In this December 2022 judgment, the court found that the insurer was not entitled to rely on the time bar clause contained in the policy because the insured had not alleged in the pleadings that there were good reasons why the insured could not comply and failed to prove such allegation. The time bar clause required litigation to commence within 6 months of rejection of the claim, following the expiry of the 90 day representation period. The litigation was commenced well outside the time bar period.
Ultimately it was not disputed that the policy contained the time bar limitation clause.
The insured had failed to respond in a replication to the insurer’s reliance on the time bar clause in its plea.
The court found that any of the evidence led at the trial seeking to explain the failure to timeously institute legal action or create a basis to challenge reliance on the time bar on the basis of public policy as contemplated in Barkhuizen v Napier 2007 (5) SA 323 (CC) was not permissible in the absence of an appropriate replication giving the basis for the non-compliance.
The court said that the insurer was “… ambushed, so to speak”. Even if it was accepted that the insured could raise that issue at the date of trial absent an appropriate pleading, the insured had not proved on a balance of probabilities that the circumstances at the time justified the failure to timeously institute legal action. He alleged that the time bar provision was not brought to his attention.
Once it is accepted that the clause is not contrary to public policy and that there was non-compliance with the clause, the onus is on the party seeking to avoid the enforcement of a time bar to show that in the circumstances of the case there was a good reason why there was a failure to comply.