PRACTICAL APPLICATION OF THE SUBROGATION PRINCIPLE

The principle of subrogation emanates from English law and is recognised in South African law. Subrogation as a doctrine of insurance law embraces a set of rules providing for the reimbursement of an insurer which has indemnified it’s insured under a contract of indemnity insurance[1]. This is in contrast to assignment or ceding of rights. Put simply it means that the insurer steps in the shoes of the insured to claim for loss sustained by the insured against third parties.

At the centre of this doctrine is the case of Nkosi v Mbatha 2010 JDR 0839(KZP), the Plaintiff instituted action against a third party for damages sustained to the Plaintiff’s vehicle as a result of a motor vehicle collision. The third-party argued that the Plaintiff did not have legal standing as he had been indemnified by the insurer and therefore suffered no loss. The trial court found that the Plaintiff had failed to disclose that the claim was a subrogated one which required clear proof and had to be specifically pleaded.

In the case of Des O Smith v A K Banjo (AR290/10) 2010 ZAKZPHC the court confirmed the findings in the trial court of Nkosi v Mbatha and found that subrogation must be clearly proved and pleaded. This decision was overruled in the appeal court in the case of Nkosi v Mbatha, the court found that from a practical perspective the insurer’s involvement is irrelevant and therefore it is not necessary to plead such involvement. It is an established practise that in subrogated claims the insurer takes the place of the insured and parties have the same rights and duties as they would have had, had the matter not been a subrogated claim. On the facts, the court further found that the Plaintiff’s ownership of the vehicle establishes a direct interest in the diminution of the patrimonial value of the vehicle and this being an Aquilian action, ownership is sufficient to establish locus standi and therefore the Third Party’s in limine point that the Plaintiff lacks locus standi was dismissed with costs.

In Rand Mutual Assurance Company v Road Accident Fund 2008 (6) SA 511 SCA ,the court  found that the only time where subrogation has to be proved or pleaded is where the insurer proceeds against a third party in its own name under the doctrine of subrogation.

PRACTICAL APPLICATION

As a general rule the insurer is only entitled to exercise the right of subrogation once the insured has been indemnified of any loss and on payment of indemnification, subrogation applies without any formalities observed, meaning that an insurer intending to pursue a claim against a third party need not prove or plead subrogation, exception noted on the Rand Mutual case above.

In some instances, the insurer can ask the insured to sign a letter of subrogation and an insurer is not allowed to demand of the insured anything beyond the insured’s obligation under the contract of insurance.

Thirdly, should the insured refuse to permit the insurer to use his name, the insurer can approach the courts for an order to compel the insured. Lastly, the insurer is obliged to recover all loss incurred by the insured inclusive of all costs.

In conclusion, subrogation is a recognised doctrine in South African law under indemnity insurance contracts and involvement of the insurer in a lawsuit is practically irrelevant and therefore it is not necessary to plead such involvement as it has already been established that in subrogation claims the insurer takes the place of the insured.

[1] Nkosi v Mbatha 2010 JDR 0839(KZP) at para 11.

THE IMPORTANCE OF THE PROPERTY PRACTITIONERS ACT, NO. 22 OF 2019

The Property Practitioner’s Act, no. 22 of 2019 (hereafter referred to as “the Act”) effectively repealed the outdated Estate Agency Affairs Act, no. 112 of 1976 (hereafter referred to as the “Estate Agency Affairs Act”). The Act explicitly seeks to redress issues concerning transformation within the property market. If the Act succeeds in achieving its key objectives, important operations surrounding the property sector in South Africa will effectively be governed by the Act.

For the sake of clarity, the Act will be discussed in four parts, briefly touching on the main objectives of the Act.

  1. WHO IS A “PROPERTY PRACTITIONER”?

The Act uses the phrase “property practitioner” which is much broader than an “estate agent” under the Estate Agency Affairs Act.[1] A property practitioner is any natural or juristic person who, for the acquisition of gain, directly or indirectly, on the instructions or on behalf of another:

  1. by auction or otherwise sells, purchases, manages or publicly exhibits for sale any property or business undertaking;
  2. leases or hires or publicly exhibit for hire any property or business undertaking;
  3. collects or receives any monies payable on account of a lease;
  4. provides, procures, facilitates, secures or otherwise obtains or markets financing for or in connection with the management, sale or lease of a property or business undertaking, including a provider of bridging finance and a bond broker, but excluding any person contemplated in the definition of ‘‘financial institution’’ in section 1 of the Financial Services Board Act No. 97 of 1990; and/or
  5. renders services as an intermediary to affect the conclusion of an agreement to sell or let a property or business undertaking (except where this is not done in the ordinary course of the person’s business, or by a natural person in their personal capacity, or where the person is an attorney, candidate attorney or sheriff).

(Own Emphasis added)

It is clear that the application of the Act extends well beyond estate agents. The Act is wide and all-encompassing, ensuring that anyone remotely associated with property transactions will be regulated by the Act. Anyone who falls within the ambit of the definition of a “property practitioner” is required to be in possession of a valid Fidelity Fund Certificate, failing, shall result in such a property practitioner being unable to render services or receive payment of fees.

  1. COMPLIANCE AND ENFORCEMENT

The Estate Agency Affairs Board is replaced by the Property Practitioners Regulatory Authority (hereafter referred to as “the Authority”). The Authority is given far-reaching powers in ensuring compliance with the Act. The Authority is responsible for implementing measures to transform the property sector and is empowered to appoint inspectors, issue compliance notices and fines.

Unlike the Estate Agency Affairs Act, the Act seeks to establish an independent Property Practitioners Ombud. The issues that will be dealt with by the Property Practitioners Ombud will inter alia include the financing, marketing, managing, letting, hiring, sale and purchase of property. Consequently, if the Property Practitioners Ombud is implemented effectively the burden on the courts should be lightened.

  1. TRANSFORMATION

The Act creates a Property Sector Transformation Fund as well as a Property Sector Research Centre. The Property Sector Transformation Fund must be utilised by the Authority to achieve transformation and successfully implement empowerment programmes.

By reading the relevant sections relating to transformation, it is clear that all property practitioners should endeavour to achieve an appropriate BEE level since a Fidelity Fund Certificate will not be issued without the production of a valid BEE certificate by a property practitioner. The Act further provides that the Government must use the services of property practitioners who comply with Broad-Based Black Economic Empowerment and employment equity legislation.

  1. CONSUMER PROTECTION

The Act is a consumer-based piece of legislation. In achieving one of its main objectives, i.e. consumer protection, the Authority is mandated to conduct campaigns in order to educate property practitioners and consumers.

The Act further places an obligation on a property practitioner to not accept a mandate unless the seller or lessor has provided both the property practitioner and the prospective purchaser with a fully signed mandatory disclosure form.

The disclosure form must be attached to the sale or lease agreement and will form a mandatory part of such agreement. The buyer or tenant of any property can further request the sale or lease agreement to be in any one of the official languages of South Africa, and the seller or landlord or managing agent must comply.

CONCLUSION

The Act is significantly stricter and more far-reaching than the Estate Agency Affairs Act. Any person convicted of an offence in terms of the Act is liable to pay a fine, or imprisonment for up to 10 years.

Even though the commencement date of the Act is still to be determined, all property practitioners are strongly advised to familiarise themselves with this piece of legislation, in light of the serious consequences of non-compliance.