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[2011] ZAGPJHC 205
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Puzzle Marketing CC v Wellco Air Services CC and Another (9188/2008) [2011] ZAGPJHC 205 (30 August 2011)
IN THE SOUTH GAUTENG HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO
: 19188/2008
DATE
: 2011-08-30
In the matter between
PUZZLE MARKETING
CC
........................................................
Plaintiff
and
WELLCO AIR SERVICES
CC
..................................................
Defendant
MND AIRCRAFT ELECTRICAL
CC
...........................................
Third
party
J U D G M E N T
WILLIS J:
[1] This morning I was asked to make a ruling in terms of Rule 33(4)
relating to separation of issues. I did so with the agreement
of the
parties. The separated issue which I have to determine today arises
from paragraph 8 (b) of a minute of a pre-trial conference
dated July
2011. The conference itself was held on 3 June 2011. The questions
to be answered are the following:
"With reference to paragraphs 5 and 7 of the plaintiff's
particulars of claim (as amended) in paragraphs 4 and 5 of the
defendant's
plea –
i. Whether the plaintiff (duly represented by Nick Spencer) and the
defendant (duly represented by Peter Hartwell) concluded an
oral
agreement on 31 August 2006 in terms of which the defendant was
required to perform the work contemplated by paragraph 6 of
the
plaintiff's particulars of claim (as amended) on the left engine of
the aircraft ("the agreement") –
ii. If so further whether the plaintiff acting pursuant to the
agreement entrusted the aircraft to the defendant to an agent duly
authorised to carry out the work envisaged by the agreement –
iii. If so further whether such agent, while acting in such
capacity, pursuant to the agreement thereafter on 31 August 2006
performed work on the left engine of the aircraft."
[2] It is common cause that in March 2006 Mr Nicholas Spencer, the
sole member of the plaintiff, concluded an offer to purchase
of a
Beechcraft Baron B55 serial number TC1360, registration ZS-AJV. The
aircraft was, at the time, owned by the defendant. It
was being sold
by Aero Export Aerosols, a business that was operated by one Mr Bruce
Theunissen, on behalf of the defendant.
[3] The offer to purchase contains a standard clause which provides
that a pre-purchase inspection should be undertaken expeditiously
as
possible and should the inspection disclose that the aircraft and the
systems are not in the sole judgment of the purchaser
airworthy the
purchaser may cancel the transaction or renegotiate the costs of
possible repairs with the seller.
[4] The standard form is designed to ensure that no aircraft is sold
in South Africa for purposes of flying the same unless it
is in an
airworthy condition upon transfer. At the relevant time of
conclusion of this agreement the defendant was, at all material
times, represented by Mr Peter Hartwell, a qualified maintenance
organisation in respect of that particular aircraft.
[5] The defendant was engaged to ensure that the aircraft was in the
so-called ‘airworthy’ condition at the time that
it was
transferred to the plaintiff.
[6] There were persistent problems with the fuel pump of the left
engine of the aircraft. These had been attended to over a course
of
time by the defendant prior to the critical date in question namely
31 August 2006.
Mr Nick Spencer testified on behalf of the plaintiff that, at the
time of negotiating the purchase of the aircraft (which was his
first
aircraft), he was in the process of taking flying lessons to become a
qualified pilot. Having established good acquaintance
with Mr Peter
Hartwell during the course of his taking lessons in flying aircraft.
Mr Spencer requested that Mr Peter Hartwell's
company (the defendant)
continue to be the AMO (Aircraft Maintenance Officer) in respect of
the aircraft once he had taken transfer.
[7] Mr Hartwell conceded that such a conversation may have taken
place, but denies that any firm terms of agreement in regard thereto
were agreed between the parties. Mr Spencer pointed out that all the
relevant logbooks remained with the defendant at the time
of the
critical incident of 31 August 2006.
[8] The probabilities are overwhelming that Mr Spencer would have
wanted to continue the relationship of the defendant as AMO in
respect of the aircraft in question. It simply would not make sense
for him to change this relationship especially as he was a
new
purchaser and somebody learning to fly (if one may use the
expression). I accept (and indeed this seems to have been the
evidence
of Mr Spencer as well) that there were no firmly concluded,
precise terms of rates to be charges in regard to the work done. Self
evidently (and this happens all the time in ordinary life throughout
South Africa) - and this indeed what was pleaded ultimately
by the
plaintiff in response to questions by the defendant - there would
have been an agreement between the plaintiff and the defendant
that
the Defendant would act as AMO for the plaintiff and that the
Defendant’s rates and charged would have been the reasonable
going rate for such services and supplies as applied in the market.
[9] The aircraft in question had been sent for refurbishing by an
entity known as Sky Trim. Although I have been criticised by
Mr
Kruger
as being disparaging when I referred to Sky Trim as
being ‘interior decorators’, I intend no disparagement to
them
whatsoever. On the contrary, the evidence of Mr Spencer was
that they had done a superb job. There is nothing wrong with being
an
interior decorator or a refurbisher of an aircraft.
[10] On 31 August 2006 Mr Spencer went to Rand Airport to collect his
aircraft. First he had to get it out at Sky Trim to fly it
to
Lanseria Airport where he had a hanger where the aircraft was to be
birthed. Lanseria Airport is moreover where the flying instruction
school from which he was receiving lessons was situated. The left
fuel pump presented difficulties. Fuel would not go to the left
engine. The left engine could not be started.
[11] Mr Spencer was understandably irritated as it was a persistent
problem. According to Mr Spencer he then contacted Mr Hartwell
of
the defendant and reported the problem. Soon thereafter Mr Desmond
Kurt Handares arrived and seemed to have attended to the
problem. According to Mr Spencer,
Mr Handares climbed into the aircraft and using a manual
undercarriage lever wound open the undercarriage door. Underneath
the
aircraft, with a spanner in hand, he went to work. A few moments
later, he got back into the aircraft, switched the fuel pump back
on
and closed the undercarriage doors with the manual lever.
[12] When Mr Spencer and his pilot, Jeff Furrow, were told that all
was well, they started on the relevant check list again, climbed
into
the aircraft and started her up. There were some helicopters nearby
and out of courtesy they rolled forward to prevent propellers
from
blasting them. The aircraft coached forward about half a metre and
then there was an almighty crash. Severe damage girthing
the left
wing, the propeller, the engine, the elevator tail, undercarriage and
fuselage occurred. The problem arose it would seem,
because the
undercarriage had not properly been closed. This gives rise to the
claim.
[13] Mr Hartwell has been emphatic that he was not contacted by Mr
Spencer on 31 August. Mr Handares says that he was contacted
by one
Rico who worked for Sky Trim and that is why he went out. It is
quite clear (and indeed it is common cause) that Mr Handares
did go
out as described by Mr Spencer. The question then is: why did he go
out? There was no relationship between Mr Handares
and Mr Spencer at
that time. They hardly knew one another ‘from a bar of soap’.
This is common cause. It is the evidence
of both Mr Handares and Mr
Spencer. Accordingly, Spencer would not, on the balance of
probabilities, have contacted Mr Handares
directly. That is indeed
the evidence of Mr Spencer. Against the background of facts it is
highly probable that, if the defendant
as AMO for whoever was the
owner, Mr Spencer would have contacted Mr Hartwell. The
defendant as AMO been attending to the
problems that required fixing
before transfer could take place. He had specifically been attending
to the difficulties relating
to the left pump. The
notion that he may have contacted Rico at Sky Trim, in this
particular context, is ridiculous. I put it to Mr
Kriegler
,
who appeared for the plaintiff, that it was as absurd as somebody
phoning an interior decorator to get a plumbing problem fixed
in
their house. Mr
Kriegler
thought it was a good analogy, but
Mr
Kruger
thought that I was being disparaging about Sky Trim.
The point is that it would have made no sense whatsoever for Mr
Spencer to
have contacted Sky Trim, the refurbishers, in order to get
the fuel pump repaired.
[14] It must be borne in mind that Mr Spencer was anxious and
excited, most probably, to be flying to Lanseria in his new aircraft
as soon as possible. It may well have been that Rico phoned Mr
Handares. This could have been the case because, after Mr Spencer
had
contacted Mr Hartwell, Mr Hartwell battling to get hold of Mr
Handares could have contacted Rico: the offices or the premises
of
Sky Trim and Rico were near to one another.
[15] Be that as it may, if one takes into account the well known
balancing exercise to be done in the light of cases such as
National
Employers Mutual General Insurance Association v Gany
1931 AD 187
at 199,
AA Onderlinge Assuransie Assosiasie v De Beer
1982 (2)
SA 603
(A),
Stellenbosch Farmers’ Winery Group Ltd and
Another v Martell et Cie
2003 (1) SA (SCA) at
para [5],
Koster Koöperatiewe Landboumaatskappy Bpk v
Suid-Afrikaanse Spoorweë en Hawens
1974 (4) SA 420
(W) at
425,
African Eagle Life Assurance Co Ltd v Cainer
1980 (2) SA
234
(W) at 237,
National Employers’ General Insurance v
Jagers
1984 (4) SA 432
(ECD),
Baring Eiendomme Bpk v Roux
[2001] 1 All SA 399
(A) at para [7] and if one has regard to the
totality of the evidence and the objective probabilities, it is clear
that the plaintiff
would have contacted the defendant, asked the
defendant to sort out the problem which existed was the left fuel
pump and that the
defendant would have agreed to attend thereto and
would have engaged the services of Mr Handares on its behalf to do
so. Accordingly,
all the questions to be answered by this court are
to be answered in the affirmative, in favour of the plaintiff.
[16] The defendant is to pay the costs of the plaintiff in
determining this issue.
Counsel for the plaintiff: Adv M
Kriegler
SC.
Counsel for the defendant: Adv N S
Kruger
.
Attorneys for the plaintiff: Norton Rose South Africa
Attorneys for the defendant: Viljoen Francis and Chester.
No appearance for the third party.
Date of hearing: 30 August 2011.
Date of judgment: 30 August 2011.