JNC Helicopters CC v Civair Helicopters CC (AR 258/2009) [2009] ZAKZPHC 35 (14 August 2009)

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[2009] ZAKZPHC 35
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JNC Helicopters CC v Civair Helicopters CC (AR 258/2009) [2009] ZAKZPHC 35 (14 August 2009)

REPORTABLE C
ase
No AR 258/2009
IN
THE HIGH COURT OF
KWAZULU-NATAL, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
In
the matter between :
JNC
HELICOPTERS CC
Appellant
(Plaintiff
in the Court
a
quo)
and
CIVAIR
HELICOPTERS CC
Respondent
(First
Defendant in the Court
a
quo
)
______________________________
_____________________
Delivered
:
14 AUGUST 2009
J U D G M E N T
___________________________________________________
LEVINSOHN
DJP
[1]
For
ease of reference and convenience I shall refer to the parties to
this appeal by their respective designations in the Court
a
quo
.
[2]
The
plaintiff sued the first defendant for damages caused to its
helicopter which made, what is euphemistically called a hard landing

off Ansteys Beach on the KwaZulu-Natal coast. The plaintiff based
his cause of action on contract, alternatively delict. The
Court
a
quo
was
asked to decide the issue of liability only and adjudication on the
quantum of damages was to stand over.
[3] After
hearing evidence the learned judge in the Court
a
quo
absolved
the first defendant from the instance with costs. With leave of the
Supreme Court of Appeal the plaintiff appeals against
that judgment.
[
4] It
was common cause between counsel at the hearing of the appeal that
the pilot of the helicopter had negligently failed to monitor
the
helicopter’s fuel content and that resulted in the hard landing.
The crisp issue before us was whether the plaintiff had
proved its
version of the contract, namely, that it had leased the helicopter to
the first defendant, that the defendant was required
to return it to
the plaintiff in the condition in which it was received and that it
had failed to do so and was therefore in breach
of the contract of
lease.
[5] The
background surrounding circumstances are highly relevant to decide
the issue before us and I proceed hereunder to summarise
in broad
outline the evidence adduced by the respective parties.
[
6] Carol
Anne Sobey, at present the sole member of the plaintiff, testified
that at the relevant time she was the managing member
of the
plaintiff. The helicopter in question, described as “HTR”, was
in the plaintiff’s possession pursuant to an agreement
between the
plaintiff and Wesbank. All risk of loss and damage vested in the
plaintiff.
[
7] Sobey
spoke about the Nokia Surf Rescue contract which is offered to
operators from time to time. In February 2003 helicopter
operators
were invited to tender for this contract which was to endure for a
period of some nine months. The principal requirement
was that the
helicopter operator who tenders must be recognised as a licensed
operator in terms of the statutory requirements laid
down by the
Civil Aviation Authority.
[
8] The
plaintiff tendered for this contract but was unsuccessful. The
first defendant however tendered and was successful.
It obviously
held out that it was a licensed operator in terms of the statutory
requirements. Furthermore in terms of the Nokia
contract the first
defendant was obliged to provide for insurances for the lifesaving
crew members and that was to include medical
cover, loss of life and
disability. Also members of the lifesaving crew would be
indemnified by the operator for loss or damage
to the aircraft.
[
9] Sobey
confirmed in her evidence that the pilot, Mr Henry, would have been a
permitted pilot in terms of the insurance policy
held by the first
defendant.
[
10] Sobey
was shown a document headed “Memorandum of Agreement”. This
document is in fact a draft agreement which was submitted
to the
plaintiff by the first defendant. It is a fairly lengthy document
which proposes to bind the plaintiff to a service agreement
which
meant that the plaintiff would undertake to perform the first
defendant’s obligations which it (the first defendant) had

undertaken in terms of the Nokia Surf and Rescue contract. Also the
plaintiff would supply a helicopter fuelled, maintained and
insured.
It would not supply the pilot. The first defendant would supply
the pilot, one Murray Henry, or another suitably qualified
pilot if
Mr Henry was not available. In consideration for this the first
defendant would pay a rate of R4 190,00
per hour
including VAT.
[1
1] Counsel
for the plaintiff took Sobey through the various clauses in the draft
agreement. She characterised these clauses as
being unacceptable.
She was asked what her reaction was and that of Mr Green, her
assistant, to concluding an agreement on these
terms. She said : -
“
I told Mr
Green to please get back to them and tell them that there is no ways
we would accept these conditions and terms, they
had been awarded the
surf rescue tender and they were wanting to hold us to the terms and
conditions of
that
tender, which was not acceptable to us.”
[1
2] Following
upon her discussion with Green about the contract, the latter sent a
fax which was put in as exhibit “B” in the
case. This fax was
sent by Green to one Jean at the first defendant. It is dated 8
th
October 2003. The message is quoted in full :-
“
MESSAGE
Re Nokia Contract
HTR (float
equipped) will be available from next weekend onward (Sat 18
th
Sun 19
th
)
but only on a charter basis. JNC do not wish to be bound by any
service agreement but Murray can use the jetty on a hire + fly
basis;
cost R3800 + VAT per hour, 4 hours payment required in advance of
each weekend’s charter. Any queries contact Carol.
Regards
FG”
[1
3] Sobey
said that Henry was permitted to pilot the helicopter in question
following upon the transmission of the fax in question.
There was
no discussion about who would be the operator of the helicopter and
whose operating certificate would be used. Sobey
regarded the first
defendant as the operator. She said that it was possible for a
helicopter owned by one company to be operated
on the operating
certificate of another. She said that first defendant, had it
wanted to do so, could have put the helicopter
on its operating
certificate. There was a procedure in terms of which certain
documents would be submitted to the CAA at that
time. As long as
the documents were submitted the particular operator would be deemed
to have a temporary licence to operate
it.
[1
4] Fred
Green was called by the plaintiff. He is the author of the fax
referred to above. He basically confirmed Sobey’s evidence
in
regard to the service contract that was received from the first
defendant and the plaintiff’s reluctance to conclude an agreement

in terms thereof, the reason being that the service contract required
that the plaintiff take on “far more responsibility than
was
justified”. He was instructed by Sobey to get in touch with the
first defendant and tell it that if the plaintiff’s helicopter
was
required it would have it on the plaintiff’s terms and not on the
terms stipulated by the first defendant. It was in those

circumstances that he addressed the fax, exhibit “B”.
[1
5] The
principal witness for the first defendant was Mr A. A. Cluver. He
referred to negotiations which had taken place with the
plaintiff’s
representative in February. In his view the plaintiff and the first
defendant had agreed on a rate for the hire
of the helicopter at R3
800 excluding VAT. He tried to suggest that that rate would have
been applicable to the October 2003
agreement and to that extent he
tried to rely on an exchange of emails in February 2003. In my
view, to the extent that the first
defendant attempted to rely on the
February situation governing the contractual terms applicable in
October 2003, that attempt
in my view was a dismal failure. The
evidence of Cluver was most unsatisfactory on this aspect. That is
evident from a quotation
from the record : -
“
You see
what I understand from your evidence moments ago was that all you
really talked about and agreed in February, was the rate,
is that
correct? ---
Which
was the agreement C and D.
Yes,
it’s the rate that you arrived at and you referred …[intervention]
--- Yes, I agreed to that.
And you referred to the emails?
--- Yes.
But by no one’s stretch of the
imagination can we say that that agreement with Mr Hill in February
which I think according to
the February agreement be regarded as
applying to whatever happened in October leaving aside the rate, is
that correct? --- That
could be correct, yes.
Because if one needed – I mean
let’s be fair – February you exchanged some emails, in October
you send a full written comprehensive
agreement … [intervention]
--- As a proposal, yes.
That’s rejected? --- That’s
correct.
In return you get Annexure B? ---
Yes.
At no stage during any of these
October discussions or exchange of correspondence is any reference
made to February or the February
agreement, am I right? --- I presume
it could be correct.
You can’t suggest otherwise?
--- No, I can’t.
………
HUGO J You proposed R4 190? ---
No, that is not correct, that was proposed, but that is a mistake.
It’s … {Intervention]
MR
MARAIS
What
do you mean it was a mistake? --- Well, that agreement was never
agreed to for the R4 100.
HUGO J Yes,
but that is – I’m talking about your proposal. Please just
listen to what I say. Your proposal was for a different
rate to the
R3 800? --- It was meant to be at the time
R3 800 plus VAT.
MR
MARAIS
But
it says R4 200 --- Okay, it says R4 200 it’s slightly cheaper, all
right.
The point I’m
simply wanting to make, is you would hardly be sending
a document out saying R4 200 if you considered yourself down (
sic
)
to R3 800 a different amount, even if you added VAT. Do you
follow what I’m saying? --- I follow what you are saying, there
was
a mistake in that.
Does it make sense to you? And
so surely it couldn’t possibly have meant that all of that means,
in other words the fact that
you send the proposal with a new all
embracing set of terms, with a new price. That you get a rejection
of that and the response
that deals with price in Fred Green’s fax?
--- Yes, back to the original price.”
[1
6] Cluver
said that the February agreement provided for a rate in respect of
the pilot and the helicopter. He conceded that in
October 2003 he
submitted what he calls a proposal which embodies terms and
conditions which are far more extensive than that provided
for in the
so-called February agreement.
[1
7] In
my opinion Cluver’s reliance on the February emails and his attempt
to engraft those alleged terms into the October contractual
situation
is, to say least, opportunistic in the extreme. The learned judge
in the Court
a
quo
observed
: -
“
I disagree
with the defendant’s version that the February contract lasted
until the October incident.”
.
[
18] The
first defendant’s conduct in sending the draft agreement to the
plaintiff in October 2003 is suggestive of an intention
on first
defendant’s part to conclude a one-sided contract with plaintiff
imposing extensive and onerous obligations on it.
Importantly, the
plaintiff was required to assume the first defendant’s obligations
in terms of the Nokia contract. It would
also
be responsible for loss and damage caused to the helicopter. It was
stipulated too, as mentioned above, that the pilot Henry
would be
supplied by the first defendant.
[
19] The
plaintiff’s reply is a telling one. It unequivocally rejects the
service agreement sent to it. It states categorically
that it does
not wish to be bound by its terms. However “Murray can use the
jetty on a hire + fly basis; cost R3 800 + VAT”.
[2
1] What
does all this signify? In my view the language used is plain.
Looked at against the background of the evidence of surrounding

circumstances, particularly the submission of the draft agreement,
the plaintiff was saying to the first defendant “I reject
your
service agreement. I do not wish to be bound by it. You may hire
my helicopter for a fee of R3 800,00 plus VAT per hour.
You can use
your own pilot Henry to fly the helicopter”.
[22] In
my view there was no need when interpreting this document to become
bogged down with aviation technicalities, particularly
the meaning of
“hire and fly”. In the context as stated above, the plaintiff
rejected the service agreement submitted but
conceded that it would
agree to hire the helicopter piloted by the person that was mentioned
in the service agreement.
[2
4] Manifestly
the first defendant upon receipt of the fax agreed to those terms.
More particularly that it would hire the helicopter
and it would
supply its own pilot. In my view this feature is crucial to the
resolution of the dispute in
casu
.
It points to the first defendant having leased the helicopter and
having employed its own pilot to fly it. The plaintiff has
thus in
my view established on a balance of overwhelming probability that the
first defendant leased the helicopter in question
and was thus
responsible for its safe return.
[25]
Finally,
I should mention that the concept of a “charter” could in a
particular context be interpreted as a lease of a movable,
and this
is particularly so in an aviation context.
[2
6] In
Nel
v Santam Insurance Co Ltd
1981
(2) SA 230
Nestadt J (as he then was) said at 248 : -
“
What
I have to construe is, of course, the meaning of "charter"
in the expression "purposes of use; private, business,
pleasure
and charter" in the schedule to the policy. Whilst the meaning
of the word was, in what I have quoted above, being
dealt with in
relation to shipping, I see no reason why it should not bear a
similar meaning when used in conjunction with an aircraft.
The
question is, which of the two meanings it should be given, or rather,
which of the two meanings it bears. The difference
may well be vital.
If it be construed as permitting the plaintiff to lease out the
aircraft with a resultant loss of possession
and control, then there
is much to be said for the argument that, this state of affairs
falling within the terms of the policy
and the contemplation of the
parties, the sale and delivery of the aircraft would not be a
material change within the meaning of
clause 3.”
See
also
Montelindo
Compania Naviera SA v Bank of Lisbon & SA
SA
127 at 135.
[2
7] The
use of the word “charter” in the plaintiff’s fax is entirely
consistent with the notion of a lease as explained in
the above
cases.
[
28] In
the result the appeal ought to be allowed with costs. The judgment
of the Court
a
quo
is
set aside and there is substituted therefor the following order : -
(a) It
is hereby declared that the first defendant is liable to compensate
the plaintiff for any damage the plaintiff has sustained
in
consequence of the hard landing made by the helicopter “HTR” on
18
th
October 2003.
(b) The first
defendant is directed to pay the costs of the action to date.
SWAIN
J :
I
agree.
KOEN
J :
I
agree.
LEVINSOHN
DJP :
It
is so ordered.
DATE
OF JUDGMENT :
14 AUGUST 2009
DATE
OF HEARING :
3
AUGUST 2009
COUNSEL
FOR
APPELLANT
:
MR
J. MARAIS SC
INSTRUCTED
BY :
DENEYS
REITZ ATTORNEYS, SANDTON and DURBAN
C/0
TATHAM
WILKES INCORPORATED, PIETERMARITZBURG
COUNSEL
FOR
RESPONDENT
:
MR
H. M. CARSTENS SC
with him
MR J. L. BEYERS
INSTRUCTED
BY :
DENYS
STROEBEL ATTORNEYS, DURBANVILLE
C/O
VENN NEMETH & HART INC
PIETERMARITZBURG