His work is marked by frequent rhetorical deformities, tedious and involved forms of reasoning, and perplexing obscurities of phraseology which prevent its acceptance as an example of elegant writing.
Introduction This application for leave to appeal against a decision of the Supreme Court of Appeal concerns the constitutionality of a time limitation clause in a short-term insurance policy.
The applicant contends that this clause is unconstitutional in that it violates the right to approach a court for redress. In terms of that contract, the applicant was insured against, among other risks, loss resulting from damage to his motor vehicle, a BMW i.
On 24 Novemberthe motor vehicle was involved in an accident resulting in damage beyond economic repair. On 2 Decemberthe applicant duly notified the respondent of the occurrence of the accident and the resulting damage and claimed R representing the sum insured.
On 7 Januarythe respondent repudiated the claim, alleging that the motor vehicle had been used for business purposes, contrary to the undertaking to use it for private purposes only.
Two years later, that is on 8 Januarythe applicant instituted action against the defendant claiming the sum of R together with interest thereon. The summons was met with a special plea, alleging that the respondent had been released from liability because the applicant had failed to serve summons within 90 days of being notified of the repudiation of his claim.
The special plea was based on clause 5. In his replication, the applicant conceded non-compliance with clause 5. What is more, the applicant alleged that the clause is contrary to the provisions of section 34 of the Constitution. That provision, which guarantees the right of access to court, provides: The decisions of the courts below a The High Court The Pretoria High Court, which heard the matter in the first instance, was asked to adjudicate on the special plea only.
To this extent, the parties agreed on a terse statement of facts recording the existence of the insurance contract, the occurrence of the accident and the submission of the written claim to the respondent on 2 Decemberthe repudiation of the claim on 7 January and the institution of legal action on 8 January In argument in the High Court, the applicant relied only on the argument that clause 5.
As the High Court noted, the applicant did not rely on the argument that the clause was contrary to public policy, an argument which was foreshadowed in the pleadings. As a consequence, the High Court did not deal with this argument, but dealt only with the argument that clause 5. The High Court upheld the argument.
It found that clause 5. The impugned provision required a claimant to give notice of a claim one month before issuing summons and gave a claimant six months to sue from the date of loss. It did not permit condonation of non-compliance with its provisions.
The Court held that the impugned provision limited the right of access to court and that this limitation was not reasonable and justifiable under section 33 1 of the interim Constitution, the predecessor of section 36 1.
However, it held that the law of general application in this case was the common law rule that agreements are binding and must be enforced pacta sunt servanda.
In this regard it held that: Of all this, we know nothing. It held that the critical question is whether the applicant in effect was forced to contract with the insurer on terms that infringed his constitutional rights to dignity and equality and in a way that requires the court to develop the common law of contract so as to invalidate the term in question.
It concluded that it was not possible to reach any conclusion on this aspect in the light of the scanty evidence before it. The evidence that the Supreme Court of Appeal had in mind was: That it did not, is apparent from the judgment. All law, including the common law of contract, is now subject to constitutional control.
The validity of all law depends on their consistency with the provisions of the Constitution and the values that underlie our Constitution.Exclusion Clauses Essays Business Law Word Count: Exclusion Clauses Essay Exemption clauses are an agreement in a contract which helps the party to have limited or to exclude liability.
This essay has been submitted by a law student. This is not an example of the work written by our professional essay writers. Exclusion Clause Contract Law. The problem in the scenario requires a discussion of the law relating to exclusion clauses. Welcome to WordPress.
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