The Mpumalanga High Court in this May 2021 judgment upheld the insurer’s reliance on the time bar clause in the policy. (H Qhibi v MiWay Insurance Ltd (634/2017)  ZAMPMBHC 12)
The insured’s claim could not be entertained because it had been brought well after the expiration of the time bar period.
It was common cause that the insured issued and served summons commencing action well outside the time bar period.
There was an implicit agreement that proceedings challenging the rejection of the claim were to be initiated by summons and that a letter of demand was inadequate to interrupt the time bar.
The insured admitted that the action was instituted outside of the time bar period but challenged the validity of the clause on the ground that observance in the circumstance it would be unfair and unreasonable to the insured.
The insured bore the onus of proving that enforcement would be unfair and unreasonable in the circumstances.
The only intimation of the alleged unfairness or unreasonableness was the allegation by the insured that he had been paying his premiums and was up to date when the insured peril occurred and that dismissal of the special plea, that is the time bar defence, would not mark the collapse of the insurer’s defence in total.
The court said that those are not factors to be considered when determining unfairness or unreasonableness.
There was no dispute that the documents comprising the policy were sent to the insured and that he had perused the terms and conditions which he found acceptable.
That was evidenced by the fact that the insured knew that he had to pay monthly premiums and did so.
The court said that the insured’s court papers were “stridently silent” on how enforcement would be unfair and unreasonable.
The contract was clear on the claims process to be followed.
The insured lodged the claim punctually which in turn was rejected with reasons by the insurer. The insurer in communicating its rejection complied with the Policyholder Protection Rules.
The various time bar and contractual prescription periods were clearly set out in the letter of rejection.
“At every turn” the insured was furnished with reasons for the rejection and his rights fully explained. There was no allegation of illiteracy and he was legally represented at a relatively early stage.
The court concluded that parties who freely and voluntarily enter into a contract are bound by the terms and conditions except where enforcement thereof would be unfair or unreasonable. The insured had provided no facts to establish unfairness or unreasonableness.
The judgment is clearly correct. It is surprising on the facts reported that the insured persisted in the litigation where it was clearly dilatory in pursuing his rights. The insured’s reward was a cost order in favour of the insurer.