The National Financial Ombud Scheme’s Non-life Insurance Division issued only one formal ruling against a participant in the 2025 financial year. That ruling, dated 12 November 2025, went against Old Mutual Insure in a dispute over household contents that were never fully delivered when the policyholder moved to another province.
The case turned on whether the loss was simply one of “missing items”, as the insurer argued, or whether the available facts supported a finding of theft on a balance of probabilities.
When the complainant lodged the claim, the following description of the loss was noted: “Client moved to another town, but the furniture removal company lost and broke some of the items. They delivered the goods, and after the client notified them that not all were delivered, they found some of the items.”
Old Mutual Insure rejected the claim on the basis that the loss was not caused by an insured peril. The insurer quoted the following clause of the policy in its rejection letter:
“4. CONTENTS SECTION
4.5 Extended covers that form part of the limit of compensation
4.5.2 While moving to a new home (if the type of insurance is full cover) We cover your contents against loss or damage caused by theft, fire, collision or overturning of the transporting vehicle while you are permanently moving to a new home or while furniture is moved to your private home. This cover is subject to the condition that the move must be undertaken by professional movers.”
When the insurer responded to the complaint lodged with the NFO, it advised that although it maintained its stance per the rejection letter, it had decided to offer the complainant R10 000, which was the limit of indemnity under the all-risks section the policy, to settle the claim.
The complainant rejected the offer, saying the amount was far less than the value of the items for which she was claiming.
The NFO advised the insurer that, based on the information provided, the peril was a theft, on a balance of probabilities.
Old Mutual Insure disagreed, maintaining the loss was one of missing items.
The complainant said the removal company delivered the first batch of items and then found many other items, which it delivered. After the second batch was delivered, a significant number of items remained not undelivered, and the company stopped communicating with her. The complainant provided WhatsApp texts between her and the company. The texts confirmed that the company did not provide the complainant with a definitive answer about her items. It seemed that varying undertakings were made to the complainant either to deliver her items or to provide her with feedback on their whereabouts.
The complainant waited 21 days, and after not receiving the items or any substantial feedback from the company, she reported a case of theft and fraud to the South African Police Service.
The outcome of the case was “unfounded”.
Old Mutual Insure argued that “unfounded” meant no evidence of theft had been found. It further argued that the complainant had initially described the incident as “lost items”, and although she had later referred to it as theft, “the intentional deprivation required to trigger theft had not been established”.
The insurer referred to and relied on case law to support its stance that an inference alone was insufficient to prove theft. It said the onus lay with the complainant to prove on a balance of probabilities that a theft had occurred.
Theft … on a balance of probabilities
The NFO said theft in South Africa is defined as: “The unlawful appropriation of moveable corporeal property belonging to another with the intent to deprive the owner permanently of the property.”
The evidence was that items were never delivered to the complainant. Once the date on which the items needed to be delivered to the complainant had passed, and no reason was provided for the failure to deliver them, then they had been unlawfully appropriated, because they were now in the possession of the company without the complainant’s permission, particularly considering that the complainant had repeatedly requested the return of the items.
While the removal company did not return the items and did not explain their whereabouts, it could be inferred there was an intention not to return the items. The complainant had opened a case of theft, fraud, and malicious damage to property. This demonstrated on a balance of probabilities that she believed the items had been stolen.
The NFO took the view that the fact that the docket had been closed with no outcome or prosecution did not infer there had been no theft.
The NFO found, based on the information at hand, that, on a balance of probabilities, the complainant had brought her claim within the cover provided by the policy. It issued a provisional ruling to this effect, and the insurer was requested to settle the claim.
No direct evidence of unlawful appropriation
Old Mutual Insure disagreed with the provisional ruling on the basis that the policy did not cover “unexplained disappearance”.
It also argued that the complainant initially described the incident as “lost items, and only later reframed the matter as theft. This retrospective recharacterization does not alter the original nature of the loss, which was not accompanied by any direct evidence of criminal intent or unlawful appropriation.”
The insurer also made the following submissions:
- International ombud bodies, including the UK Financial Ombudsman Service and Australian Financial Complaints Authority, have consistently held that closed police investigations without findings of criminal conduct weaken the theft claim and support the insurer’s right to reject based on policy terms.
- Although the complainant’s items were not delivered, there was no evidence of intent to deprive. The moving company’s conduct may reflect negligence or logistical failure, but not necessarily theft. The fact that some items were later recovered and others were damaged further supports a non-criminal explanation.
- The provisional ruling did not address or justify the exclusion of relevant international case law and ombud rulings, despite their relevance to the interpretation of theft-in-transit disputes. These rulings are not binding but are highly persuasive, particularly where they reinforce the principle that inference alone is insufficient to establish liability under an insurance contract.
Insurer had not proved it wasn’t theft
The NFO’s response to the international ombuds rulings and the case law referred to by the insurer was that each case is dealt with and determined on its own set of facts. As a result, even prior decisions by the NFO do not form precedent.
Although a particular approach or principle may apply generally on some matters, each matter is dealt with on its own merits. The NFO emphasised that the reliance on case law must be based on the same set of facts.
Whether or not there was a theft is a matter of fact, and therefore the facts of each case will determine whether it can be reasonably concluded there was a theft.
Regarding the element of intent, the NFO found that even if some of the items were returned in a second delivery, it did not prove intent on the part of the moving company to return all the complainant’s items. It also did not remove any intent on its part to deprive the complainant of the other items.
The NFO said this was not simply a failure in terms of the contract to deliver the items. Four months had passed since the loss, and by the time the complainant had approached the NFO, the complainant had still not received the balance of her items, despite sending several requests to the company. In any event, the non-delivery may have been the way the theft had been committed. It did not follow that the non-delivery was not theft; this may have been the modus for the theft.
The closure of the theft and fraud docket by the SAPS as “unfounded” did not invalidate the complainant’s claim or serve as proof that it was not theft.
The NFO found that the complainant had brought the claim within the ambit of the policy. The onus then shifted to the insurer to prove it was not theft. The insurer had not presented any evidence to disprove the peril of theft.
The NFO issued a final ruling on this basis, and the insurer was requested to accept liability for the theft claim.
Old Mutual Insure agreed with the final ruling and advised that it would liaise directly with the complainant to quantify and settle the claim.
