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[2021] ZAGPPHC 83
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Starlite Aviation Training Academy (Pty) Ltd v Gradco South Africa (Pty) Ltd and Another (79946/2019) [2021] ZAGPPHC 83 (24 February 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISON, PRETORIA)
(1)
REPORTABLE:
Yes
/No
(2)
OF INTEREST TO OTHER JUDGES:
Yes
/No
REVISED:
Yes
24/2/2021
CASE
NO.: 79946/2019
In
the matter between:
STARLITE
AVIATION TRAINING
APPLICANT
ACADEMY
(PTY) LTD
(Registration
Number: 2006/015328/07)
And
GRADCO
SOUTH AFRICA (PTY)
LTD
FIRST RESPONDENT
(Registration
Number: 1999/026872/07)
DAVID
MOUTON
SECOND RESPONDENT
(Identity
number: [….])
JUDGMENT ON THE
APPICATION FOR LEAVE TO APPEAL
SARDIWALLA,
J
:
Introduction
[1]
[1]
This
is an application for leave to appeal in terms of
section 17(2)(b)
and
17
(1)(a)(i) of the
Superior Courts Act 10 of 2013
against the
whole order brought by the applicant (the second respondent in the
urgent application), in terms of which the removal
of the helicopter
was ordered against the applicant. The background is the
following.
[2]
On 6
December 2019, an application was before me in the urgent court
brought by the first respondent against the applicant being
essentially that the applicant hand over to the first respondent a
certain helicopter. On even date I granted the relief that the
first
respondent had sought as follows:-
1.
The second respondent is ordered to make the McDonnel Douglas 520N
helicopter with registration
letters ZT_RFL available to the
applicant immediately, so as to enable the applicant to remove the
helicopter from the second respondents
(Hanger A21) situated at
Rooikat Street, Aalwyndal, Mossel Bay, Western Cape Province.
2.
The applicant is directed to remove the helicopter from the premises
referred to in paragraph
1 supra, at a date and time to be arranged
with the second respondent and the applicant assumes responsibility
to arrange for transport
(a low bed) to remove the helicopter and to
transport the helicopter at its own cost and risk from Mossel Bay to
Wonderboom Airport,
Pretoria, Gauteng.
3.
The helicopter will be inspected at the second respondents’
hanger, referred to in
paragraph 1 supra, by the Authorised
Maintenance Organization (AMO) represented by Mr Black Swart of
Helifix CC, who will inspect
the helicopter prior to its removal from
the second respondents’ hangar,
4.
In the event that the second respondent omits or refuses to comply
with the order referred
to in paragraph 1 supra, the Sheriff of this
Court and /or his/her Deputy is authorised and mandated to attach the
helicopter and
to remove it from the second respondents’
possession and to deliver the helicopter to the applicant
ante
omnia
; and
5.
The costs are reserved.
[3]
As a consequence the applicant has brought an application for leave
to appeal seeking leave to appeal to
the Full Court of the Gauteng
Division of the High Court against the entire order. The appeal was
before me on 19 August 2020 which
I refused with costs. The reasons
for my refusal of the application for leave to appeal are dealt with
below.
First
Respondent’s grounds of appeal
[4] The
applicant disputes my findings, in that it disputes that the first
respondent was entitled to the relief granted.
The applicant’s
grounds of appeal in essence are: -
1.
The
court
a quo
lacked jurisdiction;
2.
The
applicant had a
lien
over the helicopter which entitled the applicant to retain the
helicopter;
3.
There
is a reasonable prospect that another court may come to a different
conclusion.
[5] With that
background it is appropriate now to consider Section
17(1)
of
the Superior
Courts Act 10 of
2013,which
provides the test for an appeal as follows:
4.
“
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
5.
(a)
6.
(i)
the appeal
would
have a reasonable prospect of success
;
or
7.
(ii) there
is some
other
compelling reason why the appeal should be heard...”
[6] In
considering the provisions of
s 17(1)
(a)
(ii) of the
Superior Courts Act which
provide that leave to appeal may be
granted, notwithstanding the Court’s view of the prospects of
success, where there are
nonetheless compelling reasons why an appeal
should be heard. There is established jurisprudence in this Court
that where an appeal
has become moot the Court has a discretion to
hear and dispose of it on its merits.
[7] The
merits of the appeal remain vitally important and will often be
decisive. Furthermore, where the purpose of the appeal
is to raise
fresh arguments that have not been canvassed previously before the
Court, consideration must be given to whether the
interests of
justice favour the grant of leave to appeal. It has frequently been
said by the Constitutional Court that it is undesirable
for it as the
highest court of appeal in South Africa to be asked to decide legal
issues as a court of both first and last instance.
That is equally
true of this Court. But there is another consideration. It is that if
a point of law emerges from the undisputed
facts before the court it
is undesirable that the case be determined without considering that
point of law. The reason is that
it may lead to the case being
decided on the basis of a legal error on the part of one of the
parties in failing to identify and
raise the point at an appropriate
earlier stage.
[2]
But the court
must be satisfied that the point truly emerges on the papers, that
the facts relevant to the legal point have been
fully canvassed and
that no prejudice will be occasioned to the other parties by
permitting the point to be raised and argued.
[3]
[8] The
grounds of appeal as a whole are novel. Having said that, the
applicants’ challenge on the Court’s factual
findings are
firstly, that the first respondent’s cause of action was merely
rei vindicatio
and nothing more. Secondly, the first
respondent had made no mention of an oral agreement which led to the
applicant being in possession
of the helicopter and as such did not
plead this in its founding affidavit. Lastly that the sole basis upon
which the first respondent
alleged that this Court had jurisdiction
was that the helicopter was in the possession of the applicant
“located at a place
or venue situated within this Court’s
area of jurisdiction”. The applicant submitted that this Court
should have determined
the first respondent’s application with
reference to its pleaded case in the founding affidavit having regard
to its pleaded
cause of action and the applicant and second
respondents’ answering affidavit with regard to the physical
location of the
helicopter. It submits that the court erred by
completely ignoring the fact that the first respondent did not
deliver a replying
affidavit in the urgent application and therefore
as a result did not dispute the applicant’s allegation that the
helicopter
was situated at the applicant’s hangar situated at
69 Rooikat Street, Aalwyndal, Mossel bay (Hangar A21). Further that
the
answering affidavit by the second respondent which it noted did
not oppose the first respondent’s urgent application was
unbeknown to the applicant as it was not served on its attorneys. It
further submitted that in any event the second respondent’s
referral to the premises of the applicant in his answering affidavit
could only have been the premises of the applicant at its
hangar in
Mossel bay because the first and second respondent knew from February
2019 that the helicopter was in the hangar in Mossel
Bay.
[9] I
accept that the general rule is that a party must make out its case
in the founding affidavit. It cannot do so
in reply, however this is
not an absolute rule. Courts have been cautioned not to be overtly
technical in such matters. The following
was said about the approach
to be adopted by our courts in
Smith v Kwanonqubela Town Council
1999 (4) SA 947
(SCA) at page 955 at paragraph [15]:
"In South
African Milling (at 436
-
437C)
the matter was also approached from a procedural point, namely that a
party is not entitled to make out a case in reply and
that a
ratification relied upon in reply infringes this rule, this part of
the ratio is strictly speaking not apposite to the present
case
because the issue here was decided upon a stated case which did not
raise this point. It remains, however, in view of persistent
difficulties in this regard, necessary to emphasise that this Court
in Moosa and Cassim NNO has clearly adopted as correct refutation
in
Baeck & Co (at l l 4E
-
l
19B) of the approach and to state that !fully subscribe to that view.
The rule against new matter in reply is not absolute (cf
Juta &
Co Ltd and Others v De Koker and Others
1994 (3) SA 499
(I') 1994 at
511F) and should be applied with a fair measure of common sense. For
instance, in the present case, the point provided
no material or
substantial advantage to Smith
-
at
least, counsel could not point to any
-
and
it simply at great cost postponed the day of possible reckoning (cf
Merlin
Gerin
at 6601- J; National Co-op Dairies Ltd v SMITH 1996(2) SA 717 (N) at
719 E- F".
[10] The following
was said in Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd
2007
(2) SA 363
(SCA) at paragraph 32:
"I am not
entirely sure what is meant by the description of the application as
'totally irregular'. If it is intended to convey
that the application
amounted to a deviation from the Uniform Court Rules, the answer is,
in my view, that, as often been said,
the rules are there for the
Court, and not the Court for the rules. The Court a quo obviously has
a discretion to allow the affidavit.
In exercising this discretion,
the overriding factor that ought to have been considered was the
question of prejudice. The perceived
prejudice that the respondent
would suffer if the application were to be upheld, is not explained.
Apart from being deprived of
the opportunity to raise technical
objections, I can see no prejudice that the respondent would have
suffered at all. At the time
of the substantive application the
respondent had already responded in its replying affidavit. The
procedure which the appellant
proposed would have cured the technical
defects of which respondent complained, the respondent could not both
complain that certain
matter was objectionable and at the same time
resist steps to remove the basis of the complaint. The appellant's
only alternative
would have been to withdraw its application, pay the
wasted costs and bring it again supplemented by the new matter. This
would
result in a pointless waste of time and costs. For these
reasons the applicant's substantive application to supplement its
founding
affidavit should, in my view, have succeeded. "
[11] The
following was also said in Lagoon Beach Hotel (Pty) Ltd v Lehane NO
and Others
2016 (3) SA 143
(SCA) at paragraph [16]:
"Then there
is the fact that a voluminous replying affidavit containing a great
deal of evidential material relevant to the
issues at hand had been
filed. Relying upon authorities such as Sooliman, the appellant
argued that it was 'axiomatic ... that
a reply is not a place to
amplify; the applicant's case ' and that the new matter has been
impermissibly raised by Lehane in reply,
that it was evidential
material to which the appellant had not been able to respond, and
that it fell to be ignored. However, again,
practical common sense
must be used, and it is not without significance that many of the
hearsay allegations complained of were
admitted by the appellant in
its answering affidavit. And although Lehane had been appointed the
official assignee to Dunne's estate
some 13 months before the
application was launched in the court a quo, and the information set
out in reply could therefore have
been contained in the founding
affidavits, sight must not be lost of the fact that the application
was initially launched by Lehane's
deputy official, Mr D Ryan, in the
absence of Lehane who was abroad at the time and unable to depose to
an affidavit. The detailed
allegations made by Lehane speak of he,
and not Ryan, having been more au fait with the facts and
circumstances of the matter.
Moreover, the initial application was
moved as a matter of urgency, and the courts are commonly sympathetic
to an applicant in
those circumstances, and often allow papers to be
amplified in reply as a result, subject of course to the right of a
respondent
to file further answering papers. Regard should also be
had to the intricacy of Mr Dunne's dealings that required intensive
and
ongoing investigations. Furthermore, the appellant, as respondent
a quo, did not seek to avail itself to the opportunity to deal
with
the additional matter Lehane set out in reply, and I see no reason
why these allegations should therefore be ignored "
[12]
Having adequate consideration of the answering affidavits and the
oral evidence that was led before this Court
I concluded that this
Court had the necessary jurisdiction by the ground of
ratio
contractu
raised by the second respondent in his answering
affidavit in the urgent application. I may have overlooked that this
ground was
in fact raised by the second respondent and not the first
respondent, however argument was led by both parties which related to
the agreement. The applicant who interestingly did not deny the
existence of the agreement however stated that it was between the
applicant and the second respondent. It also agreed that the
agreement was signed in Wonderbroom and Middleburg. It was on that
basis that this Court found that it had jurisdiction. This Court was
of the view that to disregard this evidence merely because
it was not
raised by the first respondent would not be in the interests of
justice and would only serve to postpone the day of
reckoning for the
applicant. It is clear from the aforegoing precedent although it
differs somewhat in that it deals with new material
raised in
replying affidavit and whether same should be considered the
principle is nevertheless the same. In any event applying
the
approach of the Courts above even if the first respondent filed a
replying affidavit mentioned the basis of which the applicant
came to
be in possession of the helicopter the Court would still be required
to consider it. The fact of the matter is that a point
of law had
emerged on the papers and was not disputed by any of the parties
including the applicant therefore it would serve no
justice for this
Court to adopt a technical approach that would result in wasted time
and costs. Rather a common sense approach
should be used when dealing
with such matters. The true test is whether all the facts pertaining
to the matter have been placed
before the court. If there is any
prejudice, that prejudice must be brought to the attention of the
court. A party that is prejudiced
should be allowed to file a further
affidavit that deals with that point. The applicant did not request
to file a further affidavit
but was afforded an opportunity in oral
evidence to respond to the second respondents’ allegations
which took care of any
prejudice that the respondent may have
suffered. It cannot complain later after they were afforded an
opportunity to respond to
any new matters.
[13] The
second basis upon which the Court relied to confirm its jurisdiction
was the second respondent’s (first
respondent in the urgent
application) answering affidavit in which he stated at paragraph 17
that,
“
On 8
November 2019 I attended the premises of the 2
nd
respondent to ascertain where the applicant’s helicopter was
situated. I found the helicopter at the 2
nd
respondents’ premises and inspected same.”
However, the
applicant contends that the referral of the premises of the second
respondent in the first respondents’ answering
affidavit could
only have been the premises of the applicant in Mossel bay but failed
demonstrate how it arrived at that conclusion.
Upon consideration of
the second respondents’ answering affidavit the Court found
that the he only ever made mention of the
Wonderbroom Airport in
preceding paragraphs to paragraph 17 and therefore in the premises
could only be interpreted to mean that
the premises to which he
referred and attended to ascertain where the helicopter was situated
was that of Wonderbroom Airport.
No reference at all is made of
Mossel Bay. The second respondent also attached images of the damages
to the helicopter. Considering
that the second respondent
substantiated the claim of the first respondent in the urgent
application and the absence of evidence
on behalf of the applicant
that the helicopter was stationed in Mossel Bay the Court accepted
the evidence of the second respondent
and found that this Court had
the necessary jurisdiction on the ground of
ratio contractu
to
determine the dispute.
[14] The
last ground of appeal relates to the lien in which the applicant
submits that in the absence of the first respondent
filing a replying
affidavit disputing that it incurred costs which costs were not
merely a storage lien but an improvement lien
this Court should have
found that the applicant was entitled to retain possession of the
helicopter as the first respondent simply
left the helicopter in its
possession. The applicant is clearly misdirected as the filing of
replying affidavit is not a compulsory
requirement but rather a
prerogative of a litigant. In a matter such as the present where a
respondent has substantiated a claim
on behalf of the applicant the
filing a replying affidavit would be unnecessary. Needless to say
that this issue of the lien was
in any event canvassed at length at
the oral hearing where the first respondent relied on clause 2.4 of
the agreement which established
that it was the applicant’s
responsibility to hangar the helicopter. However, apart from alleging
that the first respondent
failed to file a replying affidavit
disputing its allegations the applicant provided no further proof
that the aircraft was in
Mossel bay. It relied entirely on the
defence of failure to file a reply and was insufficient to prove that
this Court lacked jurisdiction.
I have already stated that the Court
accepted the evidence of the second respondent in his answering
affidavit to which he stated
that he together with the first
respondent made numerous attempts to arrange meetings with
Wonderbroom Airport to discuss the way
forward to which the applicant
never attended or plainly ignored. Notably again the applicant
provided no explanation regarding
its non-attendance at those
meetings and did not dispute the second respondent’s
allegations in his answering affidavit.
Therefore, this Court found
that the applicant’s wilful failure to return the aircraft to
its owner after the expiration
of the lease agreement and the
numerous requests to do so in law would never entitle it to claim an
improvement lien.
[15]
I accordingly make the following order:
1. The
application for leave to appeal is refused with costs.
SARDIWALLA J
JUDGE OF THE HIGH
COURT
APPEARANCES:
Date
of hearing
: 19
August 2020
Date
of judgment
: 24
February 2021
Appellant’s
Counsel
: ADV: L
HOLLANDER
Appellant’s
Attorneys
: Darryl
Furman & Associates
Respondent’s
Counsel
: ADV: F
W BOTES SC
Respondent’s
Attorneys
: Gothe
Attorneys
[1]
In the interest of brevity
evidence led before the court a quo will not be repeated in this
judgment in any great detail unless
material to the conclusions
reached. Readers of this judgment are referred to the judgment of
the court a quo and the record
if any additional details are
required. To facilitate reading, the same terminology as adopted in
the court a quo will be followed
to ensure consistency and hopefully
ease of understanding.
[2]
Van Rensburg v Van Rensburg &
andere
1963 (1) SA 505
(A) at 510 A-C. The approach has been
endorsed by the Constitutional Court. CUSA v Tao Ying Metal
Industries & others (CCT
40/07)
[2008] ZACC 15
;
2009 (2) SA 204
(CC) para 68.
[3]
Fischer & another v
Ramahlele & others (203/2014)
[2014] ZASCA 88
;
2014 (4) SA 614
(SCA) paras 13 and 14.