NDOU
J:
The
applicant seeks an order in the following terms:
“It
is ordered:
(a)
That the 1st respondent not an insurer in terms of the Insurance Act
but an association of insurers with no capacity to issue statutory
policies in terms of the Road Traffic [Chapter 13:11] or any other
law.
(b)
That the insurance being issued by the 2nd respondent for and on
behalf of 1st respondent is a nullity and therefore void ab initio.
(c)
That alternatively to paragraph (a) and (b) above if the insurance
being issued by the 2nd respondent on behalf of the 1st respondent be
valid, the 1st and 2nd respondents be and are hereby ordered to issue
cover notes and discs in terms of section 27(2) of the Road Traffic
Act [Chapter 13:11].
(d)
That the 1st, 2nd and 3rd respondents to pay costs of suit jointly
and severally, the one paying the other to be absolved.”
Put
in another way, the applicant seeks a declaration in terms of section
14 of the High Court Act [Chapter 7:06] (“section 14)” primarily
on the fact that the 1st respondent is not an insurer.
The
salient facts are the following.
The
applicant is a Zimbabwean citizen who is permanently resident in
Botswana. His family is ordinarily resident in Zimbabwe. As a result
he regularly drives to Zimbabwe to visit his family. Upon entry into
Zimbabwe he applies for a temporary import permit for his foreign
registered motor vehicle. He is also required by the law to obtain
insurance in respect of motor vehicle. That insurance, at the port of
entry, is only obtainable from the 2nd respondent who grants it on
behalf of and in the name of the 1st respondent. The 2nd respondent
endorses a stamp in the name of the 1st respondent on the temporary
import permit as proof that the applicant has obtained statutory
insurance.
The
applicant alleges that upon renewal of a temporary import permit, the
2nd respondent merely extends the date on the permit without
extending the statutory insurance.
The
applicant alleges that as a director in Botswana he is entitled to a
re-imbursement of the expenses which he incurs when he travels.
However, his company is refusing to refund him the money which he
pays for insurance upon entry into Zimbabwe on the grounds that his
purported entry into Zimbabwe is not insured “by a registered and
licenced insurer.”
The
applicant further cites a single incident when a Zimbabwe Republic
Police officer asked for a disc as defined by the Road Traffic Act at
a police road block. The applicant states that “it is this incident
which stimulated” him to seek a legal opinion on the matters at
hand. This culminated in the current application.
At
the time of the filing of the application the applicant was not an
insurance policy holder and he is non-resident.
The
applicant seeks, in essence, a declaratory relief regarding the
validity of insurance policies issued in the name of the 1st
respondent, and, alternatively, mandatory relief as regards the
issuance of vehicle discs and cover notes by the 1st respondent.
The
1st respondent is a Motor Insurance Pool formed by Temporary Risk
Pool Agreement between insurers and the Government of Zimbabwe
represented by the responsible Minister of Road and Road Traffic. The
rights and duties of the Pool are clearly defined by the said
agreement. This agreement has been in existence since January 1965.
The relationship between the 1st and 2nd respondents is governed by
an Agency Agreement agreed and signed by the two parties in February
2010.
The
respondents raised points in limine which I propose to deal with them
in turn.
(a)
Is the application incompetent for raising a purely moot cause
It
is trite law that it is not the business of the courts to dispense
legal advice or express opinions on abstract points. As stated by
INNES CJ in Geldenhuys and Neethling v Beuthin 1918 AD 426 at 441:
[The
courts] “exist for the settlement of concrete controversies and
actual infringements of rights, not to pronounce upon abstract
questions, or to advise upon differing contentions, however
important.”
It
is therefore a pre-requisite to the grant of declaratory relief that
the applicant must have some “existing, future or contingent right”
that would be affected by the order of the court; Munn Publishing
(Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S) at 343E to 344E.
In
other words, “the condition precedent to the grant of a declaratory
order is that the applicant must be an interested person, in the
sense of having a direct and substantial interest in the
subject-matter of the suit which could be prejudicially affected by
the judgment of the court.” – Milani & Anor v South African
Medical & Dental Council & Anor 1990 (1) SA 899 (T) at
902G-H.
The
interest must relate to an existing, future or contingent right. The
court will not decide abstract, academic or hypothetical questions
unrelated to such interest.
This
is the first stage in the determination by the court.
At
the second stage of the enquiry, it is incumbent upon the court to
decide whether or not the case in question is a proper one for the
exercise of its discretion under section 14.
In
this regard “some tangible and justifiable advantage in relation to
the applicant's position with reference to an existing, future or
contingent legal right or obligation must appear to flow from the
grant of the declaratory order.”– Adbro Investment Co. Ltd v
Minister of the Interior & Ors 1961 (3) SA 283 (T) at 285B-C.
A
matter that does not present a live controversy having practical
consequences is not justiciable – Radio Pretoria v Chairman,
Independent Communications Authority of SA & Anor 2005 (1) SA 47
(SCA) and Mnondo Residents' Association v Moyo & Ors HH66-07.
In
this case the applicant is not an insured of 1st respondent, because
he admits having allowed his policy to lapse three months before
making this application. He is not being prosecuted for any real or
imagined offence and in any event he has not joined the authorities
who might prosecute him. His papers disclose only a minor
misunderstanding at a police road block, which was in any event
resolved in his favor. He only professes to have a “right”
against his Botswana employer, who is not party to these proceedings
anyway. He has not proved that he is entitled to reimbursement of
money expended on his vehicle insurance whilst visiting Zimbabwe.
There is no policy document produced evincing such entitlement or
rights.
In
the final analysis, applicant's case against the respondents
relates to no more than a burning curiosity as to purely theoretical
propositions.
The
applicant himself states that he simply found himself 'wondering'
about certain issues 'that came to mind' and that he sought legal
advice in relation to them.
It
shows that the applicant has really come to court just to test the
correctness of the advice he received. There is no live dispute
having any practical consequences as between the applicant and the
respondents. This application presents the court with a moot cause.
The applicant has not alleged that he made a claim or that there is
any other reason to test the validity of the bygone policy. He simply
has not relationship with any of the respondents now.
Assuming
in his favour that he may buy further policies, the applicant's own
papers show that any actual dispute that might arise in future in
relation to the issues he “wonders” about would actually be
between the applicant and some parties other than the respondents
(i.e. the police or his employer in Botswana) anyway.
There
is, therefore, no proper dispute between him and the respondents and
any judgment the court gives would be no more than its opinion as to
the correctness or otherwise of the applicant's views on the issues
about which he professes to be “worried”. It would not be a
determination of any concrete controversy or any infringement of
rights.
On
this point alone I dismiss the application with costs on the ordinary
scale.
Mudenda
Attorneys, applicant's legal practitioners
Atherstone
Cook Legal Practitioners c/o Calderwood, Bryce Hendrie and Partners,
respondents' legal practitioners
