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Picture: 123RF/LUKAS GOJDA
Picture: 123RF/LUKAS GOJDA

The Johannesburg high court has dismissed an application brought by Fagmeedah Petersen-Cook, the curator of 3Sixty Life, seeking to halt the transfer of more than 1.3-million insurance policies from the firm to African Unity Life.

The ruling comes in the wake of a heated dispute over the control and management of 3Sixty Life’s insurance book, with the National Union of Metalworkers of SA (Numsa) and Doves Group at the centre of the brawl.

Petersen-Cook approached the court urgently to prevent the policy migration, arguing that such a move would undermine 3Sixty Life’s ongoing curatorship and contractual agreements with Numsa and Doves.

However, the court found the application lacked substance and urgency, and dismissed it with costs.

Delivering its judgment on Tuesday, the court found no genuine urgency in the curator’s application to prevent the transfer of policies from 3Sixty Life to African Unity Life. The court said the relief sought by the curator lacked a solid foundation.

According to the court, the curator failed to establish a binding contractual right based on 3Sixty Life’s intermediary agreements with Numsa and Doves.

The court said the agreements were not signed by the curator herself and it was unclear how they could be binding. The agreements were intended to be executory, only binding once signed by both parties, which did not occur.

“The contract issue might have been pertinent to the relief sought had the curator asserted that the two respondents were intermediaries who were tied agents. But in the replying affidavit the curator makes clear that this is not what she suggests,” judge Norman Manoim said.

“Rather, there she seeks to rely on an expectation of a good faith relationship with the intermediary. I therefore conclude that the contracts, even if they are considered binding on the first and second respondents, provide no basis for the kind of relief the curator seeks in this matter.”

The curator's reliance on delict and the policyholder protection rules as another basis for relief was also rejected. The court said the arguments were not properly raised in the founding affidavit and did not support the curator’s claim against Numsa and Doves.

The court noted the curator’s obligation to protect 3Sixty Life’s assets, but found no prima facie right or irreparable harm warranting relief.

“There is no dispute that she is subject to this obligation. But that does not mean that she is obliged to pursue legal action that is without foundation. The difficulty for the curator is that she has not been able to identify what prime facie right she seeks to assert.

“Her case first foundered in its reliance on the intermediary contracts, then sought refuge in delict, and then a belated attempt to rely on regulation. None made out a case for a prima facie right to the relief claimed,” the judge said.

Petersen-Cook also sought an interdict to prevent Numsa and Doves from making defamatory statements about 3Sixty Life and herself. Both Numsa and Doves acceded to the request and undertook not to make such statements outside the legal proceedings, which the court deemed sufficient. However, the court did not grant the curator’s request to make this undertaking an official court order.

In its argument, Numsa had requested that the curator personally bear the costs due to the nature of the relief sought and the handling of the urgent application.

However, the court ruled against imposing personal costs on the curator. Instead, costs were awarded on a party and party basis, with provision for two counsels due to the complexity and urgency of the case.

goban@businesslive.co.za

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