IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)

Date: 26/02/2008
Case No: 40688/200

UNREPORTABLE

In the matter between:

LEONARD FRANCOIS BEZUIDENHOUT NO				Plaintiff

And

ABSA VERSEKERINGSMAATSKAPPY BEPERK			Defendant

JUDGMENT

FABRICiUS: AJ

1.	This is an action for damages. At the pre-trial conference the parties agreed that defendant's special plea of prescription and the exclusionary clause raised in paragraph 12.2 of defendant's plea were to be separated from the remaining issues, and were to be heard first, with the other issues to be postponed sine die.  Such an order was made in accordance with the provisions of rule 33(4) of the Uniform Rules of Court.

2.	As far as the special plea of prescription is concerned, defendant wisely presented no argument thereon, and it is in any event clear from the relevant facts that the completion of prescription was delayed under the circumstances as set out in section 13(1)(a) and (i) of the Prescription Act, 68 of 1969 as amended.  It is therefore not necessary to deal with that particular issue any further.

3.	The only question for me to decide is whether the exclusions (and in particular the exclusion referred to in section 2(b)) of a Motor Insurance Policy were applicable to .the present facts. 

4.	It is common cause that plaintiff was appointed as curator ad litem for a certain Mrs MM de Beer (hereinafter referred to as "De Beer"), and that defendant had assumed liability in terms of a Motor Insurance Policy originally issued by Global Insurance. It was agreed that the extracts of such policy placed before me were the only relevant ones that I needed to consider. 

5.	The mentioned De Beer had been a passenger in a vehicle driven by the insured EF Aucamp (hereinafter referred to as "Aucamp") on 23 July 2000.  It is alleged that as a result of the negligent driving of the said Aucamp the vehicle left the road and overturned.  De Beer sustained serious injuries and suffered damages as a result. She issued summons against Aucamp and obtained judgment during August 2005 after the latter had conceded liability.  This was also after the Aucamp estate had been declared insolvent in January 2002.  Section 156 of the Insolvency Act, Act 24 of 1936 (as amended) became applicable, but it is not necessary to further deal with any of those issues, such as they are.

6.	As I have said, the only question before me on the facts is the interpretation of part of section 2 of the particular policy which reads as follows: 

“Section 2 
Liability to third parties 
We will indemnify You in the event of an accident caused by or in connection with the vehicle or the towing of a disabled vehicle (other than for reward) (as hereafter defined) attached thereto against claims including claimant's costs and expenses which You shall be legally liable to pay, including all costs and expenses as my be incurred with our written consent in respect of:

(i)	Death or bodily injury to any person, excluding 

(a)	any person who is a member of Your immediate family,
(b)	any person who normally resides at Your residence, including domestic servants,'
		…”

7.	Defendant correctly admitted that it bore the onus of proof in these proceedings having regard to its defence, and also had the duty to begin. Defendant accordingly called Mrs Aucamp to testify.  The crux of her evidence was as follows (I only refer to the parts relevant to the issue before me): 

7.1	She had lived with De Beer in an intimate relationship since about 1982 in various residences including those of which she (Aucamp) was the owner or the lessee. 

7.2	About 1998 the intimate relationship between them ended due to De Beer's alcohol abuse and subsequent aggression.  She continued to live in the same residence however as she had no other means of support.  In fact, they continued to share the same bedroom but without any physical intimacy. 

7.3	De Beer did not work or contribute to any household expenses and at the time of the accident in 2000 she had supported her almost like a child. At the time they resided at her sister's home, where her sister's daughter also lived.  No-one else had shown any interest in De Beer at the time. She had no-one to care for her, had no other place to live, and had no other means of support.  The relevant household expenses were shared by herself en her sister.

8.	Mr Morrison on behalf of defendant submitted in argument that the exclusion contained in the mentioned section 2(b) applied having regard to the mentioned fact~ as De Beer was a person who normally resided at the insured's residence, ie "at your residence ". He submitted that "your residence" meant and referred to an identificatory exclusion, and certainly not one relating or referring to any proprietary right in the sense of ownership of the residence where the insured resided together with any other person.  Mr Bezuidenhout, obviously not surprisingly, submitted the contrary namely that "your residence" in the normal grammatical meaning meant "a residence of which the insured was the owner". Mr Morrison added that the obvious purpose of the clause was to limit the insurers' risk in respect of person who would frequently travel with the insured, such as members of his/her immediate family, or those who normally reside with the insured, and confine the risk to persons who fell outside the categories referred to in the mentioned clauses (a) and (b).

9.	Counsel did not refer me to any previous decision directly in point, but persuasive guidance can be gained from decisions dealing with the interpretation of similar exclusionary clauses in insurance contracts of this kind. Certain general principles of interpretation in any event apply, the most important of which is that the intention of the parties must be given effect to, which intention must be gathered from the language used by them having regard to the ordinary grammatical meaning of the words used. In this regard the contextual setting is of prime importance. 

See:	List v Jungers 1979 (3) SA 108 (A) at 118D-E
Cape Provincial Administration v Clifford (Pty) Ltd 1997 (1) SA 439 AD at 445G-446E

10.	It may well be that the phrase "your residence" in situations unrelated to insurance policies may have ownership in mind, but in the context of interpreting a phrase in an insurance policy of this nature it cannot have that meaning. It is clear that in the context of an insurance policy the mentioned exclusionary clauses intend to exclude the risk pertaining to persons who are members of the insured's immediate family, or who normally reside at the insured's residence. It is clear that the residence in this context is the insured's domestic establishment, and persons normally residing there would be those who normally receive their meals and accommodation from the insured gratuitously, be it the owner of the lessee.

See:	MacGillivray v W.R. Investments (Pty) Ltd 1959 (3) SA 17 	(W) at 20F-G 

It is clear that a person who normally resides at "your residence" is one who occupies such premises, lives or dwells there with the insured, with some degree of continuous or permanent presence, and irrespective of whether the insured is himself the owner or lessee.

See:	Incorporated General Insurances Ltd v Reinecke 1976 (1) SA 591 (AD) at 600C-G

12.	It is clear that the exclusionary clause practically and contractually interpreted in this manner accords with the probable purpose of including such a limitation in the policy: The likelihood of members of the insured's immediately family or those person who normally reside at his residence or in this household, being frequent passengers in his motor vehicle, thereby increasing the insurance risk to the insurer, and the possibility of collusion between those members and the insured in making false claims against the insurer.  

See:	Masombuka v Constantia Versekeringsmaatskappy Bpk 1987 	(1) 525 (T) at 532F-1

13.	It is clear from the insured's own evidence that De Beer normally resided at her residence, wherever it may have been, since 1982 and did so at the time of the accident. She lived with her and was supported by her, also after their intimacy ceased. This was so irrespective of whether the insured was the owner or lessee of the premises during the time of their relationship. It is clear that De Beer had a close relationship with the insured and that this did not cease simply because intimacy ceased. In fact they continued to live together in the same bedroom in the same dwelling. The relevant dictum referred to in the Reinecke decision supra is therefore of clear application.

See also:	Farr v Mutual & Federal Insurance Co Ltd 2000 (3) SA 		684C at 687E-1

14.	This decision also makes it clear, although I need to decide that on the present facts, that it could be argued that De Beer was a member of the insured's "immediate family". 

15.	In the premises the plaintiff's claim cannot be upheld as the mentioned exclusionary clause 2(b) applies, and the claim is therefore dismissed with costs. 

H J FABRICUIS
ACTING JUDGE OF THE HIGH COURT
TRANSVAAL PROVINCIAL DIVISION

PLAINTIFF'S COUNSEL:		ADV LF BEZUIDENHOUT
INSTRUCTED BY F VAN WYK
PLAINTIFF'S ATTORNEY
HATFIELD
PRETORIA

DEFENDANT'S COUNSEL:	ADV L MORRISON
INSTRUCTED BY LlNDSAY,
KELLER AND PARTNERS
ATTORNEYS FOR DEFENDANT
ROSEBANK
JOHANNESBURG

DATED OF HEARING:		6 FEBRUARY 2008

DATE OF JUDGMENT:		26 FEBRUARY 2008