THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

NOT REPORTABLE
Case No: 1005/13

In the matter between:

RUTH CHRISTINE VISSER

APPELLANT

and

1 LIFE DIRECT INSURANCE LIMITED

RESPONDENT

Neutral citation:
Visser v 1 Life Direct Insurance Limited (1005/13) [2014] ZASCA
193 (28 November 2014).

Coram:

Cachalia, Willis, Swain JJA and Fourie AJA
Heard:

21 November 2014
Delivered:

28 November 2014

Summary: Life insurance policy – repudiation by insurer – alleged
misrepresentation and non-disclosure by deceased of pre-existing medical
condition – insurer failing to discharge onus.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from:    South Gauteng High Court, Johannesburg (Mabesele J, sitting
as court of first instance):

1 The appeal is upheld with costs.
2 The judgment of the High Court is set aside and replaced with the following order:
„(a) Judgment is granted in favour of the plaintiff for payment of the sum of

R3 200 000.
(b) The defendant is to pay interest on the aforesaid sum at the rate of 15,5 per

cent per annum from 3 December 2010 to date of payment.
(c) Costs of suit.‟
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Swain JA (Cachalia J and Fourie AJA concurring):

[1] The appellant, Ruth Christine Visser (Visser) is a 80 per cent beneficiary in
terms of a life insurance policy issued by the respondent, 1 Life Direct Insurance
Limited (1 Life) in favour of the late Sibongile Ntobongwana (the deceased).

[2] The claim of Visser for payment of 80 per cent of the insured sum of
R4 million, on the death of the deceased, was repudiated by 1 Life on the ground
that the deceased had misrepresented and failed to disclose to 1 Life, certain details
of her pre-existing medical condition, which materially affected the assessment of the
risk under the policy by 1 Life.

[3] As a result Visser instituted action against 1 Life in the South Gauteng High
Court, Johannesburg (Mabesele J), for payment of the sum of R3 200 000. The
claim was dismissed on the ground that 1 Life justifiably repudiated the claim
because the deceased had provided „false information‟ to it in respect of her pre-

existing medical condition which had precluded 1 Life from properly assessing the
risk. Leave to appeal having been refused, the present appeal is with the leave of
this court.

[4] In terms of s 59(1)(a) of the Long Term Insurance Act 52 of 1998 (the Act) 1
Life was entitled to repudiate the life policy if a misrepresentation was made to it by
the deceased, which was not true, or which amounted to a failure to disclose
information, if the representation or non-disclosure was likely to have materially
affected the assessment of the risk under the policy concerned.

[5] 1 Life bore the onus of proving that the deceased had misrepresented to 1
Life that she had never had any episodes of anxiety or stress. It also had to prove
that the deceased had failed to disclose that she had received medical advice or
treatment for fainting in 2005 and chest pains in 2006.

[6] 1 Life relied upon two sources of evidence to discharge this onus. Firstly, the
transcript of a telephone conversation held on 28 November 2007 between the
deceased and a representative of 1 Life, during which the deceased was asked and
answered questions relating to her state of health. The answers furnished formed the
basis upon which the life insurance policy was issued. Secondly, records of Groote
Schuur Hospital of visits ostensibly paid by the deceased to the emergency unit at
the hospital on 15 August 2005 and 11 July 2006. The records ostensibly contain
details of the medical complaints of the deceased, medical tests carried out on her,
as well as the observations of the attending doctor.

[7] Because scant regard was paid in the court a quo to the admissibility of this
evidence, as well as proof of the evidence contained in this documentation, the
parties were requested to make submissions on the following issues:
(a)
The admissibility and reliability of the hospital records.
(b)
The admissibility, reliability and completeness of the telephonic transcript.
As a result, the parties filed supplementary heads of argument.

[8] The admissibility of the record of the telephonic conversation and the hospital
records must be distinguished from the evidential status of their contents. I accept

that the records were admissible without further proof. The parties agreed at the rule
37 conference that the records would serve as evidence of what they purport to be
„without admission of the truth of the contents‟. In addition, on 22 February 2012 1
Life delivered a notice in terms of rule 35(9) of the Uniform Rules of Court calling
upon Visser to admit that the hospital records and the telephonic transcript were
properly executed and were what they purported to be. On 6 March 2012 Visser
made this admission.

[9] Before us, there was no issue that the telephonic transcript was admissible,
reliable and complete and I therefore turn to the evidential status of the contents of
the hospital records. The doctor who conducted the interviews with the deceased
should have been called to prove the truth of their contents. This was not done. No
explanation appears on the record for this. No application was made in terms of s 3
of the Law of Evidence Amendment Act 45 of 1988 for the hearsay evidence
contained in the hospital records to be admitted. Again, no explanation appears on
the record for this.

[10] The hospital records were introduced into evidence before the court a quo by
counsel for Visser. He put to a witness, Dr Steyn, that she had been presented with
„certain documents related to the visit or the supposed visit of the deceased to
Groote Schuur Hospital‟. Dr Steyn, on behalf of Visser, and Dr Kayle, on behalf of 1
Life, expressed their views on the nature and seriousness of the deceased‟s medical
condition, based upon the contents of the hospital records.

[11] Counsel for 1 Life (not the same counsel who appeared in the court a quo)
submitted that the trial was conducted by the parties on the basis that the contents of
the hospital records were not in dispute. However, an examination of the evidence
reveals that there was no clear understanding between them as to the evidential
status of the contents of the hospital records. It is, however, clear that the parties did
not agree that the contents of the hospital records were correct.

[12] It appears the learned judge in the court a quo was uncertain of the status of
the evidence contained in the hospital records. At one stage he asked „is their
dispute about the report or what‟ but no answer was forthcoming from counsel.

When Dr Steyn expressed her opinion on the contents of the medical reports, the
learned judge stated the issue was not whether the deceased was sick, but whether
the deceased failed to disclose that to 1 Life. He added that the issue was „not
whether or not we believe the contents‟ of the hospital records. When Dr Steyn
stated that an entry in the hospital records was incorrect, he intervened and said the
correctness of the contents could not be challenged, because the doctor who wrote
the notes was not present. He added that was not the enquiry, which was whether
the deceased failed to disclose the medical conditions contained in the notes. He
stated that whether or not the information was correct, or accurate was accordingly
irrelevant. He accordingly did not appreciate that the contents of the hospital records
were relied upon to prove the pre-existing medical condition of the deceased. Only
when that issue was proved could the further issues of misrepresentation or non-
disclosure by the deceased arise.

[13] The court a quo also laboured under the misconception that the contents of
the hospital records were not in issue between the parties. He stated that if the
parties were agreed that the deceased suffered from certain medical conditions, then
the cause of those conditions was immaterial. This statement provoked no response
from counsel.

[14] The inadequacy and lack of clarity of the hospital records was referred to
repeatedly in the evidence. Dr Steyn agreed that the hospital records were
incomplete and contained far less information than they should have. Assumptions
therefore had to be made and one had to speculate concerning the causes of the
symptoms, in the hospital records. Dr Kayle, who gave evidence for 1 Life, said he
could not fully assess the correctness of the recorded symptoms and diagnosis of
the deceased‟s medical condition, because the investigation was incomplete. The
evidence of Dr Steyn and Dr Kayle makes it clear that the parties never agreed that
the contents of the hospital records were true and accurate.

[15] The absence of any agreement between the parties that the medical condition
of the deceased was recorded correctly in the hospital records, appears from the
record. Counsel for 1 Life put the following to Dr Steyn:

„So all the doctors, with respect, are in a very difficult position. You had scanned
notes and you may correctly interpret it and you may incorrectly interpret it – Correct.

That should be the approach in this case. You cannot swear by the correctness or
the incorrectness of any of the notes, you can simply see what you see. – True.

Understanding that it is unfortunately incomplete in the sense that it contains far less
information than it should have done. – True.

Would that be a fair summary in my approach to the case? – Yes.‟

[16] The submission of counsel for 1 Life that the parties conducted the trial on the
basis that the relevant contents of the hospital records were not in dispute is
accordingly incorrect. It is also incorrect that Visser acquiesced in the use of the
hospital records to establish the primary facts. Because 1 Life‟s counsel did not
regard the hospital records as proof of „the primary facts‟ Visser could never have
acquiesced in their use for this purpose. The court a quo accordingly erred in
concluding that „it is not in dispute that the illnesses are noted, correctly, in the
hospital records‟.

[17] Counsel for 1 Life submitted however, that Visser had admitted the truth of the
contents of the hospital records in an answering affidavit filed by her in opposition to
an application for the rescission of a judgment obtained by Visser against 1 Life. 1
Life alleged in its founding affidavit that the deceased had failed to disclose that „she
had been hospitalised for fainting spells during 2005 and that she had suffered from
stress anxiety during July 2006‟. It was also alleged that the deceased „specifically
confirmed that she had never had any episodes of depression, anxiety or stress‟.

[18] Visser replied to these allegations in her affidavit as follows:
„The nature of episodes related to the insured‟s anxiety, depression or stress, I suggest
cannot be adduced from a Groote Schuur Hospital report dated 12 July 2006 and attached
hereto marked “POA2”. . . . Alternatively – there is certainly no clarity on the medical
correlation substantiated by the applicant [1 Life] between panic and anxiety, within the
papers filed of record. What is further evident is that the insured in accordance (with) the visit
to hospital on 12 July 2006, (POA2 refers) presented with abdominal pains and not because
of episodes of depression, anxiety or stress. I further fail to see how this aspect could be
viewed as a material non-disclosure, alternatively how such condition (under the

circumstances) even presented to the applicant, would have affected the risk assessment of
the insured and lead to the rejection of any claim.‟

[19] The only statement of Visser which relates to the contents of the hospital
records is that the deceased „presented with abdominal pains and not because of
episodes of depression, anxiety or stress‟. The statement simply reflects what
appears on the hospital records, and does not refer to any of the other entries. There
was no admission of the truth and correctness of all of the facts contained in the
hospital records. Even if construed as an admission, Visser never intended to
formally admit the contents of the hospital records. The admission was accordingly
informal and she would have been entitled to lead evidence to contradict or explain
the admission.1 At no stage before or during the proceedings before the court a quo,
did 1 Life contend that Visser had made the admission now contended for on appeal.
Visser was never given the opportunity to lead any evidence to deal with the so-
called admission. There is no basis for the submission made.

[20] 1 Life therefore failed to discharge the onus of proving the truth and accuracy
of the contents of the hospital records. It consequently failed to prove that the
deceased had experienced episodes of anxiety or stress, had received medical
advice or treatment for fainting in 2005 and chest pains in 2006. The issue of
whether the deceased made a misrepresentation during the telephone conversation
as well as the materiality of any alleged misrepresentation or non-disclosure, does
not arise in the absence of proof of the deceased‟s pre-existing medical condition. In
my opinion Willis JA in his separate but concurring judgment has attempted to deal
with issues relating to misrepresentation and their materiality that need not even be
considered.

[21] During the later stages of argument in this appeal a member of the court,
Mathopo AJA unfortunately became ill. With the consent of both parties argument
was concluded in his absence. This judgment is the decision of a majority of the
remaining judges who are in agreement and constitute a majority of the judges

1 P J Schwikkard & S E van der Merwe, Principles of Evidence, 3rd ed (2009) para 26 2 1.

before whom the hearing was commenced, in accordance with s 13(3)(a) of the
Superior Court Act 10 of 2013.

[22] I make the following order:

1 The appeal is upheld with costs.
2 The judgment of the High Court is set aside and replaced with the following order:
„(a) Judgment is granted in favour of the plaintiff for payment of the sum of

R3 200 000.
(b) The defendant is to pay interest on the aforesaid sum at the rate of 15,5 per

cent per annum from 3 December 2010 to date of payment.
(c) Costs of suit.‟2

___________________
K G B SWAIN
JUDGE OF APPEAL

Willis JA:

[23]  I have read the judgment of Swain JA. I agree with the order that he has
proposed and much of his reasoning. I consider that what is often loosely called „the
materiality of the non-disclosure‟ must, however, unavoidably be dealt with. For this
reason I have written a separate judgment.

[24] The appellant appeals, with the leave of this court, against the judgment of the
South Gauteng High Court, Johannesburg (Mabesele J), which dismissed her claim
with costs.

2 The date from which mora interest is to run, being 3 December 2010 is the date upon which 1 Life
became aware of the judgment obtained by Visser and thereby acquired knowledge of Visser‟s claim.

[25] The appellant, Ms Ruth Christine Visser, as the beneficiary of 80% of the
proceeds of a life insurance policy, instituted action against the respondent (the
insurance company). The deceased‟s husband, Mr Luwasi Ntyeku, was the
beneficiary of the other 20%. The insured was Sibongile Ntobongwana (the
deceased). The benefit to accrue to the plaintiff was R3.32 million.

[26] The plaintiff was a school teacher. She was also an officer in the Salvation
Army (the Army), a Christian organization that promotes good works. The deceased
was a youth leader in the Army and it was through the Army that the plaintiff and the
deceased first met each other during the middle of 2007. The plaintiff‟s husband was
a pastor in the army. The plaintiff and the deceased struck up a warm relationship.
The plaintiff recognised the deceased‟s talent and that the deceased wanted to
improve herself by starting a business in the dealership of arts and curios. The
plaintiff and her husband assisted the deceased in starting up a business selling arts
and curios. The three of them entered into a partnership agreement. They lent her
money and gave her administrative support and strategic advice. The business was
a resounding financial success. The deceased was able to buy a flat of her own in
Parow shortly after the business had been established.

[27] The deceased took out the insurance policy with the insurance company with
effect from 1 December 2007. The insurance policy was issued as a result of a
telephonic application by the deceased to the insurance company. The deceased
died on 29 January 2009. It appears from the record that she died from unnatural
causes.

[28]  The insurance company has sought to avoid payment on the basis that the
deceased, when taking out the policy in question, had not disclosed that she had
received medical advice and treatment in 2005 and 2006. The non-disclosure
allegedly relates to chest pains, fainting spells and episodes of anxiety during this
period. By reason of the manner in which this case was conducted in the high court
and the manner in which the argument was presented in this appeal, I think it better
to consider a few cardinal principles of the relevant law before a more detailed
examination of the facts. This may be unusual but an overview of the relevant legal
principles may assist in understanding the facts as set out hereunder. Qilingele v

South African Mutual Life Assurance Society,3 despite controversies in cases which
followed it,4 made it clear that an insurer seeking to avoid liability on the basis of the
untruth of a representation made to it, bears the onus of proving the requisite
elements that would justify its repudiation of liability in terms of s 19(3) of the
Insurance Act 27 of 1943 (the Insurance Act).5

[29]  Two questions have loomed large in this case. They are simply stated but
more difficultly answered: (a) what are the facta probanda (the facts which need to
be proven) and (b) what are the proven facts? In relation to the case which the
insurance company has made out, the answers to the first question are to be found
by reference to the substantive law of insurance and to the second by reference to
the law of evidence.

[30] The issue of whether an insurer has succeeded in establishing the requisite
elements in order to avoid liability in terms of an insurance policy by reason of the
non-disclosure of facts by the insured has vexed the courts for some time. It has
been instructive to read the cases that we were requested by counsel to consider.6
These authorities have imparted an overall perspective of the issues that are
relevant when an insurer seeks to avoid liability on the ground of the insured‟s non-
closure of facts. The cases in question have dealt, more specifically, with the
requirement in terms of which the insurer must prove, in terms of s 19(3) of the
Insurance Act 27 of 1943, that „the incorrectness of such representation is of such a
nature as to be likely to have materially affected the assessment of the risk under the
said policy at the time of issue …thereof.‟7 I have also profited from reading Peter
Havenga‟s article „Materiality in Insurance Law: The Confusion Persists.‟8

3 Qilingele v South African Mutual Life Assurance Society 1993 (1) SA 69 (A).
4 See, for example, the cases below in respect of which I acknowledge counsel‟s exhortations to
peruse.
5 Qilingele v South African Mutual Life Assurance Society (supra) at 74A-C. Repealed and replaced
by  the Long-Term Insurance Act 52 of 1998 (see s 59 of new Act).
6  The following, in particular, were helpful: Commercial Union Insurance Co of SA Ltd v Lotter 1999
(2) SA 147 (SCA); Clifford v Commercial Union Insurance Co of SA Ltd  1998 (4)  SA 150 (SCA);
Theron v AA Life Assurance Association Ltd 1995 (4) SA 361 (A); Qilingele v South African Mutual
Life Assurance Society fn 1; President Versekeringsmaatskapy Bpk v Trust Bank van Afrika Bpk & ’n
ander 1989 (1) SA 208 (A); Mutual  and Federal Insurance Co Ltd  v Oudtshoorn Municipality 1985 1
SA 419 (A); Mahadeo v Dial Direct Insurance Ltd 2008 (4) SA 80 (W).
7 Ibid. See also  s 19(3) of the Insurance Act 27 of 1943. Qilingele v South African Mutual Life
Assurance Society (supra) at 74A.
8 P Havenga „Materiality in Insurance Law: The Confusion Persists‟ 1996 (59) THRHR at 339.

[31]  Necessarily, and self-evidently, first among these elements, preceding the
question of materiality, would be (a) that a representation was made and (b) that it
was untrue. Both Mr Symon, who appeared for the insurance company in the appeal
and the insurance company‟s counsel in the trial itself, fairly and correctly conceded
that this was indeed the correct legal position. This is implicit in Kriegler JA‟s
reasoning in Qilingele.9 It is more explicit in Fransba Vervoer Bpk v Incorporated
General Insurances Ltd.10 That the onus on the insurer is extensive is set free from
doubt in the English case of Joel v Law Union And Crown Insurance Company.11
Joel‟s case was followed in Fransba.12 Fransba makes it clear that there is a further
element which the insurer must prove. This further element Mr Symon would not
concede, despite my having tested this with him with some insistence during the
course of argument. It is that the fact or facts in question must have been known to
the insured at the time when she gave her answers to the questions posed to her by
the insurer.13

[32] Conceptually, there is a difference between, on the one hand, the materiality
of a non-closure 'in the wider sense‟ of the term (which includes the elements of (a)
the fact of non-disclosure; (b) the awareness by the insured of the facts which she
may have been required to disclose and (c) a consideration of the materiality of that
non-disclosure) and, on the other, materiality 'in 'the narrower sense' (which
separates materiality per se from both the non-disclosure itself of relevant facts  and
the concomitant state of mind of the insured). Conflating the wider into the narrower
sense is easily done but can lead to confusion. The failure to distinguish the wider
from the narrower sense may explain the difficulties which the litigants, as well as the
trial court, experienced during the action. When it comes to a consideration of the
entitlement of an insurer to avoid liability on the ground of non-disclosure by the
insured, the facta probanda are those which relate to the two elements of (i) the non-
disclosure itself and (ii) the consciousness or awareness of the insured of the facts

9 At 74C and 76G.
10 Fransba Vervoer (Edms) Bpk v Incorporated General Insurances Ltd 1976 (4) SA 970 (W) at 977.
This case was referred to with approval by this court in Mutual and Federal v Oudtshoorn (supra) at
435E.
11 Joel v Law Union and Crown Insurance Company (1908) 2 KB 863 at 880.
12 At  977B-D
13 Ibid.

which she would have been required to disclose. The materiality of the non-
disclosure is a question of law.

[33] For reasons that I hope will become manifest later in this judgment, the
question of the materiality (in the narrow sense) of the alleged non-disclosure does
not even arise in this case because, even if one accepts that the representations
were made, the insurance company has failed to establish that they were (a) untrue
and (b) were known to have been untrue by the deceased, at the time when she
made them. Put differently, the insurer must discharge the onus of proving that the
deceased would, in her understanding of the questions, have known that she was
telling an untruth in response thereto.14

[34] In the nature of things, the state of mind of the insured, her awareness of what
she would have been required to disclose, will ordinarily be a matter of inferential
reasoning. The evaluation embraces both subjective and objective elements: what is
relevant is not merely what she thought and understood at the time but also what
facts she, in the context of the questions and her particular situation, there and then,
could reasonably have been expected to disclose. Relevant to the issue of the facts
an insured could reasonably have been expected to disclose would obviously be
whether, as mentioned previously, „the incorrectness of such representation is of
such a nature as to be likely to have materially affected the assessment of the risk
under the said policy at the time of issue …thereof.‟15

[35] There will therefore, unavoidably, be an osmotic relationship between the
questions of law and fact.16 This process of osmosis may explain the murkiness that
has clouded so much thinking on the overall question of the materiality of a non-
disclosure by an insured: the permeability between the questions of law and fact is
indeed gaping. Questions of law and fact do not necessarily separate conveniently
into hermetically sealed compartments.17Nevertheless, if correct decisions are to be

14 The nexus between knowledge and understanding is usefully made apparent in, for example, The
Oxford Dictionary 2006.
15 Ibid. See also  s 19(3) of the Insurance Act 27 of 1943.
16 The German word Durchdrungen expresses the process well.
17 See Secretary for Inland Revenue v Trust Bank of Africa Ltd 1975 (2) SA 652 (A) at 666E; which
was followed in S v Petro Louise Enterprises & others 1978 (1) SA 271 (T) at 280A-B. In Magmoed v
Janse Van Rensburg & others 1993 (1) SA 777; 1993 (1) SACR 67 (A) Corbett CJ, delivering the

made concerning the issue of the materiality non-disclosure in contracts of
insurance, there must be alertness to the distinction between the two separate
questions.

[36]  By reason of the fact that this case falls to be decided according to the law of
evidence, my remarks concerning the requisite elements for an insurer to avoid
liability on the grounds of no-disclosure should be understood as being strictly obiter.
In no way should they be understood as the final word on the matter.  They are
presented by way of background.  The reason is that, if a litigant loses a case „for
want of evidence‟ it is entitled, in my opinion, to have some sense, in the reasons for
judgment, of what it might have been expected to prove. In any event, the evidence,
or lack thereof, which may have been put before any court, cannot be considered in
abstracto or in vacuo from the facta probanda.

[37]  On 16 November 2010, the plaintiff sought and obtained judgment by default
against the insurance company in the South Gauteng High Court in the sum of R3.2
million together with interest and costs. The insurance company thereafter made
application for rescission of this judgment. In its founding affidavit in support of the
application for rescission, Mr Anton De Souza, the chief executive officer of the
insurance company said the following:
„[20]
An investigation of the claim [by the plaintiff] then took place by the applicant‟s
forensic division. The results of the investigation, which was conducted by Henk Uys of
Telesure Group Services (Pty) Ltd, whose confirmatory affidavit is attached hereto marked
“AS8”, are set out below. It emerged in the course thereof that the applicant had failed to
make at least two material disclosures and had also made a misrepresentation which were
relevant to the granting of the insurance cover concerned.
[21] The non-disclosures concerned were the failure of the insured to disclose that she
had been hospitalised for fainting spells during 2005 and that she had suffered from stress
anxiety during July 2006. A copy of the transcript of the telephone consultation conducted at
the sales stage is attached hereto marked „AS9.‟

unanimous judgment of this court said, at 809A, that he was  „in full and respectful agreement‟ with
what Botha J had said in Petro Louise Enterprises.  In S v Basson 2005 (1) SA 171 (CC) para 48 the
Constitutional Court said that it found Corbett CJ‟s analysis in Magmoed of the distinction between
questions of fact and law to be „helpful‟.

The alleged misrepresentation related to the deceased‟s income. This ground of
objection was later abandoned by the insurance company.

[38]  Further on in the affidavit, the insurance company relied on the following:
„[21.4]
the insured [the deceased] stated that she had not suffered chest pains at any
stage (page 7 of the transcript);
[21.5]
the insured specifically confirmed that she had never had any episodes of
depression, anxiety or stress (page 7 of the transcript);
[21.6]
the insured stated that she was never hospitalised (page 7 of the transcript).‟

In the answering affidavit the plaintiff denied that there had been two material non-
disclosures and any misrepresentation. She then pertinently responded as follows:
„AD PARAGRAPH  21.4
I deny that from page 7 of the transcript “AS9” (page 50), that it can be inferred as alleged by
the Applicant, that the insured stated that she had not suffered chest pains at any stage. The
question at page 7 clearly relates to disorders of the heart and not chest pains in general.
This I submit does not constitute any non-disclosure or misrepresentation.
AD PARAGRAPH  21.5
This is admitted, as the insured never presented with “episodes” of depression, anxiety or
stress. “Episodes” clearly depict the plural and a series of events. The nature of episodes
related to the insured‟s anxiety, depression or stress, I suggest, cannot be adduced from a
Groote Schuur Hospital report dated 12/07/2006 and attached hereto marked “POA2”.

Alternatively – the interpretation of such question by any person other than the insured
would be purely speculative.

Alternatively – there is certainly no clarity on the medical correlation substantiated by the
Applicant between panic and anxiety, within the papers filed of record. What is further
evident is that the insured in accordance the visit to hospital on 12/07/2006, (POA2 refers)
presented with abdominal pains and not because of depression, anxiety or stress. I further
fail to see how this aspect could be viewed as a material non-disclosure, alternatively how
such condition (under the circumstances) even presented to the applicant, would have
affected the risk assessment of the insured and lead to the rejection of any claim.
AD PARAGRAPH  21.6
. . . She [the deceased] was clearly never „hospitalized” due to referral by a doctor or taken
up in hospital due to a particular illness. Again the interpretation of the question and answer

thereto will remain speculative in absence of the insured and I submit it is not being a non-
disclosure under the circumstances . . . .‟
During argument before us, Mr Symon placed great reliance on these responses by
the plaintiff. In particular, he contended that there was no dispute between the
parties as to the questions which the insurance company had put to the deceased,
the deceased‟s answers thereto and what appeared in the hospital records. He
contended also that these answers contained „admissions against interest‟. I shall, in
due course, deal more directly with these issues.

[39] The plaintiff, at no stage, admitted the truthfulness of the contents of the
hospital records. It is trite that the production in evidence of documents in terms of
R35 (10) of the Uniform Rules of Court, after these have been admitted in terms of
R35 (9), as happened in this case does not extend to the truthfulness of the contents
thereof.18 The documents are not evidence that the content thereof is true.19 The
contents, unless admitted as being true remain hearsay evidence and therefore
inadmissible unless they qualify for admission under one of the recognised
exceptions to the hearsay rule.20

[40] The common law rules regarding the admission of hearsay evidence were
rendered more flexible by the coming into operation of The Law of Evidence
Amendment Act 45 of 1988 (The Law of Evidence Amendment Act).

The relevant portions thereof read as follows:
„3(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as
evidence at criminal or civil proceedings, unless –
(a) each party against whom the evidence is to be adduced agrees to the admission thereof
as evidence at such proceedings;
(b) the person upon whose credibility the probative value of such evidence depends, himself
testifies at such proceedings; or
(c) the court, having regard to -

18 See Absa Bank Bpk v Ons Beleggings BK 2000 (4) SA 27 (SCA) para 6 and the authorities therein
cited.
19 Ibid.
20 See Knouwds v Administrateur Kaap 1981 (1) SA 544 (C) at 551H-552B. Referred to with approval
in Absa Bank Bpk v Ons Beleggings BK (supra).

(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose credibility the
probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might entail; and
(vii) any other factor which should in the opinion of the court be taken into account,
is of the opinion that such evidence should be admitted in the interests of justice.
(2) The provisions of subsection (1) shall not render admissible any evidence which is
inadmissible on any ground other than that such evidence is hearsay evidence.
(3) Hearsay evidence may be provisionally admitted in terms of subsection (1)(b) if the court
is informed that the person upon whose credibility the probative value of such evidence
depends, will himself testify in such proceedings: Provided that if such person does not later
testify in such proceedings, the hearsay evidence shall be left out of account unless the
hearsay evidence is admitted in terms of paragraph (a) of subsection (1) or is admitted by
the court in terms of paragraph (c) of that subsection.
(4) For the purposes of this section -
“hearsay evidence” means evidence, whether oral or in writing, the probative value of which
depends upon the credibility of any person other than the person giving such evidence;
“party” means the accused or party against whom hearsay evidence is to be adduced,
including the prosecution.‟
No application was made at any stage during the trial for the contents of either the
transcript or the hospital records to have been admitted in terms of s 3 of The Law of
Evidence Amendment Act. Had such an application been brought, the outcome may
have been different.  As McDonald’s Corporation v Joburgers Drive Inn Restaurant
(Pty) Ltd & another; McDonald’s Corporation v Dax Prop CC & another; McDonald’s
Corporation v Joburgers Drive Inn Restaurant (Pty) Ltd  and Dax Prop CC21 and
Makhatini v Road Accident Fund22 make clear, the admission of the evidence is no
mere formality; the admission of the evidence is not to be had, merely for the asking.

21 McDonald’s Corporation v Joburgers Drive Inn Restaurant (Pty) Ltd & another; McDonald’s
Corporation  Dax Prop CC & another; McDonald’s Corporation v Joburgers Drive Inn Restaurant (Pty)
Ltd  and Corporation  Dax Prop CC 1997 (1) SA 1 (A) at 27D-H.
22 Makhatini v Road Accident Fund 2002 (1) SA 511(SCA) paras 26 to 35.

The court must carefully consider all the factors listed in s 3(1)(c) of the Law of
Evidence Amendment Act. It was only once this court, in preparation for the hearing
of the appeal, invited the parties to make submissions in regard to the whole
question of the admissibility of the transcript and the hospital records that they did
so. Apart from the evidence of the plaintiff and her husband, both parties lead
evidence in an attempt to address the materiality of the non-disclosures.
[41] The trial court said:
„[44] The evidence is that the defendant relied upon false information provided to it by the
deceased and concluded a policy contract with her. Had the deceased disclosed her health
status the defendant would have been able to weigh its options to either load the premium,
reject the application or referring the deceased to a medical doctor for medical examination
and a report which would enable them to take an informed decision on the application of the
deceased‟.
The judge added that:
„[45] For these reasons, I do not hesitate to come to a conclusion that the defendant was
justified to repudiate the contract. The result is that the plaintiff‟s claim must fail.‟
The trial court was clearly wrong. The trial court failed to make a proper distinction
between the production of a document in terms of Rule 35 (10) and the admissibility
of its contents as evidence. A perusal of the record indicates that the transcripts of
the questions and the answers given by the deceased were, by necessary
implication, agreed to have been truly and correctly recorded.  It certainly was not
the position with regard to the hospital records. Accordingly, the insurance company
failed to discharge the onus of proving that the answers were untrue and,
furthermore, that the deceased would, in her understanding of the questions, have
known that she was telling an untruth in response thereto. The insurance company‟s
defence to the plaintiff‟s claim must fail.

[42]  In view of the fact that the parties conducted the trial as if the materiality of the
non-disclosures rather than the admissibility of evidence were the real issue, I should
not want the insurance company to think that the plaintiff has succeeded on purely
technical grounds. The evidential deficiencies in the insurance company‟s case go
further than technicalities.

[43]  The insurance company relied on the fact that it appeared to be common
cause that, at the time her telephonic application for insurance was made, the
deceased was asked the following two questions, to which she answered „No‟:
(1) „Do you have or have you ever had any episodes of depression, anxiety or stress?‟
and
(2)  „Have you ever had any illness or any medical or surgical advice or treatment other
than already stated, e.g. operations, accidents, hospitalisations?‟
The hospital records show that in 2005, she had been visited the hospital and
complained the she had had, „fainting spells‟, an argument with her boyfriend that
she had been robbed as a result of which she may have had panic attacks and that
she was adjusting to her new role as mother of a baby then aged three months old.
The hospital record of the 2006 indicates that she had a „stabbing pain over her
lower ribs‟ that afternoon. The deceased had been treated as an outpatient. These
are the facts upon which the insurance company has relied to seeking to avoid
liability under the insurance policy.
[44]  The person who conducted the interview on behalf of the insurance company
did not testify. The doctors with whom the deceased may have consulted also did not
testify. The evidence of these records is obviously hearsay. No application was
made by the insurance company for this evidence to be admitted in terms of s 3 of
the Law of Evidence Amendment Act.
[45]  Both Dr Elmin Steyn, who was called by the plaintiff and Dr Allan Kayle, who
was called by the defendant agreed that the records showed that the deceased was
not hospitalized (in the sense of being admitted to a ward as a patient, that the
diagnosis, if any, was incomplete, inconclusive and certainly not serious). They both
agreed that the records showed that the doctors who may have examined the
deceased did not find any condition that required immediate medical care.
Interestingly, the record of the second visit indicates that the deceased had no past
medical history. Dr Steyn said that the visit after an argument with her boyfriend was
typical of abused women and could be construed as a cry for help.  Both visits took
place late at night.

[46]  The insurance company‟s counsel himself, when cross-examining Dr Steyn
put it to her as follows:
„Q: That should be the approach in this case. You cannot swear by the correctness or the
incorrectness of the notes, you simply see what you see?
A: Yes.
Q: Understanding that it is unfortunately incomplete in the sense that it contains far less
information than it should have done?
A: True
Q: Would that be a fair summary in my approach to the case?
A: Yes‟
Even if the sketchy hospital records are to be considered as admissible evidence
very little, if any, weight can be attached to them in all the circumstances of this
case.23  There exists real uncertainty as to the accuracy and truth of (a) what the
deceased said and complained of when she went to the hospital and (b) the truth
and accuracy of such diagnosis as may have been made. Such weight as could be
attached to the hospital records, read together with the transcript, would not, when
viewed in context, discharge the onus that rest on the insurance company.

[47] There was much debate before us concerning the law of „admissions against
interest‟ by reason of the „privity of interest‟ that existed between the deceased and
the plaintiff. Mr Symon argued that, because of the plaintiff‟s responses in her
affidavit resisting summary judgment, she had made informal admissions. Moreover,
if I understood the argument correctly, this resulted in there being vicarious
admissions of the truthfulness of what was recorded in the hospital records as
having been said by the deceased to those who attended upon her at the hospital.
These, he argued, were admissions against interest by the deceased. By reason of
of the „privity of interest‟ between the deceased and the plaintiff, these admissions
could be held against the defendant, because she referred to them in her affidavit
opposing the application for rescission of the default judgment.  As Watermeyer CJ
said in R v Leibbrandt & others,24   there is a „danger of arguing in a circle‟ when
considering the issue of whether one person‟s statement can or should be held

23 See, for example,  Narotam v Madhav & another 1965 (4) SA 85 (W) at 88A-89A and S v Ostilly &
others 1977 (2) SA 104 (D)
24 R v Leibbrandt & others 1944 AD 253 at 276.

admissible to the extent of being an admission against another (sometimes
described as a vicarious admission).

[48] Sight must not be lost of the importance of not confusing the distinction
between the admissibility of hearsay evidence, on the one hand, and an admission,
on the other. There can be no doubt whatsoever that there were no admissions of
fact either by the deceased or the plaintiff that, in themselves, were dispositive of the
issues in the trial. Everything has depended upon the permissible inferences that
one may draw, on a balance of probabilities, from the facts – whether these facts
were in issue or admitted.  Ultimately, as Zeffertt and Paizes point out in their The
South African Law of Evidence, all questions of admissibility of evidence relate to
relevance, reliability and the constitutional right25 of all persons to a fair trial.26  The
„admissions against interest‟ point raised by the insurance is too tenuous too
succeed in all the circumstances of this particular case: it would result in the
admission of unreliable evidence, denying the plaintiff a fair trial. As the insurance
company has failed to avoid its liability in terms of the insurance policy, the plaintiff
must succeed.

_______________________
N P WILLIS
JUDGE OF APPEAL

25 See s 34 of our Constitution, 1996.
26  DT Zeffertt and AP Paizes AP The South African Law of Evidence, 2nd ed, at 481-516.

APPEARANCES:

For the Appellant:
G Smith

Instructed by:

Franscois Potgieter and Partners, Cape Town

c/o Lovius Block Attorneys, Bloemfontein

For the Respondent:
S Symon SC

Instructed by:

Tugendhaft Wapnick Banchetti & Partners, Johannesburg

c/o Honey Attorneys, Bloemfontein