Court name
Supreme Court
Case name
Stuurman v Mutual & Federal Insurance Company of Namibia Ltd
Media neutral citation
[2009] NASC 4





CASE NO







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.:




  1. 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.









  1. The facts and the
    issue call
    ing
    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.









  1. 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’’.








  1. 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.









  1. 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.”












  1. 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.








  1. 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. ‘’












  1. 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.)












  1. 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.)












  1. 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.









  1. 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.’’












  1. 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).)









  1. 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?”








  1. 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).









  1. 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."












  1. 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.








  1. 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.








  1. 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.









  1. 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.









  1. Mr Murorua further
    submit
    ted
    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.









  1. 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.









  1. 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.”













  1. 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.









  1. 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.








  1. 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.









  1. 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.









  1. 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.









  1. 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