The owner of a car has taken legal action against Discovery Insure as it refused to reimburse her for the theft, as the insurer claimed that the tracker device in the vehicle was faulty and that this was contrary to their agreement.

Nicole Hoolsema (plaintiff) turned to the Gauteng High Court, Pretoria, for an order compelling Discovery to pay her for her loss.

The plaintiff concluded an insurance agreement with the insurer in January 2021. In terms of the agreement, Discovery insured Hoolsema’s vehicle against perils such as theft, hijacking and damages.

The insurer’s obligation to indemnify the plaintiff is conditional upon the installation of a Discovery Insure Crowd Search motor vehicle tracking device. This device must be in full working order at all times. In terms of the agreement, Discovery made it clear that there will be no cover if this is not done.

In November 2023, the plaintiff lodged a claim for her stolen vehicle.

The claim was rejected by Discovery on the basis of the tracking device allegedly not working. Hoolsema said she had complied with the conditions set out by Discovery when she signed the agreement and that she had paid her monthly premiums, and she did fit the required tracking devices in her vehicle. She said the two units were installed in accordance with the specifications as requested by Discovery.

The latter repudiated the claim on the grounds that the Crowd Search Device is faulty and would not provide sufficient cover. The repudiation was based on an alleged e-mail sent to the plaintiff informing her that the Crowd Search Device was faulty prior to the theft.

The plaintiff, in her original summons against the insurer, claimed she never received such an email and maintained that the device was installed and in working order. She subsequently indicated that she wanted to amend her summons, to add that she always understood the device to be in good working condition.

Discovery objected to this amendment, arguing that it failed to plead that the device was in fact in full working order at all times, as stipulated in the policy. In countering this objection, Hoolsema argued that there is no requirement in law for her to plead that the device must be in full working order at all times as Discovery insists.

She pointed out that her cause of action remains unaltered by the proposed amendment and is exactly the same cause of action that was pleaded in the original particulars of claim. She argued that the amendment will not cause any prejudice to Discovery and that the latter will still have the opportunity to argue its case later in the main application.

Discovery, on the other hand, said it needed to be proven by the plaintiff that the device was in full working order at all times and not simply that she “understood the tracking device was in good working condition”.

Judge Noluntu Bam said the litigation is still at an early stage, with Discovery still having to file its plea in countering the claim against it. She found the amendment clarified Hoolsema’s position and will contribute to a better resolution of the dispute.

The judge subsequently allowed her to amend her plea.

zelda.venter@inl.co.za

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