LML4805
Assignment 2 Semester 1 2026
Unique number:
Due Date: April 2026
QUESTION 1 (2 ANSWERS PROVIDED)
In this matter, the insurer cannot rely on a positive misrepresentation. Velly did not make any
incorrect statement to the insurer because no questions about his health were asked in the
proposal form. A positive misrepresentation requires an actual false statement made by the
insured which induces the insurer to enter into the contract.1 Since no such statement exists
on these facts, the insurer has no basis to avoid liability on this ground.
The issue therefore turns on negative misrepresentation, namely non disclosure. In South
African insurance law, the insured has a duty to disclose all material facts known to him
before the contract is concluded.
Terms of use
By making use of this document you agree to:
Use this document as a guide for learning, comparison and reference purpose,
Terms of use
Not to duplicate, reproduce and/or misrepresent the contents of this document as your own work,
By making use of this document you agree to:
Use this document
Fully accept the consequences
solely as a guide forshould you plagiarise
learning, reference,or and
misuse this document.
comparison purposes,
Ensure originality of your own work, and fully accept the consequences should you plagiarise or misuse this document.
Comply with all relevant standards, guidelines, regulations, and legislation governing academic and written work.
Disclaimer
Great care has been taken in the preparation of this document; however, the contents are provided "as is" without any express or
implied representations or warranties. The author accepts no responsibility or liability for any actions taken based on the
information contained within this document. This document is intended solely for comparison, research, and reference purposes.
Reproduction, resale, or transmission of any part of this document, in any form or by any means, is strictly prohibited.
, +27 81 278 3372
QUESTION 1 (2 ANSWERS PROVIDED)
In this matter, the insurer cannot rely on a positive misrepresentation. Velly did not
make any incorrect statement to the insurer because no questions about his health
were asked in the proposal form. A positive misrepresentation requires an actual
false statement made by the insured which induces the insurer to enter into the
contract.1 Since no such statement exists on these facts, the insurer has no basis to
avoid liability on this ground.
The issue therefore turns on negative misrepresentation, namely non disclosure. In
South African insurance law, the insured has a duty to disclose all material facts
known to him before the contract is concluded. A material fact is one that would
influence the assessment of risk. However, this duty is not unlimited. It applies only
to facts that are within the actual knowledge of the insured. A person cannot disclose
something that he does not know. In Mutual and Federal Insurance Co Ltd v
Oudtshoorn Municipality the court confirmed that materiality is determined objectively
by asking whether a reasonable person would consider the information relevant to
the risk.2 Even if the disease was material and directly caused Velly’s death, his lack
of knowledge means there was no wrongful non disclosure.
Under the Short term Insurance Act 53 of 1998, section 53 provides that a policy
cannot be avoided unless the misrepresentation or non disclosure was material. The
section further states that materiality must be assessed using the reasonable person
test.3 Applying this provision, Velly’s failure to disclose his illness does not qualify as
a material non disclosure because he was unaware of the condition. Since
knowledge is a necessary element of non disclosure, the insurer cannot rely on
section 53 to avoid the policy. The fact that the disease existed objectively is not
sufficient without proof that Velly knew or ought reasonably to have known about it.
The same position applies under the Long term Insurance Act 52 of 1998. Section 59
contains wording similar to section 53 and requires that a misrepresentation or
failure to disclose must materially affect the assessment of risk before the insurer
1
Reinecke et al General Principles of Insurance Law para 193
2
Mutual and Federal Insurance Co Ltd v Oudtshoorn Municipality 1985 1 SA 419 A
3
Short term Insurance Act 53 of 1998 s 53
Disclaimer
Great care has been taken in the preparation of this document; however, the contents are provided "as is"
without any express or implied representations or warranties. The author accepts no responsibility or
liability for any actions taken based on the information contained within this document. This document is
intended solely for comparison, research, and reference purposes. Reproduction, resale, or transmission
of any part of this document, in any form or by any means, is strictly prohibited.
Assignment 2 Semester 1 2026
Unique number:
Due Date: April 2026
QUESTION 1 (2 ANSWERS PROVIDED)
In this matter, the insurer cannot rely on a positive misrepresentation. Velly did not make any
incorrect statement to the insurer because no questions about his health were asked in the
proposal form. A positive misrepresentation requires an actual false statement made by the
insured which induces the insurer to enter into the contract.1 Since no such statement exists
on these facts, the insurer has no basis to avoid liability on this ground.
The issue therefore turns on negative misrepresentation, namely non disclosure. In South
African insurance law, the insured has a duty to disclose all material facts known to him
before the contract is concluded.
Terms of use
By making use of this document you agree to:
Use this document as a guide for learning, comparison and reference purpose,
Terms of use
Not to duplicate, reproduce and/or misrepresent the contents of this document as your own work,
By making use of this document you agree to:
Use this document
Fully accept the consequences
solely as a guide forshould you plagiarise
learning, reference,or and
misuse this document.
comparison purposes,
Ensure originality of your own work, and fully accept the consequences should you plagiarise or misuse this document.
Comply with all relevant standards, guidelines, regulations, and legislation governing academic and written work.
Disclaimer
Great care has been taken in the preparation of this document; however, the contents are provided "as is" without any express or
implied representations or warranties. The author accepts no responsibility or liability for any actions taken based on the
information contained within this document. This document is intended solely for comparison, research, and reference purposes.
Reproduction, resale, or transmission of any part of this document, in any form or by any means, is strictly prohibited.
, +27 81 278 3372
QUESTION 1 (2 ANSWERS PROVIDED)
In this matter, the insurer cannot rely on a positive misrepresentation. Velly did not
make any incorrect statement to the insurer because no questions about his health
were asked in the proposal form. A positive misrepresentation requires an actual
false statement made by the insured which induces the insurer to enter into the
contract.1 Since no such statement exists on these facts, the insurer has no basis to
avoid liability on this ground.
The issue therefore turns on negative misrepresentation, namely non disclosure. In
South African insurance law, the insured has a duty to disclose all material facts
known to him before the contract is concluded. A material fact is one that would
influence the assessment of risk. However, this duty is not unlimited. It applies only
to facts that are within the actual knowledge of the insured. A person cannot disclose
something that he does not know. In Mutual and Federal Insurance Co Ltd v
Oudtshoorn Municipality the court confirmed that materiality is determined objectively
by asking whether a reasonable person would consider the information relevant to
the risk.2 Even if the disease was material and directly caused Velly’s death, his lack
of knowledge means there was no wrongful non disclosure.
Under the Short term Insurance Act 53 of 1998, section 53 provides that a policy
cannot be avoided unless the misrepresentation or non disclosure was material. The
section further states that materiality must be assessed using the reasonable person
test.3 Applying this provision, Velly’s failure to disclose his illness does not qualify as
a material non disclosure because he was unaware of the condition. Since
knowledge is a necessary element of non disclosure, the insurer cannot rely on
section 53 to avoid the policy. The fact that the disease existed objectively is not
sufficient without proof that Velly knew or ought reasonably to have known about it.
The same position applies under the Long term Insurance Act 52 of 1998. Section 59
contains wording similar to section 53 and requires that a misrepresentation or
failure to disclose must materially affect the assessment of risk before the insurer
1
Reinecke et al General Principles of Insurance Law para 193
2
Mutual and Federal Insurance Co Ltd v Oudtshoorn Municipality 1985 1 SA 419 A
3
Short term Insurance Act 53 of 1998 s 53
Disclaimer
Great care has been taken in the preparation of this document; however, the contents are provided "as is"
without any express or implied representations or warranties. The author accepts no responsibility or
liability for any actions taken based on the information contained within this document. This document is
intended solely for comparison, research, and reference purposes. Reproduction, resale, or transmission
of any part of this document, in any form or by any means, is strictly prohibited.
