IN THE HIGH COURT OF NAMIBIA
In the matter between:
CHANNEL LIFE NAMIBIA LTD
Heard on: 20 –
24/10/2003; 11 – 14/11/2003 and 26/11/2003
a female aged 54 years old at the time of the hearing of this
matter, instituted action against defendant for payment of N$500
000 plus interest at the rate of 20% per annum in respect of an
insurance agreement for disability entered into between plaintiff
and the defendant on or about 13 May 1999. It was common cause or at
any rate was not disputed that plaintiff trade qualified as a tour
guide. She worked for tour companies on a freelance basis driving
buses for tourists and taking tourists to places of interest in the
country and where a vehicle she happened to drive could not reach,
walking with them to those places and giving them information about
originally cited as Fedsure Life
Assurance of Namibia Ltd. Since the institution of the action,
however, defendant underwent a name change and became known as
Channel Life Namibia Limited. Amended particulars of claim were then
filed to reflect this change and other matters that in the meantime
came to light as will be discussed next.
During the hearing
of the matter it emerged that plaintiff was an unrehabilitated
insolvent and the Court mero
raised the question whether in those circumstances plaintiff had
to issue summons and invited argument in this regard. Prior to
hearing argument, however, counsel representing the respective
parties agreed that plaintiff could continue with the action but on
behalf of her insolvent estate and not in her personal capacity. The
parties furthermore agreed that the trustee in her insolvent estate
would have refused to sue had he been approached at the time of the
institution of the action. Consequently, plaintiff would have been
entitled to personally act on behalf of her insolvent estate. It was
a further term of the agreement that in the event that plaintiff
succeeded with her action, ‘any payments are to be made to her
trustees, Messrs Investment trust’.
plaintiff also in
the end obtained from the trustee confirmation in writing regarding
the trustee’s attitude towards the action. In a letter filed
of record, the trustee who is now the second respondent, declined to
institute action on behalf of the plaintiff and consented to and
ratified, insofar as may be necessary, the institution of the action
by plaintiff on behalf of her insolvent estate. He also waived his
right to be party to the proceedings.
submitted extensive written heads of argument that were of immense
benefit to the Court on the issue of locus
in the end they were ad
regarding the legal position on the issue as reflected in the
agreement. There can be little doubt that the agreement reflects the
correct legal position.
were subsequently amended, unopposed, inter
joining the trustee as the second defendant. Accordingly, the second
defendant is cited in his capacity as trustee in the insolvent
estate of plaintiff and no relief was sought against him.
terms of the written agreement of insurance (the agreement) the
defendant agreed to provide disability benefits to the plaintiff as
Sum Disability Benefit
The benefit as
specified in the schedule plus any benefit increase occasioned by
FAIM shall be payable on the total and permanent disablement of the
The acronym ‘FAIM’
stands for ‘Fedsure Life’s Inflation Master'. The
schedule to the agreement gave the capital sum disability benefit as
being N$500 000. It was on this basis that plaintiff claimed N$500
000 from the defendant.
permanent disablement” is defined in the agreement as meaning:
and permanent inability of the life insured due to sickness, injury,
disease, illness or surgical operation to engage in own or similar
It was also common
ground between the parties that on
12 June 2001 plaintiff was diagnosed with a disc degeneration of
levels L3-4 and L4-5 lumbar spine and extensive degeneration to
spine. Medical opinion is also unanimous that plaintiff is
incapacitated for the type of work she performed as a tour guide/bus
driver such as walking and driving long distances.
According to the
particulars of claim,
a direct consequence of the aforesaid injury the plaintiff was unable
to continue in her occupation as a tour guide/bus driver for and on
behalf of Springbok Atlas or any other company to that extend (sic)
which disability and impairment is of such a permanent nature that
she cannot continue in her present occupation or something similar to
that extend (sic)"
In its amended
admitted the agreement but averred as follows:
"3.2 At the
time of entering into the agreement, the plaintiff was aware of the
following facts, namely:
that she suffered from depression
and anxiety and had a history in this regard;
she received prescribed anxiolytic therapy (Alzam) on a number of
to her application for the said insurance which forms the subject
matter of the written agreement."
Alternatively to paragraphs 3.2.1 and
she fraudulently and/or dishonestly obtained prescribed medicine from
Dr Nieuwoudt on various occasions for feigned symptoms of anxiety
plaintiff failed to inform the defendant of the aforesaid facts.
said facts materially affected the risk in that with the knowledge of
the said facts the defendant would not have accepted the risk,
alternatively not have accepted the risk on the terms and conditions
set out in the written agreement.
3.4 In the premises
the defendant was entitled to avoid the written agreement which it
did, alternatively, which it hereby does."
also filed amended further particulars to its plea wherein it was
alleged as follows:
had [a] duty to disclose in view of the fact that the condition she
suffered from was material to the risk she sought to insure.
specifically appraised of the duty to disclose by virtue of clauses
13.06 (f), 13.07, 13.09 and 21 of the application form and clause 2.2
(g) and 2.4 (b) of the confidential report which she completed prior
to the agreement being entered in … As is further evident from
clause 21 above plaintiff warranted her answers.
the contract because of
plaintiff’s non-disclosure referred to in the particulars of
and her breaches of the warranty referred to above."
denied that she had had a history of depression and anxiety and
pleaded that section 54(1) of the Long-term Insurance Act, 1998 (Act
5 of 1998) applied to the agreement and that by virtue of the
provisions thereof the defendant could not as a matter of law avoid
the agreement merely because of alleged non-disclosure. These and
other issues that have crystallised between the parties will be
dealt with in greater detail but first a summary of the evidence
that has a bearing on those issues that call for decision.
on behalf of the Plaintiff
testified and was
cross-examined at length. In addition three witnesses testified on
her behalf. Plaintiff’s evidence may be summarised as follows:
As previously discussed, plaintiff was aged 54 at the time of the
hearing. She testified that she passed standard 10 and had lived and
worked on a farm. She subsequently trained as a tour guide under the
tutelage of a renowned tour guide for a period of six years. During
the period of training already, she had started doing specialised
guided tours, an activity she had engaged in for 24 years until her
present disability put a stop to it. Her earnings fluctuated between
N$10 000 and N$15 000.00 per month if gratuities or tips ranging
between N$2 500.00 and N$4 000.00 depending on whether she did a
specialised tour or not - with specialised tours generating more
gratuities - are included. She had no level of computer literacy
whatsoever and did not even know how to switch on a computer. As a
result of her disability, she was unable to sit or stand for any
lengthy period of time without taking strong medication. Her left
leg would have to be operated on while her right leg had already
been operated on. Upon becoming disabled, she had initially stopped
doing tours but circumstances had compelled her to do more tours
subsequent to the institution of the action: She had foster children
and their dependants as well as her own extended family to support
and this forced her to do guided tours even though she had to do so
under medication in order to suppress pain. On the question whether
or not there was a job similar to a tour guide that she could
possibly do in the light of her disability, plaintiff was adamant
that there was no similar occupation that she could think of and
that, in any event, she would not earn the money she had earned in
her pre-disability occupation should she find alternative similar
On the issue
of the application form for insurance that she had signed, plaintiff
testified that the Afrikaans version of the form that she signed was
filled in on her behalf by one Marlene Erasmus, an insurance broker
at the time working for Bank Windhoek and that plaintiff neither
read nor completed the proposal form herself. Ms Erasmus filled in
the form as they were chatting and because they knew each other very
well she did not take the precaution of being attentive so as to be
able to have a vivid recollection of the type of questions Ms
Erasmus put to her during the process.
to plaintiff, her mother tongue was German and that although she
understood Afrikaans relatively well; she could not at all say that
she was fluent in the Afrikaans language.
On the answers
to certain clauses in the proposal form and the confidential medical
report which the defendant in its amended further particulars
alleged were wrongly answered, it will be recalled that the first
clause complained of is clause 13.06 (f) which is to be found in its
original version in tab C, page 8 of the bundle of documents and the
translation thereof is to be found in tab C, page 95 of the bundle.
The first question as translated was formulated as follows:
you, or have you ever, suffered from the following: any nervous or
mental complaint, e.g. epilepsy, blackouts, paralysis, anxiety or
It is common cause
answered in the negative. In her evidence-in-chief she explained
that she had neither suffered from nor had she been diagnosed with
any of the above conditions and that as far as she was concerned she
had answered the question correctly. She explained in
cross-examination that she was also not advised that a document
authored by her Windhoek-based medical Doctor Nieuwoudt and
addressed to the insurer contained information that she was
suffering from depression.
offered the same
explanation with regard to the question asked in clause 2.2 (g) of
the confidential medical report that the defendant alleged was
wrongly answered. The question in clause 2.2 (g) is essentially a
replica of the question posed in clause 13.06 (f) above.
The next question
is to be found in clause 13.07, which was translated as reading:
the last year, have you consulted a doctor or specialist or were you
admitted to a hospital, or did you undergo a diagnostic investigation
including electrocardiograms, X-rays, blood tests, other
investigations or hospitalisation?"
answered in the negative. She testified, however, that the correct
answer should have been in the affirmative, for the simple reason
that she had consulted a doctor as she had suffered from malaria
during the period referred to in the proposal form. She says she had
no intention to conceal the fact that she had seen a doctor during
the period in question. Moreover, she had told Ms Erasmus that her
usual doctor was Dr Nieuwoudt. She also happened to mention to Ms
Erasmus that she, plaintiff, had on one occasion consulted an
Outjo-based Dr Burger and that because the application form was
filled in while she was in Outjo; and given the fact that the
insurer also required a form to be completed by a doctor, Ms Erasmus
inserted Dr Burger’s name in the column requiring plaintiff to
state her family doctor since it would be convenient for plaintiff
to be examined by a local doctor instead of her having to travel all
the way to Windhoek for that purpose.
The next disputed
answer given to
a question in the application form is to be found in clause 13.09
thereof and it is translated as follows:
you currently taking or have you ever taken drugs, tranquilisers or
answer was an emphatic ‘No’. She stated in
evidence-in-chief that that was the correct answer. As far as her
understanding of the above terms went, she had never taken drugs or
tranquilisers. She added that though she did take Alzam after it was
prescribed to her by Dr Nieuwoudt on 24 February 1997. Alzam, also
known as Xanor (misspelled in the record as ‘Sanor’),
features prominently in this case. More about Alzam later. The
Alzam was prescribed to enable her to sleep as she had difficulties
sleeping owing to ‘certain worries’. She received the
minimum dosage of 20 tablets and that although she was told to take
three tablets a day she only took one tablet a night. She did not
tell Dr Nieuwoudt that she had stress nor did Dr Nieuwoudt inform
her that she had displayed stress-related symptoms. On the contrary
she mentioned that she had a lot of worries related to a precarious
situation at the farm and the people under her care. She has had a
positive outlook towards her work and had not experienced any stress
that she found to be too severe to manage. Plaintiff confirmed that
Dr Nieuwoudt prescribed Alzam to her on a number of occasions but
that she only took the tablets that were prescribed to her in
February 1997 and the rest she gave to her brother. She explained
that for the period between 1997 and 2001 she and her brother had
problems concerning family crop farming businesses that were heavily
indebted and adversely affected by the drought and by the sheer
number of workers at those farms that stood to lose their jobs and
the resultant loss of income. Her concerns were confirmed when the
family farms were ultimately sold. And these worries that are not
work-related had preoccupied her.
After she had
noticed the improvement the first prescription of Alzam brought
about to her own situation, she decided to give the rest of the
tablets subsequently prescribed to her by Dr Nieuwoudt to her
brother since her brother too had experienced sleeping problems. Her
brother was a type of person who would not readily seek medical
attention and that explains why he did not go to the doctor to
obtain his own prescription.
As far as she was
concerned, the Alzam tablets that she
had received from Dr Nieuwoudt were sleeping tablets and that she
did not use them on any repetitive basis. She did however concede
during cross-examination that Dr Nieuwoudt told her that Alzam was,
in effect, a tranquiliser and that in addition to Alzam, at least on
one occasion, Dr Nieuwoudt prescribed her a proper sleeping tablet
called Dormicum (misspelled in the transcribed record as
‘Dormicome’). The reasons she gave in cross-examination
as to why she answered in the negative to the question enquiring
whether or not she took medicine ranged from the explanation that
she did not personally complete the application form to essentially
blaming the person who filled in the form on her behalf for what she
considered was a mistake and finally that she was not clear about
the use of the word ‘drugs’ in the clause.
she did not have any work-related stress. She had enjoyed her work
and was very enthusiastic about it as she had considered it not only
as a job but more of a hobby.
the question in clause 2.4 (b) of the confidential medical report,
plaintiff was asked:
already stated, have you during the past 5 years:
any doctors or specialists, including regular general check-up?"
answer was a ‘No’. In her testimony she acknowledged the
answer was incorrect and that the correct answer should have been a
‘Yes’. She protested that she could not have given such
an answer since it was evident from the same document that she had
been treated for malaria, a fact she had disclosed to the medical
examiner who completed the confidential medical report. The
explanation she offered for the wrong answer was that she did not
complete the report personally.
The next clause
complained of by defendant was clause 21 on the application form
which is in essence a declaration warranting inter
the correctness of the information provided in the preceding
clauses. It is quite a detailed clause. Its translated version spans
closer to two pages. Plaintiff testified that the contents of clause
21 were neither drawn to her attention nor was she asked to read
through the declaration before she signed the document.
Giving evidence on
events leading to defendant’s
repudiation of liability, plaintiff testified that after she had
filed her claim supported as it was by the diagnosis confirming her
disability, she first received a letter dated 10 September 2001
wherein she was advised that the claim had been unsuccessful due to
alleged material non-disclosure at the time of the application.
Reference was made in the letter to depression and anxiety states
that had allegedly been of concern to underwriters. The paragraph
conveying this information in the letter reads:
and anxiety states have long been a major concern of underwriters,
and if there is a history of depression, no disability benefits will
of this letter plaintiff sought and obtained the assistance of Dr
Estie Maritz who talked to a representative of the defendant with a
view to persuading defendant to reconsider their position. Plaintiff
had previously seen Dr Maritz as part of plaintiff’s
compulsory medical examination at the instance of a tour company
that she had worked for. Suffice it to say that Dr Maritz’s
intervention did not yield the desired results. By a letter dated 05
October 2001 Dr Maritz was informed by defendant:
claim was repudiated on the grounds that she no-disclosed a history
of anxiety and depression…
You mentioned to me that this was a
short period of reactive depression and therefore of little
The medical report,
of which a copy is enclosed, indicates differently. The anxiety and
depression lasted virtually the whole of 1997. This is material to
the assessment of disability benefits. Had we been aware of this
history we would not have considered acceptance
of disablement benefits.
The relevance of
any material medical information is decided by the company
underwriters, if a different decision would be offered on the full
facts, then the information is material. The applicant for insurance
must disclose all facts, and not only those they thought to be
By a letter dated
6 December 2001, plaintiff was informed by the insurer,
"We regret to
advise that after reconsideration of all the medical reports, that
our previous decision to repudiate the claim was justified.
The medical reports in our possession
reaffirm that there was material no-disclosure.
prescribed anxiolytic therapy (Alzam) on a number of occasions prior
to the application for insurance in March 1999. The relevance of this
information is important. We would not grant disability benefits
under such circumstances."
also testified that subsequent to the policy of disability
insurance, she had successfully applied for a medical insurance
policy styled ‘Ultramed’ with defendant in the year
2000. Plaintiff was required to fill in the application form and to
have a confidential medical report completed by a medical
practitioner. In the application form for the medical insurance
plaintiff was asked questions similar to those she was asked in
respect of the application for disability insurance. Such questions
included whether she had or have ever had anxiety state or
depression, to which she answered in the negative; whether she had
suffered from illnesses such as malaria and to which she answered in
the affirmative; and whether she was taking drugs, tranquilisers ‘or
other medicines’; to which she answered in the affirmative.
In respect of the
confidential medical report that plaintiff said was completed by Dr
one of the questions asked was whether plaintiff had had anxiety
state or depression and Dr Nieuwoudt ticked against the "Yes"
column and under the column requiring details such as the nature of
the complaint, Dr Nieuwoudt indicated that plaintiff had
‘stress-related anxiety’. Plaintiff contended that the
doctor’s answer on this aspect was incorrect as she had not
had anxiety state.
likewise ticked ‘Yes’ on the question whether or not
plaintiff had taken any medicines and the doctor explained that
plaintiff had taken Xanor "for stress-related anxiety in 1997,
1999". In any event the point was, so plaintiff stressed,
defendant was in possession of this information and had accepted the
proposal and issued the policy for medical insurance without raising
any query regarding plaintiff’s insurability. As a matter of
fact, so plaintiff added, plaintiff had successfully claimed under
testified about the clinical examination conducted on her by
defendant’s expert witness, Dr Pieter Coetzer,
on 25 August 2003 and related that contrary to what was stated in Dr
Coetzer’s report, she had great difficulties undressing during
the examination. Another aspect of Dr Coetzer’s report that
she considered incorrect was a statement in the report that she had
taken one Voltaren (misspelled in the record as ‘Vortarin’)
tablet whereas she had allegedly told Dr Coetzer that she had taken
more than one Voltaren tablets.
On the revelation
that she had
been declared insolvent after she had voluntarily surrendered her
estate, plaintiff explained that she only informed counsel appearing
on her behalf of this status during the hearing because she thought
that her insolvency had no bearing on her disability. The other
explanation given by plaintiff in this regard was that she thought
she had been rehabilitated. Such belief was based on certain hearsay
evidence, which even though not objected to, should not have formed
part of the record. It will therefore be ignored. Plaintiff stated
furthermore that she was not aware that she had to apply for
cross-examination plaintiff was
confronted with statements contained in paragraphs 6.1 and 6.2 of
the declaration contained in the claim form for disability that she
had personally completed and that read as follows:
"6.1 I confirm
that I am solvent and my estate has not been sequestrated.
6.2 I herby declare
that the answers given by me in this form are in every respect true
and complete and no material information has been withheld or
It was common
cause that plaintiff signed the
declaration. Although she explained that she had not considered the
issue of insolvency being relevant to her disability claim, she
conceded that she had made a mistake on both scores.
The next witness
to be called on
behalf of plaintiff was Ms Nadia Schlusche (misspelled in the record
as ‘Fthlusche’). Ms Schlusche was the Managing Director
of a tour company and her evidence related mainly to the inner
workings of the tourism industry and to considerations of what
levels of skill was required to becoming a successful tour operator
or tour guide. Ms Schlusche also testified about the availability of
occupations similar to a tour guide in the country and stated that
the occupation closest to tour guiding would be nature conservation.
To become a nature conservationist would, however, require a
certain level of training, which plaintiff clearly lacks. According
to Ms Schlusche, a tour operator is the entity that arranges tour
excursions and it in turn employs tour processors, i.e. persons that
process bookings and perform other administrative functions to
ensure a successful tour. Tour operators then hire tour guides who
then take out tourists to places of interest in the country. To
operate in the tourism industry as a tour processor required a high
degree of skill in administration and computer literacy would be a
minimum requirement. At least three months extensive computer
training was required to acquire the skills necessary to operate as
a tour processor. Ms Schlusche dismissed suggestions that one could
be trained to use a computer in three days. The training and
administrative skills required to become a tour operator are vastly
different from the skills and training necessary to becoming a tour
Ms Shlusche was
acquainted with plaintiff whom
she described as the best tour guide one could possibly get and
someone who was well known in the industry. As far as Ms Shlusche
was concerned, owing to her lack of administrative skills and
outdoor type of character, plaintiff would not easily fit in the
office environment. She would therefore not employ her in an office
environment. Ms Schlusche also testified about the salaries and
other income earned by both tour guides as well as tour processors.
Her evidence on the earnings of tour guides essentially tallies with
plaintiff’s evidence in this regard, save that in computing
the monthly income of a freelance tour guide, Ms Schlusche added a
rider to the effect that the overall pay was dependant on the number
of days that the tour guide may work - which days were not
guaranteed - as well as on the amount of tips that a tour guide may
or may not get. Some clients do not tip at all and others tip well.
Tour processors earn between N$5 500 and N$8 000 depending on
experience and performance.
also testified on behalf of plaintiff, but not as an expert. It will
be recalled that he is the general medical practitioner who had
treated plaintiff from time to time. He stated that he obtained his
MB ChB degree in 1977 and that he was in private practice. Relying
on his clinical notes, Dr Nieuwoudt related that since 1996 he had
seen plaintiff for a variety of causes. He had seen her on a good
number of occasions but I propose to summarise his evidence only in
respect of the number of times he had seen her and she allegedly
complained of stress and/or where Dr Nieuwoudt prescribed Alzam.
These occasions total seven in number and are as follows:
On 24 February
1997 he saw plaintiff who complained of stress and he prescribed
Alzam of 0,25
milligrams (mg) per day. Alzam is used to treat stress but may also
be used as a sleeping tablet. He considered 0,25mg per day to be a
very low dosage and which had not much therapeutic value. At no
stage did Dr Nieuwoudt make any formal diagnosis of stress and
relied only on the ipse
of plaintiff in prescribing Alzam. He did not diagnose anxiety or
depression either during the period that he had seen her. According
to Dr Nieuwoudt, plaintiff had told him at the time that she was
concerned about her horses she was doing trails with and which may
not have a place to stay since the farm where they were kept was
being sold. He could not recall plaintiff complaining about
Six months later
on 8 August 1997,
he saw her again and she complained, among other things, of stress.
He then prescribed a dosage of 0,25mg of Alzam to be taken twice a
day. However, he again did not make any formal diagnosis of stress
and relied on what he was told by plaintiff. Dr Nieuwoudt stated
that it was a common practice for patients to give medicines
prescribed to them to other people, a practice doctors do not
On 4 December
1997, a month and a day later, he saw plaintiff again and on this
occasion Dr Nieuwoudt
wrote in his clinical notes:
neurosis/Alzam is helping well, she is using 0,25mg per day. Alzam
explained that ‘anxiety neurosis’ is a mental disorder
and that although he was not a psychologist; he could make a
provisional diagnosis of anxiety and would then refer the patient to
a psychiatrist or a psychologist for advice on the treatment. He,
however, did not adopt this procedure in respect of plaintiff,
because plaintiff did not present symptoms of ‘anxiety
neurosis’, which incidentally is called anxiety disorder in
modern terminology. He lamented the use of ‘anxiety neurosis’
in his notes not because it was an old fashioned expression but
because, in his view, plaintiff did not have such a condition. At no
stage was plaintiff booked off work because of any mental disorders.
was asked in cross-examination why he used the term ‘anxiety
neurosis’ in his notes when, according to him, plaintiff did
not present symptoms of anxiety disorder. He explained that the
phrase was simply meant for his own guidance and that, in effect, it
had no significance.
When asked whether
he was not concerned that other people who may read
through his notes may be misled by the use of the phrase, Dr
Nieuwoudt’s reaction was simply to state that he had no
May 1998, over five months after the last Alzam was prescribed, 30
tablets with a dosage of 0,25mg of Alzam were again prescribed for
plaintiff. On account of the lack of details in his notes in respect
of this prescription, Dr Nieuwoudt surmised that this prescription
may have been requested over the telephone.
On 24 June 1998, a
little over a month since the last prescription of Alzam, thirty
(30) tablets of 0,25mg of Alzam were again prescribed for plaintiff.
This time, so Dr Nieuwoudt testified, the prescription was requested
On 18 November
1998 again thirty
(30) tablets of 0,25mg Alzam were prescribed.
The last time Dr
prescribed Alzam was on 21 January 2000. The dosage was again 0,25mg
but no indications on the notes of the number of the tablets
According to Dr
he had done many confidential medical reports for insurance
companies and that from his experience doctors who compile these
reports do not tell the insurers in detail the drugs that they had
prescribed to their patients. On the contrary they use their
discretion and disclose only the information that they considered to
be relevant or useful to the company. In the case of plaintiff, Dr
Nieuwoudt had to inform the insurer that he had prescribed Alzam
because Alzam was written up in his notes over a period of time.
Given the low dosage and the intermittent prescription of Alzam he
did not, however, consider that plaintiff used Alzam on any
repetitive basis. He did not discuss with plaintiff any stress
management programmes nor did he feel the need to refer her for
indicated in cross-examination that he must have explained to
plaintiff the consequences of using Alzam and that he must have made
it known to her that Alzam was not merely a sleeping tablet. That
explains why on 24 February 1997 he had prescribed Dormicum which is
a sleeping tablet in addition to Alzam. Dr Nieuwoudt explained
further that Alzam was meant to treat the stress while the Dormicum
was meant to help plaintiff sleep at night. He conceded in
cross-examination that he must have told plaintiff that he was
treating her for stress for plaintiff had complained of stress. He
furthermore, again in cross-examination, accepted that for him to
have had prescribed Xanor in addition to what plaintiff told him
about stress, he must have observed symptoms of stress and must have
therefore made a diagnosis of stress. Dr Nieuwoudt made it clear in
re-examination that he definitely made a diagnosis of stress, having
excluded anxiety disorder and depression.
stressed in evidence-in-chief that during the period that he had
seen her, plaintiff did not display a history of depression or
anxiety. What she displayed, however, were occasional symptoms of
confirmed that he had completed the confidential medical report in
respect of plaintiff relating to the ‘Ultramed’ product
that he had ticked the ‘Yes’ column enquiring whether
plaintiff had suffered from anxiety state or depression, etc. for
the reason that he thought plaintiff presented stress-related
anxiety but added that he did not make any diagnosis of anxiety. He
contended that if plaintiff were to be asked a similar question and
were to answer in the negative and not having been advised that she
had anxiety, she would ‘probably’ not be wrong in her
answer. After he completed the confidential medical report he did
not receive any query from the insurer.
also confirmed that he had written a letter to defendant essentially
detailing the number of times that symptoms of stress were noted or
Alzam was prescribed. Apart from recalling that the letter was
requested in connection with depression, he could not recollect the
circumstances in which the letter was written. The contents of the
letter are important and played a central role in evidence. It
therefore becomes necessary to quote it in full. The body of the
letter reads as follows:
Miss G. Otto
She has been a patient of mine from
At that time she had Brucellosis.
On the 24/2/97 I
saw her with a left knee which was painful and she also mentioned
that she had a lot of stress which was work-related.
I treated her with Alzam.
On the 8/8/97, I
saw her again with stress-related
symptoms. She was clinically healthy and I treated her again with
Alzam 0,25mg bd (only 20) and Halcian 0,25mg (10).
On 4/12/97, I saw her again with
symptoms of anxiety neurosis and I prescribed Alzam 0,25mg bd (30)
because it had helped her.
On 11/5/98 she
again received a prescription for Alzam
0,25mg (30) and on the 24/6/98 she received Alzam 0,25mg (30) again.
On the 18/11/98
she received Alzam 0,25mg (30) and she was given Alzam (30) again on
A diagnosis of
depression was never made. She never used large quantity of Alzam and
not for long periods of time either.
The stress symptoms
she showed were as a result of business, financial and other reasons.
She does not have a depressive personality and always came across as
a positive person. It is possible that she sometimes, because of
circumstances, had mild reactive depression, but she never needed
anti-depressants according to my knowledge.
Dr GJN Nieuwoudt
BSc (Landbou) MB
explained that reference to work-related stress in the letter was
incorrect because, as already related, plaintiff never complained to
him about work-related stress. He went on to say that the
stress-related symptoms he observed on plaintiff included
palpitations and insomnia. The Alzam tablets that were prescribed
for plaintiff totalled some 200 tablets over a period of three
years. With regard to the last sentence in the letter above, Dr
Nieuwoudt stated that the opinion expressed therein regarding mild
reactive depression amounted to speculation on his part since he had
never seen plaintiff in a depressive state.
The next witness
to be called on behalf of plaintiff was an expert witness, Dr Estie
who is in private practice. Dr Maritz testified that she obtained an
MB ChB degree in 1989. She obtained a further diploma in aerospace
medicine. She had 15 years experience as a medical doctor. In 1990
she was appointed as a psychiatric medical officer at the Mental
Institute of the Sterkfontein Hospital (misspelled as ‘Sterfontein’
in the record) South Africa, where she continued to work until 1993.
Since that year she had been acting as a medical consultant in the
transport industry - airlines and tour operators - in the country.
Her responsibilities as a consultant involved the medical
examination and evaluation of possible risk criteria that may cause
disability. The main risk factor she looks out for would be sudden
incapacitation. In relation to persons that work for tour companies,
she examines drivers mostly.
With regard to her
work in the psychiatric
institution in South Africa, Dr Maritz relayed that she was exposed
to working with cases of mental disorders as diagnosed by the DSM IV
(Diagnostic and Statistical Manual IV), which is a manual used to
diagnose psychiatric disorders. Although she was not a qualified
psychiatrist therefore, she was conversant with the practice of
psychiatry and the diagnoses of mental disorders. Additionally Dr
Maritz had been exposed to the study of pharmacology, having done a
course in pharmacology.
Dr Maritz knew
having examined her for the first time in 2000 on behalf of a tour
company that had employed plaintiff. During such medical
examination, plaintiff was found to have been medically fit to drive
buses. Things changed dramatically in April 2001 when plaintiff was
diagnosed with a severe degenerative disease of the lumbar spine.
Needless to say that plaintiff subsequently became disabled to do
her job as a tour guide/bus driver. Dr Maritz assisted plaintiff by
completing a confidential specialist medical report in respect of
plaintiff’s disability claim and helped her manage her pain by
the use of schedule 7 drugs. In spite of her experiencing this pain
and having lost her income as well having had her disability claim
repudiated, Dr Maritz testified that plaintiff did not require any
central nervous system drugs that are necessary for the support of
stress symptoms, psychiatric illness or other mental disorders. She
found plaintiff to function normally under these pressures.
According to Dr
Maritz, to diagnose someone
for an anxiety disorder one had to consider a whole series of
criteria as well as a scale of stressors, including psychosocial
stressors that are employed to determine the nature and level of
stress. Dr Maritz had talked to Dr Nieuwoudt about the treatment
regime extended to the plaintiff and had seen the latter doctor’s
clinical notes on the plaintiff. Having regard to those notes and
having observed plaintiff herself, Dr Maritz opined that plaintiff
did not suffer from chronic stress that required to be managed by
the use of drugs.
Dr Maritz also
testified about the use of Alzam by plaintiff. She
stated that Alzam or Xanor belongs to a class of drugs that were
widely used for sleep induction. The dosage and the frequency of the
prescription of Xanor as recorded in Dr Nieuwoudt’s notes were
not indicative of stress management. Xanor comes in a variety of
dosages, but 0,25mg is the weakest dosage on the market and if Xanor
were to have had any therapeutic benefit on the treatment of
symptoms of anxiety, it had to be used much more frequently than it
had been prescribed to plaintiff. The dosage and frequency can also
not amount to anxiolytic therapy.
Dr Maritz revealed
that plaintiff had admitted to her sometime after the disability
claim had been declined that she had given some of the Xanor
prescribed to her to her brother, a practice that was allegedly
common among lay persons.
Talking about the
letter she had received from the defendant after she sought to
persuade the defendant to reconsider the claim, Dr Maritz indicated
that reference in the letter to her allegedly having indicated that
plaintiff had a
short period of reactive depression was quoted out of context. She
stated that she did not tell the author that plaintiff had suffered
from reactive depression. All she mentioned to the author of the
letter was that most people would suffer, in their lifetime, a short
spell of reactive depression and that such short period of reactive
depression could not therefore be said to amount to a depressive
disorder or anxiety disorder for that matter. In any event, so Dr
Maritz concluded this aspect of her evidence, plaintiff had never
been diagnosed with depressive disorder or anxiety.
Dr Maritz agreed
in cross-examination that Dr Nieuwoudt
clearly conveyed the message in some of the passages in his letter
of 2 October 2001 that he had treated plaintiff for stress, but that
the level of such stress had not progressed to a disorder as
understood in psychiatry. Insolvency or financial loss was one of
the stressors that may trigger stress and scores five (5) on the
scale used to determine stressors. She also commented on the
treatment of plaintiff with Alzam and stated that the use of Alzam
was appropriate for the management of the type of stress identified
by Dr Nieuwoudt.
disclosed in cross-examination that she did not give all the
information at her disposal regarding her treatment of plaintiff for
pain management. She was concerned that further details of the
treatment regime would be used against plaintiff by defendant.
She had also declined to cooperate with defendant’s expert
witness as she had felt that the expert clinically examined
plaintiff in the country without first having obtained the requisite
local registration as a medical practitioner.
concluded her evidence under
cross-examination with an unsolicited broadside aimed at defendant
over what she perceived to have been an unfair characterisation of
plaintiff by defendant during the trial. Her evidence concluded the
case for plaintiff.
Evidence on behalf of the defendant
commenced its case by calling its expert witness Dr Pieter Coetzer.
Dr Coetzer has long and impressive curriculum vitae, which I will
endeavour to summarise as practicable as possible. Having obtained
his basic MB ChB degree from the University of Pretoria in 1977, Dr
Coetzer served his houseman ship at a provincial hospital in South
Africa for a year prior to taking up a position at the hospital as
medical officer. In 1991 he obtained a BSc post-graduate degree in
sports medicine from the University of Cape Town. Dr Coetzer is a
Fellow of the American Academy of Disability Evaluating Physicians
(AADEP) and is Board Certified as an Independent Medical Examiner by
the American Board of Independent Medical Examiners (ABIME). At the
time of his testimony, Dr Coetzer was the Chief Medical Advisor to
Sanlam Life Insurance Company that he says is the second biggest
insurer in South Africa but that other than both being insurance
companies, it had no relationship with the defendant. He had fifteen
years experience in insurance medicine and his functions in Sanlam
included the underwriting and claims assessment. As far as
underwriting was concerned, he was a member of the insurance
industry-wide Medical and Underwriting Committee of the Life
Offices’ Association (LOA); Chairman (sic)
of the Independent Claims Assessment Panel; Fellow of the South
African Institute of Life Underwriters; Member International
Committee for Life, Disability and Health Insurance Medicine
(ICLAM). Dr Coetzer had practised sports medicine and has published
many learned articles and had co-authored policy documents on behalf
of the insurance industry. He had acted as a resource person at
workshops and seminars such as disability assessment workshops on
psychiatric ground; post-traumatic stress disorder seminar;
workshops on the assessment of disability due to low-back pain and
made presentations to various re-insurers.
Dr Coetzer’s evidence and
opinions may be summarised as follows:
He was approached
by defendant and given relevant documentation in
respect of plaintiff’s claim. He was then asked to give
defendant an opinion on two matters. Firstly, the effect of
non-disclosure of certain medical detail at the time of the
application and secondly the merits of the disability claim.
Dr Coetzer related
an insurer to adequately assess the risk when considering an
application for insurance, it must be in possession of all relevant
medical facts relating to the risk to be covered.
It is for that
reason that questions are included in application forms for
insurance. Such questions are designed to assist applicants to
provide relevant information. Applicants,
as a general proposition, are not at liberty to make value judgments
of what medical facts are relevant and what not.
In comparing the
answers given by plaintiff to questions 13.06(f), 13.07 and 13.09 in
her application form as well as the answers in questions 2.2(g)
and 2.4(b) of the confidential medical report with the letter by Dr
Nieuwoudt dated 2 October 2001 (Dr Nieuwoudt’s letter) it
appeared that such questions were not answered truthfully, because
Dr Nieuwoudt in his letter stated that plaintiff had been treated
for stress-related symptoms due to business, financial or other
reasons on the dates detailed in his report and on which dates Alzam
- a schedule 5 drug and anxiolytic - was prescribed.
Even if plaintiff
was not aware that her condition was an anxiety state or nervous
complaint, she should still have mentioned in her application, which
was only three months after the last consultation for stress on 18
1998, that she had consulted a doctor (question 13.07 and 2.4(b))
and that she was prescribed medications (question 13.09). Had these
questions been answered in the affirmative, defendant would then
have requested a report from Dr Nieuwoudt regarding the
consultations and medications prescribed. Dr Nieuwoudt’s
letter would have resulted in defendant or any other reasonable
insurer declining disability benefits.
It is not the
dosage or frequency of the drug prescribed that is important but the
pattern over a period in question and the cause of stress that would
make the risk unacceptable.
shown that work-related stress over a long period of time could
transform into chronic anxiety and/or depressive episodes.
Socio-economic factors could cause progression of the condition.
Repeated prescriptions for a schedule
5 drug is indicative of stress too severe to manage through leave
from work, stress management programmes or psychotherapy.
most, if not all, insurers in South Africa and Namibia was to
decline disability benefits where there was a history of
work-related stress that (a) occurs repeatedly and was severe enough
to warrant a doctor’s consultation or (b) where it was treated
with a schedule 5 drug within the two year period prior to
application. Anxiety disorders were advanced stages of stress.
Stress is a precursor to one of the anxiety disorders. Most if not
all people suffer from stress. However, a person who suffers from
stress and goes to see a doctor on more than one occasion and is
given a schedule 5 drug meant that such person could not cope with
stress and that is a substantial risk to an insurer.
explained that although principles in medicine were universal,
insurance medicine differed from clinical medicine in the sense that
insurance medicine was all about risk rating. The insurer must
consider the applicant’s health condition almost as snapshot
on the day of the application. Based on the information provided in
the application form and the accompanying documentation, the insurer
must decide on the applicant’s mortality and mobility for the
next 30 or 40 years. In contradistinction with clinical medicine,
the clinical doctor has more time at his or her disposal to observe
the patient’s health condition and to take remedial action if
and when required. The insurer could not.
were three categories of medical conditions that an insurer was
cautious of insuring disability for. One of such categories is a
pain-related condition where the severity of the disability is based
upon the self-report of the patient. Pain cannot be rated in terms
of medical number. It is not possible to predict how long a
subjective condition like pain will take before it can lead to claim
and therefore it is not possible to put a premium loading on such a
concluded his evidence on disability by stating that the
disability benefits that plaintiff claimed would have been declined
by defendant had plaintiff made full disclosure.
that the non-disclosure was material to the assessment of the risk.
With regard to the
examination of plaintiff, Dr Coetzer explained that on 21 August
2003 and prior to the commencement of the trial he had consulted
with plaintiff for an hour and ten minutes in Windhoek. Plaintiff
arrived at the consulting rooms alone on two crutches. She informed
Dr Coetzer that she had driven her own car to the rooms. Her
complaints were: chronic pain and limitation of the movement of the
left hip; chronic lower back pain and restriction of movement and
slight pain in the right replaced hip.
She indicated that
she was taking Voltaren 50mg tablets 3 times a day, every day;
Cortisone tablets one 3 times a day every day, name and dosage of
which she did not know; Voltaren injections 2-3 times per week and
various other painkillers, including Disprin, when necessary.
She indicated that she took only one Voltaren tablet in the morning
before she went for the examination.
Dr Coetzer made during the course of the examination were that
plaintiff did not put any weight on her left leg and that she
managed to undress fairly easily. Although she could put on her
socks and shoes herself with some discomfort, she could not tie her
explained that the
purpose of the clinical examination was to evaluate the whole person
impairment of the plaintiff according to the American Medical
Association’s Guide to the Evaluation of Permanent Impairment,
edition (AMA Guides) with specific focus on impairment of the
According to Dr
Coetzer, in assessing a disability claim one must first determine
what the diagnosis was in order to verify whether the diagnosis was
made correctly following international criteria. Secondly, given
that most disability benefits were paid only where there had been
permanent disability, one must determine whether adequate treatment
had occurred. The next step would be to write the impairment.
Impairment means the loss of function. The AMA Guides are the
international benchmark for writing impairment in terms of medical
impairment and the organ or system in the body said to have been
impaired is then correlated to the job description of the claimant.
If the impairment precludes the claimant from performing his or her
work a disability claim would be admitted. If not, of course it
would be declined. In assessing disability one has to, as a
last step, take into account the contractual requirements of the
policy, whether it defines own occupation only or whether it refers
to own or reasonable alternative or own or similar occupation.
Dr Coetzer agreed that plaintiff had permanent impairment due to the
osteo-arthritis left hip, awaiting hip replacement.
degeneration and disc space narrowing of levels L3-4 and L4-5,
without neurological sequelae.
as plaintiff’s claim rested on her complaint of pain which was
not objectively quantifiable, it was essential to establish her
sincerity and credibility. According to his assessment, plaintiff’s
version could not be accepted at face value for the following
had four out of five Waddel signs positive.
ROM assessment of lumbosacral spine movement was invalidated by the
SLR validity test, as the SLR exceeded the best true lumbar flexion
by more that 15°.
X-rays of the left hip obtained after the examination did not fit the
clinical picture presented during the examination, and hardly
warranted urgent hip replacement.
(d) The pain
questionnaire provided indicated that all activities made the pain
worse. One would expect that certain activities would have no effect
on back pain or even improve it, e.g. lying down, sleeping, etc.
(e) The utilisation
of analgesics does not match the severity (80 out of 100) nor the
frequency (90% of the time) of the pain as described by plaintiff.
She used only anti-inflammatory and cortisone on an intermittent
basis. Many analgesics that could control pain and improve quality of
life were available.
The facts mentioned in (a) to (e)
above point to symptom exaggeration or psychosomatic overlay.
disabled as far as her previous occupation as a tour guide/bus
driver was concerned , but she would be able to work in an
occupation that was mainly sedentary in nature allowing for
voluntary periodic standing and walking.
employment it may be an option to work in a travel agency or to
provided the remuneration was not significantly less than her
conceded in cross-examination that although he had
expressed the opinion contained in the paragraph 
he did not profess to have expertise in the workings of the tourism
industry in the country and that he expressed the opinion on the
basis that he had the expertise to determine the function
capabilities that plaintiff had and could apply to the job
requirements of a category of certain occupations. He agreed though
that he had no expertise to deal with the issues of plaintiff’s
skill level or skill transfer.
Dr Coetzer was
also asked in cross-examination to comment on why an insurer would
an exclusion clause in one policy and not in another. He explained
that the risk in the two products would not be the same. In a
disability policy, for example, people would be inclined to claim
disability for psychiatric reasons, because they personally benefit
from the lump sum payable should they succeed. In the case of a
hospital or medical policy on the other hand, any monies paid out
goes towards hospital expenses and so the patient gains nothing.
There would be therefore no motivation for people to want to abuse
the system and only genuine cases would claim.
According to Dr
Coetzer, the use of a schedule 5 drug for psychological conditions
over a period of more than a
year would result in the declining of disability insurance. An
exception would be an acute stress disorder which is attributable to
an identifiable external force. In practice the doctor would
volunteer information if Alzam was used for an acute stress disorder
thereby obviating the need to seek more information.
report was based on the assumption that plaintiff had taken all the
Alzam drugs prescribed to her by Dr Nieuwoudt.
On the basis that that information was incorrect since plaintiff
testified, as already noted, that she only took the tablets
prescribed to her on the first occasion and that she gave the rest
to her brother, Dr Coetzer’s reaction was that the insurer
would be concerned about the integrity and honesty of the claimant
since she had proved that she was capable of deceiving her doctor.
The insurer would, in assessing the risk, take into account the
moral character of the applicant.
His opinion on
was based on the assumption that plaintiff suffered from
work-related stress, because that was what was stated in Dr
Nieuwoudt’s letter. On the assumption that stress was not
work-related, Dr Coetzer’s reaction was that, the cause of
stress was irrelevant. The fact that a person had sought medical
attention meant that such person was a substantial risk in
comparison to a person who could cope with stress without medical
intervention. All stress reactions would lead to the declining of
On the questions
in the health questionnaire, Dr Coetzer conceded that if plaintiff
was not advised by her doctor that she had anxiety or one of the
conditions listed in question 13.06 (f) then she was entitled to
answer in the negative and that questions 13.06 (f) and 2.2 (g) were
therefore answered correctly.
Stress in itself may not be a problem
for clinical medicine but it is for medical insurance. It is
perceived as a precursor to the anxiety syndromes.
The next witness
called on behalf of defendant was
Ms Gerda Ochse (misspelled in the record as ‘Uschu’),
Executive: Risk and Operations of defendant. She was in charge of
the administration of policies, risk management as well as claims
underwriting. She had been in the insurance industry since 1995.
Prior to working for defendant, she was employed by Sanlam where she
rose to the position of the company’s Chief Underwriter and
Manager of New Business Department. She was appointed by defendant
in 2000 and became Manager: Underwriting and Claims. Her
appointment meant that defendant’s underwriting and claims
assessment business that was hitherto done in South Africa was done
locally. She also served as a Board member of the committee for
underwriting and claims of the Life Association of Namibia.
At the request of
counsel for plaintiff Ms Ochse
managed to get a policy that was subsequently cancelled by
plaintiff. In the policy plaintiff’s monthly income was
indicated to have been R8000.00 (sic).
In that policy document, plaintiff answered in the affirmative to
question 13.07 asking whether she had seen a doctor in the last five
years, giving details that she had seen the doctor for insurance HIV
test. She had answered in the negative to question 13.09 enquiring
whether she had taken drugs, tranquillisers or medicine. The company
had issued the policy.
As regards the
repudiation of plaintiff’s disability policy,
Ms Ochse explained that the claim was declined and the policy
repudiated on the ground that material information was not disclosed
at the application stage. In terms of defendant’s underwriting
practice, no disability benefits should have been accorded to
plaintiff had the information been disclosed at the time of the
Underwriting Guidelines, if there were symptoms of any type of
stress or anxiety within the period of three years before
application, insurance will be declined. If the period was more than
three years, then there would be a 100% loading of premium. If there
was an indication of stress coupled with the use of anxiolytic
within the period of three years before application then no
disability insurance would be granted. Had defendant been aware of
the medical treatment given to plaintiff by Dr Nieuwoudt at the time
of the application, the application for disability benefits would
have been declined.
confirmed that plaintiff had taken out the medical policy with
defendant subsequent to the issuing of the policy for disability and
explained that the application for the medical policy was not
declined even though Dr Nieuwoudt had indicated in the confidential
medical report that plaintiff had been treated for stress-related
anxiety, because claims for mental illnesses and emotional disorders
were specifically excluded in the medical policy.
Ms Ochse confirmed
in cross-examination that she personally dealt with the application
for the medical insurance but that at the time she did not know that
plaintiff had a disability policy.
On the question
why defendant did not use the information regarding stress-related
treatment disclosed by Dr Nieuwoudt to determine whether such
information was disclosed in the application for the disability
policy, Ms Ochse explained that the two policies were on computer
systems that were not linked. Moreover, in the absence of an
indication in the medical policy that plaintiff had another policy
with defendant, no attempt was made to search for the old policy. In
any event, in effect it was trusted that plaintiff disclosed all
was asked during cross-examination to comment on the fact that it
appeared that prior to the receipt of Dr Nieuwoudt’s letter
defendant was in possession of information on the basis of which it
decided to repudiate the claim. Ms Ochse in the end indicated that
she did not know where such information could have originated. She
indicated that the information could not have come from the
documents in respect of the medical insurance policy, because the
documents in respect thereof were kept in Windhoek and the form
wherein a recommendation to repudiate was made was written by a
person or persons based in Johannesburg.
also agreed with the testimony of Dr Coetzer that as long as it had
been disclosed that an applicant for disability insurance had been
prescribed Alzam, irrespective of the reason therefor or the dosage,
disability insurance would be declined. The insurer worked on the
assumption that someone who takes Alzam or any other schedule 5
anxiolytic would have some form of stress or some condition that may
progress. In that event the tendency was to decline the application.
The applicant may however provide evidence rebutting the presumption
for further consideration by the insurer.
The third witness
for the defendant was Mr Ricardo Patrick Jankowski. Mr Jankowski was
a computer trainer employed
by an employment agency called Jobs Unlimited. His short evidence
was essentially to the effect that he ran a three day computer
course that he stated was at intermediate level. The course
introduced trainees to basic concepts on how to use a computer. At
the end of the course trainees were expected not only to have the
basic skills but also to apply those skills to working environments
by way of doing general office work such as typing documents and
working on a personal computer. The course cost N$450.00 at the time
of the witness’s testimony.
Mr Jankowski also
testified about a tailor-made computer course that he ran for
employees of Namibia Wildlife Resorts
who did reservations. He added though that the course had been
The next witness
to be called on behalf of defendant was Ms Marlene
Erasmus. It will be recalled that Ms Erasmus was the Bank Windhoek
broker who was said to have completed the application form for
disability insurance on behalf of plaintiff. Ms Erasmus confirmed
that she had indeed completed the form in Afrikaans. She did not
know plaintiff before and so did not know her personal history. Her
evidence on this aspect was contrary to that of plaintiff who stated
that she knew Ms Erasmus well, but this aspect of plaintiff’s
evidence was not canvassed with Ms Erasmus. Her evidence in this
regard therefore remains undisputed. All the information relating to
plaintiff was obtained from plaintiff. She read out the questions on
the form and plaintiff gave her the answers which she ticked. At no
stage during the completion of the report did plaintiff indicate
that she did not understand Afrikaans.
Plaintiff gave the
name of her doctor as Dr Burger
and Ms Erasmus vehemently denied that she had agreed with plaintiff
to put Dr Burger’s name on the form with full knowledge that
plaintiff’s family doctor was Dr Nieuwoudt. Ms Erasmus was
adamant that she ticked the ‘No’ box after plaintiff
indicated that she did not see a doctor in the last five years.
When it came to
the declaration on the form, Ms Erasmus said she had given the
declaration to plaintiff and told plaintiff to read the declaration
carefully since it formed the basis of the contract and that she
should sign if she had
agreed with its contents. Ms Erasmus entered her name and address as
well as the plaintiff’s particulars on the space reserved for
that purpose on the report and thereafter sent the confidential
medical report to the doctor for completion. Since it was
confidential, the doctor was required to send the report directly to
The evidence of Mr
Frederick Albertus Botha concluded the evidence on behalf of the
defendant. Mr Botha was a tax partner at Price Waterhouse and
Coopers whose evidence concerned the interpretation of plaintiff’s
tax returns for the years 1997 and 1998. The thrust of Mr Botha’s
evidence appears to be that no income was declared and no expenses
were claimed in the returns during the periods under review.
The issues that
from the pleadings and call for decision are:
defendant discharged its onus to prove on a balance of probabilities
that plaintiff failed to disclose that she suffered from depression
and anxiety and had a history of these conditions and
(b) Whether defendant discharged its
onus to prove that plaintiff failed to disclose that had she received
anxiolytic therapy on a number of occasions prior to her application
for disability insurance.
An insured has
duty to disclose when applying for insurance. Such applicant must
answer questions put to him or her on a proposal from truthfully or
accurately. He or she is obliged to volunteer
knowledge material to the risk whether or not asked to do so.
As was stated in
a South African case of Munns
and Another v Santam Ltd
principle in our law is that it is the duty of a proposer for
insurance to disclose any fact,
exclusively within his knowledge, which it is material for the
insurer to know. The information material for the insurer to know is
information that may influence his opinion as to risk that he is
incurring and consequently as to whether he will take it, or what
premium he will charge if he does take it. The test of materiality is
that of the reasonable man, whatever the insured's own assessment of
the fact in question is, that is if a reasonable man would recognise
that it is material to disclose the fact in question, disclosure is
required. (Reference to authorities omitted)
The insured must,
therefore, disclose to the insurer, before the contract is concluded
every material circumstance which he knows.
A fact is material
for the purposes of non-disclosure if it is one which would
influence the opinion of a reasonable or prudent insurer in deciding
whether or not to accept the risk or what premium to stipulate;
and/or whether to impose particular terms.
The Full Bench of
this Court in Wilke
NO v Swabou Life (supra)
established that in determining whether undisclosed facts were
material or not, the Court's function is to decide the issue
objectively from the standpoint of a reasonable and prudent person.
The objective test has therefore been adopted by this Court.
It will be
recalled that defendant alleged plaintiff should have disclosed that
she had suffered from depression and anxiety states and that she had
had a history in this regard. Disclosure of information with regard
to depression or anxiety was required in terms of clause 13.06(f) of
the proposal form.
itself in an untenable
position during the trial as far as the allegation of non-disclosure
of alleged anxiety was concerned. Having based its plea and
undoubtedly the conclusions as well as opinions of its expert
witness on the information supplied by Dr Nieuwoudt in his letter of
2 October 2001 in this regard, Dr Nieuwoudt in evidence essentially
backtracked on the information supplied and then, contrary to the
message he appeared to have conveyed in the letter, claimed that
reference in the letter to anxiety did not have any significant
meaning, as he had used that term for his own records only.
Significantly and perhaps fatally for defendant on this issue, Dr
Nieuwoudt then maintained that he had in fact not diagnosed
plaintiff as having, nor did he advise her of, symptoms of anxiety
or depression. As if to add insult to injury, defendant came to
learn for the first time in Court from plaintiff that plaintiff did
not take all the Alzam tablets prescribed to her by Nieuwoudt.
Faced with this,
rather extraordinary change of heart, on the part of Dr Nieuwoudt,
Dr. Coetzer conceded, as already relayed, that in the light of the
evidence that plaintiff was not advised that she had suffered from
these conditions, the answer in the negative was justified. Counsel
for defendant also conceded that much. The issue of depression or
anxiety as canvassed in clause 13.06(f) of the proposal form and
clause 2.2(g) of the confidential medical report therefore falls
evidence, defendant changed tact to counter the new evidence
relating to the use of Alzam. As observed when presenting the
summary of Dr Coetzer’s evidence, emphasis changed from
anxiety and depression to stress in view of Dr Nieuwoudt’s
concession in cross-examination that he must have had diagnosed
stress for him to have had prescribed Alzam. The difficulty with
this change of tact on the part of defendant was that the new
direction does not accord with the pleadings as set out above. The
issues are defined by pleadings.
Nowhere in the
pleadings is stress pleaded as a basis
for the repudiation of the agreement.
The clause to be
considered next is clause 13.07 which asked the same question as
asked in clause 2.4(b) of the confidential medical report.
Plaintiff answered that she did not consult a doctor, which as
plaintiff in evidence conceded, was an incorrect answer, because she
had evidently consulted a doctor during the period. Plaintiff
appears to blame Ms. Erasmus who completed the form on her behalf.
Ms. Erasmus insisted that she had ticked the answers that she was
given by plaintiff and I have no reason to doubt her evidence. She
does not appear to me to have had a motive to tick an answer
different from that given by plaintiff. Apart from an innuendo, if I
understand it correctly, to the effect that being a broker she had a
particular interest in the successful outcome of the application for
insurance and would therefore not have an interest in ensuring that
correct answers were given, no serious criticism was directed
against her evidence. It was not suggested, nor was there a basis
for a suggestion that Ms Erasmus, for example, intentionally ticked
the wrong answer in order to implicate plaintiff or to ensure that
the application succeeded.
For the purposes
of non-disclosure it is immaterial who completed the proposal form
and the confidential medical report. In Alpine
Caterers Namibia (Pty) Ltd v Owen and Others,
quoting Innes CJ in Burger
v Central South African Railways
1903 TS 571, Frank J (as he then was) stated:
"It is a sound
principle of law that a man, when he signs a contract, is taken to be
bound by the ordinary meaning and effect of the words which appear
over his signature."
The learned Judge
noted that Innes CJ's approach was confirmed in George
v Fairmead (Pty) Ltd
where Fagan CJ observed:
"When a man is asked to put his
signature to a document he cannot fail to realise that he is called
upon to signify, by doing so, his assent to whatever words appear
above his signature."
"he" and/or "his" in the quotations in our
context and in this day and age must surely be understood to include
"woman", "she" or "hers" respectively.
It is therefore of
no assistance to plaintiff to say that she did not complete the
forms personally. She signed both documents and warranted their
It is indeed so
that in the
confidential medical report compiled in connection with the
application for disability plaintiff disclosed that she had
consulted doctors and gave their names and a list of ailments and
investigations in respect of which she had consulted the doctors
for. At the time of the consideration of her proposal for disability
policy, therefore, defendant must have been aware that she had
consulted certain doctors during the relevant period and this
consideration may be crucial when evaluating the materiality of the
I am persuaded
that defendant has discharged the onus of proving that plaintiff
should have disclosed that she had seen a doctor.
The next disputed question is to be
found in clause 13.09. It will be recalled that plaintiff answered
in the negative to the question enquiring whether she was, at the
time of the application taking or had ever taken drugs,
tranquilisers or other medicines.
explanation for what was clearly an incorrect answer amounted to
this that she did not take drugs or tranquilisers; that she was not
clear about the use of the word ‘drug’; that she did not
consider tranquillisers to be drugs and that as rule Dr Nieuwoudt
did not discuss with her what medicine he was going to prescribe.
She regarded the Alzam she was given by Dr Nieuwoudt as a sleeping
pill and not as a tranquiliser. As I understand Dr. Nieuwoudt’s
evidence in this regard, Dr Nieuwoudt did not specifically say that
he had actually explained to plaintiff that the Alzam she was
prescribing was a tranquilliser. On the contrary, he believed that
he must have explained to her that Alzam was not a mere sleeping
pill. It would seem therefore that rather than stating a fact, Dr
Nieuwoudt actually drew an inference. He may well have drawn the
inference from the objective fact that on one occasion he prescribed
both Alzam and a proper sleeping tablet, the combination of which
was supposed to treat different complains. The view I take of the
matter is that whether or not Dr Nieuwoudt explained to plaintiff
that Alzam was a tranquilliser or not, plaintiff should have
disclosed to the insurer that she had taken medicine. The question
was not whether she had taken Alzam but whether she had taken drugs,
tranquillisers or ‘other medicine’. It is evident that
in addition to Alzam, she had taken other medicine.
According to Dr.
Coetzer "ever" in question 13.09 meant 5 years, but Mr.
Coleman, counsel for the plaintiff, makes a valid point that nowhere
in the application form is the insured informed of this. The point
does not, however, detract from the fact that plaintiff should have
given a positive answer to the question.
On the question
why plaintiff answered in the negative to the question whether or
not she had taken medicine, Dr. Nieuwoudt testified that plaintiff
might have forgotten or that she did not think that Alzam was
mentionable like headache tablets.
did not testify to this and Dr Nieuwoudt’s
testimony on this aspect at best amounts to speculation.
In any event the
net encompassing disclosure of material facts is cast rather wide
and the omission to disclose a material fact cannot be excused on
the basis of forgetfulness or mistake. In this regard, it was
stated in Beyers
well-established law that it is immaterial whether the omission to
communicate a material fact arises from intention or indifference or
a mistake, or from it not being present to the mind of the assured
that the fact was one which it was material to make known …
His duty is carefully and diligently to review all the facts known to
himself bearing on the risk proposed to the insurers, and to state
every circumstance which any reasonable man might suppose could in
any way influence the insurers in considering and deciding whether
they will enter into the contract.
Gordon & Getz
on pages 123-124 make a similar point:
A proposer who
makes a reckless statement cannot be said to believe in its truth.
If he ‘does not attempt to tax his memory, or really try to
think about the matter, and apply his mind to it; if he was casual
and negligent in the answers he gave’, then he does not fulfil
his obligations to disclose everything material to the insurer.
The next enquiry
is whether defendant discharged the duty of proving that plaintiff
received anxiolytic therapy as alleged in the amended plea. It was
common cause that Alzam or Xanor
was an anxiolytic.
testified in evidence-in-chief that he prescribed Alzam on a low
dosage and intermittently and when requested by plaintiff. He did
not diagnose plaintiff with any disorder so as to place her on
therapy. In cross-examination, however, he conceded that he must
have diagnosed stress; otherwise he would not have prescribed Alzam.
observed, plaintiff stated that she
only took the Alzam tablets from the batch that was prescribed to
her on the first occasion. The rest she gave to her brother.
However difficult it may be to believe given the sheer number of
tablets that was allegedly given to plaintiff’s brother in
contrast to those she says she took, there is no evidence gainsaying
plaintiff's evidence in this regard and given the evidence of both
Doctors Maritz and Nieuwoudt that lay people often share prescribed
medicine contrary to medical advice, plaintiff’s evidence has
to be accepted.
evidence was to the effect that the dosage and frequency of the
prescription of Alzam had no therapeutic value and that the way the
drug was prescribed was consistent with "other”
uses of the drug.
The Concise Oxford
edition, defines "therapy" as "treatment intended to
relieve or heal a disorder; the treatment of mental or psychological
disorders by psychological means".
in the context of medicine is defined in the same dictionary as "a
disruption of normal physical and or mental functions". Given
that it has been conceded on behalf of plaintiff that plaintiff had
not been diagnosed of symptoms of a mental disorder as understood in
psychiatry, it seems to me that it has not been proven on a balance
of probabilities that the Alzam plaintiff received was part of a
therapy according to the grammatical meaning of that word.
remains to consider the alternative to paragraph 3.2.2 of
defendant’s amended plea. To recapitulate, in the alternative
to paragraph 3.2.2 defendant averred that plaintiff had obtained
prescribed medicine from Dr Nieuwoudt in effect by false pretences
and that she should have informed defendant of this.
It is undoubtedly
so that on her own evidence, plaintiff obtained Alzam from Dr
Nieuwoudt in circumstances that could properly be described as
false. She pretended to the doctor that she needed Alzam when she
instead and having obtained the prescription she passed on the
tablets to her brother. If Dr Nieuwoudt’s entry in his
clinical notes is anything to go by, it seems that on 4 December
1997, plaintiff must have represented to Dr Nieuwoudt that Alzam was
helping well while knowing that the last time she had taken the
tablets was about nine months previously. Defendant’s
alternative averment is therefore borne out by evidence. The issue
of the of failure to disclose, as it were, her questionable conduct
is germane to what has been referred to in the law of insurance as
the "moral hazard", an issue I shall advert to in due
course since this issue is in turn relevant to the consideration of
the materiality of the undisclosed fact. I would first turn to
consider the issue of warranty in view of the finding that plaintiff
should have disclosed that she had received medicines and in view of
the finding regarding plaintiff’s moral integrity.
that the agreement between the parties was
subject to section 54(1) of the Long-term Insurance Act, 1998 (Act
No.5 of 1998) (the Act). Section 54(1) of the Act is a successor to
Section 63(3) of the Insurance Act, No.27 of 1943, which latter
section was considered by this Court in the Wilke
Section 54 (1) of the Act virtually mimics section 63(3) of Act 27,
1943 and the new section reads as follows:
anything to the contrary contained in any domestic policy or any
document relating to such policy, any such policy issued before or
after the commencement of this Act shall not be invalidated, and the
obligation of a registered insurer or reinsurer thereunder shall not
be excluded or limited, and the obligations of the owner thereof
shall not be increased, on account of any representation made to the
registered insurer or reinsurer which is not true, whether or not
such representation has been warranted to be true, unless the
incorrectness of such representation is of such a nature as to be
likely to have materially affected the assessment of the risk under
such policy at the time of its issue or of any reinstatement or
The object of the
enactment was set out in Qilingele
v South African Mutual Life Assurance (supra)
object of the enactment is manifest, namely to protect claimants
under insurance contracts against repudiations based on
inconsequential inaccuracies or trivial misstatements in insurance
proposals. An insurer's right to repudiate liability on the basis of
the untruth of a representation made to it, whether elevated to a
warranty or not, was curtailed. This was done by, first, providing
generally that liability could not be avoided on account of any
misrepresentation, warranted or not, and then adding a qualification.
By structuring the provision in that way the draftsman ensured that
to prove the requisite elements of the qualification – and
hence of the right to avoid liability – would rest on the
this court held in Wilke
that the test for determining whether the incorrectness of
representation materially affected the assessment of the risk is
objective. Insofar as Mr Frank, counsel for defendant, relied on the
decision for the proposition that,
the field of warranties the test is not that of a reasonable man, but
whether the particular insurer regarded the information material,"
I must point
out that I am bound by the Wilke
being a decision of the full Court.
In an attempt to
discharge the onus to prove that the undisclosed facts
materially affected the risk, defendant led the evidence of its
expert witness, Dr Coetzer as well as its underwriter, Ms Ochse. It
will be recalled that Dr Coetzer’s evidence on the aspect on
failure to disclose that plaintiff had received medicine and had
consulted a doctor during the period referred to in the proposal
form was that had these facts been disclose, defendant would have
asked for a report from Dr Nieuwoudt regarding the consultations and
the medicines prescribed. If Dr Nieuwoudt had written a letter
similar to his letter of 2 October 2001, defendant or any other
reasonable insurer would have declined to grant disability benefits.
Dr Coetzer also added that it was not the dosage or frequency of the
drug that the insurer was concerned about. What was of concern was
the repetitive pattern of the drug used and the cause for the
condition being treated. Socio-economic factors can cause the
progression of work-related stress.
It will also be
that Ms Ochse also agreed with the view expressed by Dr Coetzer to
the effect that so long as it had been disclosed that an applicant
for disability insurance had been prescribed Alzam, disability
insurance would be declined irrespective of the reason for the
prescription or the dosage.
It cannot be
emphasised too strongly that the above evidence must be evaluated
objectively from the stand point of a reasonable man and
prudent person and not from the stand point of a reasonable insurer.
Mr Coleman argued and I agree with him that a reasonable person
would not regard it to be reasonable to simply decline the
application on the mere mention of Alzam without enquiring the
reason for use and the dosage. This would be particularly so because
as it has been demonstrated in this case, apart from being an
anxiolytic, Alzam also had other uses as testified about by Dr
Maritz who testified that it could also be used as sleep induction
and as mentioned in the Internet extract handed up by Mr Coleman and
to which no objection was raised showed. To summarily decline the
proposal without first making enquiries so as to satisfy one of the
circumstances that led to the taking of the drug would, in my view,
not satisfy the test of a reasonable or prudent person.
defendant had received information contained in the confidential
medical report in respect of the medical policy to the effect that
plaintiff had seen a doctor and had been treated for work-related
stress, but this information was not used to assess the subsequent
proposal for disability cover. By neglecting to collate relevant
and intertwined information in order to assess the risk in the
proposal for disability insurance and/or to ensure that its computer
systems were linked so as to be able to facilitate the collation of
such information defendant acted to its own detriment.
Returning now to
materiality or otherwise of the failure to disclose that plaintiff
had seen a doctor, Mr Frank argued that even if plaintiff did not
take the medication prescribed to her by Dr. Nieuwoudt, she should
have disclosed the fact that she had obtained medicine from Dr
Nieuwoudt under false pretences as that would have had affected the
moral hazard of doing business with her. Mr Frank submitted further
that the doctor/patient relationship as well as the fact that
insurers rely on the information provided by doctors in the
assessment of risks were principles at stake in this case. If a
person could abuse the doctor/patient trust to feign a condition, so
Mr Frank asked, what will prevent the person from abusing that trust
to facilitate an insurance claim, especially in cases such as the
present where the nature of the complaint, namely lower back pain,
could not be objectively assessed? This is essentially a ‘moral
hazard’ argument and it is to this principle that I propose to
Tshabalala AJP stated as follows in relation to the so-called moral
is elementary that one of the matters to be considered by an
insurance company in entering into contractual relations with a
proposed assured is the question of the moral integrity of the
proposer – what has been called ‘the moral hazard’".
examples of moral hazard could be distilled from reported cases:
to disclose facts relating to financial and business integrity;
failure to disclose the quality of management;
previous financial difficulties;
that the premises covered by a fire insurance contract housed a
that a previous loss occurred as a result of carelessness by the
failure to disclose a previous conviction of robbery.
There is, however,
authority for the proposition that the "moral hazard"
principle is not as important to long-term insurance contracts such
as life insurance (and I would add, disability insurance) as is to
cases of short-term insurance. In AA
Eloff DJP stated the following in relation to the failure to
disclose previous insolvency in a proposal for life insurance and I
respectfully endorse the dictum:
reasonable man postulated by cases, would not, in my opinion,
consider the moral hazard as important in the context of an
application for life insurance, as would be the case with, e.g. fire
insurance. With life insurance the risk under consideration relates
to the state of health of the person concerned, and to factors which
may endanger his life. It is to my mind far-fetched to suggest as
counsel for the appellant did, that disclosure of the insolvency of
the deceased might have prompted the appellant to investigate the
circumstances of the moral sequestration to find out if they reveal
something adverse to the moral integrity of the deceased, or which
could bear on the risk or the possible loading of the premium."
I conclude then
that although I found that plaintiff should have disclosed that she
had taken medicine and that she had consulted a doctor, a reasonable
man in possession of the relevant facts would not conclude that the
undisclosed information was of such a nature as to likely to have
materially affected the assessment of the risk.
Defendant was accordingly not entitled to repudiate the agreement.
The issue of disability remains to be
According to the
minutes of the second
Rule 37 conference to be found in tab "A", page 103, of
the bundle of documents, the parties agreed in paragraph 1.2 as
bears the onus to prove her disability but the parties agree that
according to the experts of both sides she is disabled for her own
occupation as tour guide/bus driver. The only issue remaining in this
context is whether she is able to work in a similar occupation as
defined in the policy."
I could not find
the definition of “similar
occupation” in the policy. So I take it that it must have its
ordinary meaning, which according to the Concise Oxford Dictionary,
edition, page 1337, is defined as “of the same kind in
appearance, character or quantity, without being identical”.
In the context of the present matter, I would accept that a similar
occupation should be understood to mean an occupation of the same
kind in character as a tour guide to which plaintiff could
reasonably be expected to apply her knowledge, qualification and
experience, provided that the remuneration is not significantly less
than her previous earnings.
In an attempt to
prove the remaining issue,
as previously noted, plaintiff testified and called Ms Schlusche.
The evidence of both the plaintiff and Ms Schlusche has been
presented in the summary of evidence. At the pain of being
repetitive, it essentially amounted to this that given plaintiff’s
disability; the pain that she experiences; her lack of
administrative as well as computer skills; her outdoor outlook,
there was virtually no occupation similar to tour guide/bus driver
that she could do.
Defendant led the
evidence of Dr Coetzer who in the end and
fairly conceded that he did not possess the expertise to testify
about skills necessary for alternative occupation for plaintiff as
well as Mr Jankowski.
Apart form establishing that an
average person may be able to acquire computer skills in three days,
Mr Jankowski’s evidence did not contribute much to the
summary of expert opinion by one Dinette Venter who was supposed to
have testified on this aspect of the case but this person in the end
was not called and no explanation was given in this regard.
It will be
recollected that the evidence with regard to plaintiff‘s
that plaintiff earned between N$10000 and N$15000 a month depending
on whether she did what she referred to as a specialised tour or
not. Her estimate of the income was in essence corroborated by the
evidence of Ms Schlusche who appears to me to have had intimate
knowledge of the tourism industry in this country. Counsel for
defendant submitted that plaintiff’s income had not been
established. Counsel referred to tax returns for the relevant period
as well as to plaintiff’s bank statement, which did not
reflect income that plaintiff claimed to have earned. While I agree
that the tax returns and other instances detailed by Mr Frank
clearly cast a shadow on plaintiff’s credibility - which may
explain why an attempt appeared to have been made to withhold the
tax returns from the court by stating, inter
that plaintiff did not render tax returns during the relevant period
- I am nevertheless persuaded that Ms Schluche’s evidence puts
beyond doubt the level of income plaintiff commanded before
disability. Ms Schlusche appeared to me to be a fairly independent
witness who did not appear to have taken personal interest in the
predicament that plaintiff found herself in when compared, for
example, to Dr Maritz, who at some point appeared to have lost sight
of objectivity and in effect became a character witness for
plaintiff as exemplified by a rather dramatic statement she made
just shortly after counsel for defendant had finished
cross-examining her. I do not understand Mr Frank to level any
criticism at Ms Schlusche as witness.
Now Ms Shlusche’s
further evidence on the aspect of ‘similar occupation’
and in recapitulation, was that the occupation that came closest to
a tour guide would be a nature conservationist. For plaintiff to
become a nature conservationist she would require training. Ms
Schlusche did not testify about salary structures of nature
conservationists. As previously mentioned, plaintiff does not
possess the skills of tour processors who on the evidence of Ms
Schlusche, appear to be highly trained individuals who command
between N$5000 and N$8000 a month. Even if she had such skills, it
would be apparent from Ms Schlusche’s evidence that plaintiff
would have had to undergo a substantial fall in her income. It would
be artificial to argue that plaintiff could be taken up in an
administrative position in a tour operator or travel agency in the
face of what I consider to be objective evidence of Ms Schlusche
pointing to the lack of administrative and computer skills on the
part of plaintiff. Given her age and outdoor outlook as well as her
disability it cannot reasonably be expected of plaintiff to acquire
the requisite administrative skills so as to be able to look for an
administrative position in a tour operator’s office or travel
For all those
reasons I find that plaintiff has discharged the onus on a balance
of probabilities that she is totally
and permanently unable to engage in an occupation similar to a tour
Mr Frank raised
other points of criticism,
including specific instances that he argues point to the lack of
credibility on the part of plaintiff. Likewise Mr Coleman raised a
number of specific points. I mean no disrespect to counsel if I do
not deal with those points individually. I must point out though
that in coming to the conclusions I have arrived at in this case, I
considered all of them. The need to avoid prolixity and to curtail
the already overburdened judgment necessitated that not every
conceivable point raised, be it factual or legal, be dealt with
In the result I
have found that defendant
did not discharge the onus of proving on the balance of
probabilities that the allegations that plaintiff failed to disclose
materially affected the risk seen from a point of view of a
reasonable man and prudent person so as to be entitled to reject the
claim and repudiate the agreement. Plaintiff, on the other hand,
discharged the onus on a balance of probabilities of proving that
she was disabled for a similar occupation and that it was entitled
to the judgment in the sum agreed upon in the agreement entered into
between the parties.
based on the evidence when defendant would have paid plaintiff had
the claim been admitted that should plaintiff be successful,
interest should run from a period about ten days from the date
defendant addressed the first letter to plaintiff advising her of
the repudiation of liability. This is justified.
furthermore urged for a
special costs order on the basis of the argument, if I understand it
correctly, that the way defendant presented its case by shifting the
goal posts as the evidence emerged amounted to an abuse of the court
process. Moreover, so the argument ran and again if I understand it
correctly, defendant should in effect be penalised for failing to
call its expert witness that it had announced it would call. I do
not consider that such an order would be justified in the
circumstances of this case. There has been a shifting of positions
on both sides and while an inference may be drawn from the failure
to call the expert witness, that in itself is hardly a ground for a
punitive costs order. I would accordingly decline to make such an
In the result I
make the following
is entered in favour of the plaintiff in the amount of N$500
000,00 plus interest on the aforesaid amount at the rate of 20% per
from 11 September 2001.
2. Defendant is
directed to pay plaintiff's costs.
3. In view of
plaintiff’s insolvency and in terms of the agreement entered
into between counsel representing the respective parties payments are
to be made to plaintiff’s trustees, Messrs Investment Trust.
COUNSEL FOR THE PLAINTIFF:
COUNSEL FOR THE DEFENDANT:
MR. G.B. COLEMAN
METCALFE LEGAL PRACTITIONERS
MR. T.J. FRANK
VANDER MERWE-GREEFF INC