THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 250/09
In the matter between:

THE REPRESENTATIVE OF LLOYDS

First Appellant

THEBE RISK SERVICES (PTY) LTD

Second Appellant

DEVEREUX MARINE CC

Third Appellant

and

CLASSIC SAILING ADVENTURES (PTY) LTD                            Respondent

Neutral citation: Lloyds & others v Classic Sailing (250/09) [2010] ZASCA
89 (31 May 2010)

Coram:
Harms, Lewis, Cachalia and Malan JJA and Griesel AJA

Heard:
20, 21 May 2010
Delivered:   31 May 2010
Corrected:     7 June 2010
Summary:
Marine Insurance: parties cannot exclude mandatory provisions
of South African statute by choice of other legal system: validity
of policy affected by non-disclosure, misrepresentation or
illegality determined by reference to ss 53 and 54 of Short-Term
Insurance Act 53 of 1998: vessel sinking as a result of latent
defect in hull: Lloyds held liable. Second and third appellants,
joined as defendants, not liable: entitled to full costs of trial.

_____________________________________________________________
ORDER
______________________________________________________________
On appeal from:   Western Cape High Court (Cape Town) (Cleaver J sitting
as court of first instance):

1 The first appellant‟s appeal is dismissed with costs, including those
occasioned by the employment of two counsel.
2 The appeals by the second and third appellants are upheld with costs,
including those occasioned by the employment of two counsel.
3 Paragraph 1.4 of the order of the high court is replaced with the following:
„The first defendant is ordered to pay the costs of the second and third
defendants including the costs occasioned by the employment of two counsel
and the preparation expenses of Mr Child.‟
4 The respondent‟s conditional cross-appeal is dismissed.
_____________________________________________________________
JUDGMENT
______________________________________________________________
LEWIS JA (HARMS DP, CACHALIA and MALAN JJA and GRIESEL AJA
concurring)

[1] The vessel Mieke was built as a motorized yacht for fishing in 1997 at
the instance of Mr A Viljoen, the director and shareholder in various
companies which had fishing vessels, and Mr W Hennop, the skipper over a
number of years of several of the Viljoen vessels. Hennop was the skipper of
the Mieke from inception. The vessel was originally designed and built for
fishing in the southern oceans. The fishing venture proved to be unprofitable
and Viljoen and Hennop decided to convert the Mieke into a luxury charter
yacht in 2003. It was transferred to Classic Sailing Adventures (Pty) Ltd, the
respondent. Viljoen is the director of and controlling shareholder in Classic
Sailing.  Once converted the Mieke could accommodate 12 passengers who
would fish and indulge in various other activities from it.

[2] On 15 September 2005 the Mieke sailed from Vilanculos off the
Mozambican coast. Only the crew were onboard. Three days later, on 18
September, the Mieke sank approximately 58 nautical miles south east of
Angoshe off the coast of Mozambique. The crew, with Hennop as skipper,
reached shore on a rubber duck (a tender).

[3] The first appellant is the representative (cited as such in terms of the
Short-Term Insurance Act 53 of 1998) of a Lloyds‟ syndicate which had
insured the Mieke. I shall refer to the first appellant simply as Lloyds. The
second appellant, Thebe Risk Services (Pty) Ltd (Thebe), is the insurance
broker that placed the insurance. The third appellant is Devereux Marine CC
(Devereux CC), also an insurance broker which specializes in hull insurance
in the Lloyds market. Classic Sailing claimed from Lloyds the sum insured –
R10m. Lloyds declined to pay. Classic Sailing instituted action for payment in
the Western Cape High Court, exercising its admiralty jurisdiction.

[4] In its plea to Classic Sailing‟s particulars of claim Lloyds alleged that it
was not liable because the sinking was caused by a risk not insured against,
and also because of other special defences. It alleged that Classic Sailing had
not disclosed to it that Hennop was not certified to serve as the skipper; it had
also not disclosed that the stability information on board was inaccurate, not in
the prescribed form and not approved by the South African Maritime Safety
Authority (SAMSA). In the alternative Classic Sailing, alleged Lloyds, had
misrepresented the nature of a dispute between it and SAMSA as to the
certification of Hennop, and that Lloyds was thus entitled to avoid the policy;
and lastly, that the „adventure insured‟ had been carried out in an unlawful
manner in breach of the implied warranty of legality in s 41 of the English
Marine Insurance Act of 1906. The insurance policy expressly stated that the
contract was governed by English law.

[5] If there were any non-disclosures or misrepresentations made by
Classic Sailing these would have been effected through its insurance broker
since Classic Sailing did not deal directly with Lloyds. Viljoen had placed all
the insurance of his vessels, owned by different corporate entities, with

Thebe, represented by Mr M Brown. Brown in turn had instructed Devereux,
of Devereux CC, which specializes in hull insurance on the Lloyds market.
And Devereux had asked Arthur J Gallagher (UK) Ltd (Gallagher), accredited
Lloyds brokers, to find an underwriter for the Mieke, which it had done.
Accordingly, after action was instituted and on receipt of the plea, Classic
Sailing joined Thebe as the second defendant and Devereux CC as the third
defendant, the claims against them being conditional on the claim against
Lloyds failing. Classic Sailing‟s claim against Thebe was premised on it
having failed to obtain valid insurance for the Mieke in breach of the contract
between Thebe and Classic Sailing. The claim against Devereux CC was
premised also on breach of contract and in the alternative on breach of a duty
of care in delict.

[6] Cleaver J found that there were no material non-disclosures; no
misrepresentation made, and that the Mieke had not embarked on an unlawful
voyage. He also held that the sinking of the Mieke was due to a latent defect,
which was covered by the insurance policy. He accordingly ordered Lloyds to
pay the sum insured, less the value of the tender which had not sunk – a sum
of R9 940 000 – and the costs of two counsel and various experts.

[7] Thebe and Devereux CC were therefore not liable, but they were
awarded only the costs incurred for half of the hearing since they took no
active part in the trial in respect of the cause of the sinking. Lloyds applied for
leave to appeal to this court and Thebe and Devereux CC applied for leave to
appeal against the costs orders made in respect of them. Leave to all three
appellants was granted by Cleaver J. Classic Sailing was also given leave to
cross-appeal, conditional on the appeal by Lloyds succeeding.

[8] I shall discuss each of the special defences separately. If there is merit
in any then the insurance policy may be avoided and the question whether the
sinking of the Mieke was covered by the terms of the policy falls away. The
court below held that Classic Sailing bore the onus of proving that the risk was
insured against, but that Lloyds had to prove the special defences. The
parties on appeal do not take issue with this. They also do not dispute that the

policy is governed by English law, but subject to South African jurisdiction: but
they differ as to the applicability of South African legislation – the Short Term
Insurance Act.

The history in brief
The conversion of the Mieke
[9] Before turning to the special defences some background is required,
both as to the structure of the Mieke and the conclusion of the insurance
policy. The vessel, described as a grand bank schooner, was first built in
1997. A schooner is a small sea-going fore-and-aft rigged vessel. Originally,
schooners had only two masts, but now often have three or four, and carry
one or more topsails. Grand Bank schooners are those that plied the oceans
off the Grand Banks alongside the coast of Canada and Newfoundland.

[10] The Mieke was conceived of and designed by Hennop and Mr J
Liverick, both of whom had worked for Viljoen on other vessels. It had both
sails (two masts) and Caterpillar turbo-charged marine diesel engines. It was
31 metres long and its beam was 7.68 metres. The vessel, with Hennop as
skipper, was used for long-line fishing for some five years. As I have said, the
fishing venture was not profitable and Hennop and Viljoen decided to convert
it to a charter yacht which could carry 12 passengers. Liverick, Hennop and
Viljoen were involved in the redesign, and Hennop acted as project manager
for the conversion and rebuilding, which commenced in 2003. The vessel was
transferred to Classic Sailing, in which Hennop had some shares but Viljoen
had the majority shareholding.

The conclusion of the insurance policy
[11] In November 2004 Brown, of Thebe, who had long been the broker for
Viljoen‟s insurance and that of his various companies, visited Viljoen in his
office in St Francis Bay to discuss insurance for Viljoen‟s businesses
generally and for the various vessels owned by them. One of the issues
discussed was the difficulty Classic Sailing was having in obtaining certain
certificates from SAMSA for Hennop.

[12] Viljoen believed that Hennop had all the necessary certificates –
although in respect of three parts of the syllabus set by SAMSA to qualify as a
skipper of a vessel like Mieke, Hennop had received his certificates from
bodies other than SAMSA. Viljoen and Brown considered that SAMSA was
acting unreasonably in refusing to recognize Hennop‟s certification. But they
decided that any insurer should be apprised of this. Accordingly, following the
meeting, Brown wrote to Devereux on 23 November 2003, saying that Classic
Sailing had „ongoing difficulty‟ with SAMSA with regard to Hennop‟s
qualifications as skipper. I shall set out the terms of the letter more fully when
dealing with the issue of misrepresentation. He attached numerous
documents reflecting the courses completed by Hennop.

[13] Devereux in turn wrote to Mr N Paice of Gallagher (the Lloyds broker).
Paice, it is common cause, gave Devereux‟s letter to  Mr J S James, the lead
underwriter for the corporate member of the Lloyds syndicate, who was
authorized to determine the terms of any insurance policy. James, who
testified for Lloyds, said that he had no independent recollection of any
conversation with Paice, but acknowledged that he had noted the word „seen‟
on Devereux‟s letter, and said that he would not have done so unless he had
read the contents of the letter and the attachments. He dated Devereux‟s
letter 24 November 2004.

[14] I shall revert to the allegation of misrepresentation as to Hennop‟s
qualifications when dealing with the second special defence raised by Lloyds.
Although in its plea Lloyds had alleged that there was a non-disclosure of
Hennop‟s lack of certification, this defence is not pursued on appeal, given the
concession of James under cross-examination that he had seen the
documents that revealed that Hennop did not have all the SAMSA certificates
required. Lloyds relied instead, on appeal, on misrepresentation as to the
nature and extent of the disputes between Classic Sailing and SAMSA as to
Hennop‟s certification to avoid liability.

The terms of the policy

[15] The written terms of the contract are set out in a cover note (Number
M041209D). The period covered was 12 months with effect from 1 December
2004. The „interest‟ was stated to be „Hull Materials Etc, Machinery Outfit Etc,
and everything connected therewith nothing excluded‟. The sum insured was
R10m, which also covered the two tenders, insured for R80 000 each. The
Mieke was allowed to „trade‟ „not North of the Equator, not West of 20° West,
not South of 45° South and not East of 70° East.‟ Choice of law and
jurisdiction were stated to be „English Law and South African Jurisdiction‟. The
terms of the policy were stated to include the Institute (of London
Underwriters) Fishing Vessel clauses, clause 6 of which deals with the perils
insured against. Clause 6.2 provides that the insurance covers loss or
damage to the vessel caused, inter alia, by any latent defect in the machinery
or hull, provided that the loss or damage is not the result of „want of due
diligence by the Assured, Owners or Managers‟.

The stability book
[16] Section 226 of the Merchant Shipping Act 57 of 1951 requires the
owner of a vessel in the class of the Mieke (Class XI) to keep on board the
ship „such information in writing about the stability of the ship as is necessary
for the guidance of the master in loading and ballasting the ship‟. Regulation
7(1) of the Safety of Navigation Regulations repeats this wording.1 Regulation
7(3) states that the stability information shall be based on „the determination
of the stability . . . by means of an inclining test‟.  Regulation 8 sets out the
form of the stability information and the requirements for drawings and
measurements. Lloyds contended that the stability book on board the Mieke
at the time when the insurance policy was concluded had not been approved
by SAMSA. But there is no requirement in the Act or regulations for SAMSA
approval.

[17] When the Mieke was first constructed as a fishing vessel in 1997 a
stability book, as required by the regulations, was compiled and approved by
SAMSA. On its conversion to a charter yacht SAMSA required that a new

1 Safety of Navigation Regulations 1968, as amended.

stability book be prepared.  To this end Liverick was asked to carry out an
inclining test, which he did, and he requested Mr M Stewart, who was in
Durban, to compile a new stability book. In doing so, Stewart relied on the
results of the inclining test conducted by Liverick, as well as on the latter‟s
general plan and the former stability book. The new book was placed on
board, but when the converted Mieke sailed to Cape Town early in 2004 she
was detained there by SAMSA on the basis that the stability book had not
been approved by SAMSA.

[18] Stewart advised that 19.3 tons of additional ballast (heavy material to
balance a vessel) be placed in the Mieke. Accordingly Hennop and a crew
member, Mr E S Awad, attended to the pouring of concrete into the Mieke‟s
sewage tank during one night when she was still detained. There is a dispute
as to how much concrete was added and how many walls were constructed to
retain it, but this is not relevant for the reasons that follow. SAMSA granted
interim approval of the stability book on 15 March 2004 after the addition of
ballast. The approval was valid only until 15 April.  The Mieke was released
from detention and sailed to Mozambique, where, but for one trip to Port
Elizabeth, she remained until September 2004.

[19] In September 2004 the Mieke returned to Port Elizabeth. She was
placed in dry dock and surveyed by SAMSA. The principal officer of SAMSA
in the Port Elizabeth office, Captain Colenutt, did a hull survey and, on 18
October, issued a survey report. In it he described the condition of the hull
and ship side valves as „satisfactory‟. Colenutt also issued a survey report:
he stated that „the required SAMSA approved stability book is aboard.‟ The
following day a Local General Safety Certificate was issued for the Mieke.
This stated that she was a class XI sailing vessel undertaking charter
excursions or unlimited voyages in the Indian Ocean, carrying 12 or fewer
passengers. The certificate stated further that the vessel had been inspected
in accordance with the requirements of applicable regulations. On 21 October
2004 the Mieke again sailed for Mozambique.

Application of the English Marine Insurance Act of 1906 and the provisions of
the Short-Term Insurance Act 53 of 1998
[20] As I have said, the parties to the policy agreed that the applicable law
was English, though South African courts would have jurisdiction. Lloyds
relies on  sections of the English Act in support of its special defences. To the
extent that there is inconsistency or a conflict between these and the
provisions of the Short-Term Insurance Act, which law governs? This question
is pertinent to all the special defences raised by Lloyds.

[21] The general rule is that the choice by parties to a contract of the
governing law – the proper law of the contract – is valid.2 However, legality is
a question to be determined by the lex fori.3 The ius cogens (peremptory law)
of the forum cannot be excluded. Our case law is sparse on this issue, but it is
the general view of writers on the subject. And it must be that peremptory
(mandatory) rules of the forum – especially legislative provisions – apply.
Complete party autonomy cannot prevail over the premptory provisions of a
statute, especially where the action is brought in terms of the statute (as in
this case). The Short-Term Insurance Act is applicable to marine insurance by
virtue of the definitions of a „short-term policy‟ and „transportation policy‟ which
expressly include insurance of a vessel.

[22] Professor Forsythe,4 in discussing the question whether the lex fori
applies even where the parties have chosen another system of law to govern
their contract, refers to Voet5 who drew a distinction between prohibitory
statutes, which cannot be renounced, and dispositive statutes which can.
Sections 53 and 54 of the Short-Term Insurance Act on which Classic Sailing
relies are not prohibitory: they deal with the effect of misrepresentation, non-
disclosure and illegality – issues to which I shall revert. But as Forsythe
states, the distinction between prohibitory provisions and others is not easy to

2 2 (2) Lawsa (2 ed) „Conflict of Laws‟ paras 328ff; Christopher Forsythe Private International
Law (4 ed) p 294ff and John Hare Shipping Law and Admiralty Jurisdiction in South Africa 2
ed (2009) p 143.
3 Lawsa op cit para 329.
4 Op cit p 299, fn 33.
5 J Voet Commentarius ad Pandectas Appendix to 1.4 18-22.

draw. He suggests that where the lex fori is designed to protect the weaker
party in contractual negotiations the chosen law, if it is inconsistent, should
not prevail.6 In international trade, on the other hand, parties tend to be on an
equal footing and may in effect contract out of the lex fori.

[23] Rather than asking whether statutory provisions are prohibitory or
dispositive, a better approach to determining whether parties may exclude the
operation of statutory provisions by choice of another system of law might be
to question whether they can waive the application of the provisions. This
question was addressed in SA Co-Op Citrus Exchange v Director-General:
Trade & Industry7 where Harms JA, dealing with procedural statutory
provisions, held that they may be renounced by a party (in that case the
State) for whose benefit they are enacted. But where public policy and interest
would be prejudiced by a waiver, such provisions cannot be escaped. Waiver
is not possible, said this court, if it affects public policy or interest or a right.8
This principle was affirmed in De Jager en andere v Absa Bank Bpk,9 where
this court held that the application of the provisions of the Prescription Act 68
of 1969 may be waived by a debtor under a contract after the prescriptive
period has run because renunciation did not substantially or materially impact
on the public interest.

[24] Sections 53 and 54 of the Short-Term Insurance Act are at issue in this
matter. Section 53 deals with the effect of non-disclosures and
misrepresentations on an insurance policy, and s 54 with the effect of a
contravention of a law on a policy. Section 53 is designed to protect insured
parties who are ignorant, careless or uneducated from unscrupulous insurers
who attempt to escape liability on the basis of the common law that has
evolved in relation to misrepresentation or non-disclosure.10 And s 54 ensures
that a policy is not avoided only because the insured has contravened a law. I

6 Op cit p 301 and Lawsa op cit para 329 fn 12 and 13.
7 1997 (3) SA 236 (SCA).
8 At 244D-245D.
9 2001 (3) SA 537 (SCA) para 17.
10 On s 53 see Joubert v Absa Life Ltd 2001 (2) SA 322 (W) at 328F-H.  As to the effect of s
53, and the reasons for its amendment in 2003, see Mahadeo v Dial Direct Insurance Ltd
2008 (4) SA 80 (W) at 86B-87D.

shall deal with both sections in due course. Given their effect, it should not be
open to the parties to contract out of the application of the provisions of that
statute by choosing another system of law to govern their contract.11 If an
insured cannot waive the benefits of ss 53 and 54 – as would be the case
because waiver would be contrary to public policy and interest – then equally
contracting out of the benefits afforded by the sections cannot be permitted.

[25] This view is supported by Professor Michael Martinek,12 who, referring
to Von Savigny,13 states that a distinction must be drawn between general
rules of private law, which may be governed by a system other than the lex
fori, and law of strictly positive imperative nature – those that bear a „political,
police-related or economic character‟ (Martinek‟s translation). In modern
Swiss and German private international law these are what Martinek refers to
as „mandatory interventions‟ – „norms employed by the state to regulate
private relationships in the public common interest while pursuing socio-
economic tasks, thereby restricting the individual freedom of private
persons‟.14 These norms are of direct application, much as the values of the
Constitution are. Counsel for Lloyds was constrained to concede that parties
cannot contract out of provisions – and thus the norms and values – of the
Constitution. The protection afforded to insured persons by the Short-Term
Insurance Act, on this basis, can likewise not be avoided.

[26] There are other strong indications that the Short-Term Insurance Act,
to the extent that it is inconsistent with the English Marine Insurance Act, must
apply. The action was instituted under the former Act. Lloyds is regulated by
that Act (Part VIII). Moreover, Lloyds relied extensively on other South African
statutes such as the Merchant Shipping Act and Safe Manning Regulations. It
is difficult to discern why Classic Sailing should be bound by the provisions of

11 See also Dicey Morris and Collins The Conflict of Laws (general editor Sir Lawrence
Collins) 14 ed (2006) Vol 2, p 1649, paras 33-033 and 33-034 dealing with the proposition
that in certain circumstances parties cannot, with reference to another system of law, contract
out of the English Unfair Contract Terms Act 1977.
12 „Codification of private international law – a comparative analysis of the German and Swiss
experience‟ 2002 TSAR p 234, pp 248ff.
13 The System of Modern Roman Law Vol VIII (1849).
14 Martinek op cit p 249.

those Acts and not entitled to the benefits conferred by those of the Short-
Term Insurance Act.

[27] But the definitive answer, in my view, is to be found in the Admiralty
Jurisdiction Regulation Act 105 of 1983. The Admiralty Act governs not only
jurisdiction but also the substantive law to be enforced in South African high
courts, all of which are given jurisdiction for the hearing of any admiralty
action for the enforcement of a maritime claim. Section 1(u) of the Admiralty
Act defines a maritime claim to include one relating to „marine insurance or
any policy of marine insurance‟. Section 3 provides that any maritime claim
may be enforced by an action in personam and may be instituted against a
person in respect of whom a court has jurisdiction in terms of Chapter IV of
the Insurance Act 27 of 1943.  Chapter IV governed insurance by members of
Lloyds. That Act has been repealed by the Short-Term Insurance Act. But the
latter Act still governs Lloyds (Part VIII). The reference to the former Act must
be read now as a reference to the current Act.

[28] Section 6 of the Admiralty Act reads:
„ Law to be applied and rules of evidence
(1) Notwithstanding anything to the contrary in any law or the common law contained
a court in the exercise of its admiralty jurisdiction shall-

(a) with regard to any matter in respect of which a court of admiralty of the Republic
referred to in the Colonial Courts of Admiralty Act, 1890, of the United Kingdom, had
jurisdiction immediately before the commencement of this Act, apply the law which
the High Court of Justice of the United Kingdom in the exercise of its admiralty
jurisdiction would have applied with regard to such a matter at such commencement,
in so far as that law can be applied;

(b) with regard to any other matter, apply the Roman-Dutch law applicable in the
Republic.
(2) The provisions of subsection (1) shall not derogate from the provisions of any law
of the Republic applicable to any of the matters contemplated in paragraph (a) or (b)
of that subsection (my emphasis).
. . . .
(5) The provisions of subsection (1) shall not supersede any agreement relating to
the system of law to be applied in the event of a dispute.‟

[29] Subsection 5 thus does allow parties to make a choice as to the legal
system they wish to govern their contract. But this cannot mean that they can
contract out of legislative provisions that amount to ius cogens. One cannot
read subsections 2 and 5 in isolation. Subsection 5 must be subject to
subsection 2. Read together, as they must be, the subsections mean that
while the parties may choose a non-South African system of law to govern
their contract, they may not do so where the provisions of the other system
are inconsistent with peremptory South African law.  The effect of subsection
2 is that ss 53 and 54 of the Short-Term Insurance Act apply to the contract.
And to the extent that the English Marine Insurance Act is inconsistent with
peremptory statutory provisions it is not applicable.15

The first defence: Non-disclosures about the stability book
[30] Lloyds relied on s 18 of the English Marine Insurance Act 1906 in
contending that the non-disclosure of the facts that the stability book on board
the Mieke at the time when the insurance policy was issued was not approved
by SAMSA, and was inaccurate. Section 18 reads:
„(1) Subject to the provisions of this section, the assured must disclose to the insurer,
before the contract is concluded, every material circumstance which is known to the
assured, and the assured is deemed to know every circumstance which, in the
ordinary course of business, ought to be known by him. If the assured fails to make
such a disclosure, the insurer may avoid the contract.
(2) Every circumstance is material which would influence the judgment of a prudent
insurer in fixing the premium, or determining whether he will take the risk.‟

[31] Cleaver J in the high court, assuming that s 18 was applicable,
considered the English cases and writers in respect of this section and held
that it was not necessary to show that „the circumstances will have a decisive
influence on the judgment of [a] prudent insurer‟. All that the latter need show
is that the circumstances would have had an effect on the insurer in weighing
up the risk, and in determining whether to insure, at what premiums and

15 „Law‟ in subsection 2 is statutory: R v Detody 1926 AD 198 at 201 where Innes CJ said „The
word “laws” means statutes.‟

subject to which conditions. Moreover an insurer must show that the non-
disclosure induced it to enter into the contract (even if it was not the sole
inducing cause).

[32] Lloyds argued on appeal that it relied on two factors that should have
been disclosed to it. First, the stability information on board was inaccurate
and Viljoen either was or ought to have been aware of this. Second, at the
time when the insurance contract was concluded the stability book was not
stamped as approved by SAMSA, a material fact that should have been
brought to the attention of Lloyds. As to the second basis, there is no
requirement in the regulations or elsewhere that SAMSA approval be
indicated through stamping. And in fact SAMSA had approved the book prior
to the conclusion of the contract of insurance. That disposes of this ground for
avoiding the contract on the basis of non-disclosure.

[33] The first basis – inaccuracy – of the defence based on non-disclosure
is argued by Classic Sailing to be one it did not have to meet at the trial. In its
plea Lloyds stated that the particulars of the vessel were inaccurate. On
appeal Lloyds has argued that the position and quantity of the ballast was
inaccurately described in the stability book. This proposition was not put to
Hennop when he testified as to the loading of the ballast. Nor was it put to
Viljoen, who had no first-hand experience of where the ballast had been
placed, but who represented Classic Sailing as its owner. In fact the high
court found that Classic Sailing had had to meet a defence only as to
inaccurate calculations. This is what the plea and responses to requests for
further particulars referred to, and this is what Stewart testified about in giving
evidence as to the design of the Mieke and his recommendation as to the
quantity of ballast to be placed in the sewage tank. He testified also that
SAMSA‟s naval architect, Ms E Dzinic, had been satisfied with line plans for
the Mieke drawn by Stewart and with the recalculated tonnage, although she
had had queries that required explanation. Changes to figures reflecting size
and weight made by him subsequently were of no consequence, he said, and
this was not challenged. Moreover, one of the expert witnesses for Classic
Sailing, Dr J Zietsman, testified that such differences did not affect the

calculations reflected in the stability book. Dzinic herself, in April 2004, had
concluded that the 2004 stability book was mathematically correct and
acceptable „in essence‟. And importantly, James was not asked how he would
have responded had he been advised, through the brokers, that there were
insignificant differences in measurements reflected in the stability book.

[34] As I have indicated, s 53 of the Short-Term Insurance Act applies to
the alleged non-disclosure. It sets the test for determining whether a non-
disclosure has the effect of invalidating a policy or excluding the liability of the
insurer. It reads:
„Misrepresentation and failure to disclose material information
(1) (a) Notwithstanding anything to the contrary contained in a short-term policy,
whether entered into before or after the commencement of this Act, but subject to
subsection (2) -

(i) the policy shall not be invalidated;

(ii) the obligation of the short-term insurer thereunder shall not be excluded or limited;
and

(iii) the obligations of the policyholder shall not be increased,
on account of any representation made to the insurer which is not true, or failure to
disclose information, whether or not the representation or disclosure has been
warranted to be true and correct, unless that representation or non-disclosure is such
as to be likely to have materially affected the assessment of the risk under the policy
concerned at the time of its issue or at the time of any renewal or variation thereof.
(b) The representation or non-disclosure shall be regarded as material if a
reasonable, prudent person would consider that the particular information constituting
the representation or which was not disclosed, as the case may be, should have
been correctly disclosed to the short-term insurer so that the insurer could form its
own view as to the effect of such information on the assessment of the relevant risk.
. . .„.

[35] Thus even if there had been a failure to disclose that the stability book
was not accurate, it could hardly be said to be material. The „reasonable,
prudent person‟ would not have thought that information as to the
measurements of the ship, or a stamp of approval,  affected the assessment
of the risk, given that the purpose of the stability book information is to guide

the master in loading and ballasting the ship.  SAMSA itself was not
concerned about the stability of the Mieke. It had allowed her to sail, from
Cape Town to Port Elizabeth and to Mozambique and back. And the safety
certificate issued by Colenutt on 16 October 2004, which remained valid until
6 October 2005, was not placed in issue. Accordingly I find that there was no
failure to disclose by Classic Sailing that would have invalidated the policy or
exempted Lloyds.

The second defence: The misrepresentation as to Hennop‟s certification
[36] The second special defence relied upon by Lloyds is that Viljoen,
through Brown and Devereux, misrepresented the nature of the dispute
between Classic Sailing and SAMSA as to Hennop‟s certification as a skipper.
The correspondence between Brown and Devereux, and Devereux and Paice
of A J Gallagher form the basis of the defence based on misrepresentation.

[37] On 23 November 2004 Brown of Thebe sent a fax to Devereux. It was
some 19 pages long, including the cover page which read:
„Re: Classic Sailing Adventures – Cover Note
We advise that the Insured has an ongoing difficulty with SAMSA with regard to the
qualifications of the skipper of the vessel.
Attached you will find a mass of documentation dealing with the skipper, Mr Willy Jan
Hennop‟s certification which we are confident would enable Mr Hennop to operate a
charter yacht vessel of the size of the “Mieke” anywhere else in the world other than
the bureaucratic mess that exists here regarding acceptability of certification from
bodies such as the Royal Yacht Association U.K. I too have an ongoing fight with
SAMSA regarding the re-issue in the new format of my own coastal skippers
certificate and I can tell you it is one long bureaucratic mess.
As matters presently stand there is confusion in the offices of SAMSA as to whether
or not they are able to issue a South African Certificate of Competency as they seem
to be unable to decide as to whether or not they will accept bodies such as the Royal
Yacht Association as being competent bodies for the certification of seagoing people
onboard yachts, be they commercial or not.
We submit these documents as we seek confirmation that Insurers are happy with
his qualifications.‟
Some 14 certificates were attached to the fax.

[38] On the same day Devereux sent a fax to A J Gallagher, for the
attention of Paice, attaching the same documents. Devereux wrote:
„Re: Classic sailing – MY “Mieke”
The skipper of this vessel a Mr Willy Jan Hennop is engaged in a dispute with
SAMSA regarding his qualification to act as skipper.
Although the “Mieke” is not a fishing vessel SAMSA seem keen to impose their
authority and we have been asked to request that you view Hennop’s qualifications
not to try to override SAMSA but rather to ascertain whether they satisfy
underwriters. (My emphasis.)
I believe that Kuttel had a similar problem with SAMSA but eventually prevailed and
his Yachtmaster Ocean certificate was recognized.‟

[39] Paice took the fax from Devereux with the attached documents to
James at Lloyds. And as I have already said, James wrote „seen‟ on the fax.
Paice advised Devereux of this by email the following day. And Devereux in
turn sent an email to Brown on 25 November 2004 advising him that the
underwriters had noted „seen‟ on his fax. He also ventured the view that
„from a practical point of view my contract says nothing about compliance with the
Merchant Shipping Act nor has it a skipper‟s warranty so as your client has
demonstrated that his skipper has the necessary qualifications . . .  the unseaworthy
warranty which is what we would rely on if the skipper was unqualified would not be
breached.
Underwriters having only noted “seen” on the documents are basically saying that
they don‟t object and as far as they are concerned the skipper is acceptable.‟

[40] The high court found that no misrepresentation had been made. The
fact that Lloyds had been informed that SAMSA had not accepted Hennop‟s
qualifications, and that there was confusion in the SAMSA offices meant that
Lloyds had been put on guard. The court thus did not accept the view of an
English underwriter, Mr P Northfield, called by Lloyds. Northfield, who had
considerable experience in marine insurance, had testified that it was implicit
from the letters that Hennop would receive the certification required from
SAMSA imminently. Moreover, Northfield had said that a prudent underwriter
would have been substantially influenced as to whether to accept the risk, or

restrict the terms or adjust the premiums, had he been aware that the
regulatory authority‟s certification was not imminent. Of course Northfield‟s
opinion on the meaning of the statements made is not even relevant:16 it is for
the court to interpret what was said and would be understood. But the high
court found in any event that whether or not a prudent underwriter would have
been influenced, James had in fact accepted the risk having seen that
Hennop was not certified by SAMSA. No misrepresentation had thus been
proved.

[41] On appeal Lloyds accepted that the high court correctly set out the
tests for determining whether a misrepresentation vitiates a contract. These
were that there must be a statement of fact, present or past, or opinion, which
is untrue, material to the insurer‟s appraisal of the risk and which in fact
induced the insurer to enter into the contract. (As I have said earlier, the test
is now to be found in s 53 of the Short-Term Insurance Act.) But Lloyds
argued that the statements about Hennop‟s qualifications imply that SAMSA
would issue formal certificates; that in effect the dispute was about minor
paperwork to be completed by an office in disarray; and the matter was of no
consequence. In effect, the problem with SAMSA was trivialized, and what
was conveyed to James was actually false. The essence of the defence, as
argued on appeal, was that Devereux had implied, in his letter of 23
November to Gallagher, that Hennop‟s dispute with SAMSA would be
resolved and that SAMSA would recognize him as qualified and certificated to
skipper the Mieke.

[42] In my view the letter written by Devereux, seen by James, made it
absolutely plain that SAMSA had not certified Hennop as a skipper for a
vessel of the class of the Mieke. Lloyds was asked only if it were satisfied with
Hennop‟s existing qualifications. James‟ conduct made it clear that it was. No
misrepresentation was proved and the test in s 53 need not be applied.

The third defence: Illegal voyage

16 See KPMG Chartered Accountants (SA) v Securefin & another 2009 (4) SA 399 (SCA) para
40.

[43] Section 41 of the English Marine Insurance Act provides:
„There is an implied warranty that the adventure insured is a lawful one, and that, so
far as the assured can control the matter, the adventure shall be carried out in a
lawful manner.‟
Lloyds‟ argument was that the Mieke was sailed in an unlawful manner,
contrary to the provisions of the Merchant Shipping Act, and to the regulations
promulgated in terms of that Act. Section 73(1) of the Merchant Shipping Act
provides that the owner and master of every ship going to sea from any South
African port „shall ensure that there is employed on board of that ship . . . the
number of officers and other persons, duly certificated as provided by
regulation . . .‟.  Contravention of the section amounts to an offence attracting
a penalty of a fine or imprisonment not exceeding one year. Section 226(1) of
the Merchant Shipping Act requires that such stability information as is
necessary for guiding the master in loading and ballasting the ship be kept on
board. And the regulations require that this information be reliable and up to
date.

[44] Lloyds argued that Classic Sailing and Hennop had contravened both
these sections knowingly, and were thus guilty of a breach of the implied
warranty of lawfulness. Cleaver J in the high court found that the „adventure‟
was not illegal, relying largely on English and Australian authorities in this
regard and in part on s 54 of the Short-Term Insurance Act. I do not consider
it necessary to traverse any of the English or other cases. The defence of
illegality can be disposed of shortly.

[45] First, the stability book was on board and met the requirements of the
Merchant Shipping Act, as discussed earlier. And SAMSA had had no
difficulty in allowing the Mieke to sail. It has a discretion to do so under s 85 of
the Merchant Shipping Act. And in relation to the certification of the crew,
even if no formal exemption had been granted to Hennop, he had been
permitted by SAMSA to sail the Mieke. Colenutt certainly knew that Hennop
was going to sail to Mozambique when he issued the general safety certificate
in October 2004. On the face of it, no illegality was committed.

[46] Secondly, Classic Sailing, through Thebe and Devereux, advised
Lloyds that Hennop‟s certificates were not recognized by SAMSA. It could
hardly have warranted that he was properly certificated. There was thus no
warranty in this regard.

[47] And thirdly, s 54(1) of the Short-Term Insurance Act is not consonant
with s 41(1) of the Marine Insurance Act.17 I have said earlier that Classic
Sailing and Lloyds could not contract out of that Act and to the extent that
English law is inconsistent with the provisions of the Act it is inapplicable to
the contract. Section 54 (1) provides:
„54     Validity of contracts
(1) A short-term policy, whether entered into before or after the commencement of
this Act, shall not be void merely because a provision of a law, including a
provision of this Act, has been contravened or not complied with in connection
with it.‟
On the assumption that Hennop or Classic Sailing were guilty of
contraventions of the Merchant Shipping Act,  the effect of s 54(1) is that the
insurance policy would not be void „merely because a provision of a law‟ had
been contravened.

[48] Lloyds argued that the use of the word „merely‟ indicated that the
contravention must be collateral to the claim and not related to the cause of
the loss in order for the policy to remain valid. That may be so. In court the
analogy of an insured car being stolen, and the insurer refusing to meet the
claim because of a traffic offence committed by the insured before the theft,
was debated. Clearly the insurer would not be allowed to escape liability in
such a case.

[49] But equally in this case the sinking of the Mieke was not related to
Hennop‟s lack of certification, nor to the stability information onboard. That is
common cause. In my view, s 54(1) of the Short-Term Insurance Act

17 It should be noted that Hare op cit pp 902-903 does not consider the effect of s 54 (1) of the
Short-Term Insurance Act on the breach of a warranty of legality but does state that
warranties that the insured will comply with statutory requirements is subject to s 54, such that
a policy will not be void because of the illegality: p 327 fn 51.

precludes Lloyds from relying on any breach (if there was one) of an implied
warranty introduced by the English Marine Insurance Act. This defence must
thus also fail.

The sinking of the Mieke
[50] The principal witnesses for Classic Sailing who testified as to the
sinking of the Mieke were Hennop and Mr D Grieve, the vessel‟s engineer.
The cook on board, Ms C du Plessis, who testified for Lloyds, also described
the event and took photographs of the vessel, from the tender, as she sank.

[51] Prior to the sinking, and before leaving Vilanculos for Pemba on 15
September 2005, the crew loaded 3 400 litres of diesel in the fuel tanks. The
weather deteriorated after they left Vilanculos, and a heavy swell and strong
wind lasted about two days. On 17 September Grieve discovered that they
had somehow, inexplicably, lost the fuel taken onboard at Vilanculos.  Hennop
decided to sail to shore. A small amount of fuel remained in what was termed
the „day tank‟. The main engine was run at idling speed. This was not
normally done, and it had the effect of making the engine vibrate.

[52] Early in the morning (at about 6h30) of 18 September, Hennop and
Grieve were on deck when the bilge alarm sounded. Grieve went to
investigate. As he entered the transverse passage in front of the engine room
he stepped into water, which he said was about ankle depth. He attempted to
turn on the emergency lighting but could not. When he went into the engine
room there was water „swishing in and out, up and down the walls‟. He was
able to start the starboard generator, the lights came on and he primed the
mechanical bilge pump and started to run the electrical bilge pump. He asked
Hennop, who had come into the engine room, to increase the revolutions for
the main engine. But there was water everywhere: „it was chaos‟. And the
pumps were not having any effect. He had checked several times that the
seacocks in the engine room and elsewhere were closed.

[53] Hennop, in seeking the source of the inflow of seawater, noticed that
the side passage close to the rudder compartment, was full of water. A smell
of exhaust gases was evident in the side passage and the engine room.

[54] When the water was about hip-height Grieve had to shut down the
generator to avoid electrocution. He dived below the water level in the engine
room to see if he could find the source of the ingress of water, but could see
nothing except disintegrating cardboard boxes that had been stored there and
were floating around. He could hear the hull cracking. There was a strong
smell of diesel.

[55] Hennop instructed the crew to bail the water out with buckets, but the
inflow of water was so great that he decided they should get off the vessel,
and instructed Grieve to see to it. Grieve and the rest of the crew got on to
one of the tenders. Hennop remained on deck. The vessel was sinking from
the stern. Its exhaust was under water. When Grieve had discovered that the
fuel tanks were empty, he had noticed that there were traces of moisture
around the exhaust as it exited the hull. The area was damp. He had not told
Hennop about this, thinking it was of no significance.  But as the vessel sank,
Grieve observed from the tender that there were no bubbles coming off the
exhaust into the water although the main engine was still running. This too
suggested that something was amiss in the exhaust area.

[56] One of the reasons suggested by Lloyds as to the cause of the sinking
was that the cover for the sewage tank had not been secured. However,
Hennop and Grieve testified that the hatch cover had been firmly in place at
the time of the ingress of water, although it had not been bolted down. Grieve
said that when he first went into the transverse passage to attend to the bilge
alarm he had tried to lift the cover so see if the ingress was through the
sewage tank. But the pressure of water above the cover was such that he
could not lift it. Hennop too said that when he had tried to lift the cover the
force of the water prevented it from being moved. Du Plessis testified that she
had seen sewage in the water swirling through the vessel. No one else had
done – but Hennop had said he smelled sewage. In fact, nothing turns on this

and it is clear that the very rapid and large ingress of water could not have
been a result of the cover of the sewage tank being unsecured.

[57] When the Mieke listed to port Hennop jumped off deck and swam to
the tender. The crew watched the vessel come upright again and then sink at
the stern. They proceeded to shore.

The cause of the sinking of the Mieke
[58] Cleaver J in the high court found that Classic Sailing had discharged
the onus of proving that the Mieke sank as a result of a latent defect in the hull
– an excessive stress concentration in the structure of the hull which resulted
in a fatigue failure and associated sudden propagation of cracks and the
sudden ingress of seawater. In this regard, the judge had regard to the
evidence of Hennop and Grieve, described above, and concluded that a large
mass of water had entered the aft portion of the Mieke, where the exhaust
was located, which caused the Mieke to sink by the stern. This conclusion
was supported by the evidence of Hennop that there was a break in the welds
where the exhaust system exited the hull, and by that of Grieve that he could
see no bubbles discharged into the sea when he had left the vessel and was
on the tender.

[59] The high court took the view that in the absence of direct evidence as
to the cause of the sinking, Classic Sailing had to establish inferentially that
the loss of the Mieke was caused by a latent defect – a peril insured against.
This was the approach of the majority of this court in The Wave Dancer: Nel v
Toron Screen Corporation (Pty) Ltd & another.18 Scott JA (in the minority
judgment) said:19
„......it should be observed that while an insured would ordinarily be obliged to adduce
evidence identifying the precise cause of the loss and the particular defect
responsible therefor, such evidence is not necessarily essential.  In principle there
can be no reason why, in the absence of evidence as to the precise cause of the

18 1996 (4) SA 1167 (A).
19 At 1179I-1180A. The principle was not in issue in the majority judgment.

loss, an insured should not in appropriate circumstances be able to establish
inferentially that the loss was occasioned by a latent defect.‟
The majority considered that on the probabilities the owner of the vessel,
being „caring and meticulous‟,20 would not have allowed it to go to sea had he
known that there was any defect in the hull. This court concluded that the
inference to be drawn from the absence of evidence of wear and tear or
patent damage was that there was an inherent defect covered by the
insurance policy.

[60] Cleaver J also accepted the evidence of two expert witnesses who
testified for Classic Sailing: Dr J Zietsman and Dr C Grobler. Their reports and
testimony were based on the evidence of Hennop and Grieve as to how the
sinking occurred, and on scientific hypotheses flowing from that and from
evidence as to the structure of the vessel and repairs done to the exhaust in
particular over several years. Before dealing with their evidence I must
emphasize that where there is eyewitness or direct evidence of an occurrence
this may render the reconstructions of experts less relevant or even irrelevant
(this observation is particularly pertinent to the evidence of Lloyd‟s expert Mr
A J Sinclair): see Parity Insurance Co Ltd v Van den Bergh21 and Van Eck v
Santam Insurance Co Ltd22 where the court said that while it was not unusual
for parties to tender expert evidence  to determine the cause of a collision, the
expert‟s evidence is „inevitably based on reconstruction and cannot
conceivably bear the same weight as direct, eye-witness testimony of the
event in question‟. See also Michael & another v Linksfield Park Clinic (Pty)
Ltd & another.23

[61] Before turning to the evidence of the experts it is important to state that
all causes of the Mieke’s sinking save a latent defect in the hull that allowed
for the ingress of seawater can be excluded. The vessel was not scuttled; the
crew were not negligent; the seacocks were closed; there was no patent
defect and there was no evidence of wear and tear that had any causal

20 At 1188A-D.
21 1966 (4) SA 463 (A) at 476B-H.
22 1996 (4) SA 1226 (C) at 1229H-1230B; see also the cases cited at 1229I-1231H.
23 2001 (3) SA 1188 (SCA) para 40.

connection. (Viljoen had thought that a collision with a floating object might
have caused a crack in the hull to develop, but the crew had not been aware
of any collision and the experts were agreed that if there had been one
sufficient to cause damage the crew would have been aware of it. In any
event a collision would have been covered by the policy.)

[62] Counsel for Lloyds argued on appeal that there was no objective
evidence – such as that of a SAMSA surveyor – that wear and tear were
excluded: but Hennop and Viljoen‟s evidence that the Mieke was in good
condition when she set sail for Mozambique was not gainsaid. The only
inference to be drawn then is that the hull was latently defective. There does
not need to be proof of the precise defect that caused the sinking.

[63] In any event, it was the conclusion of an expert, Captain David, hired
by Lloyds to investigate the loss, and whose expert report was filed by Lloyds,
that there was no readily apparent cause for the sinking: while discounting the
pleaded cause, he could not say what other factor had allowed for a rapid
ingress of seawater, other than an overflow from the sewage tank which had
not been properly sealed. This suggestion is not consonant with the evidence
of Hennop and Viljoen and was rejected by Zietsman. Moreover, David‟s
theory would not have explained the large ingress of water that resulted in the
sinking of the vessel. Interestingly, David did not testify, although he was
available to Lloyds and in court throughout the proceedings.

[64] The evidence of the experts who prepared reports and testified for
Classic Sailing supported the inescapable inference that there was a latent
defect of the nature pleaded by Classic Sailing. Zietsman, who has a
doctorate in ocean engineering, and over 30 years‟ experience, took into
account the evidence of Hennop and Grieve as to the structure of the vessel
and the vibration of the engine when idling; the invoices reflecting repairs to
the exhaust and the hull in the area of the exhaust over a period; prepared a
numerical model of the Mieke and assessed the rate at which water may have
entered the vessel through various apertures, and did flooding calculations.
His view was that the sudden and rapid flooding seen by the crew was

consistent with a large aperture having opened to the sea. Although water
might have leaked slowly into the hull when cracking first occurred, it was
probable that there was a sudden growth of a crack because of the vibration
of the exhaust pipe.

[65] Over the years since the Mieke was built cracks had appeared from
time to time near the exhaust. These had been repaired by welding. In
February 2001 a hole was cut in the hull at the stern and the exhaust
assembly was replaced with a stainless steel doubler plate, welded to the hull,
to reduce cracking in the area of the exhaust exit. The hull itself was made of
a different metal.

[66] Immediately prior to the sinking the engine had been idling for some
time, causing vibrations in the hull which Zietsman said would have
exacerbated the growth of cracks near the engine room. In his report he
stated:
„These vibrations most probably served as a driver for sudden crack growth. . . . The
cracks which had previously occurred had been repaired in part, by welding stainless
steel doubler plates on either side of the hull. These repairs and modifications
probably introduced stress concentrations at those locations. . . . The repairs to the
exhaust penetrations through the hull occurred in the splash zone and the chance of
development of corrosion fatigue was thus enhanced due to wetting and drying in
that area.‟

[67] This hypothesis was confirmed by Grieve‟s evidence that he had
noticed damp in the area of the exhaust. Zietsman could not find confirmation
that the correct welding procedures had been used to weld stainless steel to
the hull. Even if they had, however, differential expansion rates of different
metals could lead to excessive stresses, he said.

[68] Zietsman concluded that the sudden rapid flooding was probably
caused by an aperture or apertures that developed near the engine room.
„Stress concentrations in those areas, together with fatigue corrosion mechanisms,
driven by the vibrations caused by the engine most probably caused the cracks to

grow suddenly. . . . The growth of the cracks was most probably associated with an
initially slow, but finally rapid flooding, causing the yacht to settle by the stern and
then sink.‟

[69] Zietsman had requested Classic Sailing to consult a metallurgist, Dr
Grobler, to confirm his conclusions. Grobler spoke to Viljoen and to the
person who had over the years repaired the hull, Mr F J J Botha, about the
structure of the Mieke and the repairs effected over the years. Grobler
concluded that the welding done in the past and the use of the stainless steel
doubler plate had been far from ideal (the latter increasing the risk of fatigue
cracking) and that there was additional cyclic loading because of the
differential thermal expansion of the different metals used. Other factors, such
as dissimilar welds, had also led to stresses on the hull. There is no need to
consider these. Grobler‟s evidence confirmed Zietsman‟s conclusions.

[70] The expert witness for Lloyds on the question of the cause of the
sinking, Mr Sinclair, also wrote a report and testified. Unlike Zietsman and
Grobler, however, he did not take into account the evidence of Hennop,
Grieve and Viljoen, and denied that there would have been excess vibration
caused by the engine idling for a long period.  He offered no explanation as to
the reason for the Mieke sinking and conceded reluctantly when cross-
examined that the vessel had indeed sunk. He insisted that there must have
been substantial leaking before the morning of 18 September 2005, which
could not have gone unnoticed. He could not of course counter the evidence
of the crew as to the sudden ingress of seawater. Cleaver J correctly rejected
his evidence.

[71] When asked by this court to point to any finding in relation to the cause
of the loss by the high court that was wrong, counsel for Lloyds could suggest
only that Cleaver J had drawn his own conclusions not based on evidence.
The learned judge said that because the exhaust exited above the water level
it was „feasible that cracks occurring in the area would have taken longer to
develop‟.  The evidence of the cook had been that at 4h00 in the morning she
felt that „the vessel had settled by the stern‟. If that were the case, the learned

judge continued, „there would have been more time when pressure from the
ocean would have been applied to any crack or cracks which might have been
in existence without being observed‟.

[72] But in fact the court‟s conclusion was based on Zietsman‟s evidence
that a critical area for corrosion is the splash zone which is at times immersed
and at times above water and that that was another area where the crack that
ultimately became a large aperture might have developed. The criticism is
thus without warrant, and there is no reason to differ from the high court‟s
findings as to the cause of the sinking.

Was the cause of the loss a „latent defect‟?
[73] Lloyds argued that even if the conclusion drawn by the high court (that
the Mieke sank because of a crack in the hull that had developed into a large
aperture) was correct, the crack was not a latent defect. As I understood the
argument it was that there was no defect when the hull was constructed. A
fatigue crack that developed during the course of sailing was not a peril
insured against.

[74] Cleaver J rejected the argument, referring to The Caribbean Sea,24
where Robert Goff J held that fatigue cracks, developed over time, but
attributable to faulty design (also in respect of the manner of welding)
amounted to latent defects. A combination of circumstances resulted in a
fracture opening up a significant period of time before the end „of the natural
life of this ship‟.25 The court held that the defective design had the effect that
defects would inevitably develop in the ship, but would not amount to ordinary
wear and tear. A similar approach is to be found in The Nukila.26

[75] In my view, the high court correctly found that the „excessive
concentration in the structure of the hull‟ which led to fatigue failure as a result

24 Prudent Tankers Ltd S A v The Dominion Insurance Co Ltd (The “Caribbean Sea”) [1980]
Vol 1 Lloyd‟s Rep 338 (QB).
25 At 347.
26  Promet Engineering (Singapore) Pte Ltd v Sturge & others (The “Nukila”) [1997] Vol 2
Lloyd‟s Rep 146 (CA). See also Arnould’s Law of Marine Insurance and Average 17 ed (2008)
22-22, pp 939-940.

of heating and vibration amounted to a latent defect covered by the policy. I
have already said that all other causes of the sinking can be excluded.
Accordingly Lloyds is liable on the policy and Classic Sailing‟s conditional
cross appeal does not arise for consideration.

The  appeals by Thebe and Devereux CC on the costs orders
[76] Cleaver J correctly found that because Lloyds was liable, the
conditional claims against Thebe and Devereux CC fell away. And since I find
that Lloyds is liable, there is no need to consider the soundness of these
claims. But the high court decided that because counsel for Thebe and
Devereux CC had not participated in the hearing in so far as the sinking of the
Mieke, and whether the loss was covered by the policy, were concerned, they
should be awarded only half the costs of the trial (although senior and junior
counsel for each had been present throughout the hearing). They have
appealed against the costs awards.

[77] It will be remembered that Thebe and Devereux CC were joined by
Classic Sailing as defendants only when Lloyds raised the special defences.
Since these rested, to a substantial extent, on letters written by Brown and
Devereux, I consider that Classic Sailing had no choice but to join both.
Brown had written to Devereux, and Devereux had in turn written to Paice of
Gallagher.
These
letters
formed
the
basis
of
the
defences
of
misrepresentation and non-disclosure.

[78] It is trite that the award of costs is a matter within the trial court‟s
discretion, although the general rule is that in commercial litigation costs
follow the event. The discretion must be exercised judicially, and in this case it
must be asked why the general rule was departed from.

[79] Cleaver J considered that costs in respect of the days on which the
evidence on the sinking, and its cause, was given by Hennop, Grieve,
Zietsman, Liverick, Du Plessis and Stewart should not be awarded to Thebe
and Devereux CC.  This decision ignored the fact that Thebe and Devereux
CC‟s liability was directly affected by whether the sinking was caused by an

insured event – the latent defect. They were thus entitled to be represented in
court when that evidence was given. And the evidence was not self-
contained. Viljoen, for example, gave evidence in respect of the structure of
the Mieke and the repairs to it, as well as on the misrepresentations and non-
disclosures alleged. Hennop testified as to the sinking and as to the stability
book and his certification. On what basis should Thebe and Devereux CC
have decided when and when not to be in court? The issues were not
separated, nor even susceptible to separation.

[80] Thebe and Devereux CC were compelled to defend the claims against
them, which had been initiated by the defences raised by Lloyds. They were
entitled to representation throughout the trial. Counsel for both point out that
these two appellants may have been penalized with a costs order had they
extended the period of the trial by cross-examining witnesses unnecessarily.

[81] In the circumstances I consider that the discretion exercised by the
high court in awarding Thebe and Devereux CC only half their costs cannot
be justified. Lloyds must pay the full costs of Thebe and Devereux CC who
were joined only because of Lloyds‟ defences.

[82] In the circumstances Lloyds‟ appeal must be dismissed and the
appeals of Thebe and Devereux CC must be upheld.
1 The first appellant‟s appeal is dismissed with costs, including those
occasioned by the employment of two counsel.
2 The appeals by the second and third appellants are upheld with costs,
including those occasioned by the employment of two counsel.
3 Paragraph 1.4 of the order of the high court is replaced with the following:
„The first defendant is ordered to pay the costs of the second and third
defendants including the costs occasioned by the employment of two counsel
and the preparation expenses of Mr Child.‟
4 The respondent‟s conditional cross-appeal is dismissed.

_______________

C H Lewis
Judge of Appeal

APPEARANCES
FIRST APPELLANT:

M Wragge SC (with him D J Cooke)
Instructed by Bowman Gilfillan Attorneys,

Cape Town.
Matsepes, Bloemfontein.

SECOND APPELLANT:

M J Fitzgerald SC (with him D Melunsky)

Instructed by Deneys Reitz Inc

Cape Town

Claude Reid Attorneys

Bloemfontein

THIRD APPELLANT:

R D McClarty SC (with him P A Corbett)

Instructed by Reillys, Cape Town

Matsepes, Bloemfontein

RESPONDENT:

R W F MacWilliam SC (with him L Burger)

Instructed by Dawson Edwards & Ass

Cape Town

McIntyre & Van Der Post,

Bloemfontein.

SUPREME COURT OF APPEAL OF SOUTH AFRICA

PRESS RELEASE
31 MAY 2010
STATUS: Immediate

Lloyds & others v Classic Sailing.(250/09) [2009] ZASCA 89 (31 May 2009)

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

Lloyds, the London underwriters, had insured Classic Sailing’s yacht, the
Mieke, which sank off the Mozambican coast in September 2005. Lloyds
declined to pay the sum insured, R10m, because it contended that the cause
of the sinking was not covered by the policy; that the policy was vitiated by
certain misrepresentations and non-disclosure of material facts; and that the
voyage was illegal because the skipper did not have all the necessary South
African Marine Authority’s certificates, and inaccurate information about the
stability of the vessel was reflected in the stability book on board.

The Western Cape High Court (exercising its Admiralty jurisdiction) found that
the sinking had been caused by a latent defect in the hull which was covered
by the policy. It also found that the misrepresentations and non-disclosures
alleged had not been made and that the voyage was legal. The high court
relied on an English statute and cases in reaching these decisions, for the
parties had chosen English law to govern their contract. It ordered Lloyds to
pay Classic Sailing R10m, less the cost of a stealth boat (tender), on which
the crew had reached shore after the yacht sank.

Today the SCA dismissed Lloyds’s appeal, but applied South African law: the
provisions
of
the
Short-Term
Insurance
Act
of
1998
govern
misrepresentations and non-disclosures (s 53) and illegality (s 54). They are
not consistent with the English law. Because these sections are enacted to
protect the rights of the insured one cannot waive their application nor choose

to be bound by the provisions of another system of law that are inconsistent
with them: it would be contrary to public policy and the public interest. It would
also be in conflict with s 6 of the Admiralty Jurisdiction Regulation Act 105 of
1983.

The SCA found that Classic Sailing, through its insurance broker, had not
made misrepresentations and was not guilty of non-disclosure. The voyage
was also not illegal simply because a statute had been contravened. It
confirmed the high court’s finding that the sinking had been caused by a latent
defect in the hull which caused a large aperture to open and sea water to
flood the Mieke, causing her to sink. The court thus dismissed the appeal.

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