Stuurman v Mutual & Federal Insurance Company of Namibia Ltd (SA 18 of 2008) [2009] NASC 4 (17 March 2009);
REPORTABLE
CASE NO.: SA 18/2008
IN THE SUPREME COURT OF NAMIBIA
In the matter between:
CLAUDIUS
STUURMAN
APPELLANT
and
MUTUAL & FEDERAL INSURANCE
COMPANY
OF NAMIBIA LTD RESPONDENT
CORAM: Strydom,
A.J.A., Chomba, A.J.A. et
Damaseb, A.J.A.
Heard on: 06/03/2009
Delivered
on: 17/03/2009
APPEAL JUDGMENT
DAMASEB, A.J.A.:
This is an appeal against the
judgment of the High Court (Mainga J) dismissing the plaintiff’s
claim with costs. The appellant was the plaintiff in the Court below
while the respondent was the defendant. On appeal Mr Murorua
represented the appellant while the respondent was represented by Mr
Barnard. The same counsel represented the respective parties in the
Court a quo.
In this judgment I will refer to the appellant as the plaintiff and
the respondent as the defendant.
The facts and the
issue calling
for decision in this appeal fall within a very narrow compass.
The
plaintiff had insured his vehicle with the defendant against the
risk of theft. Alleging that the vehicle was stolen, he submitted a
claim to the defendant. The defendant refused to pay and the
plaintiff instituted an action against it in the High Court. It is
common cause that the defendant repudiated the plaintiff’s claim
on 29 June 2009. The repudiation was sent by the defendant to legal
practitioners Fischer, Quarmby and Pfeifer. The insurance policy
that governed the relationship between the parties, and which is the
foundation on which the plaintiff’s action in the High Court was
based (it is common cause), incorporated a clause that if the
insurer denies liability for any claim made under the policy the
insurer would be relieved of liability unless the summons in respect
of the proceedings instituted against the insurer is served within
90 days of the repudiation. It is common cause that the action in
the High Court was commenced more than 90 days after the repudiation
notice of 29 June 2005.
The thrust of the plaintiff’s
appeal is neatly summed up in his counsel’s heads of argument in
the following terms:
‘’It
is respectfully submitted that the defendant failed on evidence to
establish communication of notice of repudiation to the plaintiff
resultantly the time bar clause has not been triggered and
defendant’s liability under the insurance contract cannot be
avoided on the basis of the time bar clause’’.
The Court a
quo
made two crucial findings: the first was that the terms of the
governing insurance policy containing the time bar clause was a term
of the insurance policy between the parties. Secondly it stated that
the repudiation of the policy was duly communicated to the
plaintiff. If the defendant is to prevail in this appeal, the Court
really did not need to decide the latter question. The summons not
having been served within 90 days after the repudiation of the
policy, the Court a
quo
dismissed the plaintiff’s claim with costs.
It is common cause
between the parties that in order to limit the issues the parties
entered into an agreement about
the conduct of the case at the start of the proceedings in the High
Court. In his judgment Mainga J deals with this aspect as follows:
‘’In
the light of the questions and admissions above the parties, at the
commencement of the trial agreed to ask the Court to adjudicate on
the following issues:
1. Was
the agreement between the parties as pleaded by the plaintiff or as
pleaded by the defendant?
2.
Whether there was an agreement at all?
3.
If
the Court should find that the agreement was as pleaded by defendant
or that there was no agreement that would be the end of the matter,
the claim should be dismissed with costs.
4.
If
the Court should find that the agreement is as pleaded by plaintiff
the further issues such as quantum would stand over to be argued at a
later stage.”
Based on the
above, Mr
Barnard argued before us that
‘’the
plaintiff was bound to the admission in the pleadings and the
agreement reached on the issues to be decided by the court a quo and
could not recant by opening the repudiation issue during the course
of the trial. As the repudiation issue was not in dispute and not a
point for decision by the court a quo the defendant had not prepared
to meet the case of the plaintiff on that issue and was not ready to
do so.’’
Mr Barnard’s submission is supported
by the record. Mr Barnard pertinently objected when Mr Murorua
sought to elicit evidence relating to the ineffectiveness of the
repudiation and invited Mr Murorua to amend the pleadings and to
apply to retract the agreement limiting issues as the defendant had
not prepared to meet a case of repudiation and would consequently be
prejudiced.
That there was an agreement in the
terms recorded by the Court a
quo admits of no doubt. I
will quote verbatim what transpired in that Court at the
commencement of the hearing:
"Mr
Barnard:
But My Lord I would like to, for the record, note the points of
agreement. My Lord, the first issue to be decided is, was the
agreement between the parties as pleaded by the Plaintiff or
Defendant? And further, My Lord, whether there was an agreement at
all. We have further agreed My Lord and I submit as follows that if
the Honourable Court should find that the agreement is as pleaded by
the Defendant or indeed if the Honourable Court should find that
there was no agreement then that is the end of the matter for the
Plaintiff, My Lord. And the claim should be dismissed with costs.
But My Lord, should
agreement was as is pleaded by the Plaintiff, then further the issues
such as the quantum and whether there was a valid claim will stand
over to be determined at the next date. My
Lord. As the Court pleases My Lord. (Emphasis
supplied.)
COURT:
Mr Murorua, you confirm the four points?
MR
MURORUA:
My Lord, except
that my colleague mentioned about the next date,
I am not sure whether he had in mind as agreed to set this case to a
further date beyond the time we had in this week. I mean assuming the
issues of contracting resolved in favour of the Plaintiff, then
obviously the issue of quantum comes into play. Then it is suggested
that it can be solved at the next date. ‘’
Immediately after this, Mr Murorua
made his opening statement and it is apparent therefrom that he
confined it to the agreement stated by Mr Barnard. There is no
mention at all in it of the issue of repudiation:
"MR
MURORUA:
My Lord, by way of an opening remark, the Plaintiff brings before you
an insurance claim and that he would effectively assert the
particular contract of insurance. In contradiction of that the
Defendant would assert a substituted version of the contract,
essentially relying on the sun set clause which says that the claim
should have been instituted within a period of 90 days so
that essentially the issues are whether the contract is the one as
asserted by the Defendant or the applicable contract is the one as
asserted by the Plaintiff so that the evidence would be aimed at
establishing what contractual arrangements were obtained between the
parties.
And I intend calling Mr Stuurman as the first Witness and Mr Jeff
Brown as the second Witness to
basically cover those areas
so that there would be primarily two witnesses.
COURT:
Thank you, yes you may proceed. ‘’
(The underlining is mine for
emphasis.)
The learned
trial judge said the following in paragraph 9 of his judgment:
"It
was unnecessary to decide on the above issues as the evidence led
showed clearly, contrary to the plaintiff’s denials, that the All
Sure policy was mailed to his postal address and he should have
received the policy. In actual fact Mr Murorua conceded during his
submissions that he could not argue that there was no agreement
between the parties. The plaintiff based his claim on that agreement
and therefore it is common cause that an agreement existed between
the parties. Notwithstanding
this concession and the issues agreed upon by both parties, Mr
Murorua nevertheless shifted ground when he raised the issue of
whether there was repudiation by the defendant of the plaintiff’s
claim.”
(My underlining.)
In paragraph 14 of
the judgment, the trial judge remarked that Mr Murorua,
although offered the opportunity by the defendant to amend
plaintiff’s pleadings to specifically aver the non-receipt of the
repudiation, ignored the offer but continued to argue the point. In
paragraph 16 of his judgment, the learned trial judge stated that Mr
Murorua conceded that if the Court finds that the time bar clause
constituted part of the insurance contract, the defendant could rely
on it; as indeed it did.
In her
evidence before Mainga J in the Court a
quo,
Ms Lobo, who was the defendant’s assistant manager for personal
underwriting, testified that the 29 June 2005 letter of repudiation
was sent to attorneys Fischer, Quarmby and Pfeifer because they were
representing the plaintiff at the time in respect of the claim. Mr
Murorua who argued before us that his firm had at all times been the
plaintiff’s legal practitioners of record, did not dispute that
allegation when he cross-examined Ms Lobo. It is trite that a party
has a duty to cross-examine on an issue on which it does not agree
with the opponent to afford the latter the opportunity to deal with
the matter: President
of the RSA v SARFU 2000
(1) SA 1 (CC) at 36DJ-37A-Fet 38A-B (paras 58-65). As Chaskalson CJ
put it very aptly (at para 61):
"The
institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As a general rule it is essential,
when it is intended to suggest that a witness is not speaking the
truth on a particular point, to direct the witness’s attention to
the fact by questions put in cross-examination showing that the
imputation is intended to be made and to afford the witness an
opportunity, while still in the witness box, of giving any
explanation open to the witness and of defending his or her
character. If a point in dispute is left unchallenged in
cross-examination, the party calling the witness is entitled to
assume that the unchallenged witness’s testimony is accepted as
correct.’’
It is equally
trite that
a party is bound by its counsel’s conduct of pleadings and
agreements entered into in the conduct of a case, unless there is a
satisfactory explanation for the inference not to be drawn. (Compare
SOS
Kinderhof International v Effie Lentin Architects
1993 (2) SA 481 at490C – E (Nm); Brummund
v Brummund’s Estate
1993 (2) SA 494 at 498C-F (Nm).)
It is
indisputable that the defendant in its plea alleged that it had
repudiated the claim of the plaintiff on 29 June 2005 and was
therefore not liable to the plaintiff because of the repudiation and
the plaintiff’s failure to have served the summons within 90 days
of such repudiation. The plaintiff did not replicate so as to place
the ineffectiveness of the repudiation beyond any doubt.
In his
request for further particulars for trial, the plaintiff specifically
requested of the defendant:
"Is
it alleged that the defendant repudiated the plaintiff’s claim
orally or in writing? If in writing, a copy is requested; if orally,
full particulars are requested.”
The plaintiff also
asked the following question:
"Who
acted on behalf of the defendant in allegedly repudiating the claim?”
In reply to the plaintiff’s
requests above, the defendant answered that the defendant notified
the plaintiff of the repudiation on more than one occasion (the
first repudiation being communicated in writing on 18 October 2004
and the last notification confirming the earlier repudiation being
communicated in writing on 29 June 2005).
The
defendant also had its own questions to the plaintiff requesting
trial particulars. One of them was:
"Does
the plaintiff admit that the claim was repudiated on 20 June 2005 by
means of a letter of the same date attached as annexure PT1 hereto,
sent and received by telefax on the same date by the defendant to the
attorneys
of record
of the plaintiff?"
(My underlining for emphasis.)
The plaintiff
furnished
an answer to the above question and said:
"The
plaintiff does not dispute defendant’s contention that the claim
was repudiated on 20 June 2005 by means of a letter of the same
date."
From
the above it is apparent that:
(i) The
defendant was averring that a repudiation was provided to the
plaintiff’s attorneys of record being Fisher, Quarmby &
Pfeiffer.
(ii) The
plaintiff acknowledged that a repudiation had taken place but did not
raise the issue of the repudiation being ineffective because it was
not received by him personally.
The
plaintiff did not dispute that Fischer Quarmby and Pfeifer were
attorneys of record for the plaintiff when the repudiation letter
was sent. This is significant because, in oral argument before us,
Mr Murorua submitted that Murorua & Associates had at all
material times been the attorneys of record of the plaintiff. If
that were the case, it is curious that he did not specifically deny
the defendant’s averment that Fisher, Quarmby & Pfeifer were
the attorneys of record to whom the notice of repudiation had been
sent.
(iv) The plaintiff had not asked the
defendant any question raising the ineffectiveness of the repudiation
notice on account of it not having been communicated to the
plaintiff.
In
response to the plaintiff’s claim the defendant pleaded that it
had denied liability of the claim and that, it having repudiated the
plaintiff’s claim on 29 June 2005, the plaintiff failed to serve
summons on the defendant within 90 days of such denial of liability
and repudiation which was a requirement for the liability of the
defendant under the policy.
It was against the
backdrop of these pleadings that the parties entered into the
agreement limiting issues and the trial of the action took place
before the Court a
quo.
On appeal Mr Murorua submitted that both in the pleadings and in
evidence led in the Court a
quo,
the plaintiff denied receiving the repudiation notice of 29 January
2005 and that the defendant who bore the onus
of proving that the plaintiff had received it, failed to prove that
he did. As I understand Mr Murorua, the averment in the plaintiff’s
trial particulars that the
plaintiff does not dispute defendant’s contention that the claim
was repudiated on June 29 2005 by means of a letter of the same date
was wrongly interpreted by the Court a
quo
as an admission that the plaintiff received the repudiation notice.
Mr Murorua further
submitted
that on behalf of the defendant “no evidence was led as to the
locus
standi”
of the legal practitioner of the plaintiff at the time “to receive
a notice of repudiation from the defendant insurance company
repudiating the claim”. He adds that the defendant also failed to
prove that the insurance policy authorised the giving of the
repudiation to the plaintiff through the legal practitioner. Mr
Murorua readily concedes that the insurance policy as alleged by the
defendant contained the time bar provision.
For his part,
the defendant relies on the agreement reached between the parties’
legal practitioners to limit the issues to be decided by the trial
Court and recorded at the commencement of the hearing by Mainga J,
and argues that the plaintiff was not entitled a
quo
(and is not entitled on appeal), to raise the issue of the
ineffectiveness of the repudiation as that was not an issue before
the trial court in view of the agreement limiting the issues.
Parties engaged in
litigation are bound by the agreements they enter into limiting or
defining the scope of the issues to be decided by the tribunal
before which they appear,
to the extent that what they have agreed is clear or reasonably
ascertainable. If any one of them want to resile from such agreement
it would require the acquiescence of the other side, or the approval
of the tribunal seized with the matter, on good cause shown. As was
held by the Supreme Court of South Africa in Filta
–Matix (Pty) Ltd v Freudenberg and Others 1998
(1) SA 606 at 614B-D:
"To
allow a party, without special circumstances, to resile from an
agreement deliberately reached at the pre-trial conference would be
to negate the object of rule 37, which is to limit issues and to
curtail the scope of the litigation. If a party elects to limit the
ambit of his case, the election is usually binding. (Footnotes
omitted)"
In F
& I Advisors (EDMS) PBK v Eerste Nasionale Bank van SA BPK 1999
(1) SA 515 at 524F-H this principle was reiterated. The judgment is
in Afrikaans and the head note to the judgment will suffice (at
519D):
"a
party was bound by an agreement limiting issues in litigation. As was
the case with any settlement, it obviated the underlying disputes,
including those relating to the validity of a cause of action.
Circumstances could exist where a Court would not hold a party to
such an agreement, but in the instant case no reasons had been
advanced why the plaintiffs should be released from their agreement.”
Before
us, Mr Murorua not only conceded the existence of the agreement
limiting issues, he also conceded that it was binding and that he
was not seeking to resile from it. If I understood him correctly, he
submitted that the pleadings did not preclude him from raising the
issue as the plaintiff must be taken to have denied that he
personally received the repudiation notice and that therefore the
defendant bore the onus
to prove communication personally to the plaintiff of the
repudiation notice. Even if I accept that the issue had indeed been
properly raised in the pleadings (and there is considerable doubt it
was if regard is had to my analysis of the pleadings above) the
parties, knowing of the pleadings, decided to limit the issues on
which the case was going to be fought. Mr Murorua’s submission
that the agreement did not preclude the plaintiff from raising the
repudiation issue is clearly irreconcilable with the terms of the
agreement. The agreement does not say that the claim be dismissed if
the governing agreement is that
alleged by the defendant, unless the Court finds for the plaintiff
on any other basis. As I have shown, even in his opening statement,
Mr Murorua clearly spelled out the restricted nature of the issue
that was placed before the Court a
quo.
There is no reference at all to the repudiation issue in the
agreement or in Mr Murorua’s opening statement. Therefore, what
the Court a
quo
was to decide was limited by the terms of the agreement.
By pressing
the repudiation issue a
quo (and
now on appeal) Mr Murorua was, and is seeking, to reopen the ambit
of the case to the pre-agreement stage. The only circumstance in
which this Court could allow the plaintiff to do that on appeal is
if the parties, notwithstanding the agreement, proceeded to fully
ventilate the issue of non-communication of the repudiation in the
Court a
quo.
As was stated by De Villiers JA in Shill
v Milner,
1937 AD 101 at 105:
"Where
a party has had every facility to place all the facts before the
trial Court and the investigation into all the circumstances has been
as thorough and as patient as in this instance, there is no
justification for interference by an appellate tribunal merely
because the pleadings of the opponent has not been as explicit as it
might have been".
As I have shown, Mr
Barnard
on behalf of the defendant objected to the matter being reopened and
made clear that the defendant would be prejudiced.
Mr Murorua
correctly withdrew his earlier submission that the defendant’s
counsel had at great length cross-examined the plaintiff on the
issue of non-communication of the repudiation. The converse is in
fact the case: Mr Barnard on behalf of the defendant objected to
evidence being led on the non-communication in the light of the
agreement which precluded such evidence being led.
There being no
basis on which I can excuse
the plaintiff from the terms and effect of the agreement between the
parties limiting the issues that fell for decision by the Court a
quo;
and it being common cause that the defendant made every effort to
limit the issues to the agreement between the parties, the plaintiff
is not entitled to raise on appeal the issue of repudiation as it is
clearly excluded by the terms of the parties’ agreement limiting
issues.
In my view the
only
issue before the Court a
quo
(by agreement between the parties) was whether the terms alleged by
the defendant constituted the agreement between the parties and that
if that were in the affirmative, the claim should fail. That was the
case the defendant was required to meet and did meet. Mr Murorua
failed to include the ineffectiveness of the repudiation in the
agreement limiting issues and he never at any stage asked the Court
a
quo
to absolve the plaintiff from the terms of that agreement so as to
raise repudiation as an issue in the way he seeks to do on appeal.
It is not open for him to do so because the agreement limiting
issues closed the door to a ‘’thorough investigation into all
the circumstances’’ of the matter. The plaintiff’s treatment
in the pleadings of the ineffectiveness of the repudiation was very
vague at best and the defendant maintained during the trial that it
was not open to the plaintiff to raise the issue of repudiation in
view of the agreement. If the plaintiff’s understanding differed
from that of the defendant, his counsel failed to rectify the matter
even when specifically invited to do so. The plaintiff is therefore
excluded by the terms of the agreement between the parties limiting
the issues from raising the issue of repudiation on appeal.
In the result, the
appeal is dismissed with costs,
including costs occasioned by the employment of one instructing and
one instructed counsel.
________________________
DAMASEB,
A.J.A.
I
agree
________________________
STRYDOM, A.J.A.
I
also
agree
________________________
CHOMBA, A.J.A.
FOR THE APPELLANT: Mr L Murorua
Instructed by: Murorua &
Associates
FOR THE RESPONDENT Mr P Barnard
Instructed
by: LorentzAngula Inc