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Court case – simultaneous death (commorientes) – Liberty Group Ltd v Cornelius N.O and Another

Liberty Group Ltd v Cornelius N.O and Another [2022] ZANCHC 66

PB took out a life policy on his own life with the plaintiff (Liberty) and nominated DB as the beneficiary for the proceeds of the policy. In the early hours of 8 January 2018, they were involved in a motor vehicle accident and both were killed. Liberty paid out the proceeds of the life policy to the first defendant, JC, in his capacity as the executor in the deceased estate of DB. When it came to Liberty’s notice that documentation showed that DB’s time of death is recorded as 00h15 on 8 January 2018, while that of PB is indicated as 03:10 on 8 January 2018, Liberty instituted the action to claim the amount of R1,379,515.72 from JC based on the condictio indebiti. The only point in dispute was whether DB predeceased PB, or not. If so, Liberty must succeed with their claim and would then pay the proceeds to the second defendant, SB, in his capacity as executor of PB’s estate. If not, the claim was to be dismissed and DB’s estate would retain the payment. Based on the documentation, Liberty averred that DB died first, while JC disputed this based on available evidence. In South African succession law, when two or more people die in the same disaster, it may be of importance to determine whether they died simultaneously (commorientes) or if not, who died first. In this case the court applied the principle that the balance of probabilities must be determined for the court to answer the question as to who died first. A member of the South African Police Service (SAPS), warrant officer W, testified that she was one of two members of the SAPS who arrived on the scene. She saw only the top of PB’s head, but he did not move or make any sound. She heard DB making soft snoring noises and when she felt for a pulse, DB had a feint pulse. When she felt again shortly afterwards, she could not detect any pulse. Another member of the SAPS, Sergeant N, earlier testified that the certified time of death recorded for PB was because it took longer to extract PB’s body from the wreckage. The side of the car in which he was seated was under the truck with which the car collided.

After weighing up the evidence the court (Stanton J) accepted the evidence of W and found that PB died first. DB’s estate was therefore entitled to the proceeds of the policy on PB’s life.

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