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[2015] ZAGPPHC 302
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Leading Prospects Trading 38 (Pty) Limited v Centrique Insurance Company and Another (69139/2011) [2015] ZAGPPHC 302 (8 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:
69139/2011
DATE: 8 APRIL
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between;
LEADING
PROSPECTS TRADING 38 (PTY)
LIMITED
...............................................................
Plaintiff
and
CENTRIQUE
INSURANCE
COMPANY
...............................................................................
First
Defendant
BANIE
TROMP
....................................................................................................................
Second
Defendant
JUDGMENT
MAS1PA J
INTRODUCTION
[1] The plaintiff is
Leading Prospects Trading 38 (Pty) Limited, (“Leading
Prospects”)owner of a helicopter, which was
insured by
Centrique Insurance Company,( “Centrique") the first
defendant. On 5 September 2011 the helicopter was involved
in an
accident when it flew into high voltage Eskom power lines in the
Queenstown area on the R359 road. At the time of the accident
Banie
Tromp, (“Tromp”)the second defendant, was the pilot of
the helicopter.
[2] Leading
Prospects commenced action against Centrique in which it claimed
indemnity in terms of the insurance policy issued by
Centrique.
Alternatively Leading Prospects claimed damages from Tromp on the
basis of breach of a contract or alternatively on
the basis of
delict. It was alleged that Tromp was negligent in causing the damage
to the helicopter. One of the grounds of negligence
relied on by
Leading Prospects in its claim against Tromp is that he contravened
Part 91.06.23 of the Civil Aviation Regulations
which provides that a
helicopter should not be flown at a height of less than 500 feet
above the ground unless the flight can be
made without hazard or
nuisance to persons or property on the ground (“the
Regulation”).
THE
CLAIM AGAINST THE FIRST RESPONDANT
THE
INSURANCE AGREEMENT
[3] It is common
cause that the full version of the policy wording attached as
annexure “P1” is operative.
[4] In addition to
the conclusion of the policy Centrique pleaded that an endorsement
was issued to the insurance policy. The effect
of the endorsement was
that:
4.1 It would operate
from 1 September 2011 until 10 September 2011;
4.2 Tromp was added
as a named pilot; and
4.3 The breach of
Civil Aviation Regulations clause and the ‘Unauthorised Use’
clause in the policy was suspended for
the period 1 September 2011 to
10 September 2011.
[5] Leading
Prospects called Mr Grobbelaar as a witness who agreed that:
5.1 The insurance
policy contained a warranty to the effect that Leading Prospects
warranted compliance with all air transportation,
air navigation and
airworthiness orders and requirements issued by any competent
authority affecting the safe operation of the
helicopter, which if
breached would invalidate Leading Prospects’s claim for
indemnification.
5.2 The insurance
policy included the ‘Breach of Civil Air Regulations’
Clause, which provided that the insurance policy
would remain in
force if there was a breach of the warranty provided that Leading
Prospects had no prior knowledge of the circumstances
in which the
breach had been committed.
5.3 The insurance
that had been effected after the endorsement had been included in the
policy would operate if Tromp was flying
the helicopter but there was
no breach of the Civil Air Regulations.
5.4 The policy with
the endorsement did not include the Breach of Civil Air Regulations
clause.
[6] It is common
cause between Leading Prospects and Centrique that the insurance
policy does not have to indemnity Leading Prospects
for damage to the
aircraft if the aircraft was damaged whilst being flown in breach of
a Civil Aviation Regulation.
THE ACCIDENT
AND THE BREACH OF THE CIVIL AVIATION REGULATION
[7] Centrique
alleges that when the accident occurred the helicopter was being
operated in contravention of the Regulation because
it was being
flown at a height of less than 500 feet above ground which flight
could not be undertaken without hazard to property
on the ground.
[8]
In its replication Leading Prospects said that it had no knowledge of
whether the aircraft was being operated in contravention
of the
Regulation at the time of the accident. In the alternative, and in
the event of it being found that the helicopter was being
operated in
contravention of the Regulation, Leading Prospects said that the
warranty in the policy relating to compliance with
the Regulation was
a
“
relative
warranty,
and
did not have to be complied with if the helicopter was landing. By
implication this incorporates an element of reasonableness;
that the
pilot was only required to act reasonably in complying with the
Regulation; and that Tromp avers that when the accident
happened he
was faced with a situation of emergency and had accordingly acted
reasonably.
WHAT REGULATIONS AND
WHICH ACT IS APPLICABLE.
[9] There was some
disagreement between Leading Prospect and Tromp regarding what
regulations or Act is applicable.
[10]
10.1 The starting
point is the Aviation Act No. 74 of 1962 which came into force on 21
July 1962 by promulgation in Government Gazette
No. 102 of 21 July
1962.
10.2 In Government
Gazette No. 18286 of 26 September 1997 the Civil Aviation Regulations
were promulgated in terms of Section 22
of the Aviation Act. These
Regulations are commonly referred to as the 1997 Regulations.
10.3 Government
Gazette No. 24017 of 15 November 2002 amended certain parts of the
1997 Regulations including Regulation 91.06.32.
The amendment
related only to section 2 of the Regulation which is not relevant to
this case.
10.4 In Government
Gazette No. 32266 of 27 May 2009 the
Civil Aviation Act No. 13 of
2009
was promulgated but did not immediately come into effect.
10.5 In Government
Gazette No. 32958 certain sections of the
Civil Aviation Act were
made effective with effect from 31 March 2010. Simultaneously the
Aviation Act was repealed.
10.6
Section 164(1)
of the
Civil Aviation Act provides
that any regulations made under
the Aviation Act will remain in force until replaced by an Act of
Parliament or regulation made
under the
Civil Aviation Act.
10.7 In
Government
Gazette No. 35398 of 1 June 2012 regulations were promulgated under
Section 155(1)
of the
Civil Aviation Act. These
regulations repealed
the 1997 regulations and are commonly referred to as the 2011
Regulations.
[11] The accident in
the present case occurred on 5 September 2011. It is therefore clear
that the legislative framework which regulates
the accident was the
provisions of the
Civil Aviation Act No. 13 of 2009
and the 1997
Regulations.
[12] The operative
wording of Regulation 91.06.32 is the following:
“
91.06.32
(1)
Except when necessary for taking off or landing
,
or except with
prior written approval of the Commissioner
;
no aircraft-
(a) shall be
flown over built up arrears or over an open air assembly of persons
at height of less than 1000 feet above the highest
obstacle, within a
radius of 2000 feet from the aircraft;
(b) when flown
elsewhere and specified in paragraph (a) shall be flown at a height
less than 500 feet above the ground or water,
unless the flight can
be made without hazard or nuisance to persons or property on the
ground or water”.
[13] The main issue
between Leading Prospects and Centrique is whether the helicopter was
being flown at a height of less than 500
feet when it collided with
the power lines. The evidence shows that the power lines were less
than 500 feet above the ground.
[14] It is
therefore, common cause between all of the parties that the
helicopter was flying at less than 500 feet when it collided
with the
power lines.
[15] On the basis
that the helicopter was being flown at less than 5000 feet above
ground and collided with the power lines it was
submitted on behalf
of Centrique that Centrique had demonstrated that the warranty in the
policy was breached because the Regulation
was breached. I agree
[16] The breach of
the Regulation was admitted by Leading Prospects’s witnesses.
16.1 Leading
Prospects called an expert pilot, Mr Mouton as a witness. In his
expert summary Mr Mouton said:
“
The
expert witness will conclude that the pilot, Mr Tromp, in his
opinion, contravened Civil Air Regulations
,
which deal with
minimum heights and more particularly
,
with the
provisions that a helicopter should not be flown at a height of less
than 500 feet”.
During his
cross-examination Mr Mouton confirmed that what was stated in his
expert summary remained his opinion.
16.2 Mr Grobbelaar
was also questioned about the breach of the Regulation. During his
cross-examination Mr Mouton’s statement
regarding his view that
the Regulation had been breached was put to Grobbelaar. Grobbelaar
initially sought refuge in the fact
that the Regulation requires
damage to property and when it was pointed out to him that power
lines had been damaged the following
exchange occurred:
"And do you
agree that, that is a breach of the Regulation?
—
Yes
”
Grobbelaar
went on to explain what the difficulty was that Leading Prospects
faced. He said that from what he understood it was
true, referring to
the fact that the Regulation had been breached and explained that
“
the whole
problem that we sit with here, My Lady is that, Mr Tromp argues ...
and I cannot ... have no way of disproving what he
says... he says he
had an emergency. Since he had an emergency, he had to breach this
Regulation and therefore, it is a different
story. ”
WAS THERE AN
EMERGENCY
Mr Tromp did get an
opportunity give evidence. He failed to use it. The first issue that
needs to be dealt with is what inference
must be drawn from the fact
that Tromp
Tromp elected not to
testify. Tromp was available in court throughout the proceedings and
versions were put to witnesses regarding
what he would say.
[17]
Throughout the cross-examination of witnesses on behalf of Tromp,
versions were put relating to what Tromp might say.
1
[18]
The general approach is that where a witness is available to confirm
a version and is not called to give evidence the inference
is
overwhelming that his evidence would have been unfavourable
2
.
It Is accepted that a similar inference can be drawn if a party fails
to give evidence
[Gallant
v Dickinson
1950 (2) SA 460
(a) at 685].
In
that case Schreiner JA said:
“
In
the case of the party himself who is available, as
was
the defendant
here
,
it seems to me
that the inference is, at least, obvious and strong that the party
and his legal advisers are satisfied that, although
he
was
obviously able to
give very matehal evidence as to the cause of the accident, he could
not benefit and might well, because of the
facts unknown to himself,
damage his case by giving evidence and subjecting himself to
cross-examination”.
[19]
When more than one inference can be drawn from the fact, and a
defendant has elected not to give evidence then the inference
to be
drawn from the available facts must be the one which is least
favourable to the party who fails to call the witness. This
point is
well made with reference to the Gallant case
supra,
where
Schreiner JA said:
"It seems
fair at all events to say that in an accident case where the
defendant was himself the driver of the vehicle the
driving of which
the plaintiff alleges was negligent and caused the accident, the
court is entitled, in the absence of evidence
from the defendant, to
select out of two alternative explanations of the cause of the
accident which are more or less equally open
on the evidence, that
one which favours the plaintiff as opposed to the defendant”.
[20] The reason why
Tromp was not called to give evidence was not explained. In my view
no explanation was necessary as it is clear
from the conflicting
reports that Tromp made concerning the accident that had he given
evidence he would have been in trouble.
20.1 On 8 September
2011 Tromp completed an accident questionnaire which was submitted to
the Civil Aviation Authority (“CAA”).
In this
questionnaire Tromp was asked to explain the cause of the accident
and he said:
“
Because
of the fact of having a warning light again on the fuel filter
indication I wanted to return asap to FAQT for further assessment
and
help. ”
20.2 Later he said:
“
I
had a warning on - fuel filter light coming on again and wanted to
return to FAQT asap. Turning away from the power lines I had
in sight
but didn’t see new lines above them
”
20.3 In further
statement Tromp said:
“
Still
busy climbing out I got the warning light (fuel filter) coming on, so
I decided to return to Queenstown (FAQT) in order to
phone an
engineer once again as I did in Cape Agulhas the previous days(sic)”.
[21] What is
significant about the three statements referred to above is that
Tromp reports a fuel filter warning light and an intention
to return
to the Queenstown airfield. There is no mention of any other problem
with the helicopter nor is there any mention of
an urgent and
pressing need for the aircraft to descend close to the ground.
[22] Tramp’s
earlier statements must be contrasted with the contents of the expert
summary that was filed on his behalf. In
paragraph 2.4 of the Tromp’s
expect summary he said:
“
The
witness immediately followed the prescripts of the Pilots Operating
Handbook for a Robinson R44 helicopter, and as quickly as
possible
reduced power and flew to a lower point with the intention of landing
on the road
.
This
was
the most practical
and safest low point in the area. (Translated)".
[23] The version
proffered in Tromp’s expert summary is in stark contrast to his
earlier versions. Why Tromp would want to
land on the road is
difficult to understand.
[24] The Pilots
Operating Handbook does not require the helicopter to land on the
road but instead requires the helicopter to return
to the airfield.
Reasonable piloting demands that altitude be preserved and the most
direct line flown to the airfield. Tromp did
neither of these.
Instead he caused the helicopter to descend and flew on a track that
was at 90 degrees to the most direct to
the airfield.
[25] It was
submitted on behalf of Centrique that the only reasonable inference
to be drawn from Tromp’s election not to testify
is that he
could not give evidence that the fuel filter light had illuminated.
No other reasonable inference was submitted to the
contrary.
[26] Tromp’s
counsel sought to rely heavily on Williamson’s evidence to
prove Tromp’s case. Williamson’s
evidence about the fuel
filter light must be assessed in the context of Tromp’s failure
to testify. It is significant that
Willamson was not the pilot and
was sitting in the back seat. His view of the control panel must have
been obscured. Even if it
had not been obscured it was obvious from
the evidence of Willamson that he was speculating as to why Tromp
flew low. Williamson’s
evidence can unfortunately not assist
this court to determine whether Tromp was faced with an emergency.
[27] Leading
Prospects’s expert witness, Mouton, testified that he had
viewed the video recordings that were taken from inside
the
helicopter’s cockpit and that he had not seen the fuel filter
warning light illuminated at any point in time. This evidence
was not
contradicted.
[28] Mouton
explained what a pilot should do if a fuel filter warning light
illuminates and what the helicopter was in fact doing:
28.1 Mouton
explained what the Pilots Operating Handbook required of a pilot when
the fuel filter warning light illuminates.
28.2 Just before the
helicopter struck the power lines it was side slipping i.e it turned
its side in its direction of travel. Side
slipping is not something
to be done when the fuel filter light illuminates.
28.3 If an emergency
is encountered a pilot should preserve his altitude so that he can
glide to his destination.
28.4 If the fuel
filter warning light has illuminated and a pilot wishes to return to
the airfield he should select the most direct
route and not fly at 90
degrees from the most direct route.
28.5 The helicopter
was not in a landing configuration at the time of striking the wires
but was instead in a normal flight configuration.
[29] In my view
Tromp was not managing an emergency when he hit the power lines.
Instead he had dropped the nose of the hilecopter
and was powering
away after he had allowed the passenger to film the cars below.
[30] The version
about the fuel filter warning light seems like a fabrication as it
was not confirmed since Tromp did not give evidence.
[31] Even if the
fuel filter light had in fact illuminated that did not establish an
emergency. This is borne out by the prescribed
conduct of a pilot by
the Pilot Operating Handbook, and Mouton’s evidence that the
illumination of the light constituted
an incident and not an
emergency.
[32] In addition
even if it were to be accepted that the fuel filter light had
illuminated that was no reason for Tromp to fly at
a height of less
than 500 feet. The fuel filter light does not justify flying below
500 feet.
[33] The witnesses
agreed that the helicopter had to be flown in accordance with the
prescripts of the Pilots Operating Handbook.
[34]
The Pilots Operating Handbook is an important and useful manual. It
contains definitions of
land
immediatel
y”
and “
land as
soon as practicaf.
The
definition of
'
land
as soon as practicaf'
requires
the helicopter to land at the nearest airport or other facility where
emergency maintenance may be performed. When dealing
with emergency
procedures the Pilots Operating Handbook provides that when the fuel
filter warning light illuminates then, if there
is no other problem,
the helicopter should land as soon as practical.
[35]
The prescript in the Pilots Operating Handbook requiring the
helicopter to land as soon as practical must be contrasted with
when
the helicopter is required to land immediately. When an immediate
landing is called for, the helicopter has to “
land
on the nearest area where a safe normal landing can be performed".
[36] Therefore even
if the fuel filter warning light illuminated the helicopter was not
required to land immediately. All that was
required from Tromp was to
return to the airfield. Reasonable piloting would have achieved this
by maintaining altitude and flying
a direct route to the airfield.
[37] In view of the
above I find that Leading Prospects has not made out its case against
Centrique. The claim against the first
defendant is dismissed.
THE CASE AGAINST
THE SECOND DEFENDANT (“TROMP”)
38.1 Tromp hired the
helicopter from Leading Prospects to accompany and provide assistance
to a team of persons who undertook the
production of a TV film.
38.2 The terms of
the partly written, partly oral agreement between Leading Prospects
and Tromp were, inter alia, that:
38.2.1 Tromp would
at all relevant times comply with civil air regulations and other
statutory requirements and good practice expected
from pilots,
piloting helicopters;
38.2.2 Tromp would
exercise the diligence and skill that could reasonably be expected
from a prudent helicopter pilot when piloting
the helicopter;
38.2.3 Tromp would
act without any negligence without causing any hazard or nuisance to
persons or property;
38.2.4 Tromp would
ensure that he does not breach any of the policy stipulations or any
policy warrantees pertaining to the flying
of the helicopter, which
could compromise the insurance policy between plaintiff and first
defendant.
[39] Tromp admitted
all the above allegations.
[40] Leading
Prospects alleged further that:
40.1 Tromp was in
breach of the agreement between him and Leading Prospects in that
inter alia.
40.1.1 He
contravened Part 91.06.32 of the Civil Air Regulations dealing with
minimum heights in that he flew the helicopter at
a height of less
than 500 feet above the ground and cause a hazard to property on the
ground (being the power line)
40.1.2 He breached
the policy warrantees pertaining to the safe operation of the
helicopter;’
40.1.3 He failed to
keep a proper look out
40.1.4 He flew too
close to the Eskom power lines.
40.1.5 He failed to
avoid the incident when with the exercise of reasonable care and
skill he should have done so.
40.1.6 He failed to
comply with the policy stipulations of the policy between Leading
Prospects and Centrique pertaining to the
reasonable care.
[41] Tromp denied
the allegations above and also raised two special pleas
[42] The first
special plea was to the effect that at the time at the time the
plaintiff hired out the helicopter to Tromp the plaintiff
did not
possess a certificate of registration, there was also no valid a
inworthiness certificate issued by the authorities of
the Civil Air
Aviation in respect of the helicopter in favour of the plaintiff.
[43]Tromp
contended that since Leading Prospects had hired out the helicopter
to Tromp contrary to mandatory terms of the Civil
Aviation
Regulations, the agreement between Leading Prospects and Terms was
invalid , alternatively void as a result of the
par
delictum
rule.
It was contended, further, that, as a result Leading Prospects was
prohibited in law from claiming damages from Tromp on the
basis of
contract or delict.
[44]
In Tromp's second conditional special plea Tromp alleged the
following:
45.1. That Leading
Prospects failed to issue and invoice or receipt in respect of a cash
payment exclusive of VAT made by Tromp
to Leading Prospects in terms
of a written agreement.
45.2. That the
reason for the above was that Leading Prospect’s intension was
not to disclose the amount of cash to SARS.
If that was so the
agreement of rental would have been concluded with a purpose contrary
to the law.
45.3. In the result
the rental agreement was void or voidable and Leading Prospects was
prohibited from claiming damages against
him.
[46] Tromp’s
plea on the merits was that Tromp had responded to an emergency or
potential emergency caused by a defect in
the helicopter. In addition
Tromp pleaded that he acted reasonably in the circumstances and
exercised reasonable care and skill
of a prudent helicopter pilot.
[47] FIRST
CONDITIONAL PLEA
[48] It is common
cause that Leading Prospects purchased the helicopter from Great
South Panelbeaters CC and paid for it on 20 June
2011. The following
day Leading Prospects took possession of the helicopter.
[49] Transfer and
registration is regulated by Regulation 47.00.10 when was applicable
in 2011.
[50] In terms of
Regulation 47.00.10 (1) Great South Panelbeaters CC was obliged to
notify the commissioner of the transfer of the
helicopter within 30
days of such transfer.
[51] In terms of
Regulation 47.00.10(3) Leading Prospects was obliged to apply for
registration within 30 days from the date of
transfer.
[52] Regulation
47.00.10(4) provides that a certificate of registration shall no
longer be valid from the 31
st
day after the date upon when
Great South Panelbeaters CC had transferred to Leading Prospects the
permanent and unconditional right
of possession of the helicopter.
[53] In terms of
Regulation 47.00.10 (4) No person shall use the helicopter from the
date upon which the certificate registration
had become invalid.
On 15 July 2011 a
certificate of airworthiness in respect of the helicopter was issued.
On 18 July 2011
Monica Saltmarsh sent an email to Leading Prospects and attached an
application for the registration of the aircraft.
[55] Mr Grobbelaar,
for Leading Prospects stated that the day after he obtained the
application form(i.e. on 19 July 2011) he went
to the CAA offices
intending to initiate the application for registration. He submitted
the complete application form to Monica.
When he told her that he
would obtain a letter from the holder of a notarial bond over the
helicopter, Standard Bank she told him
it would be unacceptable as
the CAA would liarse with Standard Bank directly . This would be done
to satisfy the CAA that the registration
could be proceeded with.
[56] On 7 September
2011 Standard Bank issued discharge of the notarial bond (mortgage)
was issued. On 3 October 2011 the certificate
of registration in the
name of Leading Prospects was issued.
[57] The CAA charged
Leading Prospects and found it guilty of having hired out and having
allowed pilots to fly the helicopter between
1 September 2011 and 3
October 2011, without a valid certificate of registration.
[58] This court was
informed that this matter is subject to a pending appeal and that it
is common cause that this court is not
bound to the finding of the
CAA.
[59] In Absa
Insurance brokers(Pty) Ltd v Luttig & Another N.N.O 1997(4)
SA 229(SCA) 238, G-H the Court stated that the
question that needs to
be determined was whether the legislature intended to make in-roads
into contractual relationship and whether
the wording of the statute
is peremptory, or not.
[60] The court also
emphasised that the provisions of the Act were there to protect the
interests of the public at large.
[61]
In PottievKotze
1954(3) SA 719 (A) at 726 H- 727 A it was stated
“
The
usual reason for holding a prohibited act to be invalid is... the
fact that recognition of the act by the court will bring about,
or
give legal sanction to the very situation which the legislature
wished to prevent ”
[62]
In Schierhout v
Minister of Justice
1926 AD 99
The Court stated at page 109;
“
I
t
is a fundamental principle of our law that a thing done contrary to
the direct prohibition of the law is void and of no effect
The rule
is stated
...
so
what
is done contrary to the prohibition of the law is not only of no
effect, but must be regarded as never having been operates
to nullify
the act...”
[63]
Where a question of a contract is against the law the Court may
mero
motu
consider
the question whether such act is unlawful. (See Good Gold Jewellery
(Pty) Ltd v Brevadau CC 1992(4)) SA 474(WLD) at 479
I Part 185.00.1
under the heading “OFFENCES” clearly determines that:
“
A
person commits an offence if that person...
(i)
Operates or attempts to operate any aircraft in respect of which no
valid certificate or valid certification of airworthiness
have been
issued”
“
(m)
Contravenes
in any manner the
provisions of the Act and regulations promulgated in terms of the Act
When are administered by the authority (referring
to the CAA) and
even Part 185.00.1(f) further provides that a person commits an
offence if that person
...
does or causes or
permits to be done caused any Act contrary to or who fails to comply
with
,
any provision of
the regulations or direction given or a prohibition made or a
condition imposed in terms thereof.
[64] The authorities
are clear, therefore, that if an Act is prohibited by a statute, such
act is void and unenforceable. If a statute
is peremptory or if the
intention of the legislature is that there is a criminal sanction
that such act would be void. (See Metro
Western Cape (Pty) Ltd v Ross
1986(3) SA 177(A).
[65] In view of the
authorities I am of the view that the agreement between Leading
prospects and Tromp cannot stand as it is void.
THE SECOND
CONDITIONAL PLEA
[66] The second
conditional special plea raised by Tromp is based on the fact that
Leading Prospects received cash for the estimated
period of 25 hours,
and that Grobbelaar, on behalf of Leading Prospects, received an
amount of R66 250.00 in cash without issuing
a receipt.
[67] Grobberlaar’s
explanation was that it was a deposit, that he did not add VAT to the
amount because the transaction was
incomplete at the time.
[68]
It was submitted on behalf of Tromp that the purpose of receiving
cash in this instance, without VAT was to evade Leading Prospects
tax
liabilities, thereby, defrauding the South African Revenue Services
and the state. It was submitted that the purpose for this
transaction
was on the part of Leading Prospects , for an illegal purpose.
Counsel for Tromp urged this court to
mero
motu
take
cognisance of this fact and find that the transaction was against the
law and
contra
bonis mores
[67] To support this
submission Tromp’s counsel relied on the fact that Grobbelaar
admitted that to draw cash in such a large
amount, was a risk and
that a receipt issued by him would be the normal practice. In
addition Grobbelaar could not explain what
he had done with the
money.
[68] I do not think
there is any merits in the above submission.
[69] Grobbelaar
explained that the reason he did not issue a receipt and did not add
VAT to the amount was because the transaction
was incomplete. It has
not been suggested that this explanation was unreasonable or
improbable and I accept the explanation as
quite plausible.
[70] In the result
the second special plea is dismissed.
THE MERITS OF THE
CLAIM AGAINST TROMP.
[70] in the result
the second special plea is dismissed.
THE MERITS OF THE
CLAIM AGAINST TROMP.
[70] Tromp’s
defence on the merits can be summarised as follows:
70.1 The helicopter
was delivered to Tromp in a bad state. It was not clean and had
certain major problems. Tromp phoned Mr Hannes
Eksteen, a helicopter
engineer on Saturday evening, 3 September 2011 and told him that the
fuel filter illuminated, and that the
helicopter could not start.
70.2 On Sunday 4
September 2011 Mr Eksteen inspected the helicopter at Cape Agulhas,
took the fuel filter off, flushed the system
and found contamination
in the fuel system namely, a piece of plastic approximately 10 cm
long and 1 to 2 mm wide.
70.3 He attended to
the starting problem and thereafter took a test flight with Tromp to
see if the warning light stayed off and
it did that.
[71] Mr Eksteen
stated that he could not determine whether there was still
contamination in the fuel tank of the helicopter. He
stated that the
engine was not
[72] Mr Williamson,
a qualified helicopter pilot stated that while the helicopter was
flying he turned his attention to the inside
of the helicopter and
saw the fuel filter warning light flashing on and off.
[73] According to Mr
Williamson this was an emergency and he assumed that Tromp was
returning to Queenstown. They had earlier discussed
the fact that if
the light came on again they would abandon the trip.
[74] This version
sound highly suspect. It is highly unlikely that Tromp, well knowing
that the helicopter might have a serious
problem, would allow a
youngster to get onto the helicopter.
[75] I have already
pronounced on the reliability of Mr Williamson’s evidence in
regarding whether he saw the light flashing
on and off. The video
taken on the inside of the helicopter does not support this evidence.
In any event, Mr Williamson was sitting
at the back and it is not
clear how he saw the light.
[76] Of concern to
me is that an impression sought to be created that Mr Williamson was
a co-pilot and that he took an active part
in assisting Tromp.
[77] From the
evidence it is clear that Mr Williamson was not co-piloting the
helicopter. Even if he had been, his version that
there was no
discussion pertaining to the re-cprrance of the fuel light filter
warning light and that Tromp simply decided to turn
back without a
word is so improbable that it falls to be rejected.
[78] The evidence of
the expects who emphasised countamination in the fuel system and the
difficulty pilots have in seeing power
lines does not the assist
Tromp.
[79] Tromp’s
counsel relied on the concession by Mouton that the pilot would not
know what the degree of contamination is
and what effect it would
have on the flying of the helicopter. He would also not know how soon
any further the helicopter could
go or how soon more serious problems
could develop.
[80] Rather than
assist Tromp this aspects of Mouton’s evidence only serves to
support my earlier conclusion that if the helicopter
had really
serious problems it would not have been flown with a youngster
aboard.
[81] Tromp chose not
to give evidence to support the version put forward on his behalf.
That weighs heavily with me and certainly
seals the fate of Tromp’s
defence, in my view.
[82] Having regard
to the evidence as a whole, I am satisfied that Leading Prospects
proved that Tromp acted as pleaded in the particulars
of claim. He
acted negligently, without taking proper care and without due regard
to the provisions of the Civil Aviation Regulations.
Tromp was flying
the helicopter below 500 feet when the accident occurred and there
was no emergency at the time.
COSTS
[83] On behalf of
Leading Prospects it was submitted that Leading Prospects instituted
action against Centrique on the strength
of Tromp’s assertion
that he responded to an emergency and had exercised the necessary
care and skill in the circumstances.
It was submitted that because
Tromp had failed to testify thereby leaving Leading Prospects in the
lurch he should be ordered to
pay Centrique’s costs.
[84] Counsel for
Centrique however, submitted that his client could not be left in a
position where it could only look to Tromp
for recovery of its costs.
Centrique’s costs, therefore, should be paid by Leading
Prospects and Tromp and any amount of
costs which Leading Prospects
pays to Centrique may be claimed from Tromp.
costs, therefore,
should be paid by Leading Prospects and Tromp and any amount of costs
which Leading Prospects pays to Centrique
may be claimed from Tromp.
[85] I have
considered the above submissions and am of the view that while
Leading Prospects had a good reason to institute action
against
Centrique it would prejudice Centrique if it looked to Tromp only for
costs. A fair costs order, therefore, would be one
where Centrique’s
costs are paid jointly and severally by both Leading Prospects and
Tromp.
[86] In the result I
grant the following order:
1. THE CLAIM AGAINST
THE FIRST DEFENDANT
1.1 The plaintiffs
claim against the first defendant is dismissed.
2. THE SECOND
DEFENDANTS SPECIAL PLEAS
2.1 The first
special plea by the second defendant is upheld
2.2 The second
special plea by the second defendant is dismissed
3. THE CLAIM AGAINST
THE SECOND DEFENDANT ON THE MERITS
3.1 The plaintiffs
claim against the second defendant based on breach of contract is
dismissed.
4 COSTS
4.1 The second
defendant is ordered to pay the plaintiffs costs inclusive of costs
of senior counsel.
4.2 It is ordered
that the plaintiff and second defendant pay the first defendant’s
costs inclusive of costs of the senior
counsel jointly and severally.
4.3 The second
defendant is ordered to pay the plaintiff any amount of costs which
the plaintiff pays to the first defendant.
TM Masipa
Judge of the High
Court of South Africa
Gauteng Local
Division Pretoria
Counsel for the
Paintiff: AF Arnoldi SC
Counsel for the
Paintiff: AF Arnoldi SC
Instructed by:
Couzyn Hertzog & Horak
Counsel for the
1
st
Defendant: IP Green SC
Instructed by:
Norton Rose South Africa
Counsel for the
2
nd
Defendant: AJH Bosman SC and WJ SCheepers
Instructed by:
Stopforth Swanepoel & Brewis Inc.
Date
of Hearing: 11-15 November 2013 & 17 February -19 February 20115
Date
of Judgment: 8 April 2015
1
Sonnekus
Transcript,
p.76 lines 16-20: "Ja, the evidence will be that, when the low
flying took place and the turn around effected
the pilot then ...his
intention was to fly to Elliot in front of the convoy
.
—
Ues, that is correct
Mouton
Transcript,
125, line 13 - line 18: "Mr Tromp will testify when he comes to
the witness stand that, when he received this
helicopter, it was not
in a clean condition at all. It was filthy. Would you be able to say
anything in regard to that, or would
you not know? —
M'ladyship, it is not information that I am privileged to".
Transcript,
p. 141, lines 18 - 23
"Now,
Mr Tromp will testify, when he turned to the airport, his intention
was, to land at the airport, after the warning
light came on. He
turned the nose of the helicopter into the wind, because the wind
was coming from Qeenstown to him. That is
a good procedure, is that
not? —If the wind was, indeed. But as per my information the
wind was, indeed, but as per my
information the wind was not coming
from that direction, Sir".
Transcript,
p. 142, lines 16-20
"I
do not want to waste mcht time on this Mr Mouton, would you dispute
Mr Tromp's evidence if he say, at that point in time,
the wind was
coming from Queenstown and he was turning his nose into the wind,
would you dispute that?
---
On grounds of the weather bureau report, yes
Sir."
Transcript,
p. 142., lines 25 -p.9
"Now,
if Mr Tromp tells the court that, after the warning light came on,
when he tried to gain height, the light came on
and went off when he
reduced slightly power. Would you agree that the system of a
helicopter, or the warning system indicated
that, by drawing more
power, by gaining height, was a dangerous exercise at that
particular point in time? After the warning
light came on?
—
M'lady, I can only reduce slight power, you can still
climb. You can fly straight and level and not having accurate
information,
I would not be able to tell you whether he would have
had to descend..."
Transcript,
p. 146, lines 20 -24
"Mr
Tromp will say that the previous morning, or the Saturday, he also
got a warning light of the fuel filter and o the Sunday,
when the
Voetspore team departed from Cape Agulllas, they spent literally
more than two hours, trying to start the helicopter".
Transcript,
p. 156, line 15-p. 157, line 5: "The evidence of both Mr Tromp
and the co-pilot Mr Williamson will be that when
they flew over the
convoy', the low [indistinct} you see, that was, sort of saying
goodbye. ... And then they turned back towards
Elliot and at stage,
they gained quite a lot of height and the next time, when you seem
them on the video, they were fairly low,
going beyond the convoy,
towards the direction of the airfield, or towards the direction of
Qeenstown, or the other adjacent
township
.
You have seen that on the footage? — I
have seen that M'lady.
Ja,
that was ... when they come back ... it was after the light
illuminated and they had this warning light, pertaining to the
fuel
filter, but obviously you will not be there, you could not say the
light did not come up or not?
—
No. I was not
here and the only evidence was as per the video, M'lady.
2
Sumsang
v Pim
1918 AD 657
at 662; and Elgin Fireclays Limited v Webb 1947SA
744 (a) at 50.