Drinking and driving in South Africa – what insured South Africans need to know

South African insurers can reject a claim for driving under the influence of alcohol—but they still have an obligation to prove their case when making that decision.

In the 2023 annual report for the Ombudsman for Short-Term Insurance (OSTI), Assistant Ombudsman Zanele Makamba examined a case in which the insured submitted a claim for damage sustained to his vehicle following an accident.

However, the insurer rejected the claim, arguing that the driver was under the influence of alcohol at the time of the accident.

Although the driver admitted that he had four beers at his girlfriend’s party between 09h00 and 15h00, the accident took place at 19h48 (almost 5 hours later) after he avoided a pedestrian on the road, veered into an embankment and hit a tree.

The insurer’s assessment confirmed the facts leading up to the accident, where he said that he was sober and that the alcohol did not have any influence on his driving ability.

Alcohol is mainly broken down by the liver, which can metabolise roughly one standard drink per hour, but this also depends on age, weight, gender and food eaten.

While alcohol can stay in the system between 6 and 72 hours, the half-life is roughly 4 to 5 hours.

Most men with minimal to no tolerance will start to show characteristics of intoxication when their blood alcohol content (BAC) reaches 0.05%. Their ability to drive will be significantly impaired at 0.07%.

The insurer rejected the claim, arguing that the driver was under the influence of alcohol, with the decision heading to the OTSI.

The issue for determination in the matter was whether the insured was, on the balance of probabilities, under the influence of alcohol, with the onus on the insurer to prove this.

In order to discharge this onus, the insurer had to demonstrate that the complainant:

1. Did, in fact, consume alcohol on the day of the incident; and
2. Was influenced by such consumption.

The OSTI found that it was a common cause that the insured had consumed roughly four to five beers during the day of the accident.

Although the insurer correctly submitted that circumstiaonal evidence must be taken into account, it failed to provide any circumstantial evidence to support its submission that the insured had been influenced by the consumption of alcohol on the evening in question.

There were no eyewitnesses to speak on the insured’s demeanour and whether he was influenced by alcohol.

The insurer relied on general facts about alcohol consumption, which failed to reflect the insured’s state at the time of the incident.

It was unclear whether the statements regarding alcohol were factual, and even if they were, there was no evidence to suggest that the insured was under the influence of alcohol.

“All that the insurer could show was that the insured had consumed alcohol, but it failed to provide any
evidence that the consumption of alcohol influenced him or that this fact was material to the loss,” said Makamba.

“The insurer, therefore, did not prove its case on a balance of probabilities, and the office recommended that the insurer approve and settle this claim. The insurer accepted our recommendation and settled the claim in full.”

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