Napier V Barkhuizen (569-2004) (2005) ZASCA 119 (2006) 2 All SA 469 (SCA) 2006 (9) BCLR 1011 (SCA) 2006 (4) SA 1 (SCA) (30 November 2005)
Napier V Barkhuizen (569-2004) (2005) ZASCA 119 (2006) 2 All SA 469 (SCA) 2006 (9) BCLR 1011 (SCA) 2006 (4) SA 1 (SCA) (30 November 2005)
Napier V Barkhuizen (569-2004) (2005) ZASCA 119 (2006) 2 All SA 469 (SCA) 2006 (9) BCLR 1011 (SCA) 2006 (4) SA 1 (SCA) (30 November 2005)
OF SOUTH AFRICA
Case no: 569/04
REPORTABLE
and
JUDGMENT
CAMERON JA:
In the Pretoria High Court De Villiers J ruled that they are. The respondent
2
(plaintiff) insured his 1999 BMW 328i motor vehicle for R181 000 with a
5.2.5 if we reject liability for any claim made under this Policy we will be released from
liability unless summons is served … within 90 days of repudiation.
[2] The defendant’s plea relied on the time-bar clause. The plaintiff’s
1Section 59(1) of the Short-Insurance Act 53 of 1998 provides that a claim against a Lloyd’s underwriter under
a South African short-term insurance policy shall be cognisable by a court in the Republic, and s 59(2) that the
Lloyd’s representative may be cited in the name of his office as nominal defendant or respondent.
3
law.
[3] These facts are easy to state, since the parties set them out in an agreed
Access to courts
Everyone has the right to have any dispute that can be resolved by the application of
law decided in a fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum.
[4] The learned judge found that the rights in s 34 applied not only against the
He reasoned that without the clause the plaintiff would have had three
ruled, the provision imposes on the other party a duty not to obstruct
(CC) and Moise v Greater Germiston Transitional Local Council 2001 (4)
SA 491 (CC), he held that the right of access to court is foundational to our
society, and that (applying a limitations analysis) the insurer had failed to
36(1).’
3 Prescription Act 68 of 1969, s 11:
‘The periods of prescription of debts shall be the following:
…
(d) save where an Act of Parliament provides otherwise, three years in respect of any other debt.’
5
[5] This reasoning raises two questions. The first is the extent to which Bill of
rights
[6] The high court’s approach entailed the significant presupposition that
[7] Brisley rejected the notion that the Constitution and its value system confer
93). Yet it re-asserted that (in addition to proscribing fraud) the courts will
Crucially, in this calculus, ‘public policy’ now derives from the founding
sexism.
4 D Tladi ‘One step forward, two steps back for constitutionalising the common law: Afrox Healthcare v
Strydom’ (2002) 17 SAPL 473; K Hopkins ‘The influence of the Bill of Rights on the enforcement of contracts’
De Rebus August 2003 p 22; J Lewis ‘Fairness in South African contract law’ (2003) 120 SALJ 330; C-J
7
court found was that ‘there was no evidence whatsoever to indicate that
when the contract was concluded [the plaintiff] was in fact in a weaker
Johannesburg Country Club v Stott 2004 (5) SA 511 (SCA) para 12, the
[9] Afrox turned on the evidence presented there, and here too we are obliged
to decide the constitutional challenge on the facts before us. Those the
before us. This has a two-fold impact on the proceedings. First, the
Pretorius ‘Individualism, collectivism and the limits of good faith’ 2003 (66) THRHR 638; R-M Jansen & B S
Smith ‘Hospital disclaimers’ 2003 Journal for Juridical Science 28(2) 210; NJ Grové ‘Die kontrakereg,
altruisme, keusevryheid en die Grondwet’ (2003) 35 De Jure 134; L Hawthorne ‘The end of bona fides’ (2003)
15 SA Merc LJ 271; L Hawthorne ‘Closing of the open norms in the law of contract’ 2004 (67) THRHR 294; T
Naudé and G Lubbe ‘Exemption clauses – a rethink occasioned by Afrox Healthcare Bpk v Strydom’ (2005) 122
SALJ 441; D Bhana & M Pieterse ‘Towards a reconciliation of contract law and constitutional values: Brisley
and Afrox revisited’, forthcoming in (2006) 123 SALJ.
8
[10] Thus, though the learned judge found that the contract’s time-bar was
evidence I cannot find any warrant for it. An insurer has an undeniable
whether it must face litigation about it. Whether 90 days is reasonable for
Although the period is much shorter than the statutory prescription period
of three years, the clause certainly does not exclude the courts’ jurisdiction
entirely.5 And details of the claim and of the incident that caused it are
limit easier to justify). Whether the period is in fact reasonable, and thus
whether the clause is ‘fair’, would depend, amongst other things, on the
5 For discussion of circumstances in which contractual clauses ousting the jurisdiction of the courts may be
against public policy, see RH Christie The Law of Contract (4ed, 2001) pp 405-407.
9
number of claims the insurer has to deal with, how its claims procedures
work, what resources it has to investigate and process claims, and on the
amount of the premium it exacts as a quid pro quo for the cover it offers.
[11] The second consequence of the limited evidence before us is that the
[12] Nor does the fact that a term is unfair or may operate harshly by itself
[13] As stated in Brisley (para 95), the Constitution requires us to employ its
arrangements.
6 Constitution s 1(b).
11
and freedoms7 may affect particular contractual outcomes. But Brisley and
[15] In the present case, the evidence is so scant that we can only speculate
number of suppliers, and their relative market share; whether all or most
7 Constitution s 1(a).
8 Kevin Hopkins ‘Insurance policies and the Bill of Rights: Rethinking the sanctity of contract paradigm’
(2002) 119 SALJ 155 suggests that ‘most short-term insurance policies contain time limitation clauses that
curtail the period within which legal action can be instituted’, but even if this were accepted, it is less precise
than factual determination would require.
12
range they fall; whether for a person in the plaintiff’s position (who travels
[16] All this would bear on the critical question, which is whether the plaintiff
in effect was forced to contract with the insurer on terms that infringed his
constitutional rights to dignity and equality in a way that requires this court
without any inkling regarding the issues set out above, the broader
constitutional challenge cannot even get off the ground. I therefore turn to
the right of access to courts protected by s 34, on the basis of which the
[17] In considering the high court’s decision, it is useful to start with Mohlomi
claimants from instituting action if a period of six months had elapsed since
the cause of action arose. The Constitutional Court (CC) held that rules
limiting the time within which litigation may be launched serve a valuable
however, in –
‘a land where poverty and illiteracy abound and differences of culture and language are
pronounced, where such conditions isolate people whom they handicap from the
mainstream of the law, where most persons who have been injured are either unaware
of or poorly informed about their legal rights and what they should do in order to
enforce those, and where access to the professional advice and assistance they need
so sorely is often difficult for financial or geographical reasons.’ (para 14)
[18] Moise applied Mohlomi where a statute barred the institution of legal
days as from the day on which the debt became due, served a written
unconstitutional.
[19] Like Mohlomi, Moise involved a claim for delictual damages arising from
personal injury. This fact provides the essential setting for both decisions.
10 Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970, s 2(1)(a).
11 Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, s 3(2)(a). The Act repealed
Act 94 of 1970 with effect from 28 November 2002.
15
[20] The decisions presuppose that the plaintiff has an existing right of
specifically, the CC did not find that the state (or a local authority) may not
contract. The focus, as Moise explained (para 10), was ‘special statutory
[21] The plaintiff here had no pre-existing entitlement against the insurer.
The insurer did not injure his person, damage his property or violate his
reputation or his dignity, nor did it commit any other wrong against him.
Outside the contract, it owed him no money. Before the contract was
defined the rights he derived from the agreement by specifying that there
repudiation of a claim.
[22] The plaintiff’s claim arose because of a voluntary arrangement with the
in respect of his vehicle, on the conditions set out in the policy. The
existing entitlement: it arose from the very agreement that defined the
[23] The approach the learned judge took implies that the plaintiff had a pre-
respectful view is wrong. The only right to insurance the plaintiff enjoyed
was the one he acquired from the contract; and this required, as a
and larger right is to create a contract for the parties to which neither
agreed.
[24] To equate this case with those where the legislature has super-imposed
12 It follows that I am unable to endorse the approach underlying the discussion by Kevin Hopkins ‘Insurance
policies and the Bill of Rights: Rethinking the sanctity of contract paradigm’ (2002) 119 SALJ 155, who
suggests that ‘the limitation clause found in most short-term insurance policies amounts to a waiver of the
insured’s right of access to court’ and that ‘the enforcement of a limitation clause would mean, in effect, the
limitation of the insured’s constitutional right’ (at 172).
18
characterises the right at issue, and omits to recognise that the source of
contract. It is to recognise that rights differ in their nature and in how they
originate, and consequently in how they are enforced and protected. The
The Bill of Rights itself requires us to take these distinctions into account.
[25] This case is thus not similar to Mohlomi and Moise, but to Geldenhuys &
Joubert v Van Wyk 2005 (2) SA 512 (SCA).13 There a special time-bar
remedy, since they do not know and cannot trace the wrongdoer who
13 To similar effect is Paiges v Van Ryn Gold Mines Estate Ltd 1920 AD 600 at 617.
19
against the Fund where no enforceable right existed before; but limits the
rejected the argument that the legislative time-limit unfairly restricts the
claimant’s right, since this misconceives its nature. The Fund is not a
wrongdoer, and the claimant is not its victim. In creating a previously non-
existent right of recourse, the Minister thus had power to require claimants
[26] Similarly here. The high court’s implicit premise was that the plaintiff
contract with the insurer a protection that was not designed for the parties’
rights subject to a time-limit for their enforcement.14 The focus of the right
14 Compare, albeit in an entirely different context, Mkontwana v Mandela Metro Municipality 2005 (2) BCLR
150 (CC) para 71 (‘Section 34 does not extend so far as to prevent the imposition of any restriction on any right
without the order of a court first having been obtained’) (Yacoob J).
20
impartial tribunals.’15
[27] The plaintiff’s right to insurance cover arose from his contract with the
defendant, which in creating his right stipulated at its inception that a claim,
access to courts provision in the Bill of Rights does not prohibit this.
that the plaintiff did not conclude the contract with the insurer freely and in
This leads to the conclusion that constitutional norms and values cannot
15Zondi v MEC for Traditional and Local Government Affairs 2005 (3) SA 589 (CC) paras 61-63 per Ngcobo J.
21
defence.
[29] The appeal must therefore succeed and the defendant’s plea be upheld.
1. The appeal succeeds with costs, including the costs of two counsel.
‘The defendant’s special plea is upheld with costs, including the costs of
two counsel.’
E CAMERON
JUDGE OF APPEAL
CONCUR:
MPATI DP
VAN HEERDEN JA
MLAMBO JA
CACHALIA AJA