Barkhuizen v Napier

The applicant, Mr Barkhuizen, entered into a short-term motor vehicle insurance contract with Lloyd’s Underwriters, represented by the respondent, Mr Napier. After his insured vehicle was written off in an accident, the insurer repudiated the claim. The insurance policy contained a clause requiring summons to be served within 90 days of repudiation, failing which the insurer would be released from liability. The applicant only instituted action nearly two years later. The insurer raised a special plea relying on the time-bar clause. The applicant conceded non-compliance but challenged the clause as unconstitutional and contrary to public policy, alleging it infringed the right of access to courts under section 34 of the Constitution.

Leave to appeal was granted but the appeal was dismissed. The order of the Supreme Court of Appeal upholding the insurer’s special plea was confirmed.

This case is a leading authority on the constitutional control of contract law in South Africa. It clarified that contractual terms between private parties are not usually tested directly against the Bill of Rights but against public policy as informed by constitutional values. The judgment reaffirmed pacta sunt servanda while recognising that contractual autonomy is subject to constitutional scrutiny.