrari were the only ones to access the data in the black box and they were unwilling to assist; the opinion that he had been driving at a speed of 135km per hour and that this was excessive for the conditions; the evidence of the experts on aquaplaning, the tensile strength of metals and the damage to the vehicle; that the evidence established that the road surface was good and with a camber to the right which would have caused water to flow across it from the left to the right towards the stormwater drain; and whether it was foreseeable that there would be sufficient water on the road surface to cause aquaplaning.

Findings: The evidence of the plaintiff was that he did not see it. He thought he had driven into a puddle. The evidence established that there was no puddle. The probabilities overwhelmingly favour water running across the road from the left to the right. There was no evidence before the court to establish that notwithstanding the inclement weather, he knew or foresaw that the road conditions could cause him to lose control of the vehicle. The plaintiff did not act recklessly and the insurer failed to discharge the onus upon it.

Expert witness: The defendant had called an expert who was not an expert in the field that he claimed to be and his opinion was never going to withstand the scrutiny of interrogation in court. In consequence, the plaintiff’s legal team and their expert were put to the unnecessary effort of trying to elicit the reasons for the opinion.

Order: Guardrisk is ordered to pay the plaintiff R1,827,500 plus interest and costs.

MILLAR J

~

DIVORCE AND FORFEITURE

FAMILY – Divorce – Forfeiture – Husband having affairs – not contributing to home, financially or emotionally – Attempting to fraudulently extort money from wife’s corporation where he was employed – Attempting to hijack the business – Forfeiting the patrimonial benefits of the accrual system in total – Divorce Act 70 of 1979, s 9(1).

M v M [2023] ZAGPPHC 122 at [9]-[15] and [21]-[24]

Facts: The parties were married to one another 2011 with the accrual system by virtue of an antenuptual contract. Their immovable properties and pensions were excluded. Plaintiff is a successful businesswoman and has been operating a close corporation, which is her most valuable asset.              

Divorce: The court considers the forfeiture of benefits in terms of section 9(1) of the Divorce Act 70 of 1979.

Discussion: How defendant spent time with his biker friends and the burden of maintaining the household financially fell to plaintiff; his relationships with other women including family friends; that she employed him when he was jobless but none of his income was used to support the family and that he maintained a girlfriend in an apartment; that he had relationships with staff members; that he extorted money from her for the return of one of the business vehicles; and that he set up his own companies in order to try and compete with the corporation, while he was still in the corporation’s employ.

Findings: There is no doubt that plaintiffs estate has shown growth and if the accrual system were to be applied, defendant would benefit. A short while after the marriage the defendant was living as if he were a bachelor and did not contribute to the common home financially, emotionally, or in any other manner. There can also be no doubt that defendant is guilty of misconduct in his marriage. His conduct was shockingly egregious. The ultimate factor that caused the breakdown of the marriage was his attempt to fraudulently extort money from the corporation and his attempt to hijack the business. Defendant’s conduct was not only shocking, but it also endured for most of the marriage. It would be exceedingly unfair that defendant, having shown no regard for his role as husband and father, and having made no contribution of any kind to the common home, neither financially nor emotionally, should benefit from plaintiff’s work.

Order: A decree of divorce is granted. The defendant forfeits the patrimonial benefits of the accrual system in total. Directions are given for parental rights, contact and maintenance for the child.

SWANEPOEL J

~

POLYGRAPH TESTS AND WORKPLACE DISPUTES 

LABOUR – Dismissal – Polygraph test – Heavy handed terms in consent document – Employee making allegations against CEO – Company presuming that CEO truthful because no deception detected in his polygraph test – Disproportionate reliance on result – Arbitrator finding employee’s version more credible – Review application dismissed.

Endeto Engineering v MEIBC [2023] ZALCJHB 26 at [51]-[63]

Facts: Mr Nkabinde was employed at Endeto Engineering and says that he was using a stall in the bathroom when Mr Lovett, the owner of the business, peeked over the stall wall and looked at him while he was relieving himself. He lodged a formal grievance and both parties underwent polygraph testing. Mr Lovett attended the polygraph testing and the outcome was that no deception was detected. Mr Nkabinde did not attend, though he had earlier signed the consent to polygraph testing. A disciplinary hearing followed with two charges of misconduct: making a false allegation against the CEO and breach of the agreement to undergo the polygraph test. Mr Nkabinde was then dismissed. 

Application: Seeking the review of the arbitration award finding Mr Nkabinde’s dismissal substantively unfair and awarding him compensation of eight months in the amount of R62,592.

Discussion: That the chairperson of the disciplinary hearing also represented the company at the arbitration and his evidence was in defence of the disciplinary outcome; that the consent to the polygraph test contained a clause that refusal would constitute a breach in the trust relationship and would result in the inference being drawn that the allegations made by the employee were untrue; and that the arbitrator found Mr Nkabinde’s version more probable by assessing the credibility of both Mr Nkabinde and Mr Lovett.

The polygraph results: The result of Mr Lovett’s polygraph test was that no deception was detected. The contention that Mr Lovett “was found to be truthful” is a step too far, particularly in the absence of expert evidence. The respectability of polygraph evidence, at best, remains an open question, and any litigant seeking to invoke it for any legitimate purpose, must adduce expert evidence of its conceptual cogency and the accuracy of its application in every given case.

Findings: Having regard to the heavy-handed terms of the consent, Mr Nkabinde’s grievance being transformed into a disciplinary hearing against him and the disproportionate reliance on the result of Mr Lovett’s polygraph test results, it is clear that dismissal was wholly unfair. After all, the grievance could not have simply concluded with polygraph testing and not have provided for further steps once this was done. The decision reached in the arbitration award is one that a reasonable decision-maker could reach.

Order: The review application is dismissed.

GOVENDER AJ

~

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.

LEAVE A REPLY

Please enter your comment!
Please enter your name here

13 + nine =