Insurance, litigation and the Anglo-Boer War: Part 2
Last week, on the 126th anniversary of the Battle of Spion Kop, we covered Part 1 of the exploration into insurance litigation during the Anglo-Boer War, authored by Donald Dinnie, Director at Norton Rose Fulbright South Africa Inc.
To read Part 1, click here
Now, in Part 2, he continues the story, examining how the war’s guerrilla phase impacted insurance claims, with a focus on the case of Burger versus South African Mutual Life Insurance Society (1903). This case raised key questions around public policy and the legality of life insurance claims in the context of active rebellion.
The Battle of Belfast (or Battle of Bergendal) was the last set piece battle of any size in the South African War, commencing on 27 August 1900 with a cavalry strike and artillery barrage.
The last set-piece battle: the battle of Belfast
The British forces achieved a crushing victory.
President Kruger, who had spent several weeks as a fugitive in a railway carriage, crossed into Mozambique on 11 September 1990 and went into exile in Europe.
The guerrilla phase and blockhouse system
On 25 October 1900, the annexation of the Transvaal was proclaimed. With that, the war entered its guerrilla phase, with the development of the blockhouse system so that by May 1902 there were over 8,000 blockhouses covering approximately 5,955 kilometres across South Africa, together with the use of the infamous concentration camps, until the surrender of the Boer forces, with a final meeting at Vereeniging and the signing of the surrender terms in Pretoria on 31 May 1902.
The guerrilla phase of the war included the raiding of the Cape Colony and Natal, particularly during the period 3 September to December 1901 by forces led by General Jan Smuts.
Deneys Reitz, the founder of what was at one time the eponymous attorneys’ firm Deneys Reitz Inc., currently Norton Rose Fulbright South Africa Inc., a firm which, in its various iterations, is now over 100 years old, participated in the raids into the Cape Colony, and those experiences are dealt with extensively by Deneys Reitz in Commando.
In his chapter “Calmer Waters”, it appears that Deneys Reitz was involved in action in the vicinity of Vanrhynsdorp in February 1902, which included an attack on “a place called Windhoek, 10 miles back…” from Vanrhynsdorp (not Windhoek, Namibia, which is more than 1,000 kilometres from Vanrhynsdorp).
Deneys Reitz and the Cape Colony Raids
In describing the fighting, Deneys Reitz says:
“As I approached, the firing grew heavier for a while, and then died down altogether, so it was clear that one side had been worsted. Then I came on Commandant Van Deventer huddled on the ground before his horse, badly wounded and in great pain. Blood was pouring from a bullet-wound in his throat, and his tongue was so lacerated that he could not speak. Two men with him told me that the fight was over, and that the English camp at Windhoek had been captured. I galloped on, and met about a hundred disarmed soldiers marching across the veld without their boots. They said our men had ordered them to find their way back to Clanwilliam, fifty miles away.
In a few seconds I reached the scene of the action. General Smuts had surrounded the camp at daybreak and, after a sharp fight, had overwhelmed it, killing and wounding many, and capturing the rest, about two hundred in number. He had not come off lightly either, having lost five men killed and sixteen wounded, but he had taken wagons, horses, arms and ammunition, and he had re-established his hold on these parts. As I rode through the camp I found Nicolas Swart lying on the ground, apparently dead. A bullet had struck him in the chest and had traversed the length of his body, emerging at his left thigh, so he must have been bending forward when he was hit. His face was so pale that I thought him dead, so I went to one of the wagons in search of something to throw over his body, but when I came back his eyes were open. He asked me in a whisper for a drink of water, which I gave him from my bottle. We carried him into the shade of a wagon, and roughly bandaged his wounds. As we could do nothing further for the moment, I left him, in order to look around the rest of the captured convoy, now being ransacked by the men.”
That may be the same related action in which Sybrand Willem Albertus Burger, resident of the district of Clanwilliam in the Cape Colony, and accordingly a British subject, and who had gone into rebellion, was killed on 25 February 1902 in the Vanrhynsdorp district.
The disputed insurance claim
Burger’s death was the subject of a disputed insurance claim by his widow in Burger v South African Mutual Life Insurance Society [1903] 20 SC 538.
Long before the war, Burger had taken out a life insurance policy and paid the annual premiums. The policy provided that it should not become void by his death by suicide within one year from inception. The policy otherwise agreed to pay, on proof of Burger’s death, the sum of £200.
The judgment records:
“5. While the said policy was of full force and effect the said Burger, being there and then a British subject in or about the year 1901, and at Elizabethfontein, in the district of Clanwilliam, went into rebellion against His Majesty.”
“6. Thereafter on or about the 25th day of February, 1902, and in the Van Rhynsdorp district, the said Burger then and there being a British subject and whilst so in rebellion against His Majesty, and while wrongfully and unlawfully fighting with lethal weapons against His Majesty’s lawful troops, was killed in an engagement between His Majesty’s troops and a body, of whom Burger was one, consisting of British subjects then and there in rebellion and unlawfully resisting the said troops.”
The insurer denied liability, and as summarised by the Chief Justice in the judgment, the question to be decided was whether the insurer, having for 10 years received the annual premium payable under the policy, was entitled, on the death of the insured, to repudiate liability on the ground that death took place while the deceased was engaged in active rebellion.
The insurer argued that it would be contrary to public policy to allow the executor to recover under the policy because his death was the result of his illegal conduct.
The sole exception to payment was death in the event of suicide within a year after inception of the policy.
The Chief Justice, in his judgment, said that there was no evidence that Burger contemplated rebellion or became a rebel with the object of hastening his death and securing the amount of the policy for his estate. He said that, having regard to the principle that where a person seeks to excuse themselves from the performance of a contract in respect of which they have received the full consideration, the rule as to public policy should not be carried further than the protection that the public requires, and that the insurer was not protected by the rule.
The outcome: upholding life insurance cover
In distinguishing those judgments which excluded liability where the insured had been convicted of a crime and executed as a consequence, he said that Burger was not put on trial for rebellion and did not meet his death “at the hands of justice”. He was killed in an engagement between British troops and the Boer forces whom he had joined, and it could not be said that he had that in contemplation like a person who commits a capital offence and knows that, when convicted, the sentence is death.
That action, instituted on behalf of Burger’s estate and ultimately for the benefit of his three daughters, at most benefitted Burger indirectly. He obtained no direct benefit from the consequences of his own illegal act of rebellion.
Significantly, Burger did not obtain the insurance with a view to engaging in rebellious activities, so the conclusion of the contract itself was not against public policy and not void. Obviously, Burger did not intend to die by going into rebellion or doing so in order to be killed. He did not intentionally cause his own death but was probably reckless, foreseeing the possibility of death by going into rebellion but reconciling himself to that possibility.
The judgment in upholding cover is clearly correct on the law and on the facts at the time, absent an argument before the court, which was apparently never made, regarding the intentional causation of the risk of death by Burger in going into rebellion and engaging in battle.
The judgment is discussed in detail by J.P. Van Niekerk in “The Rebel and His Life Insurance Policy: A Reappraisal of the Decision in Burger v South African Mutual Life Insurance Society” ([1999] 11 SA Merc LJ 399). That article contains an interesting, brief review of the South African Mutual Life Insurance Society’s early history in South Africa, noting that a war clause had been inserted into all policies within a month after the outbreak of war, requiring the life insured not to take part in war, voluntarily or otherwise. Despite that, by September 1901, 112 policy claims had been paid out on the 102 lives of Cape members lost in the war, the majority of whom had been killed on the battlefield, having succumbed to their wounds. One person was executed for high treason against the Boer Republics. That claim was paid.
The evolution of insurance law: war clauses and public policy
After the South African War, provisions were contained in subsequent national legislation, for example, the 1923 Insurance Act, providing that a life insured could, without the consent of the insurer, engage in military or naval service in defence of the Union, and no stipulation in the policy depriving the insured of benefit would be effective.
Section 38 of the 1943 Insurance prohibited, subject to certain exceptions, the exclusion of the liability of an insurer in terms of a life policy on the death of the life insured in any war in which South Africa was involved or any South African military or naval service.
Section 57 of the 1998 Long-Term Insurance Act, which still survives, contains a similar provision:
“57. Life policy in relation to person rendering or liable to render military service
(1) A long-term insurer shall not refuse to enter into a life policy on the grounds that the life insured is a person rendering or liable to render military service in accordance with the Defence Act, 1957 (Act No. 44 of 1957).
(2) Notwithstanding anything to the contrary in a life policy contained, the policy benefits to be provided thereunder in the event of the death of the life insured in the course of or as a result of the rendering of military service in accordance with the Defence Act, 1957, shall not be less than an amount equal to the value for which the policy could be surrendered on the day of the death of the life insured, had the regulations not been made.”
From the guerrilla phase of the Anglo-Boer War to the courtroom in Burger v South African Mutual Life Insurance Society, a rebel’s death did not void life cover. Public policy and the absence of intent to benefit from illegality shaped the outcome. Insurers reacted with war clauses, and later statutes - from the 1923 Insurance Act to today’s Long-term Insurance Act - reshaped cover for military service and war-related deaths.
From the Anglo-Boer War to modern insurance law
As we reflect on the legacy of these cases, it’s clear that the intersection of war, insurance, and public policy has shaped modern legal frameworks in ways still relevant today. For the FAnews audience, the ongoing evolution of insurance law serves as a reminder of the critical role litigation plays in adapting to societal shifts, especially in times of conflict.
