The complainant approached our office for assistance following the rejection of his motor vehicle claim. The participant rejected the claim on the basis of lack of due care or recklessness on the part of the driver, being the complainant. The participant relied on the following policy provisions to reject the complainant’s claim:

2. Your duty of care

2.3. You have a duty to abide by the rules of the road, taking reasonable precaution to avoid or minimise accident damage to or loss of the vehicle; Your duty of care

22.1. You must, at all times, take all reasonable precautions and steps to:

1. Take reasonable steps (including abiding by the rules of the road) to prevent or minimise accidents, loss, damage, or liability.” The complainant submitted that his vehicle was burnt following a hijacking on the evening of 22 May 2024. He further submitted that on his way home he had parked on the side of the road and had left the engine running with the key in the ignition when he went to relieve himself. He said that he thought it was safe as there was a police station nearby. Upon his return to the vehicle, he was held at gun point by two men, just as he was entering into the vehicle. After a fight between the three men, the perpetrators managed to overpower him, he, in turn, managed to get out of the vehicle and they drove off with the car. It was later recovered in a burnt state. The participant submitted that at around 19h30, when the incident allegedly happened, it was dark, there were no streetlights on the road, the police station is 500m from the scene of the incident and is not visible from the street. According to the participant, the complainant was 700m from his home, he had passed a plaza and a petrol station and could have stopped at these two places to relieve himself. Furthermore, he had exposed himself to the danger of a hijacking which is a common danger and well known in South Africa. Our office referred to the case of Santam v CC Designing BK (1998) 4 ALL SA 70 (C) and advised the participant that it bore the onus of proving that the insured was reckless as set out in this case. The test for recklessness was whether the insured was aware of the risk and intentionally reconciled himself with the real possibility of loss, damage, injury and/or death occurring and continued regardless. For the participant to succeed, it had to prove that the insured realised the danger of loss but nevertheless disregarded the danger. This test is a subjective one; what was the complainant thinking at the time when he decided to park his car on the side of the road to relieve himself? He submitted that he thought it was safe because there was a police station nearby and thereafter proceeded to act in the manner that he did. He was not aware of any possibility of danger or risk of loss. There was no evidence to support the argument that he knowingly courted danger as he did not foresee or realise that there would be danger. We found that the insured’s conduct may have been negligent as a reasonable person would not have left their vehicle engine running, even during the day. However, for the insured to be reckless, his conduct must grossly deviate from that of a negligent person. We did not find this in regard to the complainant’s conduct as one often sees people do this on the side of the road. The fact that the engine of the car was left running also had no bearing on the loss as the vehicle was not stolen when he was away from. The perpetrators followed him back to the vehicle and held him at gunpoint after he had opened the door and had one leg inside the vehicle. On the information submitted by the complainant, the loss would have occurred even if the vehicle had been switched off and locked, based on how the events of the loss unfolded. Our view may have been different if he had returned to find the vehicle gone. It makes sense that the complainant would think it was safe to do what he did not only because of the police station nearby but because he is familiar with the road, and it is not too far from his home. Therefore, the thought of danger or loss did not cross his mind, as per his submission. The fact that the complainant’s home was 700m away or that he should or could have stopped at the plaza or garage has little bearing on the rejection reason. It is possible that he was not that pressed when he passed the garage or plaza but by the time he was at the incident scene he could not proceed to drive another 700m to get home because he was too pressed. This speaks to negligence and not recklessness. In our view, the actions of the complainant, under the circumstances, were not reckless. We recommended that the participant settle the complainant’s claim for the loss. The participant conceded to our recommendation and settled the claim.

Zanele Makamba

Adjudicator – Non-life Insurance Division of NFO