C OF A
(CIV) NO. 34 OF 1998
COURT OF APPEAL OF LESOTHO
LIFE LIMITED APPELLANT
TEBELLO R MASUPHA RESPONDENT
an appeal against a decision of the High Court directing the
Appellant to pay the Respondent the sum of M35 000,00. This
the Court found, was due to be paid by virtue of a life assurance
contract concluded between the late husband of the Respondent
following facts are common cause:
long-term (life) policy was effected on the life of one Mahlomola
Michael Masupha ("the deceased") by the Appellant.
deceased died during the currency of the policy.
cause of the death of the deceased was "gunshot wounds to the
head and chest" inflicted by "a conductor of
repudiated liability on the ground that the deceased had "failed
to disclose all facts in his knowledge or facts
he should have known
relative and material to the risk of [sic] the assessment of the
premium prior to the conclusion of the
contract and the issue of the
proposal of life assurance was signed by the deceased on the 15th of
February 1994, and that the commencement date of the policy
1st of July, 1994.
to the letter of repudiation dated the 4th of March, 1996, the
failure to disclose referred to in par.4 above was founded
"On the proposal for insurance competed on 1994-02-15 the
insured undertook to inform us if he contracted any injury, illness
or disease between the date of this application and the commencing
date of the policy
1994-07-01 to enable us to re-assess the risk".
letter goes on to allege:
"According to medical information in our possession the deceased
was treated for Bronchial Asthma since 1994-05-09."
mistaken belief that the Appellant's repudiation of the claim by the
widow of the deceased - applicant in the court below
- was not
sustainable in law, because "the deceased did not die from the
alleged bronchial asthma but clearly died from gun
the Respondent instituted proceedings by way of notice of motion in
the High Court seeking payment of the sum
assured, i.e. R35 000,00.
Appellant joined issue with the Respondent, averring that it was
entitled to repudiate liability on the ground of the non-disclosure
referred to above. The only "evidence" adduced was the
letter of repudiation referred to above as well as a "Certificate
of Medical Attendant" signed by one Dr. H. Kinghu dated the 10th
of January, 1996 - an annexure to Respondent's founding affidavit.
this the said medical attendant certified that the deceased died of
"severe brain damage, lung and heart, secondary to
6 shot gun
certificate, which was completed by the medical attendant at the
instance of the Appellant, the following question is asked:
"Nature of any other complaints for which the deceased consulted
or any other doctor or specialist with relevant dates please".
response of the medical attendant is reflected as follows in the
certificate: "Asmatic [sic] attacks; in 1994".
appeared from the information furnished in the certificate that a Dr.
Mosotho was the deceased's usual medical attendant
and that the
deceased consulted him on dates unspecified in respect of "Asthmatic
It was on
this factual basis that the matter was argued before the High Court.
The Court held that "there is no proof that
from asthma and this essential element not having been proved by the
Respondent, it stands to reason that there
was consequently nothing
then granted the order directing the Appellant to pay the Respondent
the sum assured. It is against this order that the
Appellant noted an
19.4 and 19.5 of the proposal read as follows:
"19.4 I/we agree that if any material information concerning the
risk of the life/lives insured has not been disclosed, or
have given any untrue, incorrect or incomplete answers, the insurance
will be null and void and that all monies paid to
Metropolitan Life will be forfeited.
19.5 I/we agree that if there is any change in occupation or activity
or because of illness, complaint or accident between the
date of this
application and the commencing date of the policy contract, I/we will
inform Metropolitan Life so that the risk can
the duty of the Appellant, if it wished to deny liability on the
ground of non-disclosure, to prove that such non-disclosure
fact occur. See in this regard Fransba Vervoer (Edms.) Bpk. v
Incorporated General Insurance Ltd. 1976 (4) SA 970 (W) at
also in this regard Trust Bank Bpk vPresident Versekeringsmaatskappy
(Bpk.) 1988 (1) SA546 (W) at 551-552 and the authorities
Indeed, this was conceded by the Appellant's counsel before us.
issue to be decided is, did the Appellant prove on a balance of
probability that a material non-disclosure occurred? For
of this enquiry, the Appellant relied in the main upon evidence
tendered by the Respondent in the notice of motion
was placed principally on the "Certificate of medical attendant"
referred to above. It is clear from this certificate
signatory confirms that "in 1994" the deceased consulted
him (Dr Kinghu) about (Asmatic (sic) attacks".
It is also clear
that Dr Kinghu certified that he was not the
regular medical attendant. As indicated in the summary of the
evidence set out above, Dr Kinghu also alleged that the
also consulted his regular medical attendant concerning (asthmatic
attacks). No date was furnished as to when such
place, and more particularly whether such consultation took place
before or after the 1st of July, 1994, when
the contract of assurance
came into force. To be able to rely on any non-disclosure for
purposes of the lawful repudiation of the
non-disclosure-had to have taken place before the coming into
operation of the contract.
evidence does not establish that the deceased, prior to 1 July, 1994,
knowingly failed to disclose the information that he
either of the two medical practitioners concerning "asthmatic
attacks". Neither does it establish the materiality
other assertion which has some relevance, if admissible as evidence,
is the statement in the letter of repudiation dated
the 4th of March,
1996. In it appellant alleges:
"According to medical information in our possession the deceased
was treated for bronchial asthma since 1994-05-09."
conceded by Mr Woker, who appeared for the Appellant in this Court,
that the second avermend cited above did not constitute
probative force can be attributed to this statement. The Appellant
failed to introduce any evidence that supported its
the deceased failed to disclose relevant information prior to July
sought to argue that in any event and on the papers before it the
court should have - in the interests of justice - referred
to oral evidence. This would have enabled it - so he submitted - to
determine whether the defence raised on the papers
sustained or rejected.
submission counsel sought to rely on the decision in Boom Hire Co.
(Pty)Ltd. v. Jeppe Street Mansions (Pty) Ltd. 1949(3)
SA 1155 (T).
Appellant has not raised this as a ground in its Notice of Appeal.
Nor did it apply for any amendment in this regard. This alone
sufficient to non-suit it in respect of this submission. It was also
conceded that no application was made in the papers before
Court or at the hearing in that forum for a referral to oral evidence
in that regard.
event, it is clear as a matter of proper procedure that a party
seeking to resist the granting of relief in notice of motion
proceedings and in order to invoke the remedies set out in Boom Sire
case at 1163 - 1165 needs to raise "a real, genuine or
dispute of fact". See Plascon Evans Paints v. van Riebeeck
Paints 1984(3) SA 623 (A).
of the Boom Hire judgment, Murray AJP affirms that: "The crucial
question is always whether there is a real dispute
of fact". At
p.1163 the learned judge goes on to say, "Or (d) he may state
that he can lead no evidence himself or by
others to dispute the
truth of applicant's statements, which are peculiarly within
applicant's knowledge, but he puts applicant
to the proof thereof by
oral evidence subject to cross-examination". It was this dictum
that counsel sought to invoke in support
of his argument.
clear from what has been said above in this judgment that the
Appellant did not seek to avail himself of the procedural option
mentioned by Murray AJP in the passage cited. Instead he sought both
in the Court below and via his grounds of appeal in this Court
have.the application dismissed on the grounds of non-disclosure.
suggested that the Court should mero motu have initiated such a
process. To have done so may well have been an improper exercise
its discretion, in view of the fact that no real dispute of fact had
been raised on the papers.
follows that the High Court was right to make the order it did.
reasons, the appeal is dismissed with costs.
JUDGE OF APPEAL
on the 16th day of April, 1999.
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