Abstract
This minor-dissertation explores the implications of good faith in South African insurance law. It focuses on the implications of good faith as it underpins the insured’s pre-contractual duty to disclose. Further, it analyses the consequences of the breach of the duty to disclose as underpinned by good faith. It compares the South African position with the United Kingdom (UK) in suggesting law reform. In South Africa, the breach of this duty results in avoidance as the sole remedy. This all-or-nothing remedy has been abolished in the UK, and a statutory framework for proportionate remedies was established. This research suggests South Africa should adopt a similarly flexible approach of proportionate remedies to enhance policyholder protection. Moreover, this minor-dissertation advocates for the relaxation of the insured’s onerous duty to disclose in the wake of modern technologies because the material information does not only exist in the exclusive knowledge of the insured as insurers can mine this information using modern technologies. In the UK, insurers are required to play an active role in assisting the insured in disclosing, and this has been a recent trend also in South African law through case law and other legal frameworks. From this, it is suggested that this obligation of the insurer should be clearly defined and codified. Ultimately, this minor-dissertation advocates for legal reform of the insured’s duty to disclose and the consequences of failure to enhance policyholder protection.