Court name
High Court Main Division
Case name
Rall v Professional Provident Society Insurance Company (Namibia) Ltd
Media neutral citation
[2014] NAHCMD 249
Judge
Ueitele J










REPUBLIC
OF NAMIBIA





HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





CASE
NO.: A 224/2013





DATE:
22 AUGUST 2014





In
the matter between:




CHARL
WILHELM
RALL.....................................................................APPLICANT




And





PROFESSIONAL
PROVIDENT SOCIETY..........................................RESPONDENT


INSURANCE
COMPANY (NAMIBIA) LTD





Neutral
citation: Rall v Professional Provident Society Insurance Company
(Namibia) Ltd (
A 224/2013) [2014] NAHCMD 249 (22 August 2014)






Coram:
UEITELE, J


Heard:
17 June 2014


Delivered:
22 August 2014





Flynote:
Contract - Formation - Admission of an obligation in an existing
contract - Such an acknowledgment of debt, provided it is coupled
with an express or implied undertaking to pay that debt, gives rise
to an obligation in terms of that undertaking when it is accepted by
the creditor; and it does not matter whether the acknowledgment is by
way of an admission of the correctness of an account or otherwise.






Insurance
-
Disability insurance - Obligation to pay interest - When
insurer in mora - Interest may be due from the nature of the
case, where, for instance, the time for performance is fixed either
by agreement or the law (mora ex re); or where in the absence
of such agreement, the defendant has been called upon to perform his
obligation (mora ex pesona).



.



Summary: The
applicant was a legal practitioner of this Court.  During his
tenure as a legal practitioner he and PPS Namibia (Ltd) (the
respondent company) concluded an agreement of insurance, in terms of
which he was insured in the event that he would become permanently
disabled or incapacitated to continue with his profession as a legal
practitioner.







During March 2009
the applicant was involved in an accident with a bicycle.  As a
result of the accident the applicant sustained a brain injury which
injury resulted in the applicant becoming incapable of exercising his
profession as a legal practitioner. During September or October 2010,
the applicant lodged a claim for the payment of the permanent
incapacity benefits in terms of the insurance policy (agreement)
which he held with the respondent.  On 11 February 2011 the
respondent rejected the applicant’s claim.  The applicant
objected to the rejection of his claim.







As a result of his
objection the applicant was evaluated by medical specialist and other
advisors of the respondent, and his claim was revised and he was
advised that his claim was accepted but only 20% of the benefits
would be awarded to him.  The applicant appealed against this
20% award.  During the entire period of pursuing his claim (i.e.
from October 2010 to 08 February 2012) when his claim was finally
admitted and accepted, the appellant continued to pay his premiums as
set out in the insurance policy contract.  His appeal was
ultimately reconsidered and on 08 February 2012 the respondent
advised the applicant his claim was reassessed and PPS has awarded
him a 100% benefit effective 27 February 2011.






During March 2012,
the respondent informed the applicant that an amount of N$8 332
929-00 was determined as the disability lump sum benefit, and that
amount will also be paid to him.  The respondent per e-mail
dated 22 February 2012, addressed to the applicant’s legal
practitioners amongst others informed the applicant that the
outstanding amount together with the interest should be paid to the
member by no later than the end of the month.







When the respondent
ultimately effected payments no interest was paid. The applicant
appealed against the non-payment of the interest, the arbitrator
appointed by the applicant dismissed the appeal on the ground that
applicant was not entitled to mora interest. When applicant’s
appeal was dismissed he launched the present proceedings. Respondent
raised to point in limine first being that the applicant’s
claim is based upon an insurance agreement, but the applicant fails
to make the necessary averments in order to establish and rely on the
insurance contract and that the applicant’s application does
not comply with rule 18(6) of the Rules of this Court (now repealed)
and should therefore be dismissed. The second point in limine
was that only a liquidated claim attracts interest.  In the
present case the permanent disability amount of N$ 8 332 929-00 was
only determined on 8 February 2012, and thus only became liquidated
on that date (i.e. on 8 February 2012) meaning that interest will
only become due as from the date that the amount became liquidated. 







Held, that
there is ample authority to the effect that an acknowledgment of
debt, provided it is coupled with an express or implied undertaking
to pay that debt, gives rise to an obligation in terms of that
undertaking when it is accepted by the creditor; and it does not
matter whether the acknowledgment is by way of an admission of the
correctness of an account or otherwise.







Held further
that in the present matter, the parties concluded an insurance
contract, in terms of that contract the parties agreed that the
respondent will indemnify and make good the loss suffered by the
applicant on the happening of an uncertain event.  The event in
respect of which the parties contracted occurred during March 2009,
when the applicant sustained brain damages in a bicycle accident. 
On 8 February 2012 the respondent accepted the applicant’s
claim and undertook to pay the applicant the loss he (i.e. the
applicant) suffered with effect from 27 February 2011 and that, the
acceptance and undertaking to pay the applicant with effect from 27
February 2011 is an agreement independent and separate from the main
insurance contract.







Held, further,
that the respondent had fixed and determined the date on which it
will pay the applicant the disability benefit, as 27 February 2011. 
Having fixed the date for paying the disability benefit, at 27
February 2011, the failure to pay the benefit on that day resulted in
the respondent being in mora ex re.





ORDER






1.
The respondent’s points in limine are dismissed.






2.
The respondent is ordered to pay the applicant interest at the rate
of 20% per annum calculated from 28 February 2011 on the amount of N$
8 332 929-00 on the portion of that amount that remained outstanding
from time to time subsequent to that date and up to the date that the
full capital amount of N$ 8 332 929-00 was paid to the applicant.






3.
The respondent is ordered to pay the applicant interest at the rate
of 20% per annum on all premiums repaid to the applicant subsequent
to 27 February 2011 from the date that the respondent received the
premium until the date on which the respondent repaid the premiums to
the applicant.






4.
The respondent is ordered to pay the applicant mora interest
at the rate of 20% per annum on all the incapacity payments to the
applicant which are outstanding from time to time as from 28 February
2011 up to the date that the respondent pays them to the applicant.






5.
The respondent must pay the applicant’s costs the costs to
include the costs of one instructing and instructed counsel.






JUDGMENT


UEITELE,
J





A.
INTRODUCTION AND BACKGROUND







[1] The applicant
commenced proceedings in this court, by way of a notice of motion in
which he seeks the following relief:






1
Ordering the respondent to pay applicant mora interest at the
rate of 20% per annum calculated from 28 February 2011 on the amount
of N$ 8 332 929-00 or that portions of the amount that remained
outstanding from time to time subsequent to that date and up to the
date that the full capital amount of N$ 8 332 929-00 was paid to
applicant;





2
Ordering the respondent to pay applicant mora interest at the
rate of 20% per annum on all premiums repaid to applicant subsequent
to 27 February 2011 from date of receipt of such premiums until
repayment thereof by respondent;






3 Ordering the
respondent to pay applicant mora interest at the rate of 20%
on all monthly payments outstanding from time to time as from 27
February 2011 up to the payment thereof by respondent.’







[2] The factual
background to the applicant’s application is as follows. 
The applicant was a legal practitioner of this Court.  During
his tenure as a legal practitioner he and PPS Namibia (Ltd) (the
respondent company) concluded an agreement of insurance, in terms of
which he was insured in the event that he would become permanently
disabled or incapacitated to continue with his profession as a legal
practitioner.







[3] During March
2009 the applicant was involved in an accident with a bicycle. 
As a result of the accident the applicant sustained a brain injury
which injury resulted in the applicant becoming incapable of
exercising his profession as a legal practitioner. During September
or October 2010, the applicant lodged a claim for the payment of the
permanent incapacity benefits in terms of the insurance policy
(agreement) which he held with the respondent.  On 11 February
2011 the respondent rejected the applicant’s claim.  The
applicant objected to the rejection of his claim.







[4] As a result of
his objection the applicant was evaluated by medical specialist and
other advisors of the respondent, and his claim was revised and he
was advised that his claim was accepted but only 20% of the benefits
would be awarded to him.  The applicant appealed against this
20% award.  I find it appropriate to mention here, that during
the entire period of pursuing his claim (i.e. from October 2010 to 08
February 2012) when his claim was finally admitted and accepted, the
appellant continued to pay his premiums as set out in the insurance
policy contract.  His appeal was ultimately reconsidered and on
08 February 2012 the respondent advised the applicant as follows:






In
light of the complexity surrounding your claim, further discussions
were held during the course of December 2011 and January 2012, which
included additional discussions with external independent psychiatric
practitioners.  In this regard, your claim was reassessed and
PPS has awarded you a 100% benefit effective 27 February 2011.






Please note
that outstanding benefit payments due for the period effective 27
February 2011 to 31 January 2012 will be paid to you in the form of a
once off lump sum benefit whereafter monthly benefits will commence
effective 1 February 2012
.’ (Italicized and underlined
for emphasis)






[5] Per letter dated
09 March 2012, the respondent informed the applicant that an amount
of N$8 332 929-00 was determined as the disability lump sum benefit,
and that amount will also be paid to him. The respondent per e-mail
dated 22 February 2012, addressed to the applicant’s legal
practitioners amongst others informed the applicant with regard to
the payment of the benefits as follows:





Following
out earlier discussion please note the following:





·
With respect to the PI Benefit – We currently still have to pay
the difference between the 20% award that was made to the member
effective 11 February 2011 and the current 100% award effective 11
February 2011.





·
I have asked out finance team to check whether Mr Rall has been paid
interest on the 20% award payment that was made during September
2011. If not they will calculate interest on the full 100% award
which will then be paid to him. If he has already been paid interest
on the 20% then interest will be calculated on the remaining 80%
effective 11 February 2012.





·
The outstanding amount together with the interest should be paid to
the member by no later than the end of the month, after which the
monthly benefit payments will commence.





·
With respect to the DISA award (lump sum disability benefit), as
discussed, this claim was put forward for assessment by our
Reinsurers upon validation of the PI award.  They have agreed to
accept liability for the claim and it has been validated effective 11
February 2011.  As such please find attached, on the DISA
Release form, details of the benefit amount due to the member in
addition to details on the GLA pre and post the payment of the DISA
benefit.





·
The premiums for the DISA award will be calculated from end February
2011 to date.  This amount together with interest on the amount
will be refunded to Mr Rall.





·
Furthermore, the premiums on the GLA will be reduced after the
payment of the DISA award and the difference between the current
premiums (before DISA) and the premiums after the DISA payment with
be calculated from end February 2011 to date.  This amount
together with the interest on the amount will also be refunded to the
member.





·
I have asked our finance department to prepare a spread sheet with
the breakdown of the above amounts for your perusal prior to payment
and will forward said document to you as soon as I receive it.





·
Lastly, please find attached the DISA release form with the relevant
DISA information to be signed by the member and forwarded back to me
as soon as possible so that we can start with the process of claim
payment.





Please
do not hesitate to contact me should you require any further
information.’






[6] Pursuant to the
acceptance of the applicant’s permanent incapacity and
disability claims and as accepted by the respondent, the respondent;







(a) paid to the
applicant the capital amount owing under the policy;







(b) refunded to the
applicant the monthly premiums (which the applicant has paid between
11 February 2011 and 27 February 2012); and



(c) paid to the
applicant the difference between the 20% and 100% monthly permanent
incapacity payments.







The above referred
to payments were effected between March 2012 and November 2012, but
no interest on the above payments was included in the payments which
the respondent effected.







[7] During March
2012, the applicant’s legal practitioners raised the issue of
interest with the respondents, the respondent replied during June
2012 and in its reply stated that ‘due to the nature of this
instance’ the applicant was not entitled to mora interest,
but proceeded and offered the applicant, mora interest at the
rate of 3.5%.  The applicant refused to accept the offer of 3.5%
mora interest tendered by the respondent.  The applicant
on 26 June 2012 appealed against the award of 3.5% mora interest
determined by the respondent.  On 20 February 2013 the
applicant’s appeal was dismissed and the applicant resolved to
institute these proceedings.  It issued the application on 11
July 2013.



 



[8] The respondent
gave notice of its intention to oppose the application on 24 July
2013 and filed its opposing affidavit on 12 September 2013.  In
the answering/opposing affidavit the respondent raises two issues in
limine
.  The first issue raised in limine is the
issue that the applicant allegedly failed to disclose a cause of
action.  The respondent justify this objection on the ground
that the applicant’s claim is based upon an insurance
agreement, but the applicant fails to make the necessary averments in
order to establish and rely on the insurance contract.  The
respondent further argues that the applicant’s application does
not comply with rule 18(6) of the Rules of this Court (now
repealed).  That rule requires that when a claim is based on an
agreement the claimant (in this matter the applicant) must set out
whether the agreement was concluded orally or in writing and if the
agreement is in writing a copy of the written agreement must be
annexed to the application.  The respondent thus argued that,
because the applicant’s application does not comply with Rule
18(6) if must be dismissed.



 



[9] The second point
raised in limine by the respondent is that only a liquidated
claim attracts interest.  In the present case the permanent
disability amount of N$ 8 332 929-00 was only determined on 8
February 2012, and thus only became liquidated on that date (i.e. on
8 February 2012) meaning that interest will only become due as from
the date that the amount became liquidated.  The respondent thus
tendered to pay interest on the amount of N$ 8 332 929-00 from 8
February 2012 to the date of payment, but the tender is subject to
the dismissal of the first raised in limine.







[10] In view of the
above background the issues which I am called upon to determine are
the following:







(a) Does the
applicant’s claim fail to disclose a cause of action, because
the applicant failed to allege on an argument, to plead the terms of
the agreement and to annex a copy of the agreement if the government
was in writing?



 



(b) Does the
interest on the amount of N$ 8, 332, 929.00 run from 28 February 2011
or from 8 February 2012?






B
DOES THE APPLICANT’S CLAIM DISCLOSE A CAUSE OF ACTION?



 



[11] Mr Frank who
appeared for the applicant, argued that the respondent’s claim
that the applicant lacks specificity or does not comply with Rule
18(6) is misguided, Mr Frank justifies that argument on the basis
that, the applicant’s claim is not based on the policy (i.e.
the insurance contract).  He argued that the policy is simply
the background to the relief sought.  The relief sought relates
to the interest due in respect of payments which the respondent
admitted as wing under the policy.  Mr Frank argued that:






In
any event the relief sought by Rall is not based on the policy. The
policy (which is not disputed) is simply the background to the relief
sought.  The relief is thus premised on an acknowledgment of
liability the background to which is the policy.  Surely PPS
(i.e. the respondent) is not contending that if the terms of the
policy had been averred this would have entitled them to renege on
their acknowledgment of liability under the policy, PPS acknowledged
their liability and the terms thereof and it is submitted that it
was, in the present circumstances not necessary for Rall (the
applicant) to set out the policy in detail’.


 



[12] Mr Tӧtemeyer,
who appeared for the respondent on the other hand, argued that, the
insurance agreement is central to the applicant’s claim. 
Without the agreement there can be no claim for the applicant. 
He argued that;



 


‘…the
entire claim is founded upon and in fact originates from the
insurance agreement.  It is trite that an insurance relationship
is governed by contract.  It follows, therefore, that the core
of the relief sought herein by the applicant (and its entire claim
for that matter) is founded on contract and more specifically the
insurance agreement.  Without on insurance agreement there can
be no claim’.



 


[13]
I am of the view that, in order to resolve the divergent arguments it
is appropriate to restate some of the basic principles of the law of
contract.  A contract is often defined merely as an agreement
made with the intention of creating an obligation or obligations[1].
From the definition of a contract professor Kerr AJ[2]
has argued that the obligation to do what one has promised to do is
sufficient justification for enforcing an actual agreement.  It
follows that once parties have agreed to create legally binding
obligations they will be bound by the agreement until when they have
performed in terms of the agreement.  In contract there is a
time when, or a period within which performance is due.  It thus
follow that failure to perform at the time when or during the period
within which performance is due, without lawful excuse, is a breach
of contract because it is failure to do what one has contracted to
do.







[14] In the present
matter, the parties concluded an insurance contract, in terms of that
contract the parties agreed that the respondent will indemnify and
make good the loss suffered by the applicant on the happening of an
uncertain event.  The event in respect of which the parties
contracted occurred during March 2009, when the applicant sustained
brain damages in a bicycle accident.  On 8 February 2012 the
respondent accepted the applicant’s claim and undertook to pay
the applicant for the loss he (i.e. the applicant) suffered with
effect from 27 February 2011.  I am therefore of the view that,
the acceptance and undertaking to pay the applicant with effect from
27 February 2011 is an agreement independent and separate from the
main insurance contract.  It therefore follows that if the
respondent did not pay as per its undertaking it is in breach of an
agreement entitling the applicant to claim performance from the
respondent alternatively damages from the failure to timeously
perform.  In view of this reasoning, I agree with Mr Frank, that
the applicant’s claim is independent of the insurance claim and
there is thus no need for the applicant to plead the terms of the
insurance contract or to attach the insurance contract to his claim.



 


[15]
In the case of
Divine
Gontes & Co, Ltd v Beinkinstoldt & Co
[3]
the Appellate Division held that:



 


The
English practice of suing upon an account stated [the term account
stated is an abbreviated form of account stated and admitted] has
been known to South African practice for a long time.’





[16]
In the case of
Adams
v SA Motor Industry Employers Association
[4]
(which has been approved by the Supreme Court[5])
Jansen, JA who wrote the judgment on behalf of that Court said:






There
is ample authority to the effect that an acknowledgment of debt,
provided it is coupled with an express or implied undertaking to pay
that debt, gives rise to an obligation in terms of that undertaking
when it is accepted by the creditor; and it does not matter whether
the acknowledgment is by way of an admission of the correctness of an
account or otherwise. (Cf Divine Gates & Co Ltd v Beinkinstadt
& Co 1932 AD 256; Somah Sachs (Wholesale) Ltd v Muller &
Phipps SA (Pty) Ltd
1945 TPD 284; Mahomed Adam (Edms) Bpk v
Raubenheimer
1966 (3) SA 646 (T).) In Christou v
Christoudoulou
1959 (1) SA 586 (T) there are dicta to the
effect that an admission in respect of an existing debt cannot "found
an independent cause of action" unless it amounts to a novation
(at 587G - 588A). This, with respect, appears to rest on a
misapprehension. There can be no objection in principle to a second
obligation arising in respect of an existing debt, and this appears
to have been recognized by this Court (Smit v Rondalia
Versekeringskorporasie van Suid-Afrika Bpk
1964 (3) SA 338 (A) at
346G). The decisive question is whether the acknowledgment contains
an express or implied undertaking to pay, a matter which relates to
the intention of the parties … In the present case the
acknowledgment of debt contains an express undertaking to pay, and
there can be little doubt that the parties intended to create a new
obligation in respect of the payment of the purchase price due under
the deed of sale’.






[17] I have no
qualms with Mr Tӧtemeyer’s submission that the respondent
is entitled to raise what he terms an ‘exception in motion’. 
But once it has raised an exception it bears the onus to prove
that the applicant’s application does not disclose a cause of
action.  Can it be said in the present matter that the
respondent does not know what case it has to meet?  In the
present case the applicant’s claim is one for mora
interest.  In other words the applicant alleges that the
respondent agreed to pay a liquidated amount but it delayed payment
of the admitted amount. The claim is in my opinion sufficiently
framed to inform the respondent the case which it is called upon to
meet.  I am therefore of the view that the respondent’s
first point in limine must fail.






C
THE DATE FROM WHICH THE INTEREST RUNS







[18] The respondent
admits that, if the point in limine it has raised fails, it
will have to pay interest on the lump sum disability payment and
interest on the monthly incapacity payments outstanding from time to
time.  Since the interest on the premiums and the incapacity
payment was tendered and accepted it is only interest on the
disability payment which is still in dispute.  The respondent
argues that the date from which interest is to run is the date from
which the claim was quantified and liquidated.  According to the
respondent that date is 08 February 2012.  The applicant on the
other hand contends that the date from which the interest is payable
is 28 February 2011.






[19]
I have pointed out above that in all contracts, even in those
contracts where nothing is said on the question of performance, there
is a time when, or a period within which performance is due. If a
party to a contract delays to perform a contractual obligation that
party is said is said to be in
mora[6].
The
consequences for a debtor who is in
mora
is
that interest is payable on liquidated amounts[7].
In the case of
West
Rand Estates Ltd v New Zealand Insurance Co Ltd[8]

Kotze, JA said:





In
connection with a claim for interest we have to consider the question
of mora, and the distinction between an action for liquidated
and unliquidated damages. Liability for the payment of interest
through delay in the performance of his obligation or duty by the
defendant may arise in one of two ways. Interest may be due from the
nature of the case, where, for instance, the time for performance is
fixed either by agreement or the law (mora ex re); or where in
the absence of such agreement, the defendant has been called upon to
perform his obligation (mora ex pesona). In the former case no
interpellation is necessary; in the latter the debtor must be
formally called upon for performance. But we must bear in mind that a
defendant cannot be said to be in mora unless he knows the
nature of his duty and obligation; that is to say where and how much
he has to pay. Hence a claim for unliquidated damages, which have to
be investigated and ascertained does not bear interest. But as certum
est quod certum redid potest
, circumstances may occur to take a
case out of the operation of this rule. The parties may for instance,
investigate and agree as to the amount of damage sustained and from
that moment the liability of the debtor for interest upon the agreed
amount may well be considered to have commenced’.






[20]
Also see the case of
C
& T Products (Pty) Ltd v MH Goldschmidt (Pty) Ltd
[9]
where Friedman, J said:






Mora
is a wrongful delay or default in making payment, and arises the
moment the debtor becomes obliged to pay. The obligation to pay
interest on the amount owing likewise arises from the moment the
debtor is in mora. Mora is generally divided into two
categories, i.e. mora ex persona and mora ex re. Mora
ex persona
arises out of the conduct of the debtor and occurs
when due demand (interpellatio) has been made upon the debtor,
who has failed to satisfy such demand. Mora ex re on the other
hand arises out of the transaction itself and is not dependent upon
prior demand. This occurs, for example, where the date for payment is
fixed by agreement between the parties. (See Victoria Falls and
Transvaal Power Co Ltd v Consolidated Langlaagte Mines Ltd
1915
AD 1 at 31; West Rand Estates Ltd v New Zealand Insurance Co Ltd
1926 AD 173 at 195.)’






[21]
In the present matter Mr Tӧtemeyer has referred me to the
respondent’s rules more so to rule 11.3 which reads as follows:






The
Administrator or the insurer is not obliged to pay a disability sum
insured in respect of a policy holder, unless and until the
Administrator has received:






11.3.1
proof to the satisfaction of the Administrator and the insurer of the
disability and the age of the policy holder; and







11.3.2
where proof of insurability was required such further information the
Administrator and the insurer may require.’


He
thus argued that the capital amount was only established and thus
quantified once proof to the satisfaction of the respondent of the
disability relied upon has been submitted and the date of
qualification is 08 February 2012.






[22]
I do not agree with Mr Tӧtemeyer’s submission for the
following reasons, the applicant submitted his claim during
September/October 2010 and during February 2011 the respondent
admitted that the applicant was partially disabled. It follows that
the Administrator or the insurer must have been satisfied during
February 2011. My reasoning is fortified by the letter written, on 11
February 2011, by the respondent to the applicant stating amongst
others the following:






Your
case was considered by our Medical Officer Committee on 9 February
2011. The meeting considered all the documentation supplied and
assessed you to be less than 20% Partially Permanently Incapacited…’







From the above
letter it appears that the respondent was, already on 11 February
2011, satisfied that the applicant was disabled, albeit only at 20%.
On 08 February 2012 the respondent advised the applicant that his
claim was reassessed and he was awarded a 100% benefits
effective 27 February 2011. (Italicized and underlined for emphasis)






[23]
In addition to the above letters, the applicant during November 2012
disputed the rate of interest offered to him and also the date from
which the interest was to be calculated. The arbitrator appointed by
the respondent to arbitrate the dispute said the following:






At
the outset I have to point out that, after having studied the
contents of all the correspondence and other documentation pertaining
to his dispute, I am of the view that there is only one issue still
in dispute in this matter.






The
outstanding issue in my opinion is the question whether, as contended
by you, mora interest is payable on the amounts payable to
your client. It is notable, however, that in the subject line to your
above mentioned letter of 23 November 2012 you had indicated that in
addition to the dispute as to the appropriate interest rate, your
client’s appeal is also against the date from which said
interest is to run.



In this respect I
refer you to the spread sheet which had been attached by Mr McKay to
the above-mentioned e-mail of 02 November 2012. This spread
sheet clearly indicates that interest on all payable amounts had been
calculated from 27 February 2011
. It is my view therefore
that the date from which interest is to run is not in dispute any
more…’ (Italicized and underlined for emphasis)






[24]
I therefore have no doubt in my mind that the respondent had fixed
and determined the date on which it will pay the applicant the
disability benefit, as 27 February 2011. Having fixed the date for
paying the disability benefit, at 27 February 2011, the failure to
pay the benefit on that day resulted in the respondent being in
mora
ex re
.
I am satisfied that the facts in this case are distinguishable from
the case of
Du
Toit v Standard General Insurance Co
[10].
In that case, Du Toit (the applicant) was the beneficiary in terms of
two life assurance policies issued by Standard General Insurance Co
(the respondent) on the life of the applicant's wife. The policies
were dated 1 April 1992 and 1 May 1992. Each policy provided that the
'
sum
assured is payable if the life assured dies before the policy expiry
date'

and further that the
'company
requires satisfactory proof of the following: the circumstances
giving rise to the benefits . . .'
.
The applicant's wife was murdered on 12 June 1992. Thereafter there
were rumours that the applicant might possibly have been implicated
in his wife's death. On 29 June 1992 payment in terms of the policies
was claimed on the applicant's behalf. A 'Claimant's declaration' in
which was set out certain information in connection with the claim
was inter alia filed with the claim. The respondent acknowledged
receipt of the documents on 21 August 1992 and intimated that the
matter would receive further attention when the report of the inquest
and the post mortem examination was received. The inquest was held on
1 June 1993 in which the magistrate found that it was not possible to
make a finding as to the identity of the person or persons who were
responsible for the deceased's death. On 11 June 1993 the applicant
launched an application in a Local Division for payment in terms of
the policies and payment of interest thereon a tempore morae at 18,5%
per annum from 13 June 1992 to date of payment. The full capital
amount was paid by the respondent on 25 June 1993. At the hearing of
the application the only question left for decision was that relating
to the payment of interest from the date upon which the claim had
been made against the respondent (i.e. 29 June 1992).






[25]
In that case (
Du
Toit v Standard General Insurance Co

case) it was held, that the date of performance had not been
determined beforehand and, should
mora
be relevant in this case, it could only be a case of
mora
ex persona
[11].






[26]
In the result I make the following order:






1.
The respondent’s points in limine are dismissed.






2.
The respondent is ordered to pay the applicant interest at the rate
of 20% per annum calculated from 28 February 2011 on the amount of N$
8 332 929-00 on the portion of that amount that remained outstanding
from time to time subsequent to that date and up to the date that the
full capital amount of N$ 8 332 929.00 was paid to the applicant.






3.
The respondent is ordered to pay the applicant interest at the rate
of 20% per annum on all premiums repaid to the applicant subsequent
to 27 February 2011 from the date that the respondent received the
premium until the date on which the respondent repaid the premiums to
the applicant.






4.
The respondent is ordered to pay the applicant mora interest
at the rate of 20% per annum on all the incapacity payments, to the
applicant, which are outstanding from time to time as from 27
February 2011 up to the date that the respondent pays them to the
applicant.






5.
The respondent must pay the applicant’s costs the costs to
include the costs of one instructing and instructed counsel.






SFI
Ueitele


Judge





APPEARANCES






APPLICANT:
Mr T Frank, SC


Instructed
by Du Pisani Legal Practitioners





RESPONDENT:
Mr R Tӧtemeyer, SC


Instructed
by Koep & Partners Legal Practitioners










[1]
LAWSA Vol 5 at paragraph 124. Lubbe Gerhardt and Christina Murray
"Contract Cases and Material Commentary", 3
rd
ed.




[2]
The Principles of the Law of Contract, 2002, 6
th
ed at 19.




[3]
1932 AD 256 at 263.




[4]
1981 (3) SA 1189.




[5]
Rodgerson v SWE Power and Pumps (Pty) Ltd 1990 NR 230 (SC).




[6]
Mulligan G.A “
Mora”
1952 South African Law Journal 276.




[7]
Kerr (supra) at 616.




[8]
1926 AD 173 at 195.




[9]
1981 (3) SA 619 at 631.




[10]
1994 (1) SA 682.




[11]
At 688.