Court name
High Court of eSwatini
Case number
4589 of 2010

Registrar of Insurance and Retirement Funds v Sizwe Medical Services and Another (4589 of 2010) [2011] SZHC 166 (10 June 2011);

Law report citations
Media neutral citation
[2011] SZHC 166
Coram
Hlophe, J

 

IN THE HIGH COURT OF SWAZILAND

 

 

Held at Mbabane                             Civil Case No: 4589/10

 

 

In the matter between:

 

 

 

Registrar of Insurance and Retirement Funds

Applicant

 

and

 

 

Sizwe Medical Services (Pty) Ltd

1st Respondent

 

Sizwe Administrators (Pty) Ltd

2nd Respondent

 

 

 

Coram                                                      Hlophe J.

For the Applicant                                     Mr. Z. D. Jele

For the Respondents                                        Mr. M. P. Simelane

 

 

JUDGMENT

 

 

 

HLOPHE J

[1]    The Applicant instituted an application under a certificate of urgency seeking an order of this Court inter alia interdicting and restraining the Respondent from carrying an the services or activities of a burial fund/funeral scheme pending his compliance with the provisions of the Insurance Act 7/2005 as well as interdicting and restraining the Respondent from taking deposits and subscriptions from members of the public in pursuance of the activities of the scheme or similar activities.  An order for costs was also sought against the Respondents.

 

[2]    The Applicant contended, through an affidavit attested to by one Sandile Dlamini that the 1st and 2nd Applicants, and whilst not authorised to do so, were engaged in carrying out the services of a burial fund or funeral scheme which was contrary to the provisions of the Insurance Act No. 7/2005.  The Respondents were also said to be engaged in taking deposits and subscriptions from members of the public in pursuance of the activities of the scheme, which was also contrary to the provisions of the Insurance Act 7/2005.

 

[3]    It was contended further that in terms of Section 6 of the Insurance Act aforesaid, any person wishing to conduct an insurance business in Swaziland and who has been registered in terms of the companies Act, has to apply for registration in terms of the Regulations of the Act.  It was not disputed that the said Regulations came into effect on the 2nd May 2008.

 

[4]    Whilst not having registered and obtained the necessary certificate, it was contended that the Respondents unlawfully carried out insurance business in Swaziland.  In terms of Regulation 10 of the Insurance Regulations established in terms of Section 118 of the Insurance Act 2005, a funeral insurance business is defined as the business of providing or undertaking to provide funeral benefits as a supplementary benefit under another class of policies.  It was contended that the business carried out by the Respondents was an insurance broker or an insurance agency business and could therefore not be lawfully carried out without the proprietor having been licensed to carry out same.  Even if the Respondents wanted to carry out the Insurance Agency business, they had to apply to the Registrar in writing for such a license which they had not done although their business could be so classified.

 

[5]    The Applicant averred further that it received a number of complaints against the Respondents to the effect that the latter were failing to honour their obligations in accordance with the funeral benefit scheme they had represented to the numbers of the public.

 

[6]    The Respondents were also taking subscriptions and or premiums from members of the public yet they were not authorised to do so.  It was because of this anomaly that the Applicant had had to approach this Court for an appropriate order which resulted in a certain notice to the public or Press Statement being issued which notified members of the public that the Respondents had no authority to transact in Insurance Business in Swaziland.  The said notice was said to be aimed at protecting the members of the public from any potential prejudice and was consensually made an order of Court.

 

 [7]   It was argued that notwithstanding such notice and the awareness by the Respondents that they had no authority to carry out such business the latter had carried on with such business.  It was this attitude of the Respondents which made Applicant institute the current proceedings taking into account its statutory obligations as both regulators and controllers of the Insurance Industry in Swaziland to ensure that the said Act was not violated as well as ensuring that only those licensed to do so, carry out the business of Insurance Brokers or agencies.

 

[8]    In its answering affidavit the Respondents through an affidavit deposed to by one Sicelo Mdluli, raised certain points in limine, whose decision they contended would lead to the dismissal of the matter without the merits having been dealt with as well as raised its defence in the merits.

 

[9]    As concerns the points in limine, it was contended by the Respondent that the matter was not urgent or that any such urgency as there may be was of the Applicant’s own making.  It was contended further that the Applicant had not complied with the peremptory requirements of Rule 6 (25) (b) why it could not obtain redress in due course.

 

[10]  It was also averred that the Applicant had not established the requirements of an interdict entitling him to the relief sought as he had not established a clear right nor the irreparable harm that it was going to suffer.

 

[11]  It was further contended that the parties with whom the Applicant had contractual obligations, and who therefore had an interest in the outcome of the proceedings had not been cited and or joined in the proceedings.

 

[12]  In the merits the Respondents contended that the First Applicant had not started carrying  any business and as such did not even have a bank account whilst the Second Respondent only carried out the business of providing “administrative function of any nature and to any organization; which is IT based.”

 

[13]  The Respondents went on to allege that the Second Respondent did not carry out “any business of funeral Insurance Cover.”  It went on to state that the functions carried out by it on behalf of its clients is not subject to regulation by the Applicant.

 

[14]  It shall be noted that thus far the Respondents’ defence that it does not carry out any funeral Insurance business, is bare with no particulars being set out on firstly what this business it provides is exactly and why it does not amount to a violation of the Act.  Furthermore, other than generally disputing taking deposits and also that no such proof had been provided, the Respondents did not realistically deny their deposit taking by giving substance to their denial or even making a firm dispute.

 

 

[15]  Notwithstanding the foregoing, at paragraph 8.4 of the answering affidavit, the Respondents said the following as a defence to the application:-

 

“8.4 The core business of the Second Respondent is to provide administration solutions to any entity, whether that entity is involved in mining, manufacturing or even like the National Association of Public Service and Allied Workers Union, who need help with the administration of their funeral scheme, the Second Respondent has the necessary information technology systems to do data capture,,, data management, compilation of reports and maintenance of the IT system itself.”

 

[16]  Being that as it may, when the matter came for hearing, the parties agreed that both the points in limine and the merits were to be dealt with jointly, with the Court having to determine whether to uphold the points in limine which would amount to a determination of the matter as at then or that to uphold same and therefore go into the merits of the matter.

 

[17]  I now have to deal with the points in limine raised. 

 

[18]  Urgency

        I cannot agree that the matter is not urgent or that such urgency as there may be, is of the Applicant’s own making or even that there has been no compliance with Rule 6 (25) of the Rules of  Court.  There is no dispute that the harm complained of is continuing or is ongoing.  This is an indicator that the matter is not only urgent but that the Applicant cannot receive redress in due course as it states in its papers.  I therefore cannot agree that the requirements of urgency as set out in Humphrey Henwood v Maloma Colliary and Another Case No. 1632/1994, have  not been met.

 

[19]  Consequently, Respondents contention that there is no urgency or that the provisions of Rule 6 (25) (b) have not been met is dismissed.

 

[20]  Non-joinder

The position is settled that the effect of a non-joinder in law is not to result in the dismissal of a matter, but is dilatory in that it would necessitate stay of the proceedings concerned pending the joinder of such parties.  See in this regard Collin v Toffee 1944 AD 465.

 

[21]  Whether a party has to be joined in proceedings it has to be determined whether such a party has a direct and substantial interest in the said proceedings.  A party has such an interest if the order sought in the said proceedings cannot be carried into effect without prejudicing that party.  See Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637.

 

[22]  I cannot agree that the carrying into effect of the order sought in this matter would prejudicially affect the other alleged interested parties particularly when taking into account the alleged illegality by the Respondents in the performance of the business they are alleged to be engaged in.  The order sought is meant to interdict the Respondents from carrying out an allegedly illegal business and I do not think this would necessitate the joinder of those parties or that execution of an order confirming such an illegality can ever realistically be complained of by any law abiding party.

 

[23]  I therefore cannot uphold the point of non-joinder which I must dismiss as I hereby do.

 

[24]  It shall be noted that the mater is about an interdict being sought.  If it is so, it is not real for me to strico sensu deal with the requirements of such a relief as a point in limine particularly because I shall invariably have to deal with the facts in determining such points.  My approach shall have to be seen in this light therefore.

 

[25]  Clear Right

In determining whether the Applicant has established a clear right, I agree with the submissions by Applicant’s Counsel that such a determination has to be made from both the factual considerations as well as the legal ones.  On the facts the following is established from the papers:-

 

  1. There is annexed to the papers a document called Sizwe Medical Services NAPSAWU Funeral Scheme whose details cannot be construed in any other way than that the First Respondent does carry out an insurance  business as alleged.

 

  1. The Second Respondent is shownas conducting an insurance business in terms of what is called a “Master Policy Document between Sizwe administrators and NAPSAWU” as well as collecting death benefit premiums.

 

  1. Complainants as lodged by members of the public against the activities of the Second Respondent have been established in the papers.

 

[26]  On the legal considerations, it is the Applicant who is empowered in terms of both the Act and the Regulations to control and regulate the conduct of insurance business in Swaziland and I shall deal more fully with this contention herein below.

 

[27]  I have no doubt therefore that the Applicant does have a clear right to the relief it seeks.

 

[28]  Irreparable Harm

Having found that the Applicant has a statutory duty or power to control and regulate insurance business in Swaziland, I cannot agree with the Respondents’ contention that irreparable harm has not been established.  In any event, the relief sought being a final interdict, the consideration is no longer whether any irreparable hard is suffered or feared to be suffered but is whether there does exist an injury or is there any such injury that is reasonably apprehended.  Having considered the facts of the matter and for the reasons stated above in this paragraph I cannot agree that no injury is suffered or, reasonably apprehended.

 

[29]  For the foregoing reasons I have come to the conclusion that the requirements of an interdict have been met and the points that such have not been met should also fail.

 

[30]  Legal Considerations

As concerns the merits of the application, which are closely related to the inquiry – whether or not the requirements of an interdict are met, I must say I have already found that there are facts which contrary to the Respondents’ contention that it, or they, (dos) do not conduct Insurance Business nor take deposits, indicate that the Respondents are doing so either directly, as agents or even as brokers.  It is also clear that further to their carrying out such business, there are complaints by some of their former members.

 

[31]  In the circumstances I am of the view that the only issue to consider is whether or not the Respondents are registered in terms of the Insurance Act.  Of course the answer to this contention is that both Respondents are not so registered and this factor is not in dispute.  If then they are not registered yet they carry out the business they do, which I have already found is insurance business carried out in contravention of the Act, I cannot help to find that they are violating the Insurance Act and if they do so, they ought to be interdicted.  I have therefore rejected their contention that they provide any other form of business than the ones alleged and proved in  the papers when I consider all the issues raised therein including the submissions made.

 

[32]  Consequently, I have come to the conclusion that the Applicant’s application has to succeed and I grant the application as prayed for including costs which have to follow the event.

 

Delivered in open Court at Mbabane on this 10thday of June 2011.

 

 

 

_____________________

N. J. Hlophe

JUDGE