V & A Waterfront Properties (PTY) Ltd and Another v Helicopter and Marine Services (PTY) Limited and Others (818/04) [2004] ZAWCHC 10; [2004] 2 All SA 664 (C) (24 February 2004)

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[2004] ZAWCHC 10
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V & A Waterfront Properties (PTY) Ltd and Another v Helicopter and Marine Services (PTY) Limited and Others (818/04) [2004] ZAWCHC 10; [2004] 2 All SA 664 (C) (24 February 2004)

IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case No.:
818/04
In
the matter between:
V & A WATERFRONT PROPERTIES
(PTY) LTD
First Applicant
VICTORIA AND ALFRED WATERFRONT
(PTY) LIMITED
Second
Applicant
and
HELICOPTER
AND MARINE SERVICES (PTY) LIMITED
First
Respondent
THE
HUEY EXTREME CLUB
Second
Respondent
THE
SOUTH AFRICAN CIVIL AVIATION AUTHORITY
Third Respondent
________________________________________________________________
JUDGMENT
: 24 FEBRUARY 2004
________________________________________________________________
COMRIE
J. :
[1.]
The
first and second applicants are respectively the owner and managing
agent of the V & A Waterfront, Cape Town. They seek an
urgent
order against the first and second respondents interdicting and
restraining them from operating the Bell helicopter, registered
as
ZU-CVC-B205 UH 1 H, from the helipad situated at Building 200,
Breakwater East Pier, V & A Waterfront, pending the upliftment
of
a grounding order issued by the South African Civil Aviation
Authority (the “CAA”) on 7 January 2004. The CAA is cited, at
its own request, as the third respondent. Technically it abides the
judgment of the Court. In reality it supports the application:
it
filed papers, and I was addressed by senior counsel, Mr
Puckrin
,
on its behalf.
[2.]
The
relationship between the first applicant and the first respondent is
contractual. In terms of a lease the first appellant lets
site one
of the helipad to the first respondent. The latter is the owner of
the helicopter in question, known as a Huey, which was
manufactured
by Bell Aviation as a military aircraft during the Vietnam War. At
some time after a lengthy military career, it was
converted or
reconstituted into a civilian aircraft. As such it was “non-type”
certificated by the CAA in 2002 for non-commercial
use. It was
certificated for commercial use during 2003. It has been using the
helipad since December 2002.
[3.]
The
first respondent lets or hires out the helicopter to the second
respondent, which operates (i.e. flies) it. The second respondent
claims to function as a club and it claims in consequence that when
club members go on flights, the helicopter is not operating
commercially.
The CAA regards this as a stratagem to avoid some of
the more stringent aviation regulations (Part 96). It is not in
dispute that
the first respondent, through its Mr van der Merwe,
controls the second respondent.
[4.]
The
grounding order of 7 January 2004 is referred to in the papers as the
second grounding order. It was preceded by the first grounding
order
issued by the CAA on 8 December 2003. In proceedings before this
Court under case no. 10549/03 between the second respondent
and the
CAA,
NC Erasmus J
handed down an order on 18 December 2003 in the following terms:
“1. A rule
nisi
is hereby issued calling upon the Respondent to show cause (if any)
on a date to be arranged between the parties, why an order should
not
be granted against it in the following terms:
Setting aside the
Respondent’s decision, alternatively purported decision, as
contained in its letter dated 8 December 2003,
in terms of whereof
a helicopter with registration letters ZU-CVC was grounded;
Declaring that the
Applicant is entitled to operate and fly the said helicopter,
unless and until the same has been validly grounded
by the
Respondent;
Ordering the
Respondent to pay the Applicant’s costs of this application,
including the costs of two counsel.
The orders in 1.1 and
1.2 above shall operate as an interim interdict pending the final
determination of this application.”
[5.]
I
am told that no reasons were furnished for the granting of that
order. I note too that no return day was fixed. Be that as it
may,
it will be seen that in para. 1.2 of the order the learned Judge
stipulated: “unless and until the same has been validly
grounded”
by the CAA. The second, and current, grounding order followed soon
after, on 7 January 2004. The respondents contend
among other things
that this second order is
mala
fide
and forms part of a
campaign of harassment. A further inspection of the helicopter was
conducted by officials of the CAA on 28 January
2004. The second
grounding order has not presently been uplifted by the CAA, which is
still pursuing its enquiries. The CAA’s
stance is that it is not
presently satisfied that the helicopter is airworthy or safe to
operate.
[6.]
The
respondent’s stance, on the other hand, is that the second
grounding is invalid and that they have no intention of obeying it.

They maintain that the helicopter is entirely safe and airworthy. No
civil proceedings have been instituted by the CAA to enforce
the
order; nor have the respondents instituted civil proceedings to have
the order reviewed and set aside. There is mention in
the papers
before me of a criminal charge having been laid with the police, to
which Mr van der Merwe has filed an anticipatory defence,
but nothing
seems to have come of this as yet.
[7.]
The
applicants decline to be drawn into the merits of the dispute between
the respondents and the CAA regarding the validity or otherwise
of
the second grounding order or regarding the airworthiness or
otherwise of the helicopter. The applicants’ narrow position is:
that
the second grounding order is valid, and must be obeyed, unless and
until it is set aside or otherwise uplifted; and
(b) that by reason
inter
alia
of the provisions
of the lease, they are entitled to insist on compliance by the
respondents with the second grounding order, unless
and until it is
set aside or otherwise uplifted.
It is clear, and was
accepted by counsel in argument, that I am not required in these
proceedings to decide the issue of validity.
As I see the position,
and for reasons which will appear later, I must unavoidably consider
the question of airworthiness.
[8.]
The
application is strenuously opposed. The opposition is replete with
applications to strike out, allegations of misjoinder, challenges
to
urgency and
locus standi
,
and a reliance on the Stamp Duties Act. This last contention was
dropped after the lease was stamped.
Interim
or Final Interdict
[9.]
A
useful starting point is to determine whether the interdict sought by
the applicants is interim or final. It will be noted that
there is
no
lis
between the applicants and the respondents in respect of the validity
of
the second grounding order. No
such proceedings between them are contemplated. If the CAA and the
respondents should engage in litigation
on that score, it is highly
unlikely that the applicants would be parties thereto. The proposed
interdict, as framed, is: “pending
the upliftment of [the second]
grounding order”. Such an upliftment could occur unilaterally (on
the part of the CAA), or consensually
(as between the CAA and the
respondents), or by order of court (again in proceedings between the
CAA and the respondents). The upliftment
is not an event over which
the applicants are able to exercise any control by way of litigation.
The duration of the interdict,
if granted, would be indefinite. In
particular the duration would not depend on the outcome of further
proceedings between the applicants
and the respondents (the classic
example of an interim interdict). In theory at least the interdict
might endure for ever. Moreover,
the fact that the order sought may
well only operate temporarily, does not convert it into an interim
interdict.
Cape Tex
Engineering Works (Pty) Ltd v SAB Lines (Pty) Ltd
1968(2)
SA
528
(C) at 530. The right which I am called upon to determine is the
claimed right of the applicants to insist that the second grounding
order be obeyed by the respondents for so long as it stands. My
decision on that question will finally determine such right; it
will
not preserve or restore the
status
quo
pending the final
determination of some
other
rights between the applicants and the respondents.
[10.]
It
appears to me accordingly that the interdict sought by the
applicants, though interim in form, is final in substance. See
Law
of South Africa
(ed.
Joubert), vol 11 (first re-issue) from para. 307; Harms:
Civil
Procedure in the Supreme Court
from p. 500;
Masuku v
Minister van Justisie en Andere
1990(1) SA 832 (A) at 841 C.
The
merits
[11.]
The
requisites for the granting of a final interdict are well settled.
They are: (i) a clear or definite right, (ii) “injury”
actually committed or reasonably apprehended; (iii) no adequate
alternative remedy. The Court’s limited discretion relates to
the
last-mentioned requisite. The authors cited above observe that a
final interdict is invariably claimed by way of action. By
proceeding on motion in this case the applicants have exposed
themselves to the usual rules governing disputes of fact in motion
proceedings. Subject to exceptions, not here applicable, those rules
require me to accept the respondents’ version of facts which
are
disputed.
Plascon- Evans
Paints Ltd v. Van Riebeeck Paints (Pty) Ltd
1984(3)
SA 623 (A).
[12.]
The
applicants’ contention that they enjoy a clear right contains three
steps. The first step is the principle that, subject to
rare
exceptions, an administrative decree such as the grounding order is
taken to be valid until set aside. That principle was accepted
in
this division by
Farlam
AJ
(as he then was) in
Coalcor (Cape) (Pty) Ltd
v. Boiler Efficiency Services CC
1990(4) SA 349 (C). That case was the obverse on the facts to the
case before me. There the property in question had been rezoned
by
the City Council. The validity of the rezoning was challenged by the
applicant, which sought a temporary interdict restraining
the first
respondent from trading on the property pending the outcome of the
challenge. Applying the above principle the learned
Judge held that
the first respondent must be taken, for the time being, to be trading
lawfully. The principle was endorsed by
Conradie
J
(as he then was) in
Metal and Electrical
Workers Union of South Africa v. National Panasonic Co (Parow
Factory)
1991(2) SA 527
(C) at 532 – 3. The learned Judge was well aware of criticisms
which have directed at the distinction between “void”
and
“voidable” acts. See too
Clark
v. Faraday and Another
,
a recent unreported judgment of
van
der Westhuizen AJ
in
this division (at p. 28).
[13.]
Mr
Hodes
,
who led for the respondents, expressly indicated that he did not ask
me, sitting as a single Judge, to depart from the
Coalcor
principle on the ground that it was plainly wrong. He accepted that
I was bound by it. He did not argue that this was one of those
“comparatively rare cases of flagrant invalidity” to which
Cooke
J
(as he then was)
referred in
AJ Burr Ltd
v. Blenheim Borough
[1980]2 N2LR 1 at 4. It follows that I must accept for the purpose
of this application that the second grounding order is valid.
[14.]
The
second step in the clear right contention is the lease between the
first appellant and the first respondent. The “purpose”
of the
lease of site 1 is:
“
The premises shall
be used solely as a light helicopter base for the purposes of
embarking and off-loading passengers and for no other
purpose
whatsoever. No cargo handling services will be permitted.”
See too clauses 6.1, 6.2 and
6.3.1. Clause 6.3.5 provides:
“6.3.5 Approval
and compliance with authorities:
The Lessee shall
be obliged to obtain and maintain for the duration of this lease
including any renewal thereof, the requisite
licences and all the
necessary approvals from inter alia the Department of Transport,
The South African Civil Aviation Authority,
The Port Captain and
any other authority who may require approval for the operation of
a helicopter landing site. The Lessee
undertakes to strictly
comply with the regulations and rules of such authorities.
The Lessee shall
have no claim against the Lessor should any of aforesaid licences
or approvals not be obtained or should
it be revoked at any stage
during the currency of this lease.”
Clause 6.8 provides:
“
6.8 The Lessee
shall not contravene or permit the contravention of any law, bye-law,
statutory regulations or the conditions of any
licence relating to or
affecting the occupation of the Premises or the carrying on of the
Lessee’s business in the Premises, nor
any title deed conditions,
legal rule, enactment or directive of any authority which legally
applies to the Premises or which the
Lessor is required to observe as
a result of the ownership of the site on which the Premises is
situated. The Lessee shall be obliged
to acquaint itself fully with
all of the aforegoing, which is accessible to and ascertainable by
the general public. In regard to
any matter, which is not so
accessible or ascertainable, by the general public, the Lessee shall
be excused from his obligations
in this clause unless the Lessor has
given the Lessee prior written notice of the obligation concerned.”
[15.]
There
is some debate in the correspondence and the affidavits about the
proper interpretation of clauses 6.3.5 and 6.8. However,
Mr
Hodes
did not in argument address these questions. I can see that there is
room for a difference of opinion as to the precise ambit of
clause
6.3.5, referring as it does to the “operation of the helicopter
landing site.” But clause 6.8 seems to me to be clear
enough. It
is not disputed that in order to operate (fly) the helicopter, even
for non-commercial purposes, the respondents require
in terms of the
aviation statutes and regulations, a form of licence or permit known
as a certificate. They have such a certificate
for the Huey (a copy
is to be found at p. 407 of the record). It is not disputed that the
CAA has the power to “ground any aircraft”.
The second grounding
order has admittedly been issued and, as I have shown, must be taken
to be valid. The first respondent, as
lessee, continues to permit
the second respondent to fly the helicopter, indeed it appears to
encourage such operation, thereby flouting
the grounding order. That
conduct in my view is in clear breach of clause 6.8, which requires
the first respondent to obey the law
and to not be party to flouting
it.
[16.]
The
third step in the clear right contention is an invocation of the
principles laid down in the leading case of
Patz
v. Greene & Co.
1907
TS 427.
Armed as it is with a contractual right, I consider that as
against first respondent, the first applicant has no need to rely on
Patz v. Greene
and the numerous decisions which have followed upon it. I conclude
therefore that the first applicant has a clear right to insist
that
the first respondent, and through it the second respondent, comply
with the second grounding order for as long as it stands.
It is true
that there is no direct contractual connection between the first
applicant and the second respondent. The relationship
between the
two respondents is so close, however, and the power of control
conceded, that I do not think that the absence of a contractual
link
matters. Nor did Mr
Hodes
so argue.
[17.]
I
conclude accordingly that the first applicant’s clear right has
been established.
[18.]
The
second requisite for a final interdict is stated by
Harms
,
supra, at para S9 as follows:
“
The second
requisite for the granting of a final interdict is an injury actually
committed or reasonably apprehended.
The
term “injury” should be understood to mean infringement of the
right which has been established and resultant prejudice.
Prejudice
is not synonymous with damages and it is sufficient to establish
potential prejudice.
A reasonable
apprehension of injury is one which a reasonable man might entertain
on being faced with the facts and therefore the
applicant need not
establish on a balance of probabilities that injury will follow.”
[19.]
With
regard to the last sentence of that quotation,
Berker
JP
said in
Nestor
and Others v. Minister of Police and Others
1984(4) SA 230 (SWA) at 244:
“A reasonable apprehension of injury has been held to be one which
a reasonable man might entertain on being faced with certain
facts
(
Free State Gold Areas Ltd v
Merriespruit (Orange Free State) Gold Mining Co Ltd
1961 (2) SA 505
(W) at 515). The applicant for an interdict is not
required to establish that, on a balance of probabilities flowing
from the undisputed
facts, injury will follow: he has only to show
that it is reasonable to apprehend that injury will result
(Free
State Gold Areas
case
supra
at 518
).
However, the test for apprehension is an objective one
(Ex
parte Lipshitz
1913 CPD
737
;
Seligman Bros v
Gordon
1931 OPD 164
;
Pickles v Pickles
1947(3) SA 175 (W). This means that, on the basis of the facts
presented to him, the Judge must decide whether there is any basis
for the entertainment of a reasonable apprehension by the applicant.”
[20.]
The
aforegoing passage was approved by
Hefer
JA
in
Minister
of Law and Order and Others v. Nordien and Another
1987(2) SA 894 (A) at 896 G. See too
Janit
and Another v. Motor Industry Fund Administrators (Pty) Ltd and
Another
1995(4) SA 293
(A) at 304 G. Clearly, then, in deciding whether the applicants’
apprehension of injury is reasonable, I must have
regard to all the
facts, which means all the evidence before me. A reasonable man
would do no less.
[21.]
The
applicants’ apprehension is this: that the Huey helicopter in
question may have an accident, it may crash, causing damage to
property at the Waterfront (or further afield), injury to those
aboard the helicopter or on the ground, and even death. In such
a
regrettable event the applicants fear that they will be exposed to
extensive claims for damages by third parties which the applicants’
insurance, and the respondents’ indemnities (actual or proposed),
will in practice be inadequate to cover. That is the potential
harm
of which the applicants’ complain. It seems to me that such
hypothetical actions for damages would not succeed unless it
could be
shown that the applicants, in breach of a legal duty of care, failed
to prevent the helicopter from flying, in other words
that they
failed to enforce the contractual right of obedience to the second
grounding order. To establish the legal duty and its
breach, there
would in my view have to be an adequate causal connection between the
hypothetical crash and the existence of the second
grounding order.
That connection on the papers is clear: unairworthiness. An
accident caused by say pilot error, and having no
connection with the
helicopter’s airworthiness, would not suffice.
[22.]
What
are the prospects of the Huey helicopter crashing in the foreseeable
future by reason of unairworthiness? As I have pointed
out, the
applicants themselves are unable to make an independent assessment of
airworthiness. In their founding papers they could
go no further
than to adduce evidence of the CAA’s “reasonable belief” to
that effect (see the second grounding order) and
that the order was
issued “in the interests of aviation safety” (see the CAA’s
letter of 9 January 2004). It appears that
the CAA’s inspectors
had sought access to the helicopter’s maintenance and airworthiness
records, particularly the life limited
component log cards. When
this was allegedly refused by the respondents in early January, on
the ground that the demand was unreasonable,
the second grounding
order was issued. The order states that the helicopter shall remain
grounded until its airworthiness status
can be verified by the CAA’s
officers, who shall be given full access to all the relevant
documentation especially the aforementioned
log cards. We know from
documentation filed by the CAA that this concern probably sprung,
wholly or in party from the Bell Helicopter
Company’s letter dated
13 November 2003. A further inspection on 28 January 2004, when the
CAA’s officers were given access
to contentious documents, did not
result in the upliftment of the grounding order.
[23.]
At
para.s 26 and 27 of the answering affidavit Mr van der Merwe states:
“. . . The Applicants have placed no evidence before the Court that
the grounding order was validly imposed, or that the Huey helicopter
is not airworthy or safe to operate, or that the Third Respondent or
the Commissioner could reasonably have held this view. I state
unequivocally that the Huey helicopter is both airworthy and safe to
operate. In this regard I should mention that since the commencement
of the Second Respondent’s activities in about December 2002, I
have flown the helicopter approximately half a dozen times a week,
if
not more. This is over and above all the other – extremely
experienced – pilots who fly the helicopter on behalf of the Second
Respondent and, occasionally, for the First Respondent. I am a very
experienced helicopter (and fixed wing) pilot with more than
3000
hours of flying time in helicopters alone. To the best of my
knowledge, nobody in South Africa has more flying hours and
experience
than I on a Huey helicopter. I have been in the
helicopter industry for more than twenty years, controlling –
directly or indirectly
– various helicopter-owning companies. For
a goodly part of this time I have been accountable for all the
aircraft maintenance
operations of,
inter
alia
, these companies.
I mention in passing that I have represented South Africa at a World
Championship helicopter flying competition.
Accordingly, I am more
than qualified, I respectfully contend, to express the views set
forth in this affidavit.
Ad Paragraphs
22 and 23:
These allegations are
admitted. I repeat the contention that the Huey has been
consistently operated in a sound and airworthy condition.”
[24.]
At
para. 43.4 Mr van der Merwe states:
“ . . . the Huey
has an impeccable safety record . . .”.
He explains the
“compressor stall” which occurred on 17 January 2004, which was
reported to the CAA (though not reportable), and
adds: “The Huey
is currently in impeccable condition.”
[25.]
Then
the CAA filed its “answering” affidavits which are said to be of
a provisional or preliminary nature. The principal deponent,
Mr
Chakarisa, states at para. 9:
“
Leaving aside the
two grounding notices . . . information obtained by the CAA during
its inspection of the helicopter conducted on
28 January 2004,
clearly establishes the fact that the helicopter is not airworthy. A
copy of the CAA’s preliminary report dated
5 February 2004, is
annexed hereto marked “A”. Annexure “A” was telefaxed by the
CAA to the Second Respondent on 5 February
2004. The concluding
paragraph of the telefax reads:
“K CONCLUSION:
On the information
available the aircraft is currently
not regarded as
airworthy.
Helicopter and Marine
Services is requested to supply
the required
information indicated in this report by 13 February 2004.
Helicopter and
Marine Services is reminded of the
fact that it is an offence to
operate an aircraft that is not airworthy.
This
helicopter ZU-CVC may in the circumstances not be flown
.
[emphasis added]”
[26.]
The
affidavit elaborates on this with reference to the records of life
limited components. Mr Chakarisa states:
“
Information was
sought from Italy and Taiwan for purposes of verifying spares
supplied and work carried out on the helicopter. That
information is
not, as yet, to hand.”
The deponent
continues by complaining about the alleged “commercial” use of
the helicopter, which apparently has an effect on
the ambit of
inspections and of the aircraft’s documentary history. He refers
to the letter from Bell dated 13 November 2003.
He refers to the
“forced landing” (which van der Merwe describes as a compressor
stall).
[27.]
The
preliminary report, dated 5 February 2004, refers
inter
alia
to life-limited
components, and records therefor, and to “specific airworthiness
issues”. Its author, Mr Güldenphennig, concludes:
“
1. On the
information available the aircraft is currently not regarded as
airworthy.
Helicopter and Marine
Services is requested to supply the required information indicated
in this report by 13 February 2004.”
[In their replying
affidavits, the applicants had already annexed affidavits from Mr
Purnell (who received the Bell letter) and Mr
Güldenphenning].
[28.]
In his affidavit responding to the CAA, Mr van der Merwe demolishes
“on paper” the case of unairworthiness against the respondents.

These are not general statements of the kind quoted earlier. Mr van
der Merwe furnishes a history of the helicopter and its conversion
to
civilian use; of its certification by the CAA for non-commercial,
and then commercial use; and of its maintenance, including
an audit
thereof by the CAA in September 2003. The deponent addresses the
“specific airworthiness issues” and mentions for example
that the
life of blade grips is not 3 300 hours (as asserted in the
preliminary report) but 9 000 hours. He deals in some detail
with
limited life components. With regard to records, he states that all
or most of the documents have already been seen by the
inspectors,
and he maintains that the CAA is now casting its documentary net
unreasonably wide. Mr van der Merwe states at para.
18.2:
“I further reiterate that if anything, this request demonstrates
that at present there is no independent factual basis for the
helicopter being grounded. The Third Respondent is merely attempting
to gain sufficient time to enable it to find at least something
wrong
with the helicopter – whilst in the meantime shifting the complete
onus
onto the Second Respondent in an attempt to bury the Second
Respondent in paper work.”
[29.]
Mr
van der Merwe also touches on the difference between Parts 94 and 96
of the regulations. He states that Part 94 is applicable
(because
the helicopter is not flown commercially – another dispute between
the parties, mentioned earlier) and he states:
“
The history of the
components of the Huey available to the First and Second Respondents
is such that they have sufficient information
to satisfy, at the very
least, the requirements of Part 94.”
[30.]
Earlier
I used the expression “on paper”. I did so advisedly. At the
trial of an action, with its procedures for discovery,
trial
particulars, expert witnesses, and especially cross-examination, a
different picture of airworthiness might or might not emerge.

However, the applicants have chosen not to proceed by way of action
– the invariable course for a final interdict – but instead
have
proceeded on motion under the guise of an interim interdict. They
have done so at their peril, such peril being that I must
accept the
respondents’ version of facts which are disputed. Applying that
settled rule of practice the respondents’ demolition
of the alleged
unairworthiness is virtually complete. A reasonable man looking at
all the facts which he may properly take into
account, would in my
opinion conclude that the chances of the helicopter having an
accident, of crashing,
by
reason of unairworthiness
,
are remote. He would conclude that the applicants’ apprehension to
the contrary is unreasonable and not well grounded. He would,
I
think, be likely to perceive that the CAA has over-reacted to the
Bell letter and that, when crossed by the respondents, it has
over-flexed its regulatory muscle. If the reasonable man be a man of
the world, he would be likely to perceive that the CAA, when
reversed
by
Erasmus J
,
was licking it wounds, and in search of another mode of attack on its
quarry. He would view the CAA’s demands and conduct after
18
December 2003, culminating in the preliminary report of 5 February
2004, with a healthy dose of scepticism.
[31.]
My
conclusion therefore, on the procedural basis to which I have
alluded, is that the applicants have failed to establish an injury
actually committed or reasonably apprehended. It follows that the
application for a final interdict must fail. It is accordingly
unnecessary for me to consider the third requisite for such an
interdict, namely the absence of an adequate alternative remedy.
I
turn to deal briefly with the other matters which were raised.
[32.]
Urgency
I
am satisfied that the applicants have shown
prima
facie
urgency sufficient
for this matter not to have to wait for hearing on the semi-urgent
roll. If the helicopter should not be flying,
then the sooner it is
stopped the better. The respondents’ attack on urgency was in part
directed at the applicant’s supposed
tardiness in approaching the
Court for relief. It took some four weeks from 7 January 2004 for
them to launch the present application.
Except perhaps for a few
days, the lapse of time is fully and adequately explained by the
various events which occurred during that
period. I do not need to
detail them all, but the compressor stall and its consequences, and
the inspection of 28 January, stand
out. Had the applicants launched
proceedings much earlier that they did, I expect that the respondents
would have accused them of
being premature (as they did in their
attorney’s letter of 1 February 2004).
[33.]
Locus
standi and misjoinder
The first applicant
is properly before the Court: apart from other considerations, a
resolution of its board of directors was eventually
handed up during
the replying argument. The second applicant is the managing agent of
the first applicant. One of its duties as
agent is to institute and
defend proceedings, where appropriate, on behalf of the first
applicant. That does not afford the second
applicant the right to
include itself as one of the applicants. More than that is required
in order to establish a direct and substantial
interest in the
outcome of the litigation. In my view the second applicant has not
shown such an interest. Nothing turns on this,
however, as the first
applicant is properly before me and the second applicant, in the
affidavits, speaks on the first applicant’s
behalf. The costs have
not been increased.
[34.]
The third
respondent (the CAA) stands on a different footing. It asked to be
joined and, in my opinion, for good reason. One of
the CAA’s core
functions is the maintenance of South African air safety. Pursuant
thereto it issued the second grounding order,
which the applicants
now seek to enforce against the respondents. It is that same
grounding order that the respondents refuse to
obey, and the validity
of which they challenge. This appears not only from the affidavits,
but also from the preceding correspondence.
A clearer case of a
direct and substantial interest it is hard to imagine. It is so that
the applicants, in formulating their founding
case, chose not to
become involved in the issues of validity and airworthiness. That
was the applicants’ decision, but it by no
means ensured that the
respondents would limit their opposition in the same way. The second
respondent had succeeded, just over
a month earlier, in having the
first grounding order provisionally overturned. The respondents’
attitude in the correspondence
bordered on the truculent. There was
reason to fear that the second respondent would use the application
as an opportunity to overturn
the second grounding order. In my
opinion the CAA was properly joined as a party to these proceedings.
[35.]
Striking
Out
There are numerous
parts of the record sought to be struck out by the respondents. It
would unduly lengthen and delay this judgment
if I were to work my
way through them all. Some of the objections are sound, some not. I
do not intend to rule upon them individually.
I should mention,
however, that the Bell letter is clearly admissible, not to prove the
truth of its contents, but because its receipt
by the CAA appears to
be significantly linked to the present unpleasantness between the CAA
and the respondents.
[36.]
Costs
Costs should follow
the result subject to one adjustment. While purporting to abide the
decision of the Court, the CAA supported
the applicants. It filed
affidavits and it sent senior counsel from Pretoria, Mr
Puckrin
(who I was pleased to see again), to address me. It seems fair to me
that the CAA should pay its own costs and that it should also
pay the
respondents’ costs of preparing and filing affidavits (from p. 372)
in response to the CAA’s affidavits. The matter
clearly merits the
engagement of two counsel per side.
[37.]
The
order
The order is in the
following terms:
The application is
dismissed;
The first and second
applicants are ordered, jointly and severally, to pay the first and
second respondents’ costs save those
mentioned in the next
paragraph;
The third respondent
(the CAA) is ordered to pay its own costs plus the first and second
respondents’ costs of preparing and filing
their affidavits (from
p. 372 onwards) in response to the CAA’s affidavits;
The costs of engaging
two counsel are allowed.
R.G. COMRIE
JUDGE