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Molefe v Regent Insurance Company (Pty) Ltd (A3023/06) [2007] ZAGPHC 162; [2008] 1 All SA 158 (W) (19 April 2007)

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A3023/03-lad 6 JUDGMENT

policy but that the respondent had failed to meet its obligations in terms of the policy.

3] The appellant thereafter obtained default judgment against the respondent, which was based on that insurance claim against the respondent. The respondent brought a rescission application to rescind the default judgment but was unsuccessful.

4] The respondent then paid to the appellant the sum of R97 346,68 and thereafter issued summons against the appellant for the same amount. The respondent alleged that the appellant had committed fraudulent acts and/or omissions regarding the insurance agreement, and by reason of that, the respondent was entitled to recover the money paid to the appellant.

5] The alleged fraudulent misrepresentation was that the vehicle had been insured on the basis that it would be used for private and domestic use only, whereas it in fact was used as a taxi. The respondent was successful in its claim against appellant, based on this alleged fraudulent misrepresentation and this now forms the basis of the appeal before us.

6] The appellant has raised several issues in its grounds of appeal. The appellant has submitted that the respondent has taken an irregular step by instituting an action based on fraudulent misrepresentation in its attempt to recover the money that was paid to the appellant as a result of the default judgement.

7] Counsel for the appellant, Mr Majola has argued that this irregular step was separate and distinct from the question of whether the claim could be considered to have been res judicata. That issue was raised previously in the court a quo. The issue of the irregular step was not dealt with by the court a quo, as the Magistrate Court Rules do not have a provision regarding irregular step proceedings.

8] Mr Majola submitted that the proper step for the respondent would have been to take the matter of the refusal to rescind the default judgment on review or appeal. In my view this would not affect the outcome of the matter, since at common law this court would be entitled to reconsider a fraudulent claim.

9] In my opinion, however the answer to this argument lies in what has been said in National Sorghum Breweries v International Liquor Distributor [2000] ZASCA 159; 2001 (2) SA 232, (SCA) where Olivier JA stated the following at 239 H-J:

(“3) the fundamental question in the appeal is whether the same issue is involved in the two actions: In other words is the same thing demanded on the same ground, or, which comes to the same, is the same relief claimed in the same cause, or, to put it more succinctly, has the same issue now before the court been finally disposed of in the first action?

(4) In my view, the answer must be in the negative. The same thing is not claimed in the respective suits, nor is reliance placed on the same ground or cause of action. What was claimed in the first suit was restitution in the form of repayment of the purchase price previously paid by the claimant. Such a claim is not one for damages but is a ‘distinct contractual remedy’ ... In the second suit, damages were claimed, which is in its very essence clearly distinguishable from restitution. The same thing is not claimed in the respective suits, the issue now under consideration has not been finally laid to rest.

(5) Nor are the respective claims based on the same grounds or same cause of action. In the first suit, the necessary allegations were the conclusion of the contract, the breach thereof, the payment of the purchase price, and the cancellation of the contract. In the second suit the respondent was required to plead and prove the conclusion of the contract the breach of the cancellation thereof, that damage was suffered, the causal chain between the breach and the damage and the quantum of the damage.”

10] In my opinion the court a quo quite correctly dismissed the special plea of res judicata raised by the appellant. The appellant’s original claim was based on a contract; and the subsequent claim of the respondent was based on a fraudulent misrepresentation. Clearly, these are two different causae. The magistrate in my opinion did not err or commit a misdirection in his reasoning and in these circumstances I can find no reason to fault his decision on this issue.

11] The appellant has also sought to bring an application from additional evidence, by way of documentary evidence, be considered in this appeal to supplement the viva voce evidence of the appellant. The documents, the appellant submits, are there simply to confirm and verify certain parts of the appellant’s evidence. These documents consist of inter alia; marriage certificates, title deeds, documents that reflect that the appellant worked shifts during the year 2000, and also documents intended to prove the distances between Durban and Johannesburg, and Durban and Underberg.

12] The appellant contends that if these documents are not admitted as part of the record the appellant will be prejudiced as the court a quo found that the appellant was not a credible witness. In this regard, the appellant submits that he did not and could not have anticipated the nature of the cross-examination that the respondent would follow in the trial, and did not and could not bring the documents in support of the appellant’s responses at that time.

13] This explanation in my opinion is unconvincing. The appellant was at all times aware that the claim against him was based on fraud. The tenor of the cross-examination of the respondent left him in no doubt of that, yet the appellant did not seek a postponement to secure any of these documents that he now applies to tender in evidence and on appeal.

14] I do not find the explanation why it was not tendered by the appellant at the trial acceptable, but in any event even if these documents were to be admitted they would not alter the outcome of this appeal and would not disturb the probabilities in this matter. In my opinion the most damning and telling evidence is the mileage of the appellant’s vehicle which was supposedly used as a private vehicle.

15] The magistrate summarised succinctly his reasons for finding against the appellant as follows, and I quote from the judgement on page 364 of the record:

“However, the court has the following facts on record:

1. The defendant’s vehicle had his surname and cell phone numbers on it.

2. The defendant’s vehicle had the cell phone number of his driver on it.

3. The driver gave his occupation to Inspector Dube at the accident scene, and also the particulars of the defendant.

4. The accident occurred over a weekend when the defendant was not in his vehicle, but someone else was driving it with passengers in it.

5. The defendant’s vehicle travelled a distance of 58, 408 kilometres in a period of 7 months and it was only utilised, (according to the defendant) for private use”.

16] The appellant has sought valiantly to attack the evidence of the witnesses, especially the evidence of Inspector Dube. In my opinion Dube was an independent witness who had no reason to lie about what the driver had informed him, namely that he was a taxi driver conveying passengers for reward. There appears to be also no reason for him to lie about the cell phone numbers on the defendant’s vehicle, as well as the fact that there were passengers in the vehicle at the time. In my view his evidence could only have been rejected on the basis that he was an untruthful witness rather than an unreliable one.

17] The appellant’s evidence was that the vehicle was being used privately, and that the driver was doing him a favour but, if one has regard to the probabilities, one cannot fault the magistrate’s reasoning, especially if one has regard to the kilometres travelled, and also the fact that the vehicle in fact is a registered minibus.

18] Despite Mr Majola’s attempts to convince us that there is merit in this appeal, and whatever the criticisms of the accuracy of Inspector Dube’s record taking abilities, in my opinion, on the probabilities as a whole one cannot find that the magistrate was wrong in arriving at the conclusions that he did in finding for the respondent.

The appeal should be dismissed with costs.

WILLIS J: I agree. The appeal is dismissed with costs.