On 24 November 2006 the Supreme Court of Appeal handed down judgment in J H Jacobs NO v F J Braaff. The respondent’s son had been killed in a motor accident while driving his father’s motor car negligently. Ms Fielding, a passenger in the car, was severely injured. She sued the son’s estate for damages. The executor joined the respondent as a third party in the action. He alleged that the respondent was the insured under a policy issued by Santam Insurance Company which provided an extension of cover (an indemnity) to a driver using the car with the permission of the respondent and that the son had obtained such permission. The policy provided that the extension benefits could only be enforced against the insurer by the insured. The respondent refused to submit the executor’s claim for an indemnity to Santam. The executor applied for an order to compel him to do so.

The Cape High Court found that the respondent’s son had indeed been driving with his permission. However it held that the terms of the policy did not permit the Court to compel him to submit the claim. It also rejected the executor’s contention that the son had used the car subject to an implied undertaking to make the benefits of the policy available to him in the event of a claim by a third party against him arising out of his driving of the car. It dismissed the claim.

The SCA upheld the executor’s appeal. It found that the agreement between the respondent and his son permitting the use of the car was subject to the tacit term relied on by the executor. The respondent was therefore obliged to submit the executor’s claim for an indemnity to the insurer.