Aanspreeklikheidsversekering en verjaring van die vordering om’n verklarende bevel teen die verwerping van’n eis deur die versekeraar

The relationship of insurance in principle rests on mutual trust or good faith between the two parties and the insurer should be able to trust that the insured discloses all the relevant facts in order to be put in the position to calculate the risk of the materialisation of the events insured against. In order to keep the premiums as low as possible and in order to ensure that the insured is indemnified, in liability insurance, the parties agree that once the insured has notified the insurer of the claim or of the event or circumstances that may give rise to a claim, that the insurer is entitled to take over the insured’s defence and to conduct all negotiations with the third party on behalf of the insured. Should the insurer reject the claim or deny liability on the policy (“repudiate” the claim in terms of the definition provided in the Policyholder Protection Rules) and the insured decides to institute a declaratory order, the insured must ensure that it keeps within the prescription period allowed in terms of the Prescription Act. Thus, if the insurer denies liability after it is notified of the potential claim or of the event that may give rise to a claim, the insured must institute action within three years, the normal time allowed before a right prescribes. In a recent case (Magic Eye Trading 77 CC v Santam Limited (775/2018) 2019 ZASCA 188 (10 December 2019)) the insured did not adhere to the policy conditions and only notified the insurer of the event leading to the claim more than two years after it happened and after litis contestatio. The insured also did not respond to requests of the insurer for additional information and the submission of documents relating to the event within the specified time. This was in clear breach of the provisions of the policy. As a result, the insurer rejected the claim already in January 2012. The insured waited until 2016 before it approached the court for a declaratory order. The decision of the supreme court of appeal centres around the prescription or not of the claim that the insured may have against the insurer based on the claim that the third party might have against it, and that that had not been determined at the time when the litigation commenced. In our view, this was not the issue to be determined. What should have been determined is whether the insured’s right to request a declaratory order after the insurer rejected liability in terms of the policy had not prescribed. Every right to claim performance is linked to a prescription period whether it arises out of the same contract or not and in this instance, the insured waited for four and a half years after the insurer rejected liability, to apply for a declaratory order. That is clearly outside the period of prescription.