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[2007] ZASCA 74
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Kriel v Beukes (346/06) [2007] ZASCA 74; [2007] SCA 74 (RSA) (31 May 2007)
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Not reportable
CASE NO
:
346/06
In the matter between :
ANTHONY
JOHN KRIEL
...............................
Appellant
and
HENDRIK
BEUKES
...............................
Respondent
_____________________________________________________________________________
Before: STREICHER, MAYA JJA & MUSI AJA
Heard: 15 MAY 2007
Delivered: 31 MAY 2007
Summary:
Illegal use of aircraft
– claim for payment in respect of such use dismissed.
Neutral citation: This judgment may be referred
to as
Kriel v Beukes
[2007] SCA 74 (RSA)
______________________________________________________________________________
J U D G M E N T
______________________________________________________________________________
THE COURT
THE COURT
:
[1] The appellant instituted action in the magistrate’s
court for the payment of an amount in respect of the hire of his
aircraft
by the respondent. The respondent defended the action and
claimed damages allegedly having been suffered by him as a result of
the
appellant having breached the contract of hire. The magistrate
granted judgment in favour of the appellant in an amount of R4
283,22,
granted absolution from the instance in respect of the
respondent’s counterclaim and ordered the respondent to pay the
costs.
An appeal to the Eastern Cape Local Division succeeded with
costs in respect of the claim as well as the counterclaim and the
magistrate’s
order was substituted with an order dismissing the
appellant’s claim and granting the respondent’s
counterclaim in an
amount of R2 037 with costs. With the leave of
this court the appellant now appeals against the judgment of the
court a quo.
[2] It is common cause that the parties entered into an
agreement in terms of which the appellant hired his aircraft to the
respondent
at a certain rate per hour and on condition that certain
fees in respect of the aircraft be paid by the respondent. The
respondent
needed the aircraft for training purposes. In his
counterclaim he alleged that it was a term of the agreement that he
would be allowed
to use the aircraft until he had obtained his
commercial pilot’s licence, that the appellant breached this
agreement by terminating
his use of the aircraft and that he
sufferred damages as a result. The court a quo would seem to have
accepted that an agreement
on the terms alleged by the respondent had
been proved. In my view it erred in doing so. The appellant’s
evidence was not to
that effect and the respondent tendered no
evidence as to what the terms of the agreement were. According to the
respondent he had
no personal knowledge as to the terms of the
agreement of hire as the agreement was concluded on his behalf by
third parties. The
third parties’ evidence as to what the terms
of the agreement of hire were was never tendered. In the
circumstances the court
a quo erred in upholding the appeal in
respect of the counterclaim.
[3] The respondent used the aircraft during the period 7
May 1998 to 25 May 1998 for 17.3 hours. At that time the aircraft had
been
in the possession of the appellant for more than a year. The
appellant had acquired the aircraft from Messrs Fowles in whose names
it was still registered. In terms of the regulations made in terms of
s 22 of the Aviation Act 74 of 1962 the use of the aircraft
during
the aforesaid period was illegal. Regulation 47.00.10 provides that a
certificate of registration of an aircraft expires on
the fifteenth
day after the date on which the holder of the certificate has
transferred to another person the right of possession
of the
aircraft. From the commencement of the fifteeenth day after the date
on which a certificate of registration expires the use
of the
aircraft is prohibited until such time as the aircraft is registered
in the name of the person to whom the right of possession
of the
aircraft is transferred and until such time as such person holds a
certificate of registration issued by the Commissioner.
1
The appellant’s claim is therefore a claim for
payment in respect of the illegal use of his aircraft. Such a claim
cannot be
countenanced by a court.
2
The
par delictum
rule
to which the appellant’s counsel referred finds no application
in these circumstances.
3
The court a quo therefore correctly upheld the appeal in
respect of the appellant’s claim.
[4] It follows that the appellant’s appeal in
respect of his claim for payment in respect of the use of the
aircraft by the
respondent should be dismissed and that his appeal in
respect of the respondent’s counterclaim should be upheld. In
the circumstances
it would be fair and practical if each party were
to pay its own costs ie if no order as to costs be made in respect of
this appeal,
the appeal to the court a quo and the trial in the
magistrate’s court.
[5] The appeal is dismissed and the following order is
substituted for the order
of
the court a quo:
The appeal in respect of the claim
by the respondent (the plaintiff in the court a quo) is upheld.
The appeal in respect of the
counterclaim by the appellant (the defendant in the court a quo) is
dismissed.
The following order is substituted for the order of the
court a quo:
The plaintiff’s claim is dismissed.
The defendant’s counterclaim is dismissed.
__________________________
P E STREICHER
JUDGE OF APPEAL
_________________________
M M L MAYA
JUDGE OF APPEAL
_________________________
H M MUSI
ACTING JUDGE OF APPEAL
1
Regulation
47.00.10 provides as follows:
If the holder of a
certificate of registration transfers to another person the right
of possession of the aircraft specified in
the certificate, such
holder shall, within 14 days from the date of transfer notify the
Commissioner . . .
. . .
An application for
registration by the person to whom the right of possession of the
aircraft referred to in subregulation (1)
is transferred, shall be
made in terms of regulation 47.00.5 within 14 days from the date of
transfer.
A certificate of
registration shall expire on the fifteenth day after the date on
which the holder of the certificate of registration
has transferred
to another person the right of posession of the aircraft.
From the
commencement of the fifteenth day after the date on which a
certificate of registration expires, no person shall use
the
aircraft specified in the certificate unless, and until such time
as –
the aircraft is
registered in the name of the person to whom the right of
possession of the aircraft is transferred; and
such person holds
a certificate of registration issued by the Commissioner.
2
See
Mathews v Rabinowitz
1948
(2) SA 876
at 878.
3
Loc
cit
.