About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2013
>>
[2013] ZAWCHC 164
|
|
Berwick (nee Miller) v Villiers-Roux and Others (3688/07) [2013] ZAWCHC 164 (20 September 2013)
133
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE HIGH COURT, CAPE TOWN
CASE NO: 3688/07
In the matter between:
DIANE ELIZABETH BEWICK (nee MILLER)
............................................................
Plaintiff
and
ROBERT WARREN DE VILLIERS-ROUX
....................................................
First
Defendant
AIRTEAM
..................................................................................................
Second
Defendant
ADVENTURE AFRICA CC
...........................................................................
Third
Defendant
THE SOUTH AFRICAN HANG AND
PARAGLIDING ASSOCIATION
.................................................................
Fourth
Defendant
THE
SOUTH AFRICAN CIVIL AVIATION
AUTHORITY
..................................................................................................
Fifth
Defendant
THE MINISTER OF TRANSPORT
Sixth Defendant
JUDGMENT: 20SEPTEMBER 2013
GAMBLE, J:
INTRODUCTION
The sport of paragliding is a popular leisure time activity in
certain parts of the Cape Peninsula and beyond. When the wind
is in
the west or the south west paragliders may be seen taking off from
the western slope of Lions Head and can be observed
from afar as
they drift aimlessly along on thermals before landing in one of
several open areas or sports fields on the Atlantic
Seaboard. When
the wind is blowing gently from the north, a launch site on the
northern slope of Signal Hill is preferred. Further
afield, there
are launch sites on the Dasklip Pass to the north of Porterville and
along Rotary Way, a public road that meanders
along the ridge of the
mountain range to the north of the popular holiday resort of
Hermanus.
To the lay person, a paraglider is similar in looks to a parachute.
It consists of a rectangular wing made of a synthetic material
to
which a series of nylon chords are attached. The chords are anchored
in a harness in which the pilot is enclosed. The pilot
then operates
the wing by pulling or adjusting the nylon chords.
In the expert summary of Mr. Marc Asquith (an experienced
international pilot of both hang gliders and paragliders) filed on
behalf of the Plaintiff in these proceedings
1
,the
following description is given:
“
6…A paraglider is
a development of a ram air parachute. It is a non-rigid structure
that relies upon being pressured by its
passage through the air in
order to adopt the aerofoil shapes that allow it to fly. It is not a
parachute, it is a flying wing.
The structure of such wings can be
imagined as a row of socks stitched together side by side. As they
fly, air flows into the mouth
of each sock, becoming trapped and
inflating the socks. Each sock, or cell, is carefully tailored to
inflate to a specific shape
such that the hole becomes an aerofoil.
7…In essence a paraglider is of lighter construction, is
more ‘wingy’ and is lighter to control than a parachute.
From these differences a paraglider benefits from performance gains
which allows it to climb in rising air such as is found over
hillsides and in thermals and so subsequently glide greater
distances.
8…The launching of a paraglider in any wind is relatively
simple. The pilot always seeks to launch by advancing directly into
the oncoming wind. Initially the wing is placed on the ground lying
on its back with its trailing edge on the upwind side. The
pilot,
linked to the wing via the lines which attach to his harness at about
his shoulder, stands upwind of the wing. He then moves
into the wind.
Because of the geometry, the first lines that go tight are those
attached to the front of the wing, the leading
edge. As this is
pulled forward the cell mouths are presented to the wind. Air enters
each cell as they inflate and form a wing,
the paraglider rises in an
arc from the ground to a position of the pilot’s head. The
pilot then accelerates into the wind
and is lifted off the ground.
The take-off run is usually initiated at a point appropriately far
back from the edge of the hill,
such that the pilot is lifted off the
ground at about the same point where the ground falls away. When
flying a paraglider, the
pilot is attached to the lines by two
karabiners, one at the termination of each set of lines, the left and
right sets. These attach,
one each, to the shoulders of the pilot.
The attachment point is just below the collarbone on the pilot. When
two people fly a
paraglider, a short divider strip is used to
multiply the one karabiner into two, one in front of the other. In
order to provide
extra comfort a spreader bar keeps the two separate.
The passenger always flies in the front position, the rear position
allowing
better control and an ability to monitor the passenger. The
front position is usually slightly lower than the rear position
allowing
the pilot visibility over the passenger’s head. This
usually places the passenger’s hips between the pilot’s
knees. As a result of this setup, on landingthe passenger usually
contacts the ground first.”
As avisitor to the precincts of the Western Cape High Court would
observe, there are a number of businesses offering so-called
“
adventure sports
” to those in need of an
adrenalinboost. These range from abseiling, white-water canoeing and
mountain biking, to shark-cage
diving and paragliding. And, those
who drive along the scenic tourist route from Kloof Nek to Signal
Hill on a weekend may note
vehicles parked at the side of the road
garishly adourned with advertising material offering one the
excitement of a tandem flight
on a paraglider from one of the nearby
launch sites.
THE PLAINTIFF’S VISIT TO CAPE TOWN
Over the Easter weekend of 2004, the Plaintiff, Diane Elizabeth
Bewick (neé Muller), a 34 year old specialist radiographer
from the north of England, visited Cape Town on holiday. She was
accompanied at the time by her partner, Michael Bewick, the
man she
later married.
The Plaintiff, Mr. Bewick and friends were at a dinner during the
weekend and the talk turned to paragliding. The Plaintiff expressed
a passing interest in taking a tandem paragliding flight, thinking
that she may enjoy seeing Cape Town’s Waterfronf from
the air.
As matters turned out Mr. Bewick made the necessary arrangements and
on Monday 12 April 2004 the Plaintiff and her group
were picked up
at their hotel in Cape Town by a Mr. Greg Hamerton, evidently one of
the aforementioned adventure sports proponents.
The Plaintiff understood that Hamerton had some form of association
with the Second and Third Defendants, two firms which arranged
paragliding trips. The group was driven out to Hermanus by Hamerton
in a minibus where they were to undertake tandem flights
from the
local launch site referred to earlier.
The Plaintiff was paired with the First Defendant, Mr. Rob De
Villiers-Roux – evidently a very experienced paragliding
pilot
2
- and after donning the necessary flight gear, and receiving some
perfunctory advice on safety issues, they proceeded to take
off from
the launch site which would have propelled them out over the golf
course and rugby fields of the local high school,
a couple of
hundred metres below the ridge.
The flight was short-lived. Just after take-off the paraglider
experienced a so-called “
wing collapse
” which
affected the control and maneuverability of the craft. Instead of
soaring off over the town towards Walker Bay and
beyond, De
Villiers-Roux swung the paraglider back towards the cliff face in an
effort to keep it aloft. The Plaintiff was seated
in the harness in
front of De Villiers-Roux and as the craft headed towards the cliff
face below the launch site, the Plaintiff
pushed her legs out in
front of her to cushion the blow of an impending collision.
The pair came to rest on a ledge on the cliff face but in the
process the Plaintiff had suffered catastrophic injuries which
left
her with two broken legs and permanent paralysis from the waist
down. Casualty evacuation took an age and some four hours
later the
Plaintiff was eventually airlifted off the ledge by helicopter to an
ambulance waiting on the rugbyfields below. She
spent three weeks in
hospital in Cape Townand another three months in orthopaedic
rehabilitation in her hometown of Middlesborough.
When the Plaintiff
returned to Cape Town to testify in this trial in 2012 she did so in
a wheelchair.
THE BASES OF THE PLAINTIFF’S CLAIMS
The Plaintiff issued summons in March 2007 against sixth defendants.
The First Defendant, De Villiers-Roux, was sued in his capacity
as
the pilot who conducted the flight, while the Second Defendant (a
firm described as “
Airteam
”) and the Third
Defendant (Adventure Africa CC) were alleged to have been parties to
an oral agreement with the Plaintiff
to conduct the paragliding
flight for a fee.
It was alleged that the First Defendant had been negligent in a
number of respects, both in relation to pre-flight procedures
and
advice to the Plaintiff, as well as in the manner in which he
piloted the craft on the fateful flight. It was also suggested
that
the First Defendant was associated with the Second and/or Third
Defendants, either as a partner or an employee.
The Fourth Defendant, the South African HangandParagliding
Association (SAHPA), an association not for gain incorporated under
sec. 21 of the 1973 Companies Act, was cited in its capacity as the
body responsible for,
inter alia
, the licensing and control
of paragliding and paragliding pilots in South Africa. The Fifth
Defendant, the South African Civil
Aviation Authority (“the
CAA”) was cited in its capacity as the statutory body
responsible,
inter alia
, for the control of aviation
activities and the promotion of aviation safety in the country.
Similar allegations were made in
respect of the Sixth Defendant, the
Department of Transport.
When the trial commenced on Wednesday 28 November 2012, the Court
was informed that the Plaintiff had settled the case against
the
First to Third Defendants, and had withdrawn the claim against the
Sixth Defendant. The matter then proceeded against only
SAHPA and
the CAA.
The Plaintiff was represented in these proceedings by advocates
S.P.
Rosenberg SC
and
P.A. Corbett
. SAHPA was represented by
advocates
S.J. Bekker SC
and
J. du Plessis
. The CAA
was represented throughout by
Adv.M.B. Legoce.
Initially, the
Court was informed that
Adv. M. Moerane SC
would be leading
Mr. Legoce
but it later turned out that
Adv.P.M.G.
Beltramo SC
was the lead counsel for the CAA.
Mr. Beltramo SC
took ill during the Christmas recess and when the matter continued
in the newyear,
Adv. P.L. Mokoena SC
stepped into the breach.
The Court is indebted to counsel for the detailed heads of argument
filed and the most helpful arguments
advanced in Court. The Court is
indebted too to the attorneys for the efficient presentation of the
papers and the various bundles
used during the trial.
DETAILS OF THE PLAINTIFF’S CLAIM AGAINST SAHPA AND THE CAA
Due to the settlement of the claim against the First to Third
Defendants, the generalquestion of pilot error was not an issue
before the Court. In broad terms, the claim against SAHPA and the
CAA, said
Mr. Rosenberg SC
in his opening address, was that
as a controlling body and a statutory authority in the field of
aviation respectively, they
had permitted a situation to develop
where tandem paragliding for reward was rife, despite the illegality
thereof. It was contended
that despite repeated warnings over the
years, these two bodies had failed to take the necessary steps to
stop an illegal and
unlawful activity, in circumstances where they
were duty bound to do so.
In her particulars of claim, as finally amended during the trial,
the Plaintiff makes the following allegations in respect of
her
cause of action against SAHPA and the CAA:
“
14. At all material
times:
14.1 paragliding, hang gliding and powergliding activities within
South Africa fell under the direction, control and jurisdiction
of
Fourth, Fifth and Sixth Defendants;
14.2 Fourth. Fifth and Sixth Defendants were obliged to promote
aviation safety;
14.3 Fourth, Fifth and Sixth Defendants were obliged to reduce the
risk of aircraft accidents and incidents and related matters;
14.4 Fourth, Fifth and Sixth Defendants were aware, alternatively
ought reasonably to have been aware, that persons such as First,
Second and Third Defendants offered paragliding flights to members of
the public for commercial gain;
14.5 Fourth, Fifth and Sixth Defendants were aware, alternatively
ought reasonably to have been aware, that First, Second and Third
Defendants regularly conducted paragliding flights, such as the one
undertaken by Plaintiff, for commercial gain.
15. In the circumstances Fourth, Fifth and Sixth Defendants and
their employees and/or agents and/or other persons, acting within
the
course and scope of their employment with Fourth, Fifth and Sixth
Defendants, alternatively under Fourth, Fifth and Sixth Defendants’
direction and control, owed a duty of care to,
inter alia
,
persons engaging in paragliding, hang gliding and powergliding
activities, such as Plaintiff, to act with due skill, care and
diligence as is reasonable (
sic
) required in the
circumstances.
16. Without derogating from the generality of the duty of care
referred to in the immediately preceding paragraph, Fourth, Fifth
and
Sixth Defendants and their aforesaid employees and/or agents were
under a duty:
16.1 to ensure that tandem paragliding flights did not take place
for commercial gain;
16.2 to ensure that all persons piloting paragliders, in
particular tandem paragliders, were sufficiently experienced,
qualified
and competent to do so;
16.3 to ensure that all persons engaged in paragliding were fully
trained and briefed regarding all relevant safety and emergency
procedures and precautions;
16.4 to ensure that all persons engaging in paragliding flights
were provided with the necessary protective clothingand equipment;
16.5 to ensure that all hang gliding (
sic
) flights were
carried out in safe and appropriate weather conditions;
16.6 to ensure that the risk of accidents during paragliding
flights was reduced, and
16.7 to act with due care and in compliance with all relevant
statutory provisions.
17. On 12 April 2004 and at Hermanus, Western Cape an accident
occurred when a paraglider, piloted by First Defendant and on which
the Plaintiff was a tandem passenger at the time, collided with the
mountain slope.
18….
19. In breach of the duty of care owed by Fourth, Fifth and Sixth
Defendants to Plaintiff, they:
19.1 failed to ensure that the paragliding flight undertaken by
Plaintiff was not for commercial gain;
19.2 failed to ensure that First Defendant was sufficiently
experienced, qualified and competent to undertake a tandem
paragliding
flight;
19.3 failed to ensure that First Defendant was properly trained
and briefed in regard to all relevant safety and emergency procedures
and precautions;
19.4 failed to ensure that Plaintiff was provided with the
necessary protective clothing and equipment;
19.5 failed to ensure that the flight in question was carried out
in safe and appropriate weather conditions;
19.6 failed to act with due care by neglecting to enforce or have
regard to Fourth Defendant’s Operations and Procedures Manual
(2000), in particular clauses 1.16 and 2.8; the Air Navigation
Regulations, 1976, in particular part 2.25; and the Civil Aviation
Regulations, 1997, in particular proposed parts 24, 94, 96, read with
Aeronautical Information Circular (AIC) 18.2.3.”
In its plea Fourth Defendant (SAHPA) makes the following relevant
allegations in response to the particulars of claim:
“
3…
3.2 the Fourth Defendant is, and at all material times hereto, was
the governing and co-ordinating body for the sports of hang gliding
and paragliding in South Africa…
6.
Ad paras 14.1, 14,2 and 14.3 thereof:
6.1 The Fourth Defendant hereby repeats the content of para 3.2
above.
6.2 At the material time (12 April 2004) and in terms of
Government Notice R92 of 26 January 2001, read together with
Regulation
149.01.2(1) of the Civil Aviation Regulations (“the
regulations”):
6.2.1 The sport of paragliding was an aviation recreation as
referred to in the regulations; and
6.2.2 The power to establish safety standards relating to aviation
recreation resorted with the Commissioner of Civil Aviation;
6.3 Save as aforesaid, the Fourth Defendant denies each and every
allegation contained in each of these paragraphs insofar as such
allegations relate to the Fourth Defendant, as if each such
allegation were specifically traversed.
7.
Ad paras 14.4 and 14.5 thereof
:
7.1 At all material times and in particular on 12 April 2004, the
Fourth Defendant was aware of the fact that tandem paragliding
flights were offered by persons including the First Defendant to
members of the public for commercial gain;
7.2 Save as aforesaid, the Fourth Defendant denies each and every
allegation contained in each of these paragraphs insofar as such
allegations relate to the Fourth Defendant, as if each such
allegation were specifically traversed.
8.
Ad paras 15 and 16 thereof
:
8.1 The Fourth Defendant hereby repeats the content of paras 6.1
and 6.2 above;
8.2 Save as aforesaid, the Fourth Defendant denies each and every
allegation contained in each of these paragraphs insofar as such
allegations relate to the Fourth Defendant, as if each such
allegation were specifically traversed.
9.
Ad para 17 thereof
:
This is admitted.
10….
11.
Ad para19
thereof
:
11.1 The Fourth Defendant hereby repeats the content of paras 6.1
and 6.2 above.
11.2 Save as aforesaid, the Fourth Defendant denies each and every
allegation contained in this paragraph insofar as same pertains
to
the Plaintiff’s claim against the Fourth Defendant, as if each
such allegation were specifically traversed.
11.3 More particularly, but without thereby derogating from the
generality of the aforegoing denial, the Fourth Defendant denies
having owed a duty of care to the Plaintiff either as alleged by the
Plaintiff or at all, alternatively (in the event that the
above
Honourable Court should find that the Fourth Defendant owed a duty of
care to the Plaintiff as alleged, which is still denied
by the Fourth
Defendant) denies having negligently breached such duty.
11.4 Cumulatively with, alternatively in the alternative to, the
aforegoing, the Fourth Defendant pleads as follows:
11.4.1Before the Plaintiff embarked on the tandem paragliding
flight in question, the Plaintiff was warned about the risks inherent
in paragliding;
11.4.2 Cumulatively with, alternatively in the alternative to
11.4.1 above, when the Plaintiff embarked on the tandem paragliding
flight, the Plaintiff was by virtue of her own appreciation, aware of
the risks inherent in paragliding;
11.4.3 Despite the aforegoing knowledge and whilst appreciating
the aforementioned risk, the Plaintiff nevertheless embarked on the
tandem paragliding flight.
11.4.4 The incident occurred as a result of the materialization of
risks inherent in paragliding, and in particular it occurred as
a
result of unexpected air turbulence.
11.4.5 The Fourth Defendant therefore pleads that the Plaintiff
consented to be subjected to the risk which materialized, and that
in
the premises, even if the Fourth Defendant owed the Plaintiff a duty
of care as alleged by the Plaintiff (and which is still
denied by the
Fourth Defendant), the Fourth Defendant cannot in law be held liable
for any loss or damage suffered by the Plaintiff.”
The material part of the Fifth Defendant’s plea (as
consequentially amended) to the amended particulars of claim as
amended
is the following:
“
3…
3.2 The fifth defendant pleads that:
3.2.1 It is a juristic person duly established in terms of
sec. 2
of the
South African Civil Aviation Authority Act, 40 of 1998
, as
amended (“the Act”).
3.2.2 It has the statutory responsibility to, amongst others,
control and regulate civil aviation in the Republic of South Africa
(“the Republic”), and in particular, control, regulate
and promote civil aviation safety in the Republic.
3.2.3 It is also responsible for the administration of the laws
described in schedule 1 of the Act, and regulations made thereunder,
including –
3.2.3.1 The Aviation Act, 74 of 1962;
3.2.3.2 The Civil Aviation Offences Act, 10 of 1972;
3.2.3.3 The Convention on the Recognition of Rights in Aircraft
Act, 59 of 1993.
3.3 The facts and grounds upon which the plaintiff’s cause
or causes of action are founded, as are described in paras 8 to
12,
and also 14, 16 and 19 of the particulars of plaintiff’s claim
do not fall within the statutory functions and duties
of the fifth
defendant, pursuant to the Act, the Acts referred to in the preceding
paragraphs, and the regulations made thereunder.
3.4 In the event it is held that any or all of the facts and
grounds upon which the plaintiff’s cause or causes of action
are founded, as are described in paras 8 to 12, and also 14, 16 and
19 of the particulars of plaintiff’s claim, fall within
the
statutory functions and duties of the fifth defendant, then, the
fifth defendant pleads that it is indemnified from any liability
in
relation to its acts and/or omissions by virtue of the provisions of
sec. 19 of the Act.
4. . .
5. . .
6. . .
7.
Ad paras 14 to19
7.1 The fifth defendant denies each and every allegation made in
these paragraphs as if specifically traversed.
7.2 Without limiting the generality of the fifth defendant’s
denial:
7.2.1 The fifth defendant repeats paras 3.2, 3.3 and 3.4 of its
plea; and
7.2.2 The Air Navigation Regulations 1976 and in particular Part
2.25 has no application to paragliding.”
During argument
Mr. Rosenberg SC
informed the Court that the
Plaintiff relied only on two breaches by SAHPA and CAA of their
respective duties of care to the
Plaintiff
viz
. those set out
in paras 19.1 and 19.6 of the particulars of claim as amended. The
crux of the Plaintiff’s case is that
tandem paragliding for
reward was illegal at the time, while SAHPA and the CAA contend
otherwise. The latter point out (and the
Plaintiff accepts) that it
was not unlawful in 2004 for a suitably qualified pilot with a
tandem rating to take a passenger on
a so-called “
joy ride
”
(a phrase which to some might seem a contradiction in terms in the
circumstances). It is when a fee was paid for the conveyance,
says
the Plaintiff, that the activity became illegal.
THE EVIDENCE
The parties were in agreement that the Plaintiff’s damages and
the quantum thereof were to stand over for later determination.
The
Court accordingly made an appropriate order in terms of Rule 33(4)
and heard evidence only in relation to the merits of the
Plaintiff’s
claim. The Plaintiff testified herself and adduced the evidence of
two witnesses
viz
.
Mr. Robert Manzoni
and
Mr. Jozua
Cloete
, while SAHPA called
Ms. Louise Liversedge
as a
witness. The CAA adduced no evidence. In addition, the parties
placed a large number of documentary exhibits before the
Court by
agreement, to which reference will be made in due course.
I have already related some of the Plaintiff’s evidence above
and do not intend to traverse the evidence of the witnesses
for the
Plaintiff in any great detail. My failure to do so arises not from
any disrespect or disbelief of the witnesses, but
rather from the
fact that many of the issues in this case are common cause and,
since the case essentially turns on points of
law, much of the
evidence, as interesting as it was, has little legal relevance.
THE PLAINTIFF
The Plaintiff explained that she had visited Turkey in 1996 and had
then undertaken a tandem paragliding flight for which she
paid about
GBP70 (currently about SAR1050). The Plaintiff said that she enjoyed
the flightwhich was uneventful and decided to
try it again in Cape
Town. She described the experience as “
peaceful, quiet and
exhilarating
” and thought that a flip would be a pleasant
way to see the city, believing that the flight would take off from a
launch
site that would enable her to view the Waterfront. While she
was not in need of an “
adrenalin rush
”, as she
put it, the Plaintiff said that she was excited at the prospect of
participating in “
a bit of a walk on the wild side
”.
3
The Plaintiff said she was a bit surprised when they were driven all
the way out to Hermanus (about an hour and a half by road
from Cape
Town) but went along with the group. She told of the brief
pre-flight explanation of procedures by De Villiers-Roux
but could
not recall whether she was warned of the potential risk of the
flight. She recalled being handed, very casually she
said, a piece
of paper to sign before take-off, which she said she signed without
reading, having been told by Hamerton that
she would not need it.
The document, of course, turned out to be an indemnity from the
Plaintiff in which she exempted (in the
very finest of print, it
must be said) the Second Defendant from any liability for any
damages that she may suffer as a consequence
of participating in an
activity which was said to embrace “
risks and hazards
”
which could include “
death or disabling injury
”.
As a consequence of the settlement of the case against First to
Third Defendants, the indemnity did not feature significantly
in the
case. But, whatever the Plaintiff’sunderstandingof the
consequences of placing her signature on the indemnity form
may have
been, there can be no doubt whatsoever that she must have
appreciated that she was embarking on an inherently dangerous
activity. The very practice of running off the side of a mountain to
embark on an episode of manned flight without the advantage
of
propulsion, or the protection of a fuselage, is inherently
dangerous. The Plaintiff is an intelligent woman and she knew this,
whatever her previous experience in Turkey may have been.
The Plaintiff described how two earlier tandem flights had been
undertaken that morning by Messrs Hamerton and De Villiers-Roux
with
other members of her party, and how the passengers had been safely
delivered to the field below. She was not concerned in
any way about
the ability of the pilots, nor of the equipment, or the launch site.
She was, as she put it, “
happy to take off with them
”.
And, whatever the impact of the indemnity may have been, she was
intent on flying that morning.
The Plaintiff said that she did not know at the time that
paragliding for reward was an illegal activity and that no one had
mentioned this to her prior to the flight. Had she known that the
activity was unlawful, she would probably not have participated
therein because she was not one who engaged in illegal activities,
she said. The Plaintiff went on to say that if it was illegal
she
should not have been there in the first place and so exposed to
danger. However, she did add that if De Villiers-Roux had
not
charged her for the flight, her safety concerns would have been no
differrent.
As to the accident, the Plaintiff was unable to say what the cause
thereof was, although she did refer the Court to certain photographs
taken by a friend of the flight itself. From these photographs it
can clearly be seen that the wing lost its shape and began
to fold
in on itself shortly before the pair collided with the mountain.
The Plaintiff explained that after colliding with the cliff face she
and De Villiers-Roux lay there for several hours while attempts
were
made to arrange for a helicopter to lift them off the mountain. It
seems from this evidence that the event organizers were
hopelessly
under-prepared for a calamity of this nature. The first helicopter
that was called in did not have a winch with which
to lift the
Plaintiff, and eventually an Air Force helicopter was called in to
do the necessary.
ROBERT MANZONI
Robert Manzoni
was the principal witness for the Plaintiff.
He is an avid and experienced hang gliding and paragliding pilot and
has participated
in these sports since 1992. Manzoni was previously
on the executive of SAHPA and at one stage was its National Vice
Chairperson.
Currently, Manzoni owns a guesthouse in Porterville
from where he co-ordinates,
inter alia
, paragliding
activities. So, for example, foreign paragliding pilots will arrive
with their own equipment, stay at his guesthouse
from where they
will be transported to the Dasklip Pass launch site, and later be
picked up by Manzoni wherever they may eventually
land.
Manzoni earns a living from paragliding in this manner but he is
resolutely opposed to conducting tandem paragliding flights
for
reward, and has for many years set his face against this activity.
The fervour with which he opposed those who advanced the
cause of
commercial tandem paragliding eventually resulted in Manzoni being
ostracized and led to him ultimately resigning from
the committee of
SAHPA. It would not be unfair to say that for those now in charge of
SAHPA, Manzoni is regarded as a maverich
and a lone voile . So much
was evident from the cross-examination of this witness by
Mr.
Bekker SC
, who used strong language to criticize what was termed
the “
crusading
” conduct of Manzoni.
It is not difficult to understand how Manzoni may have lost the
respect of those he once served. He is a forthright individual
who
does not mince his words. He formed a view early on in his
involvement with SAHPA that commercial tandem paragliding was
unlawful and has ever since remained of that view. The view held by
Manzoni (and it was suggested to him by Mr. Bekker SC that
his was a
lone, disparate voice in the wilderness) was founded on two bases.
Firstly, he believed that through an interpretation
of the relevant
statutory regime, the activity was proscribed. Secondly, he was of
the view that when those participating in
the activity purely for
pleasure started charging a fee to convey others for a flip, safety
became compromised. When there are
passengers who are prepared to
pay upwards of R800,00 for a flight, there is pressure, said
Manzoni, on the pilots to fly. And,
he went on to say, the decision
as to whether to fly or not is driven by money and not aviation
safety.
Manzoni illustrated his point with reference to the present case
4
.
He said that he knew the Hermanus launch site well and had often
flown there himself. Take-off at Hermanus is in a southerly
direction into the prevailing wind in that area. However, he said
that a dangerous condition arose when the wind moved from the
south
to the east causing extreme turbulence and presented a danger to
pilots. Manzoni referred in this regard to a cautionary
note in an
authoritative book written by Hamerton on the various launch sites
for paragliding throughout South Africa.
Manzoni suggested in evidence that the accident on that Easter
Monday in 2004 was attributable to an Easterly wind which caused
the
paraglider’s wing to collapse. His view was that the weather
conditions at the time of the Plaintiff’s flight
were
dangerous and that De Villiers-Roux should not have taken off.
Manzoni suggested that, having driven all the way from Cape
Town
with a party of adventure-seeking tourists keen on flying, the urge
to fly and so finance the trip would have been greater
than the need
to observe safety standards and apply the so-called “
no
fly”
option.
In light of the fact that the Plaintiff no longer relied on pilot
error as her cause of action, the evidence of Manzoni on this
point
was not strictly relevant and
Mr. Bekker SC
, applying the
“
safety first
” approach did not cross-examine on
the point, other than to suggest that Manzoni himself had exhibited
poor judgment on
a number of occasions by flying when he should not
have. None of these flights were for reward and
Mr. Bekker SC
suggested that Manzoni’s central thesis was fundamentally
flawed. Of course, Manzoni refused to accept this.
While the point is not at the heart of this case, I consider that
Manzoni’s approach is logically sound. His theory that
“
the
payment of money compromises safety”
will of course apply
in some situations, and in others not. However, as a general
proposition, it was a view genuinely held by
someone who had the
interests of the paragliding community and the general public at
heart.
Manzoni took the Court through a host of documents, mostly SAHPA
Committee minutes and correspondence, which showed that from
the
late 1990’s SAHPA, under Manzoni, regarded commercial tandem
paragliding as unlawful. For example, at a meeting of
the Western
Cape Committee of SAHPA on 1 February 1998, at which members of the
Aero Club of South Africa
5
and inspectors from the CAA were present, it was recorded that the
authorities regarded the activity as unlawful although they
were
sympathetic towards finding a way to legitimise it.
The various minutes referred to by Manzoni reflect a measure of
ambivalence on the part of the Committee members of SAHPA towards
the legal standing of commercial tandem paragliding. There was
clearly a lobby in favour thereof and it seems that this group
eventually held sway on the Committee.
But what neither SAHPA nor Manzoni did do was to obtain either a
definitive legal opinion or a declaratory order from the Court
as to
the legitimacy or not of the activity. They relied on casual advices
from the CAA from time to time and on their own interpretation
of
the relevant statutory and regulatory instruments applicable to
SAHPA and paragliding in general. I shall deal with these
instruments later in this judgment but no doubt the readers thereof
at the time perused the relevant documents with spectacles
tinted
according to their respective viewpoints.
JOZUA CLOETE
The Plaintiff’s last witness was
Mr. Jozua Cloete
, a
retired South African Air Force pilot who was employed by the CAA
from March 1999 until April 2005 as an inspector of flight
operations. Cloete has an intimate knowledge of the various
statutory and regulatory instruments applicable to so-called NTCA’s
6
and explained these to the Court with reference to the discovered
documents.
Once again, I shall deal with these separately in this judgment.
Suffice it to say at this stage that the thrust of Cloete’s
evidence was to demonstrate that commercial tandem paragliding was
unlawfulduring the Easter weekend of 2004.
LOUISE LIVERSEDGE
Louise Liversedge
was the sole witness called to testify on
behalf of SAHPA. She stated that she had been employed as SAHPA’s
secretary since
1996. Liversedge explained that SAHPA Committee
meetings were usually conducted by way of teleconference and that
she would record
the deliberations on a dictaphone during the
meeting. Afterwards, Liversedge would draft the minutes and
circulate them amongst
Committee members for vetting. Both hard and
electronic copies of the minutes were stored.
The purpose of Liversedge’s evidence was to confirm the
correctness of para 7.1 of the minutes of a SAHPA Committee meeting
held on 25 November 2002. The interpretation which SAHPA sought to
place on this paragraph was that as of that date, commercial
tandem
paragliding was no longer unlawful. The witness confirmed that
although extensive reference was made in those minutes
to the views
of Manzoni he was no longer on the Committee and did not participate
in the meeting.
The CAA called no witnesses and closed its case.
THE STATUTORY AND REGULATORY FRAMEWORK
It would be fair to say that the applicable framework is a complex
web of Acts of Parliament, regulations promulgated thereunder
and
directives issued by the CAA from time to time. I must confess that
navigating one’s way through this collection of
statutes is
much like flying in dense cloud and hopingthat the instrument
landing system will safely take one to the right airport.
At the time of the Plaintiff’s accident the Aviation Act, 74
of 1962 (“the 1962 Act”) was still in force. In
2009 it
was repealed and replaced by the Civil Aviation Act, 13 of 2009
(“the 2009 Act’). Under section 1(3) of the
1962 Act, an
“
aircraft
” was defined as ”
any vehicle
that can derive support in the atmosphere from the reactions of the
air.”
It was common cause that a paraglider resorted under
this description of aircraft.
Prior to the establishment of the CAA in 1998, civil aviation in
South Africa was regulated by means of the Air Navigation
Regulations of 1976 (“the ANR’s”). The ANR’s
covered a wide spectrum of issues, from the operation of aircraft
to
the issuing of pilot’s licences, including glider pilots.
However, since paragliding was an unknown entity when the
ANR’s
were promulgated it was not dealt with thereunder.
THE CIVIL AVIATION REGULATIONS (“THE CARS’S”)
On 26 September 1997 the Minister of Transport issued, under sec. 22
of the 1962 Act, the Civil Aviation Regulations (“the
CAR’S”).
The CAR’s are divided up into some 187 Parts, each of which
deals with a specific topic e.g. Aviation
Accidents and Incidents -
Part 12;Pilot Licensing – Part 61;General Operating and Flight
Rules – Part 91; Air-transport
Operations – small
aeroplanes – Part 135; Aviation Recreation Organizations –
Part 149 and Aeronautical Information
Services – Part 175.
7
The CAR’s are an unwieldy but dynamic set of documents which
are updated from time to time to make provision for progressive
changes in aviation. They have also had to be amended on occasion to
take into account legislative changes. So, for example,
the
Commissioner of Civil Aviation under the 1998 Act is now known as
the Director of Civil Aviation under the 2009 Act. One
finds, too,
in earlier additions of Part 1 of the CAR’s definitions of
aircraft such as gliders, hang gliders, gyroplanes
and helicopters
but nothing in regard to paragliders.
The seven volume loose-leaf collection by
Cor Beek
,
AviationLegislation in South Africa
(Lexis Nexis) has been
updated to November 2012. It now contains the following description
of “
paraglider
” in Volume 2 Part 1 – 40:
“
paraglider means a
non-power-driven, heavier-than-air aircraftt without a rigid primary
structure, comprising a flexible drag, or
drag and ram-air type lift
surface, from which the pilot and passengers are suspended by shroud
lines, which is foot-launched,
and of which the descent is partly
controlled by the pilot by means of two steering lines, and which for
the purposes of Parts
24, 94 and 96 includes a paratrike and a
powered paraglider;”
It is not clear exactly when this definition was added to the CAR’s
but it would appear to be as late as 2007, when Issue
17 of the
updates to
Beek
was added to volume 2 of the collection.
When one looks at the Pilot Licensing Provisions in Part 61 of the
CAR’S, one finds, for example, licensing criteria for
private
aeroplane pilots, private helicopter pilots, micro light aeroplane
pilots, glider pilots, gyroplane pilots, powered paraglider
pilots,
hang glider pilots and paraglider pilots (which resort under
Sub-Part 18 of Regulation 61) and so, by way of further
example, the
requirements for a paraglider pilot licence are set out in Part
61.18.1.(b) to (g).
The CAR’S also define an “
Aeronautical Information
Circular
” (“AIC”)as a “
circular
containing information which does not qualify for the origination of
a NOTAM or for inclusion in the AIP, but which relates
to flight
safety, air navigation, technical, administrative or legislative
matters, issued by the Commissioner in terms of Regulation
11.01.2
”.
A “NOTAM” (“Notice to Airman”) is defined as
a “
notice containing information concerning the
establishment, condition or change in any aeronautical facility,
service, procedure
or hazard, the timely knowledge of which is
essential to personnel concerned with flight operations, distributed
by means of
telecommunication by or with the authority of the
Commissioner
”.
An “AIP” (“Aeronautical Information Publication’)
is defined as “
a publication containing aeronautical
information of a lasting character essential to air navigation,
issued by the Commissioner
in terms of Regulation 11.01.2.”
THE SOUTH AFRICAN CIVIL AVIATION AUTHORITY
In September 1998 the CAA was established in terms of sec. 2 of the
South African Civil Aviation Authority Act, 40 of 1998 (“the
1998 Act”). This legislation was repealed
in toto
with
the passing of the 2009 Act, which has been brought into operation
incrementally with the promulgation, from time to time,
of various
Parts thereof. For the purposes of this case, however, the
provisions of only the 1998 Act are applicable.
In terms of the 1998 Act the objects of the CAA were described as
follows:
“
To control and regulate
civil aviation in the Republic and to oversee the functioning and
development of the civil aviation industry,
and, in particular to
control, regulate and promote civil aviation safety and security.”
In terms of the 2009 Act (which is far more comprehensive and
extensive than the 1998 Act) the objects of the CAA (as set out in
sec. 7(2) of the 2009 Act) are substantially the same.
Amongst the functions of the CAA set out in sec. 4 of the 1998 Act
are
the administration of certain laws referred to in Schedule 1 to the
1998 Act and the duty to recommend to the Minister of Transport.
“
The
introduction or amendment of civil aviation safety and security
legislation.”
Included in the laws referred to in Schedule 1
to the 1998 Act is the Aviation Act of 1962. Accordingly, with the
passing of the
1998 Act, the CAA became responsible for the
administration of the CAR’S.
As
Mr. Bekker SC
pointed out in argument, when the CAR’S
were published in the Government Gazette on 26 September 1997,
various Parts thereof
came into operation on 1 January 1998, whilst
other Parts were promulgated in subsequent years and others, not at
all. So, for
example, Part 61 of the CAR’S on pilot licencing
to which reference is made above, was never put into operation
pursuant
to the provisions of Government Notice R1664 of 14 December
1998. Instead, a new part 62 containing materially different
provisions
was promulgated and put into operation in December 2008.
As
Mr. Rosenberg SC
observed in argument there are two
distinct criteria for the operating of a commercial flight. On the
one hand the pilot must
be properly qualified (or “
rated
”)
to fly a particular class of aircraft, while on the other hand the
aircraft itself must comply with specific requirements
for
airworthiness.
Airworthiness is dealt with in Part 21 of the CAR’S and, as
could be expected, is a complex and comprehensive part of the
regulations. For present purposes it is only then necessary to deal
with airworthiness in relation to NTCA’s.An NTCA is
defined in
volume 2 of
Beek
as –
“
Any aircraft that does
not qualify for the issue of a certificate of airworthiness in terms
of Part 21 and shall include any type
certificated aircraft that has
been scrapped, of which the original identification plate should have
been removed and returned
to the applicable aviation authority and is
rebuild (
sic
)
as a full-scale replica”…
I may be wrong, but as I understood counsel, an NTCA refers
essentially to any aircraft that is not made and assembled in an
aircraft
factory and which must therefore meet airworthy standards
fixed by the manufacturers. An NTCA would include a hang glider, a
micro
light, a paraglider and any of the “
kit
”
forms of aircraft which are assembled locally.
DOCUMENT LS/1
Prior to November 2002 the operation of NTCA’s was regulated
by a document known as “
Document LS/1
” (“LS/1”).
It was a document issued by the erstwhile Commissioner of Civil
Aviation and governed the “
General Conditions Regarding the
Registration, Construction, Operation and Maintenance of
Aircraftwhich do not qualify for the
issue of a South African
Certificate of Airworthiness.”
In paragraph 2 of LS/1the relevant aircraft covered are said to be
the following:
“
61.1 amateur-built
aircraft;
61.2 production-built aircraft;
61.3 research aircraft;
61.4 limited aircraft; and
61.5 veteran aircraft.”
Amateur- and production-built aircraft are further classified into
the following sub groups in LS/1:
“
62.1 Fixed wing
power-driven aeroplanes;
62.2 Gliders;
62.3 Motorised gliders;
62.4 Microlight aeroplanes;
62.5 Paraplanes;
62.6 Helicopters;
62.7 Gyroplanes;
62.8 Manned Free balloons;
62.9 Non-rigid Airships; and
62.10 GasturbinePowered Aircraft.”
Each of the aforementioned category of aircraft is fully described in
LS/1.
In para 1.3 of LS/1, under the heading “
General”
,
the following is said regarding the commercial use of LS/1 aircraft:
“
Aircraft which do not
qualify for a …(South African Certificate of
Airworthiness)…and are required to meet the conditions
of this
document shall hereinafter be referred to as LS/1 aircraft. LS/1
aircraft shall not be operated for remuneration, unless
when
otherwise authorized by the CAA or when compliance with para 25 [of
the LS/1] has been shown.”
In paras 4.1 and 4.3 of LS/1, under the heading “
Exemption
from the Need to have Standard or Restricted Certificate of
Airworthiness”,
the following is said:
“
4.1 LS/1 aircraft are
exempted in terms of Part 11 of the CAR’S from the requirement
of having a valid certificate of airworthiness
and may still be
operated subject to the conditions set out in these conditions…
4.2…...
4.3 LS/1 aircraft shall not be operated unless an authority to fly
has been issued to the aircraft. These aircraft shall not be operated
in either of the categories for transportation of paying passengers
or cargo for reward.”
As I understand the position then, as of November 2002, all NTCA
aircraft (which, it was common cause included paragliders):
64.1 were exempted from the necessity to hold valid certificates of
airworthiness;
64.2 could only fly if an “
authority to fly
” in
respect of the particular aircraft had been issued; and
64.3 could
not
be operated for reward under
any
circumstances.
The term “
authority to fly
” is not defined in
LS/1, but each of the categories of LS/1 aircraft referred to above
had specific requirements that had
to be met before such
authorization could be given.
Although the parties were in agreement that a paraglider was
generally classifiable as an NTCA, there is no mention anywhere
in
LS/1 of that form of aircraft. This omission is most likely due to
the fact that paragliders only became popular in South
Africa in the
1990’s.
8
Flowing from the aforegoing, I understood SAHPA to be of the view
that, as of November 2002, commercial tandem paragliding was
not
expressly prohibited. The contrary argument advanced for the CAA in
the heads of argument drawn by
Messrs. Mokoena SC
and
Legoce
was that the CAA held the view that such prohibition persisted right
up until the present.
The Plaintiff’s argument was that a developing aviation sport
like paragliding could not operate in a legislative vacuum,
given
the safety conciderations implicit in the activity. It was suggested
by the Plaintiff that, as an NTCA, paragliders were
subject to LS/1,
even though they were not expressly referred to therein.
It is useful to note at this stage that it was common cause that
tandem paragliding
per se
was not prohibited. So, a pilot who
wished to take a family member or friend for a flip could do so
quite lawfully. The Plaintiff’s
case was that as soon as the
tandem flight was undertaken
for reward
, it became illegal.
THE AERO CLUB OF SOUTH AFRICA
I turn then to set out the role of SAHPA in relation to this complex
web of do’s and dont’s. In terms of LS/1, it
is recorded
that:
“
1.5. The CCA (i.e. the
Commissioner for Civil Aviation) has designated to the Aero Club of
South Africa authority to act on behalf
of the CAA in certain areas.
1.6 The Aero Club may only act in accordance with its CCA approved
manual of procedure. Any revision to the manual shall first be
submitted to the CCA for approval before it may be incorporated in
the manual.
1.7 The CCA may, depending on the circumstances withdraw, suspend
or revise the designated authority to the Aero Club.”
The Aero Club is a sec. 21 company originally incorporated in 1936,
whose Memorandum of Association describes its main business
as:
“
The National governing
and co-ordinating body for the following South African National Sport
Aviation Associations (Member Associations)
and similar associations
acceptable to the AC of South Africa:
…
Hang Gliding
Association of South Africa.
In terms of para 2.3 of its memorandum the Aero Club is authorized:
“
To act as the body
officially recognized by the South African Government as the parent
body responsible for sport aviation activities
within the Republic of
South Africa and to liase with the Government and other authorities
where necessary to promote the objectives
of the AC of South Africa.”
Included in the main objects of the Aero Club is its intention to:
”
Diligently strive for the
safe practice of sport aviation in South Africa.”
The Court was referred to a Memorandum of Agreement dated November
2003 in which the CAA formally delegated to the Aero Club
certain of
its powers and functions contained in the CAR’S. Included in
this (in para 3.3.10) was the responsibility for
issuing hang glider
and paraglider pilots’ licences. The Aero Club was directed to
have regard to the manuals of procedure
for the respective
constituent bodies when,
inter alia
, issuing licences. It is
common cause that the Aero Club retained these delegated powers in
April 2004.
SAHPA, a separate juristic entity incorporated under sec. 21 of the
1973 Companies Act, is responsible for all issues of governance
in
the sports of hang gliding, powergliding and paragliding. It is an
affiliate of the Aero Club and, in that capacity, is ultimately
under the control of the CAA.
Members of SAHPA are bound,
inter alia
, by its “
Operations
and Procedures Manual”
(“the Ops Manual”)
.
This is a document of some 50 pages which has been effective
since October 2000 and which deals with a myriad issues relevant to
the sport of paragliding, from pilot licencing and airworthiness to
safety, accident reporting and disciplining of its members.
Of importance at this stage are the provisions of the following
clauses in SAHPA’s Operations and Procedures Manual: (Revision
1) effective as of April 2004:
“
1.16
Tandem
flights
No person may fly with a passenger without being in possession of
a current TANDEM pilot rating.
No more than two persons may fly in a hang glider or paraglider.
No member may carry tandem passengers for reward, unless they have
the appropriate carrier’s licence from the Civil Aviation
Authority.
It is recommended that tandem pilots get signed indemnities from
their passengers before undertaking flights and advise them that
they
are not insured by SAHPA for third party liability.”…
2.8
Licence privileges
Members may exercise the privileges of a licence from the time of
payment of the prescribed fee and submission of all required
documents,
to the designated body.
Licences issued by SAHPA are for recreational purposes, i.e. not
for commercial gain.”
It bears mention that para 1.16 was substantially changed in Revision
2 of the Ops Manual effective from 1 June 2007 so as to permit
commercial tandem paragliding in certain defined circumstances.
CARRIER’S LICENCE
In termns of Section 12 of the Air Services Licencing Act, 115 of
1990 (“the Air Services Act”)
“
No person shall operate
or attempt to operate on air services, unless it is or is to be
operated under and in accordance with the
terms and subject to the
conditions of an air service licence issued to that person in terms
of this Act.”
In terms of Section 1 of the Air Services Act, an “air
service” is defined as “any service operated by means
of
an aircraft for reward”. The definition excludes 5 categories
of aircraft operation from the definition of “air
service”,
none of which is applicable here. The word “service” is
not further defined in the Air Services Act
and it must therefore be
interpreted according to its ordinary meaning.
In terms of Section 2 thereof, the Air Services Act only applies to
the operation of a “domestic air service” which
in turn
is defined as”an air service excluding an international air
service”. The latter phase carries its own detailed
definition.
An air service licence is issued by the Air Services Licencing Act
after receipt of an application for such licence and the
adjudication thereof under that Act.
It was common cause that a paraglider is an aircraft. It follows
therefore that as of November 2002 the provision of a tandem
flip on
a paraglider as against payment of money was an air service as
defined. The provider of such a service was accordingly
required to
be licenced under Section 16 of the Air Services Act and had to hold
what was colloquially referred to as a “carrier’s
licence”. Para 1.16 of the SAHPA Ops Manual (Revision 1)
stressed this requirement.
PROPOSED AMENDMENTS OF PARTS 24, 94 AND 96 OF CARS
On 11 January 2002 (in Government Gazette No. 23009) the Chairperson
of the Civil Aviation Regulations Committee (CARCOM), purportedly
acting under Regulation 11.03.2 (1)(a) of the CAR’s published
for comment certain proposed amendments to the CAR’s.
Written
comments and/or representations to the chair of CARCOM were invited
by 11 February 2002.
The details of the proposed amendments were set out in various
Government Notices contained in the said Gazette:
83.1 In Government Notice R22, Schedule 1 contained a number of new
definitions which it was said were necessary to give content
to
certain words and phrases used in the proposed new Parts 24, 94 and
96 of the CAR’s. Of note here is the introduction
of a
definition of “
paraglider”
, which accords with the
definition referred to in
Beek
above, as well as certain other
NTCA’s.
83.2 In Government Notice R23, Schedule 2 sought to introduce Part 24
of the CAR’s (which did not exist at that stage) to
replace
LS/1. The purpose of Part 24 was to establish minimum standards of
airworthiness for NTCA’s. Included in the sub-group
of NTCA’s
subject to Part 24, were paragliders.
83.3 In Government Notice R24, Schedule 3 sought to introduce Part 94
of the CAR’s, also then not in existence and also to
replace
LS/1. Part 94 was intended to set the operational requirements for
NTCA’s. Of importance at this juncture are the
provisions of
Parts 94.01.1 (1)(a), (3) and (4) which read as follows:
“
94.0.1. (1) This Part
shall apply to –
non-type certificated aircraft operated within the Republic;…
(2) …
(3)
The provisions of the various other Parts of these Regulations
shall apply
mutatis mutandis
to any non-type
certificated aircraft unless specifically exempted by the provisions
of this Part.
(4) Non-type certificated aircraft operated in terms of this Part
are prohibited to carry passengers or cargo for reward.”
83.4 In Government Notice R25 Schedule 4 sought to introduce Part 96
of the CAR’S which similarly did not exist at the time
and
which was also intended to replace LS/1. The invitation for public
comment in respect of the proposed changes contained the
following by
way of motivational explanation:
“
The requirements
contained in the proposed Part 96 are to address the South African
and universal trend towards the use of non-type
certificated aircraft
for commercial purposes and establish standards that will permit
commercial operation within parameters that
maintain adequate levels
of safety.”
83.5 Of relevance here are the provisions of Parts 96.01.1(1)(a) and
(2):
“
96.01.1 (1) This Part
shall apply to –
non-type certificated aircraft engaged in commercial air
transport operations within the Republic…
(2) No non-type certificated aircraft shall be used in commercial
air transport operations unless the operator is the holder of the
appropriate air service licence issued in terms of the Air Services
Licensing Act, 1990 (Act 115 of 1990)…”
“
Commercial Air Transport
Operation
”
is defined in Part 1 of the CAR’S as “
an
air service as defined in sec. 1 of the Air Services Licencing Act,
1990, including -
“
(a) The classes of air
service referred to in regulation 2 of the Domestic Air Services
regulations, 1991.”
From the aforegoing, it is clear that as of January 2002 the CAA
(which is cited in the various Government Notices as the “
proposer
”
of the intended amendments to the CAR’s), regarded tandem
paragliding for reward as unlawful: the wording of Parts
94.01.1(4)
and 96.01.1(2) are unequivocal in that regard.
AIC NO. 18.23
On 15 November 2002 the Commissioner for Civil Aviation published an
AIC, No. 18.23, in which an attempt was made to explain
and give
content to the proposed amendments set out in the Government Gazette
of 11 January 2002 and to which referencehas been
made above.
AIC18.23 is a long and somewhat garbled document in which members of
the aviation fraternity are given details of
the exemption
concerned, background information leading up to the exemption, an
explanation regarding the proposed development
of Parts 24, 94 and
96, the motivation for the proposed amendments, the safety
implications thereof and the period of the intended
exemption.
The argument advanced by SAHPA for the legality of commercial tandem
paragliding after November 2002 is based, to a large extent,
on this
document. Accordingly, before considering the contents of AIC18.23
and the import thereof for commercial tandem paragliding,
it is
necessary to examine what the legal status of such an AIC is.
Coupled with that is the standing in law which can be given
to the
publication of the intended amendments to the CAR’s in the
Government Notices of 11 January 2002 as referred to
above.
I would remark in passing that an argument could be advanced that
the exemption is confusing to the extent that it could be regarded
as void for vagueness. However, no such argument was advanced by
either
Mr. Rosenberg SC
or
Mr. Bekker SC
, and I leave
the matter there.
THE VALIDITY AND ENFORCEABILITY OF THE EXEMPTION
The procedure for effecting changes to the CAR’s, or for the
introduction of proposed new regulations is governed by Part
11 of
the CAR’s. In its current form that Part is significantly
different to its predecessor. The parties were in agreement,
however, that the provisions of Part 11 which were applicable in
2002 are those contained in the LegislationBundle handed to
the
Court at p29
et seq
.
In terms of the erstwhile Part 11.03.1(1) any interested party could
submit to CARCOM a duly motivated proposal to introduce,
amend or
withdraw a regulation or technical standard. Upon receipt, the
Chairperson of CARCOM was required to publish a proposal
to vary a
regulation in the Government Gazette, call for comments and afford
any other interested persons the opportunity to
respond to the
proposal (Parts 11.0.3.2(1)(a), (2) and (3).)
The proposal was thereafter to be considered by CARCOM which was
required to make an appropriate recommendation to the Commissioner
(Part 11.03.3(2)). If the Commissioner, after considering the
recommendation of CARCOM, was satisfied that giving effect to the
proposal would be in the interests of aviation safety, the proposal
was to be submitted to the Minister for approval. The Minster
then
exercised the power to make the amendment or withdraw, or introduce
a new regulation in terms of sec 22 of the 1962 Act.
(See Part
11.03.4)
In order to have the effect of law, any such ministerial decision
made in terms of Section 22 of the 1962 Act would have to have
been
published in the Government Gazette in terms of Section 16 of the
Interpretation Act, 33 of 1957.
9
It is common cause that this did not take place in respect of the
introduction of Parts 24, 94 and 96 before at least 2008.
Part 11.01.2 (both in the 1997 and 2011 CAR’s) permitted the
Commissioner (now the Director) to publish AIC’s which
contained “
information on technical standards, practices
and procedures which the Commissioner …found to be acceptable
for compliance
with the associated regulation.
”
Part 11.04 of the CAR’s contained detailed provisions to
enable the Commissioner to grant an exemption “
from any
requirement prescribed in the Regulations
” on such
conditions and for such period of time as the Commissioner “
may
determine
”, provided always that the exemption did not
jeopardise aviation safety (Parts 11.04.03(3); 11.04.04(1)). In the
event
that the exemption exceeded a period of 90 days, full
particulars thereof were required to be published in an AIC.
As I have pointed out on15 November 2002 the Commissioner published
an exemption in AIC no. 18.23. The exemption itself is contained
in
para 2 of that AIC and reads as follows:
“
2.
Details
of exemption
The Commissioner for Civil Aviation has granted all operators of
aircraft that do not qualify for the issue of a certificate of
airworthiness, an exemption from the Divisions of Regulation 11.04.6
insofar as the aforementioned regulation authorizes the operation
of
aircraft that are unable to comply with Regulation 21.08.1A, on
condition that the requirements of the Document LS/1, are complied
with.”
The effect of the exemption is then set out in para 3 of the AIC:
“
3. This exemption will
nullify the content of the aforementioned regulation enabling the
Commissioner to withdraw Document LS/1
and impose the requirements
contained in proposed Parts 24, 94 and 96 (and associated technical
standards) as conditions for the
operation of aircraft that do not
qualify for the issue of a certificate of airworthiness (Non-Type
Certificated Aircraft).”
As I have said AIC18.23 is a lengthy, rambling document and I shall
refer only to certain parts thereof in an attempt to give
some
content to the exemption. In para 13 of AIC18.23 the Commissioner
notes that the proposed changes to Parts 24, 94 and 96
were approved
by CARCOM on 27 February 2002. Ordinarily, and given that the
proposed development of these Parts originated from
the
Commissioner, one would have expected that the recommendation of the
publication thereof by the Minister would have followed
without ado.
However, it appears from AIC18.23 that there were problems with the
translation thereof into Zulu and that delays
were inevitable.
As an interim measure, the Commissioner was of the view that the
CARCOM-approved proposals could be given immediate effect by
incorporating them as conditions attached to the exemption contained
in AIC 18.23. The Commissioner was satisfied that there
would be no
compromise of safety standards in the process. Accordingly, the
Commissioner exempted NTCA’s from the requirements
of Part
21.08.1A in relation to certificates of airworthiness on condition
that Parts 24, 94 and 96 were complied with.
It was common cause that the revised part 96, which eventually
legitimized commercial tandum paragliding was only promulgated
in
March 2008. In the interregnum said
Mr. Rosenberg SC
, the old
Part 96.01.1(2), whIch had been promulgated in Government Gazette
No. 23009 of 11 January 2002, and which proscribed
the said
activity, prevailed.
Mr. Bekker SC
on the other hand argued
in favour of legitimacy by virtue of an alleged variation/amendment
to the Part in question by the introduction
of Part 96.01.01(6)
prior to April 2004.
I would also observe, at this stage, that in the written heads of
argument
Mr. Mokoena SC
sought to heap the blame for any
administrative short-comings on the Aero Club which, in terms of its
delegated functions, was
said to have failed to police and enforce a
patently illegitimate operation. His argument makes it clear. There
was no doubt
on the part of the CAA that commercial tandem
paragliding was unlawful in April 2004 and the CAA did not seek to
place any argument
before the Court in support of the legality
thereof.
THE VALIDITY OF PART 96.01.01 (6)
In Government Gazette No. 30908 of 28 March 2008 (under Notice 395
of 2008), CARCOM published for comment various intended amendments
to the CAR’s of 1997. Included in this was the addition of
sub-regulation (6) to Part 96.01.1 which read as follows:
“
(6) For the purpose of
sub-regulation (2), tandem operations with hang gliders, paragliders
or parachutes, even if carried out for
remuneration or reward, shall
not be considered to the providing of an air service as defined in
the Air Services Licensing Act,
1990 or
International Air Services
Act, 1993
nor to be a commercial air transport operation, as defined
in
Part 1
of these Regulations.”
It was common causebetween the parties that sub-regulation (6) did
not form part of the proposed regulations as approved by CARCOM
on
27 February 2002. However, as pointed out above,
Mr. Bekker SC
sought to demonstrate through argument that when the Commissioner
issued AIC18.23 in November 2002, and attached
inter alia
Part 96 as a condition to the exemption so granted, that
sub-regulation (6), was already a part of Part 96.01.1 at that stage
(i.e. October/November 2002).
Mr. Rosenberg SC
disputed this assertion and argued that the
substance of Part 96.01.1, which was incorporated as a condition of
exemption in
November 2002 (effective from 14 October 2002) did not
included sub-regulation (6). The effect of this, said
Mr.
Rosenberg SC
, was that the complete prohibition of commercial
tandem paragliding set out in the proposed Part 96.01.1 (2) of the
CAR’s
formed part of the conditions of exemption.
The dispute as to the inclusion of sub-regulation (6) or not, has to
be resolved at the level of evidentiary proof. For his submission,
Mr. Rosenberg SC
relied on the Government Gazette of 11
January 2002 in which there was no sub-Part (6). This Gazette
contained the proposed regulation
advertised for comment and this
was the proposed regulation approved by CARCOM at its meeting on 27
February 2002, said
Mr. Rosenberg SC
.
Mr. Bekker SC
accepted that SAHPA could not produce a
Government Gazette which incorporated sub-regulation (6) other than
that of 28 March
2008. However, SAHPA sought to rely on secondary
evidence to substantiate its claim in that regard. The evidence of
Ms. Liversedge
was adduced to confirm the minutes of a SAHPA
Committee meeting held on 25 November 2007. Under para 7.1 of those
minutes the
following was recorded:
“
7.1
COMMERCIAL
TANDEM ISSUE
:
The law currently removes the requirement to register in terms of
the air licenses act (
sic
) and the law says that for the
purpose of sub-regulation (2) tandem operations for HG, PG or
parachutes, even if carried out for
remuneration or for reward it
(
sic
) shall not be considered to be the providing of an air
service nor to be a commercial operation.
R. Manzoni believes that it is commercial and does not accept the
exemption that SAHPA has achieved. This was stated in an information
circular, which was passed on 15 November 2002. It is now no longer
illegal. SAHPA”
While Liversedge confirmed the correctness of these minutes, SAHPA
adduced no evidence from any of its committee members to explain
the
minute. Such evidence was in my view necessary to explain the import
of the minutes and the source documentation before the
Committee
which lead to it holding this view. What the minute suggests is that
someone from the Committee had had insight into
a document (possibly
AIC18.23) and, further, that there was a document in existence which
incorporated, some of the contents
of sub-regulation (6) as it was
finally promulgated for comment in March 2008.
The reference in the minute to “
the exemption that SAHPA
has achieved”
suggests that SAHPA may have lobbied the CAA
to effect an exemption incorporating either sub-regulation (6) or
words similar
to those contained therein, as part of the conditions
of exemption. One can therefore infer that SAHPA was in a position
to provide
reliable, first-hand evidence on this score. But in the
absence of evidence from a SAHPA Committee member explaining how
he/she
came to hold the views recorded in para 7.1 of the minutes,
the evidence of Liversedge is, and remains, inadmissible hearsay.
But even assuming that there was a draft copy of sub-regulation (6)
in existence as at 25 November 2007, there is no evidence
to
establish that such draft sub-regulation was included in the
proposed Part 96 which the Commissioner included as part of his
conditions of exemption.
It was open to SAHPA to adduce evidence from a responsible official
from the CAA to explain that the Part 96 which had been approved
by
CARCOM in February 2002 had, by November 2002, been lawfully
augmented to incorporate what was later to become known as Part
96.01.1 (6). It did not adduce any such evidence.
Rather, the Plaintiff presented the evidence of Mr. Cloete, who as
stated above, was employed by the CAA in its NTCA flight operations
division until April 2005. Mr. Cloete was asked to explain certain
issues pertaining to AIC18.23. He was referred to the Government
Gazette of 11 January 2002 and confirmed that the version of Part 96
that was given effect to by way of the exemption in November
2002
was the version contained in the Government Gazette, i.e. with the
exclusion of sub-regulation (6). Mr. Cloete said further
that in
April 2004 his understanding of the position relating to NTCA’s
was as follows:
“
Your Lordship, if you
don’t have a Part 96 license issued by the Department of
Transport and an air operator certificate issued
by the CAA, you
could not operate for remuneration, period…”
When asked by
Mr. Rosenberg SC
whether any air service
operators licence had been issued by the CAA by the time he left in
2005 so as to ligitimise the commercial
operation of tandem
paragliding, the witness answered in the negative. Mr. Cloete
pointed out, too, that an application for such
a licence is a
costly, long and complicated process. One of the factors that the
Air Service Licensing Council would consider
in evaluating such an
application was, he said, the issue of safety which played a major
part in the application.
The cross-examination of this witness by
Mr. Bekker SC
traversed the ultimate inclusion of sub-regulation (6). Cloete was
referred to AIC18.23 and asked to consider the version of
Part 96
published in the Government Gazette of February 2002 with reference
to the extent of the exemption granted by the Commissioner.
When
shown the version of Part 96 which incorporated sub-Part (6) and
asked to comment whether that was included in the exemption
as of
November 2002, the witness gave the following reply:
“
Mr. Bekker
:
Part 96 that was eventually incorporated contained in paragraph sub
(6) as well- - - I don’t know what happened. To be quite
honest, I saw this document for the first time yesterday.
Mr. Bekker
: Yes. As a matter of fact - - - And what
happened to para 6 I don’t know.
Mr. Bekker
: Well, let me put it to you like this and you
can admit it or deny it. Even as at January 2004, even prior to the
accident in question,
the version of Part 96 that was distributed for
comment already had a sub-paragraph 6 in? - - - That is correct.
Mr. Bekker
: Is it correct? - - - Ja. When I said I never
saw it, I never saw the Government Gazette issue of this one. We saw
the part that
was in the blue books. The …(indistinct) Nexus.”
The reference by Mr. Cloete to “
the blue books
”
is evidently a colloquialism in the aviation industry for
Beek’s
loose leaf binders referred to above.
The Court then sought clarity regarding the witness’s answer
on this issue and the following evidence emerged:
“
Court:
Mr. Cloete, do you know when – first of all, are you familiar
with this sub-paragraph (6) of Section whatever it is –
96.01,
which referred to tandem paragliding for reward? - - - Yes, I’ve
seen it, M’Lord. Yes.
Court:
You are familiar with the section?- - - Yes, I’ve
seen it.
Court:
Now, the question is, as I understand it, was that by
15 November 2002 to your knowledge part of Section – Part 96? -
- -
No.
Court:
It wasn’t. Did I perhaps put the wrong date to
the witness? - - - I said November 2002.
Mr. Bekker
:November 2002 is the correct date, M’Lord.
That’s the date of the AIC.
Court
: And the witness says it was not – sub (6) was
not part of it. Was not part of the…Fine - - - It was not
promulgated
at that stage.
Mr. Bekker
: I think His Lordship’s question refers to
this. When the AIC of 15 November 2002 went out, what was then the
current version
or the version of Part 96 that had accompanied that?
Do you know or do you not know? - - - As far as I can remember,
M’Lord,
it was – you’re not allowed to do any
flying for reward.
Mr. Bekker
: No, the important thing is this, Sir. The
question is, when in November 2002 the AIC was sent out, do you know
what version of
the proposed Part 96 was circulated for comment? - -
- Sorry, I can’t give a definite answer on that because I don’t
– I can’t remember.”
Mr. Bekker SC
then referred Cloete to an AIC issued
fortuitously on the date of the accident – 12 April 2004 –
in which there was
reference to “
Regulation 96.06.1 (7)”.
On
the strength of this document,
Mr. Bekker SC
suggested to the
witness that as at that date Part 96.06.1 (6) must have been part of
the regulation because the following regulation
(Part 96.06.1(7))
was part of the CAR’s. This document served only to confuse
the matter further as the following part
of the cross-examination of
Cloete demonstrates:
“
Mr. Bekker:
So
clearly - - - As I have said, it could have been, because at that
stage already there was a lot of work in progress to simplify
the use
of Part 96 and this is exactly what was discussed, if I remember
correctly, at that stage.
Mr. Bekker:
So is your evidence based on what your
personally recollect occurred so many years ago when you were there?
- - - According to this
AIC, Yes.
Mr. Bekker:
You haven’t taken the trouble of finding
out what versions of Part 96 were circulated from time to time and
when and how it
changed, did you?- - - Not personally, yes. No.
Mr. Bekker:
M’Lord, with respect, then it would not
serve a purpose in taking it up with this witness.”
When all is said and done, SAHPA was not able to adduce admissible
evidence (whether by way of documentary or
viva
voce evidence
or cross-examination of Cloete) of the status of the CAR’s,
and in particular Part 96.06.1 thereof, to conclusively
establish
that Sub-Part (6) was included therein when the Commissioner granted
the exemption in AIC18.23.
It would seem that there was probably a document incorporating terms
similar to Sub-Part (6) circulating in November 2002: there
can be
no other reason for the reference thereto in the SAHPA minutes
produced by Liversedge. But that does not establish that
the Part
had been duly amended in terms of Part 11. After all, it would be
required to have been advertised in the Government
Gazette (as was
done in January 2002 with the version which was placed before CARCOM
in February 2002) and thereafter approved
by CARCOM.
SAHPA’s inability to refer the Court to any Government
Gazettes other than those of January 2002 and March 2008 presented
to the Court by the Plaintiff (and it was eventually common cause
that there were no such other Gazettes in existence) is, in
my view,
fatal to SAHPA’s attempts to show that Sub-Part (6) was
incorporated in the Commissioner’s exemption in
AIC18.23. I
must therefore concluded that Sub-Part (6) was not lawfully
operative at the time of the accident and that commercial
tandem
paragliding was therefore still illegal.
While I would have hoped to have been able to say that my finding in
this regard is confirmed by the CAA in light of the concession
made
by
Messrs. Mokoena SC and Legoce
in paras 62 and 66 of the
CAA’s heads of argument, I am reluctant to do so because that
concession is not made against
the background of a detailed analysis
of the interplay between the CAR’s and the AIC’s.
Rather, it was premised on
a reading of certain parts of Manzoni’s
evidence and an understanding of the CAA’s stance at the time
that he was
still part of the SAHPA Committee. Still, we have the
evidence of Cloete, a senior CAA employee at the relevant time, who,
in
the light of the evidence referred to above, seemed to be fairly
confident of the continued illegality of the activity at the time
of
the accident.
EXEMPTION ULTRA VIRES?
Whatever the position may have been as to the status of Part 96.01.1
(6),
Mr. Rosenburg S.C
. submitted that it was not competent
for the Commissioner of Civil Aviation to purport to exempt the
operators of commercial
tandem paragliders from the provisions of
the Air Services Act, by the issuing of an AIC under the 1962
Aviation Act. I am in
agreement with this submission by the
Plaintiff in the alternative for the reasons that follow.
In issuing an AIC the Commissioner exercises a power conferred under
the CAR’s promulgated under the 1962 Aviation Act.
No power is
granted to the Commissioner under the 1962 Act to grant exemptions
under other legislative enact – ments. Similarly,
the powers
granted to the Commissioner under the 1998 Act to administer the
laws referred to in Schedule 1 to the 1998 Act (which
include the
Air Services Act) do not permit the Commissioner to grant exemptions
to commercial operators from the provisions
of the Air Services Act.
The Air Services Act makes it clear that the responsibility for the
issuing of an air service licence (or a “carrier’s
licence” as it is known in the industry) lies with the Air
Service Licencing Council established under the Air Services
Act. As
that Act shows, the prerequisites for the issue of such a licence
are extensive and complex. The room for an exception
from the
provisions of the Air Services Act is extremely limited
10
and will only be considered if the Applicant for exemption wishes to
operate an air service“
on a non-profit basis for purposes
incidental to social welfare, or for purposes of salvage on
humanitarian grounds, or where
the granting of the exception will
assist in saving life”.
Tandem paragliding for reward
clearly does not fall into any of those categories for which an
exemption may be granted.
Finally an exemption from the provisions of the Air Services Act may
only be granted by the Council established under that Act.
No power
was delegated to the Commissioner of Civil Aviation to do so.
Accordingly, the power purportedly exercised by the CAA
under AIC
18.23 to effectively exempt commercial tandem paragliders from the
requirement of holding valid air services licences
under the Air
Services Act was a power which did not vest in the CAA. The
exemption was accordingly
ultra vires
the powers granted to
the CAA in terms of Part 11.04 of the CAR’s and commercial
tandem paragliding remained unlawful.
WRONGFULNESS
The finding that commercial tandem paragliding was illegal in 2004
is, however, far from the end of the matter. The Plaintiff
still
bears the onus of establishing that the conduct of SAHPA and the CAA
was, firstly, wrongful, and then, causally related
to her damages.
As demonstrated above, the Plaintiff’s case in relation to the
former is that SAHPA and the CAA owed her
a duty of care and that
they breached that duty.
Delictual liability arising from a negligent omission has enjoyed
extensive consideration in the last two decades or so as our
courts
have sought to develop the principle, particularly in the
constitutional era
11
.
In
Bakkerud
12
,
Marais JA described these developments as follows:
“
[7] The legal literature
on the wider topic of liability for omissions generally has burgeoned
over the years and has by now reached
formidable proportions. Nothing
short of a doctoral dissertation can do justice to it all. What
follows is a blend of my own observations
and what can be gleaned
from the more recent cases decided in this and other Courts in South
Africa and elsewhere, and from the
preponderance of legal writing in
the text books and journals.”
In a masterful discussion of the topic, Marais JA pointed to various
schools of thought that had emerged in relation to liability
for an
omission.His Lordship attempted to define a workable approach for
the courts thus:
“
[14] Was there a unifying
link in the omissions considered in the cases which would provide a
coherent and intelligibleprincipleby
which to decide whether more
than moralor ethical disapproval was called for or whether a legal
duty to act should be imposed?
It was not always easy to discern
one.In the end, this Court felt driven to conclude that all that can
be said is that moral and
ethical obligations metamorphose into legal
duties when ‘the legal convictions of the community demand that
the omission
ought to be regarded as unlawful’(Minister van
Polisie v Ewels
1975 (3) SA 590
(A)). When it should be adjudged that such a demand
exists cannot be the subject of any general rule; it will depend on
the facts
of the particular case. It is implicit in the proposition
that account must be taken of contemporary community attitudes
towards
particular societal obligations and duties. History has shown
that such attitudes are in a constant state of flux.
[15] While that attempt to devise a workable general principle by
which to determine on which side of the moral/legal divide a duty
to
act falls has not been universally acclaimed, it has been welcomed by
most. Those who welcome it do so because of its inherent
flexibility
and its liberation of Courts from the conceptual strait jacket of a
numerus clausus
of specific instances in which a legal duty to
act can be recognized. Those who do not are distrustful of the scope
it provides
for equating too easily with the convictions of the
community a particular Court’s personal perception of the
strength of
a particular moral or ethical duty’s claim to be
recognized as a legal duty. That is a risk which is not peculiar to
this
particular problem. There are many areas of the law in which
Courts have to make policy choices or choices which entail
identifying
prevailing societal values and applying them. But Courts
are expected to be able to recognize what the difference between a
personal
and possibly idiosyncratic preference as to what the
community’s convictions oughtto be and the actually prevailing
convictions
of the community. Provided that Courts conscientiously
bear the distinction in mind, little, if any, harm is likely to
result.”
(Footnotes otherwise omitted)
In
Van Duivenboden
13
Nugent JA (with whom Howie J, Heher JA and Lewis AJA concurred)
suggested the approach as follows:
“
[12] Negligence, as it is
understood in our law, is not inherently unlawful – it is
unlawful, and thus actionable, only if
it occurs in circumstances
that the law recognises as making it unlawful. Where the negligence
manifests itself in a positive act
that causes physical harm it is
presumed to be unlawful, but that is not so in the case of a
negligent omission. A negligent omission
is unlawful only if it
occurs in circumstances that the law regards as sufficient to give
rise to a legal duty to avoid negligently
causing harm. It is
important to keep that concept quite separate from the concept of
fault. Where the law recognizes the existence
of a legal duty, it
does not follow that an omission will necessarily attract liability –
it will attract liability only
if the omission was also culpable as
determined by the application of the separate test that has
consistently been applied by this
Court in
Kruger
v Coetzee
(1966
(2) SA 428
(A) at 430 E-F) namely whether a reasonable person in the
position of the defendant would not only have foreseen the harm but
would
also have acted to avert it. While the enquiry as to the
existence or otherwise of a legal duty might be conceptually anterior
to the question of fault (for the very enquiry is whether the fault
is capable of being legally recognized), nevertheless, in order
to
avoid conflating these two separate elements of liability, it might
often be helpful to assume that the omission was negligent
when
asking whether, as a matter of legal policy, the omission ought to be
actionable.” (Footnotes otherwise omitted)
In a forceful judgment in
Van Duivenboden
in which he
concurred in the merits of the appeal Marais JA took issue with this
approach of Nugent JA for the majority, suggesting
that the majority
had in fact conflated the two separate elements of liability for an
omission.
The majority (per Nugent JA) contextualized the preferred approach
thus, rooting it in constitutionalism
14
:
“
[19] The reluctance to
impose a liability for omissions is often informed by a
laissez
faire
concept of
liberty that recognizes that individuals are entitled to ‘mind
their own business’ even when they might reasonably
be expected
to avert harm and by the inequality of imposing liability on one
person who fails to act when there are others who
might equally be
faulted. The protection that is afforded by the Bill of Rights to
equality, and to personal freedom, and to privacy
might now bolster
that inhibition against imposing legal duties on private citizens.
However, those barriers are less formidable
where the conduct of a
public authority or a public functionary is in issue, for it is
usually the very business of a public authority
or functionary to
serve the interests of others and its duty to do so will
differentiate it from others who similarly fail to act
to avert harm.
The imposition of legal duties on public authorities and
functionaries is inhibited instead by the percieved utility
of
permitting them the freedom to provide public services without the
chilling effect of the threat of litigation if they happened
to act
negligently and the spectre of limitless liability. That last
consideration ought not to be unduly exaggerated, however,
bearing in
mind that the requirements for establishing negligence and a legally
causative link provide considerable practical scope
for harnessing
liability within acceptable bounds.
[20] But while the utility of allowing public authorities the
freedom to conduct their affairs without the threat of actions for
negligence in the interest of enhancing effective government ought
not to be overlooked, it must also be kept in mind that in the
constitutional dispensation of this country the State (acting through
its appointed officials) is not always free to remain passive.
The
State is obliged in terms of s 7 of the 1996 Constitution not only to
respect but also to ‘protect, promote and fulfill
the rights in
the Bill of Rights and s 2 demands that the obligations imposed by
the Constitution must be fulfilled….While
private citizens
might be entitled to remain passive when the constitutional rights of
other citizens are under threat, and while
there might be no similar
constitutional imperatives in other jurisdictions, in this country
the State has a positive constitutional
duty to act in the protection
of the rights in the Bill of Rights. The very existence of that duty
necessarily implies accountability
and s41(1) furthermore provides
expressly that all spheres of government and all organs of State
within such sphere must provide
government that is not only
effective, transparent and coherent, but also government that is
accountable (which was one of the
principles that was drawn from the
interim Constitution)…
[21] When determining whether the law should recognize the
existence of a legal duty in any particular circumstances what is
called
for is not an intuitive reaction to a collection of arbitrary
factors but rather a balancing against one another of identifiable
norms. When the conduct of the State, as represented by the persons
who perform functions on its behalf, is in conflict with its
constitutional duty to protect rights in the Bill of Rights, in my
view, the norm of accountability must necessarily assume an
important
role in determining whether a legal duty ought to be recognized in
any particular case. The norm of accountability, however,
need not
always translate constitutional duties into private law duties
enforceable by an action for damages, for there will be
cases in
which other appropriate remedies are available for holding the State
to account. Where the conduct in issue relates to
questions of State
policy, or where it affects a broad and indeterminate segment of
society, constitutional accountability might
at times be
appropriately secured through the political process or through one of
the variety of other remedies that the courts
are capable of
granting. No doubt it is for considerations of this nature that the
Canadian jurisprudence in this field differentiates
between matters
of policy and matters that fall within what is called the
‘operational’ sphere of Government, though
the
distinction is not always clear. There are also cases in which
non-judicial remedies, or remedies by way of review and
mandamus
or interdict, allow for accountability in an appropriate form and
that might also provide proper grounds upon which to deny an action
for damages. However,where the State’s failure occurs in
circumstances that offer no effective remedy other than an action
for
damages the norm of accountability will, in my view, ordinarily
demand the recognition of a legal duty unless there are other
considerations affecting the public interest that outweighs that
norm….
[22] Where there is a potential threat of the kind that is now in
issue the constitutionally protected rights to human dignity, to
life
and to security of the person are all placed in peril and the State,
represented by its officials, has a constitutional duty
to protect
them. It might be that in some cases the need for effective
government, or some other constitutional norm or consideration
of
public policy, will outweigh accountability in the process of
balancing the various interests that are to be taken into account
in
determining whether an action should be allowed…but I can see
none that do so in the present circumstances.”
(Foot-notes
omitted)
I intend to approach this matter in the manner suggested by Nugent JA
in
Van Duivenboden.
DUTY OF CARE
The issue that then and firstly falls to be considered is whether
SAHPA and the CAA as a “public functionary” and
a
“public authority” respectively, had a duty of care to
the public in general and the participants in paragliding
activities
in particular, to ensure that the sport was practiced in such a way
that the constitutional rights of those groups
of citizens were
respected and not infringed. Did these bodies demonstrate and meet
the “norm of accountability”
to which Nugent JA referred
in
Van Duivenboden
.In my view, the potential liability of
SAHPA and the CAA on this basis needs to be considered, firstly,
with regard to the statutory
duties imposed on the CAA by virtue of
the extensive statutory framework referred to above, and, then, to
have regard to its
decision to delegate certain of those functions
to the Aero Club, which willingly and contractually accepted such
responsibilities
and, in turn, passed certain of them on to SAHPA,
which also accepted its responsibilities in that regard.
Turning to the CAA, its objects were set out in sec 3 of the 1998
Act:
“
3. The objects of the
Authority are to control and regulate civil aviation in the Republic
and to oversee the functioning and development
of the civil aviation
industry, and, in particular, to control, regulate and promote civil
aviation safety and security.”
In sec 4 of the 1998 Act of the functions of the CAA included the
following:
“
4(1) The functions of the
Authority are to –
administer the laws referred to in sub-section (2);
recommend to the Minister the introduction or amendment of civil
aviation, safety and security legislation;
…
perform any other functions as are conferred on it by or under
any other law;
…
performfunctions incidental to any of the previously mentioned
functions.
(2) The administration of the laws mentioned in Schedule 1, as
amended in accordance with the provisions of the third column
thereof,
is transferred to the Authority.
(3)…
(4) The Authority must perform its functions in a manner
consistent with –
the objects mentioned in sec 3;
…
(5) The Authority must not discriminate unreasonably against or
among various participants or categories of participants in civil
aviation safety and security.”
The laws in Schedule 1 referred to in sec 4(2) include the 1962
Aviation Act and, by implication, the CAR’s promulgated in
terms of sec 22 of the 1962 Aviation Act.
It is clear from the structure of the 1998 Act read in conjunction
with the 1962 Act and,
inter alia
, the CAR’s, that the
ultimate responsibility for the control and enforcement of civil
aviation safety and security in South
Africa vests in the CAA.
Through its various functionaries, including an inspectorate and
licensing office, it is responsible
for the licensing of all
civilian aircraft, the testing, rating and licensing of civilian
pilots and the enforcement of the myriad
safety measures which are
such an integral part of the broader civil aviation sector.
As already stated, the CAAconcluded an agreement with the Aero Club
in 2003 in terms whereof the latter would render certain
services to
the CAA for a period of three years. That agreement records in its
preamble that –
“
A need exists for the
Aero Club to perform the duties and exercise the powers in respect of
the duties and powers set out in clause
3.4 below”,
and
that –
“
The Aero Club possesses
the necessary expertise to perform the duties and to exercise powers
(
sic
)
to perform the functions set out in clause 3.4 below”.
The reference in the Preamble to clause 3.4 appears to be an
erroneous reference since it is clause 3.3 which sets out in quite
some detail the services to be rendered by the Aero Club under the
agreement. Of particular relevance here is clause 3.3.10:
“
3.3.10 The Aero Club
shall be responsible for the issuing of sport aerobatic ratings,
display ratings in accordance with the guidelines
approved by the CAA
and the internal issuing of hang-gliding and paragliding
pilotcertificates.”
In addition, Clause 3.4 provides as follows:
“
3.4 The manner of
oversight by the CAA of the activities listed in para 3.3 performed
on its behalf by the Aero Club shall be set
out in a Manual of
Procedure drafted by the parties. This Manual of Procedure shall form
part of this agreement and will be amended
from time to time as
required and agreed upon by the parties. The CAA shall conduct
oversight inspections and audits regarding
adherence to this
agreement in terms of the Manual of Procedure on a regular basis, but
with intervals not exceeding 3 (three)
months.”
Regarding the delegation of the Aero Club’s functions, the
parties agreed as follows in clause 10:
“
10.
Non-assignment
The Aero Club shall not have the right to assign or transfer any
benefit, right or obligation in terms of this Agreement or any part
thereof to any person, persons or body without the written consent of
the CAA, which consent shall not be withheld unreasonably.
For the
purposes of this clause the various sections of the Aero Club and
their members shall be considered to be the Aero Club.”
As already noted SAHPA is a so-called “section 21 company”
having been incorporated as such in April 1994. In its
Articles of
Association SAHPA’s main business is described,
inter alia
,
as follows:
“
2.1 SAHPA is an
Association incorporated under section 21 acting as the National
Governing and Co-ordinating body for the sports
of Hang-gliding and
Paragliding in South Africa…
2.2 As the South African Representative (under delegation from the
Aero Club of South Africa) of the International Hang-Gliding
Commission (CIVL) the Governing and Co-ordinating Body of World
Hang-gliding and Paragliding, to act for that body within the
Republic
of South Africa on all matters affecting the sport of
Hang-gliding and Paragliding within the Republic.
2.3 To act as the body officially recognized by the South African
Government as the body responsible for Hang-gliding and Paragliding
within the Republic of South African, and to liase with Government
and other authorities where necessary to promote the objects
of
SAHPA.
2.4 To conduct whatever activities may be considered necessary to
further the Main Objective.”
Under clause 3 of its Articles of Association SAHPA’s main
objectives are set out in some detail. They include:
136.1 the administration of hang-gliding and paragliding in South
Africa,
136.2 the diligent pursuit of safe paragliding practices, and
136.3 the promotion of paragliding as a sport in South Africa.
While no evidence was placed before the Court regarding the terms
and conditions of the assignment by the Aero Club of its functions
to SAHPA, the Ops Manual of SAHPA dated December 1992 was. According
to the Ops Manual, authority for the application thereof
was
delegated to the Aero Club by the CAA in terms of “NOTAM AIC
(
sic
) 22.4 of 15 September 1991.” The Ops Manual
further records that SAHPA “
is deputized by the Aero Club
of South African to apply those aspects of the Manual of Procedures
specifically identified.”
It would appear therefore that
the word “
deputise
” was intended to reflect an
assignment by the Aero Club in terms of the aforesaid clause 10 of
the agreement between it
and the CAAof certain functions to SAHPA.
In AIC 22.4 on 15 September 1991 In AIC 22.4 issued on 15 September
1991 the erstwhile Director General of Transport issued the
following Regulation in terms of Regulation 1.6 of the former ANR’s
of 1976. The relevant parts thereof read as follows:
“
2. Aviation is a dynamic
and changing activity which has grown extensively within the RSA.
More than 20 % of all aircraft on the
South African register are used
exclusively for sporting activities i.e. gliders, microlite, amateur
and veteran aircraft. The
realistic procedure is that sporting
bodies, supported by well-founded and orderly structures, control and
regulate themselves.
3. In terms of the above the Commissioner for Civil Aviation (CCA)
has in terms of regulation 1.6 of the Air Navigation Regulations,
1976, as amended, ruled that all sport aviation activities will with
effect from 1 December 1989 until further notice be controlled
and
regulated by the Aero Club of South Africa.
4. This ruling affects model aircraft, hang-gliding, gliding,
microlite aircraft, parachuting and ballooning activities being
practiced
as a sporting activity.
5. The ruling has as effect that no aviation sporting activities
may take place unless it (
sic
) is carried out strictly in
accordance with the procedures of the appropriate manual as approved
by the CCA.
6. The CCA does, however, reserve the right to revoke or amend
this delegation at any time should it be deemed necessary.
Further, as the provisions of the initial delegation (AIC 22.4)
suggest, the control of sport aviation was to be at club level.
In
the case of paragliding, this duty resorted with SAHPA. Notionally,
then, a contravention of the CAR’s by a member of
SAHPA was to
be dealt with by SAHPA in terms of its disciplinary code. It was
SAHPA’s duty to ensure that its members adhered
to the various
provisions of the Ops Manual, including the ANR’s (and later
the CAR’s) and if the members failed
to do so, SAHPA was
required to take disciplinary action under the Ops Manual, which
manual the CAA had sanctioned as part of
the process of ultimate
delegation to SAHPA.
Finally, the introduction to the Ops Manual records that “the
line of authority” in the control of paragliding was
to be as
follows:
●
Firstly
the Commissioner for Civil Aviation,
●
Followed
by the Directorate of Civil Aviation Safety of the National
Department of Transport,
●
Then
the Aero Club, and
●
Finally
SAHPA.
The original Ops Manual is peremptory in regard to the observation
by SAHPA’s members of the ANR’s. When the ANR’s
were later replaced by the CAR’s, a similar obligation arose.
The Ops Manual was revised from time to time and the most
recent
version thereof (revision no. 2.1) was placed before the Court. This
revision was effective from 1 March 2008. Prior to
that revision no.
2 was effective from 1 June 2007. It appears, therefore, that the
original Ops Manual issued in December 1992
was still applicable at
the time of the Plaintiff’s accident. The Ops Manual is a
comprehensive document covering all aspects
of paragliding. These
range from requirements regarding safety equipment, licensing of
pilots, rules of the air, the control
of take-off sites, the
reporting of accidents, the approval of training schools and the
qualification of instructors, disciplinary
procedures and rules
relating to competitive paragliding. It would be fair to say that
the Ops Manual would be regarded by a
paraglider pilot as the
“
Bible”
containing all the “
do’s-and
don’ts
” of the sport. There can be no doubt that
strict compliance with the Ops Manual would be required of every
paragliding
pilot.
As I have remarked, the original version of the Ops Manual required
strict compliance with the ANR’s
15
.
A similar requirement is to be found in Revision nos. 1.2 and 2.1
16
,
notwithstanding the fact that the ANR’s were replaced by the
CAR’s in 1996. Given this substitution the reference
thereto
in the Ops Manuals must be taken to be a reference to the CAR’s.
The failure by a member of SAHPA to observe the
provisions of,
inter
alia
, the ANR’s (and later the CAR’s) would, under
sec 9 of the Ops Manual, set in motion a reporting procedure leading
to potential disciplinary action against such member. Under the
original Ops Manual (applicable in 2004) disciplinary action
was
left up to the SAHPA Committee which was obliged to report the
outcome thereof to the Directorate of Civil Aviation at the
Department of Transport. Under the later Revisions, the applicable
sanctions were more fully described and particular reference
is made
to the suspension of pilots’ licences.
THE EXTENT OF THE DUTY OF CARE
It goes without saying that civil aviation has become an integral
part of daily life for most South Africans. From those who
fly
locally and abroad with scheduled air carriers, to those people who
live in suburbs and in formal settlements close to airports
where
such carriers regularly take off and land, civil aviation safety
and, more particularly, the enforcement thereof by the
relevant
State agencies, is really something which the public has come to
accept as a given. No doubt, the public would want
to be assured
that such aircraft flights were safe, both in respect of aircraft
airworthiness and pilot qualifications. Those
on the ground would
similarly be entitled to assume that living in the vicinity of an
airport or aircraft flight-path is safe
and that they will not be
unnecessarily be exposed to the danger of aircraft accidents or, for
example, of parts falling off
aircraft and injuring those on the
ground or causing damage to their property.
In my view, the position is no different in relation to recreational
or sporting aviation. To revert to the analogy used at the
beginning
of this judgment, those residents who live along the Atlantic
Seaboard in Cape Town would be entitled to assume that
the plethora
of daily helicopter flips which afford well-heeled tourists a
spectacular view of the Peninsula are properly controlled
by the
authorities and that they (the residents) are not exposed to the
risk of such aircraft literally dropping into their gardens.
Similarly, those who take their daily stroll with their dogs in many
of the public spaces below Lion’s Head or Signal Hill
would be
entitled to assume that it is safe to do so and that they are not
likely to be exposed to harm when an errant paraglider
decides (or
is forced) to land in such spaces.
I would hasten to add that the remoteness of such an event occurring
is not too distant. On 10 January 2013 (and during the recess
while
this matter was still being argued) the local media widely reported
(and counsel later confirmed in Court) an aviation
accident in which
a German tourist who had launched his glider from the slopes of
Signal Hill was killed when he crashed into
the perimeter wall of a
house in Bantry Bay (a suburb on the lower slopes of the mountain)
17
. Fortunately, no innocent bystanders were hurt in this accident and
the only damage to property was evidently the wall.
In my view, an organization such as SAHPA, which has formally been
charged with and has assumed the statutory responsibility
of,
inter
alia
, the licensing of hang-glider and paraglider pilots, of
certifying the airworthiness of their aircraft, of establishing and
then
enforcing the relevant safety procedures and requirements
contained in the Ops Manual, owes not only the general public but
also
the participants in the activities a duty of care to ensure
that they are not exposed to any greater harm than participation in
such an activity would ordinarily attract. In other words, as the
statutory controlling body for a potentially dangerous leisure-time
activity, it is duty bound to limit the risk of harm to both the
public and to the participants to the extent that it is able
to do
so.
This proposition may be illustrated by the following examples. As
part of a public awareness campaign to promote the sport, free
tandem paragliding flips are offered by member clubs of SAHPA to the
general public at recognized launch sites. Such tandem flips
are
permissible under the current version of the Ops Manual,
18
and, I pause to mention such free tandem flips have been permissible
since 1992 in terms of the original Ops Manual
19
.
Under the current regime, clause 3.2.4 of the Ops Manual requires
compliance with extensive minimum requirements before a pilot
can be
certified with a “
tandem rating
” to enable such
flips to be undertaken.
Were such free flips to be offered, SAHPA would be duty bound to
ensure that the tandem pilots in fact held the requisite ratings.
More importantly, should it come to SAHPA’s attention that
pilots offering free flips were not properly qualified, it would
be
duty bound to take appropriate steps under the Ops Manual to address
the situation. The failure to take such steps in those
circumstances
would undoubtedly constitute a breach by SAHPA of its duty of care
towards those participating in such tandem flights.
A further example comes to mind. Were to come to the attention of
SAPHA that one of its constitnent club’s take-off sites
was
located in a dangerous place nearby exploring the pilots of
paragliders (and their passengers in the case of ordinary tandem
flights) to potential harm, SAPHA would without doubt be duty from
as to act. Or, should pilots belonging to one of its clubs
persistently land in an area, or in a manner, which would expose the
general public to harm, it would similar be duty bound to
act. The
way in which it would be required to act would depend on the
circumstances at hand.
What then of its duty of care in relation to commercial tandem
paragliding? I have found that as of April 2004 commercial tandem
paragliding was illegal. In such circumstances SAHPA, as the
mandated controlling body for the sport in South Africa, was obliged
to see that the law was enforced. It was obliged to inform its
members of the very illegality of the activity and to take all
reasonable steps within its power to ensure that its members
observed the law. To this end it was empowered to take disciplinary
steps against errant members and ultimately withdraw their licences
or refuse to renew same.
To the extent that there were pilots who were in breach of the law
and were running illegal commercial tandem operations, and
to the
extent that SAHPA was aware thereof, in my view it was obliged not
only to take the requisite disciplinary steps against
such members
but it was also required to bring this state of affairs to the
attention of the public who might embark on flights
with such
illegal operators.This duty would, in the interest of general
aviation safety, apply regardless of whether such pilots
were
members of SAHPA or not. Further, to the extent that such commercial
flying constituted a criminal offence, SAHPA was duty
bound to
report contraventions to the CAA and to the S.A. Police for the
consideration of criminal prosecution. Ultimately, if
these avenues
of reporting were unsuccessful, SAHPA could have approached the
Courts for appropriate interdictory relief.
SAHPA owed this duty of care principally to the passengers on such
commercial tandem flightswho were being exposed to participation
in
a recreational activity that was not only inherently risky and
dangerous but was ultimately illegal. It also owed that duty
of care
to the general public for the reasons referred to earlier and to its
members who were in breach of the law.
As to the foreseeability of a calamity of the kind which befell the
Plaintiff one need only to have regard to the prophetic warning
issued to SAHPA by Ms Vicky Buxton of the CAA in an email in 2000 to
the following effect:
“
Thank you very much for
copying your emails to me…I sincerely appreciate your efforts
to stop these illegal activities [i.e.
commercial tandem
paragliding].
I think it is vital to work as quickly as possible towards a
commercial licence – as you rightly point out a tandem accident
will cause huge ructions and problems with insurance etc. It may be
worth pointing out that in certain countries if a pilot is
found to
be not appropriately licenced to train/fly he can be charged with
culpable homicide!
And in March 2001 in response to a generally circulated comment by
Manzoni about the damages of “the frenzy of commercial
tandem
activity” which he had recently witnessed on Lion’s
Head, Mr. Tony Gibson of SAHPA was chillingly close to
the truth
when he issued the following words of caution:
“
Tandem flying should
remain non-commercial or we are going to end up in some legal battles
from injured passengers. Especially if
they start to investigate the
fact that the flight was not to be charged for in our country”.
BREACH OF THE DUTY OF CARE
In my view SAHPA failed hopelessly to discharge this duty of care in
the present case. The evidence conclusively established
that the
SAHPA Committee initially held the firm view that commercial tandem
paragliding was unlawful. Minutes of its meetings
during the period
1998 to 2000 reflect an unequivocal stance in this regard at first,
but a decidedly ambivalent attitude later.I
will .just a few
examples.
On 23 February 1998 the erstwhile chairperson of SAHPA, Mr. Hunter,
wrote to his fellow committee members in the following forthright
terms:
“●
Regardless of the
statement made by Dennis Judd of CAA, we believe that we are entitled
to
license and instruct
for reward, according to our current operations and procedures
manual, which was approved by the Commissioner of CAA several years
ago. Until such time as SAHPA receives official notification to the
contrary we will disregard this unofficial comment.
●
This notwithstanding it
would appear that we are
at variance with the Air
Services Act
and Mr.
Judd is recommending to his superiors that we are offering services
for reward without first having obtained the proper
licensing and
permits from the Department of Transport, and that it should be
stopped until such time as we comply with the law.
you f pd with a SAHPA icense is no way e
this practice.
●
The association would like to inform you that the
carrying of passengers for reward ith a SAHPA licence is illegal and
we in no
way condone this practice.
In order to
comply with the legal requirements for carrying passengers for
reward you are
required to obtain a Carriers
Licence from CAA
.
Unfortunately this has not been done before for paragliding and CAA
have not yet drawn up the requirements necessary.
●
We do not believe the
practice of tandem flying passengers under the pretext of carrying
out demonstration flights for instruction
purposes as legal and
would
advise you to stop this practice
until
this can be clarified.” (Emphasis added)
This letter followed a meeting between SAHPA members and
representatives of the CAA (including Mr. Dennis Judd) who held the
view
that commercial tandem paragliding was unlawful and who told
SAHPA this in no uncertain terms.
In a letter to the Aero Club dated 10 January 1999 Mr. Manzoni
expressed concern about the “
frenzy of flips
” in
Cape Town over the previous Christmas season of 1998/1999 and
reiterated his and the CAA’s view of the illegality
of
commercial tandem paragliding:
“
As I understood things,
Mr. Judd and Mr. Hattingh made the law quite clear. The commercial
tandem enterprise contravened the law
and was instructed to cease its
activities. The lack of any follow-up written statement from the Aero
Club or CAA is used as reason
enough to continue as before…”
The counter view regarding the legality of commercial tandem flights
enjoyed some support amongst SAHPA members, but these appear
to have
been in the minority.Nevertheless, the SAHPA Committee seems to have
been concerned about establishing a legal framework
for the
operation of commercial tandem flights. So, for example, on 24
October 2000 Mr. Manzoni said the following to his fellow
committee
members in a document which was also copied to the CAA:
“
I am about to approach
the CAA with a proposal that we investigate the possibilities of a
commercial licence structure for hang-gliding
and paragliding.
I have some idea of the framework within which this is likely to
be possible, but since the approach will be on behalf of SAHPA,
and
considering that I do not fly commercially, I need some input from
those who have more experience in this area.
What I would like to see is a setting of standards which are
considered sensible and safe. These would dictate the type of
experience
which would qualify a pilot to undertake training, as well
as the structure of the actual training program and the method and
standard
of the examination (both practical and theory).
We would also need to define the various types of commercial
activities envisaged.”
It appears that those in favour of commercial tandem paragliding
eventually held sway and people like Manzoni were openly castigated
for their unpopular views and treated like pariahs. Ultimately,
Manzoni resigned from the SAHPA Committee in 2002 bemoaning the
fact
that commercial tandem paragliding was on the increase despite the
very illegality thereof.
The views of the “
pro commercial
” lobby in SAHPA
(some of whom accused Manzoni of launching a “
cancerous
attack
” on SAHPA) reflected a somewhat superficial and
self-serving interpretation of the relevant legislation and the
CAR’s.
The following crude remarks by Mr. Anthony Allan
20
in March 2001 are illustrative thereof:
“
The flip side of the
anti-commercial ops flying argument is this: The pilot who makes a
living out of commercial tandem paragliding
cannot
afford to crash and injure himself or pax and therefore will not fly
in “questionable conditions”.
What many of the
finger-pointers overlook is the fact that these commercial operators
are out there on the slopes EVERY DAY and
know the conditions far
better than the tongue waggers who choose to sit back and knit-pick
(
sic
).
The entire issue can easily be resolved if the paragliding end of
the equation could work together. Every time CAA gets dragged into
this argument it irritates them a little more and eventually the big
bear will get pissed off by the quizzy little mosquito and
SWAT it –
hey ho – end of commercial tandem ops.
Been there, done that, got the T-shirt. Carry on flying guys, but
tailor the law to suit US. Quit the in-fighting, because all it
will
do is DISADVANTAGE the bigger picture of paragliding.”
Ultimately, the interpretation placed on the status of the purported
amendment toPart 96 of the CAR’s in AIC18.23 and the
addition
of sub-paragraph 6 thereof in November 2002, was viewed by many as a
vindication of the commercial tandem paragliding
lobby and the
practice blossomed thereafter.
The on-going accusations and counter-accusations between Manzoni on
the one hand and the SAHPA Committee and its officials on
the other
hand (which are fully documented in the various letter and emails
placed before the Court) demonstrate that SAHPA was
fully aware of
the claims of its flagrant disregard of its own roules (the Ops
Manual), the legislation and the CAR’s by
various of its
members (including the First Defendant). The list of various
incidents to which Manzoni referred both in his evidence
before
Court and in this correspondence, demonstrates a failure by SAHPA to
take steps to enforce its own rules and the provisions
of the
relevant legislation and regulatory framework governing paragliding.
Ultimately, I am of the view that the breach of the
duty of care by
SAHPA was not seriously disputedin argument by
Mr. Bekker SC
:
his acceptance of such breach was, of course predicated on a finding
by the Court that commercial tendem paragliding was unlawful
in
2004. I am satisfied in the circumstances, that SAHPA’s
omission was wrongful.
THE LIABILITY OF THE CAA
As indicated earlier in this judgment, the Plaintiff’s case
against the CAA is advanced upon essentially the same basis
as her
claim against SAHPA viz. that the CAA bears the statutory
responsibility to control and regulate civil aviation in South
Africa, and to control regulate and promote civil aviation
safety
in the Republic. It was argued that the evidence showed that the CAA
was aware (over a protracted period of time) of allegations
of
illegal paragliding activities in the form of commercial tandem
flights, and that it took no steps to address this, either
by
implementing the existing framework, or preventing such activities
in the general interests of aviation safety.
The argument was further that the Plaintiff, as an unsuspecting
passenger, required the State’s protection from exposure
to
undertaking a commercial tandem flight with a pilot who did not have
the requisite licence to undertake such a flight, and
who did so
flying in the face of clear provisions to the contrary. Had the CAA
applied the relevant legislativeprovisions properly,
it was argued
that it was probable that the flight in question would not have
taken place. It was accordingly contended that
the CAA, as an organ
of State responsible for ensuring aviation safety, was in breach of
a duty owed to the Plaintiff.
The argument advanced on behalf of the CAA unfortunatey did not
address these points in any particular detail. It was suggested,
firstly, that paragliding was under the control of the Aero Club
and, ultimately, SAHPA. The argument seems to be that, having
divested itself of its statutory duty to promote civil aviation
safety by delegating such power to the Aero Club (and then SAHPA),
the CAA is off the hook, as it were. I regret to say that the issue
is not as simple as that as I shall attempt to demonstrate
shortly.
Then, in reliance on the evidence of,
inter alia,
Manzoni,
the CAA suggested that there was no credible evidence which
demonstrated that it owed a duty of care to the Plaintiff
or, that
it acted negligently or that any such negligence was causally
connected to the Plaintiff’s damages.
Somewhat surprisingly, through what appears to be a superficial
assessment of the relevant legislation, the CAA sugggsts that
a
paraglider is
not
an aircraft – though it does not say
what it is.
In a brief concluding submission made in their heads of argument on
behalf of the CAA counsel touched on the provisions of sec.
19 of
the 1998 Act and sec 20 of the Aviation Act, 1962. In its plea, the
CAA had relied on sec. 19 as exempting it from liability
for the
Plaintiff’s damages
21
.
No reliance was placed in the plea on sec. 20 of the Aviation Act
22
.
I shall dispose of the statutory exemption points immediately.
Firstly, as I have already said, reliance on secs. 20(a) and (b)
of
the Aviation Act was not pleaded by the CAA and it is strictly not
permitted to raise the point in argument. But, to the extent
that it
now seeks to rely on the provisions of a statute, it will be seen
that the section in question relates, firstly, to “
any
aircraft owned, operated or chartered by the State”.
That
situation does not obtain
in casu,
where the paragliders are
privately owned and operated. Secondly, the provisions of sec. 20(b)
relate to the conveyance of goods.
That situation is not applicable
either in the present case.
As far as the exception afforded to the CAA by sec. 19 of the 1998
Act is concerned, it will be observed that in order to enjoy
the
protection of that section, the CAA must establish that it acted in
good faith in failing to discharge its duty to the Plaintiff.
The
CAA presented no evidence in an endeavour to bring itself within the
ambit of the section, nor did it refer in argument before
the Court
to any facts which it suggested should be considered so as to afford
the CAA protection under the section. Simply put,
the CAA has
advanced no evidence, nor argument to bring itself within the
purview of sec. 19 of the CAA Act, and no reliance
can therefore be
placed by the CAA on the statutory exemption afforded by the
section.
I return to the question of statutory responsibility. In the heads
of argument filed on behalf of the CAA its counsel sought
to
distinguish its functions and duties thus:
“
88. Lastly, the Fifth
Defendant is a creature of statute and cannot perform any functions
beyond what is prescribed in the statute
that established it and
those which it administers. Nowhere in the various (
sic
)
legislative framework describing the functions of the Fifth Defendant
is the Fifth Defendant given an obligation to “ensure”
safety. The Fifth Defendant “promotes” and “controls”
civil aviation safety. This is different to “ensure”.
The
functions of the fifth defendant do not include the “policing”
or “prevention” of illegal activities.
This distinction
clearly appears in the
Carmichele
case which the plaintiff seeks to rely on”.
The submission is striking at two levels. Firstly, there is the
issue of the CAA’s duties to “
police
” or
“
prevent
” illegal aviation activities. I believe
the point is effectively answered by referring the CAA to its own
concerted efforts
over a number of years to stop what it considered
to be an unlawful commercial helicopter business operated at the V
and A Waterfront
in Cape Town. The activity involved the use for
leisure flips of the iconic “
Huey
” helicopter
which had been operated by the US Army in the Vietnam war. A local
businessman, Mr. Gary van der Merwe, had
sought to offer the public
flights in this aircraft by forming a club which persons could join.
The CAA regarded this as an attempt
to circumvent the provisions of
Parts 24, 94 and 96 of the CAR’s, and took positive steps to
ground Van der Merwe’s
aircraft. The on-going battle between
the parties is recorded in a number of cases in this Court and the
Supreme Court of Appeal
23
.
In the first of those cases (the
Huey Extreme Club
matter), a
dispute had arisen between the parties as to their airworthiness of
the helicopter in question. In opposing an application
which sought
to set aside the groundingof the aircraft, the CAA filed an
answering affidavit by its Manager: Leagal Services
which concluded
with the following statement:
“
I humbly submit that to
uplift the grounding of the helicopter without establishing the
airworthiness status will compromise aviation
safety and could
endanger the lives of both the operators (
sic
)
personnel and passengers.”
24
Quite clearly the function of the CAA then was intended to prevent
an illegal activity which could expose innocent members of
the
public to harm: an activity which they no doubthad reason to believe
was lawful given the very public manner in which it
was being
operated. To my mind the situation was no different in relation to
the question of commercial tandem paragliding and
I am of the view
that the argument advanced by the CAA which I have set out above is
really semantic in nature and no more.
Secondly, the purported reliance in argument by counsel on para 43
of
Carmichele
25
does not assist the CAA either. The ultimate responsibility for the
enforcement of the Aviation Act and the CAR’s lay,
at all
material times, with the CAA. This responsibility was prescribed
statutorily. In
Carmichele
, Harms JA discussed the role of
the State generally in matters such as these.
“
[43] Did the State owe a
duty to the plaintiff? The answer lies in the recognition of the
general norm of accountability: the State
is liable for the failure
to perform the duties imposed upon it by the Constitution unless it
can be shown that there is compelling
reason to deviate from that
norm.”
Applying that approach to the facts at hand, the situation arises
where the CAA, a statutory body and therefore an organ of State,
is
vested with the statutory responsibility to take reasonable steps to
ensure the safety of all potential commercial air passengers.
By
virtue of the definitions already referred to earlier this would
include the Plaintiff.
The evidence placed before the Court shows unequivocally that as far
back as about 1998, the CAA knew that commercial tandem
paragliding
was rife and, as the email from Buxton referred to earlier shows, it
was aware of the potential danger that it posed
to passengers.But,
despite warnings issued from time to time by certain of its
officials regarding these activities, no positive
steps were taken
by the CAA to put an end thereto. And, it must immediately be said,
those steps were relatively simple and readily
available to the CAA.
It could have withdrawn the offending pilots’ licences,
refused to issue or renew licences, and it
could have taken steps to
inform members of the public by way of a general publicity campaign,
of the very illegality of the
activity. Furthermore, it was
empowered to effect the withdrawal of the authority conferred on
SAHPA to regulate and control
paragliding.
In my view, the legal convictions of the community in which we live
demand that the failure by the CAA to take such reasonable
steps to
prevent the occurrence of an illegal activity such as commercial
tandem paragliding, of which it was manifestly aware,
and which
illegal activitycould, and ultimately did, result in serious injury
to an unsuspecting member of the public, should
be considered to be
unlawful.
The fact that the CAA had delegated the regulation and control of
paragliding ultimately to SAHPA is to my mind neither here
nor
there. The CAA has admitted in the pleadings that it bears the
statutory responsibility to control and regulate civil aviation
in
South Africa, and in particular, civil aviation safety. The denial
in its plea that its failure to ensure that commercial
tandem
paragliding flights did not take place “
did not fall within
[its] statutory functions and duties
” is therefore not
sustainable.
The statutory duties described in the 1998 Act are primarily the
responsibility of the CAA. Its decision to contractually delegate
certain of those functions to the Aero Club and then to sanction
further delegation on to SAHPA does not relieve the CAA of its
statutory obligations. None of the parties contended that the
delegation of control ultimately to SAHPA fell foul of the
provisions
of sec. 238 of the Constitution, 1996, nor was the point
dealt with in argument.
The legal basis for delegation of control was to be found in the
provisions of Part 149 of the CAR’s. Both
Mr. Rosenberg SC
and
Mr. Bekker SC
were in agreement on this point. Part
149.01.2 permits the Commissioner of the CAA to designate a body or
institution to establish
safety standards relating to aviation
recreation, and to carry out a range of related functions. Part
149.02.1 provides that
no organization shall undertake aviation
recreation except under the authority of, and in accordance with,
the provisions of,
an aviation recreation organization approval
issued under sub-part (2) of Part 149.
The evidence establishes, not that there has been a designation of a
body or institution by the Commissioner purporting to act
in terms
of Part 149.01.2(1), but rather an alternative method of designation
to the Aero Club in terms of a contractual arrangement,
the
Memorandum of Understanding of 2001.
But the CAA’s duties and responsibilities are prescribed
statutorily – in the present case by virtue of the 1998
Act –
and there is nothing in that Act which suggests that these statutory
duties and responsibilities can be delegated
by the CAA to any other
party, thereby relieving itself of its statutory tasks and
functions. The limited power of delegation
under Part 149 must be
construed against this statutory backdrop. In my view the general
norm of accountability referred to earlier
in
Carmichele
prevails above all else. The CAA knew of the fact that commercial
tandem paragliding was rife and it knew of the potentially
disarstrous consequences of an accident. It is the primary agency of
the State charged with responsibility for aviation safety
andit
cannot be absolved from such responsibility because it has chosen to
delegate control of civil aviation safety in respect
of paragliders
to SAHPA. This argument applies all the more where the CAA had
direct knowledge that SAHPA was acting in breach
of the CAR’s
and did nothing to address the situation.
In those circumstances the legal convictions of the community,
knowing that a failure by the CAA to take reasonable steps could
have far reaching consequences for an unsuspecting member of the
public given the nature of the activityinvolved, would without
doubt
regard such failure as unlawful. I conclude therefore that the CAA’s
omission, like SAHPA’s, was unlawful.
It is perhaps appropriate at this juncture to deal with a further
submission made by
Mr. Rosenberg SC
when arguing the
ultra
vires
point dealt with above. The argument was that in the
absence of an exemption properly granted under the Air Services Act
tandem
paragliding for reward without a commercial operating licence
remained unlawful and that that was the position even today.
While there is much to be said for this submission in the light of
the findings made in this judgment, it is notnecessary nor
appropriate to finally pronounce upon the point. The Court was not
asked to deal with the issue, for example, by delivering a
declaratory order. Furthermore, there may be other parties who have
an interest in such an order who have not been heard, and
it is also
possible that SAHPA may have wished to make further submissions on
the point.
I will accordingly leave the matter there, save to say that the
respective duties of care of SAHPA and the CAA have been dealt
with
above and those parties now know what they have to do, and how they
need to conduct their affairs, in order to discharge
those duties of
care. I have little doubt that as responsible bodies they will
ensure that no further harm is caused to unsuspecting
commercial
paragliding passengers.
CAUSATION
As with the duty of care, much has been said and written in recent
times about causation. As the Constitutional Court recently
said in
Lee
26
:
“
[38] The point of
departure is to have clarity on what causation is. This element of
liability gives rise to two distinct enquiries.
The first is a
factual enquiry into whether the negligent act or omission caused the
harm giving rise to the claim. If it did not,
then that is the end of
the matter. If it did, the second enquiry, a juridical problem,
arises. The question is then whether the
negligent act or omission is
linked to the harm sufficiently closely or directly for legal
liability to ensue or whether the harm
is too remote. This is termed
legal causation.”
After a detailed analysis of the relevant case law and the most
recent academic writings, Nkabinde J endorsed the
sine qua non
theory to causation formulated by Corbett CJ in
International
Shipping
27
:
“…
[I]n the law of
delict causation involves two distinct enquiries. The first is a
factual one and relates to the question as to whether
the defendant’s
wrongful act was a cause of the plaintiff’s loss. This has been
referred to as “factual causation”.
The enquiry as to
factual causation is generally conducted by applying the so-called
“but-for” test, which is designed
to determine whether a
postulated cause can be identified as a
causa
sine qua non
of
the loss in question. In order to apply this test one must make a
hypothetical enquiry as to what probably would have happened
but for
the wrongful conduct of the defendant. This enquiry may involve the
mental elimination of the wrongful conduct and the
substitution of a
hypothetical course of lawful conduct and the posing of the question
as to whether upon such an hypothesis plaintiff’s
loss would
have ensued or not. If it would in any event have ensued, then the
wrongful conduct was not a cause of the plaintiff’s
loss;
aliter
,
if it would not so have ensued. If the wrongful act is shown in this
way to be a
cause
sine qua non
of
the loss it does not necessarily result in legal liability. The
second enquiry then arises viz. whether the wrongful act is
linked
sufficiently closely or directly to the loss for legal liability to
ensue or whether, as it is said, the loss is too remote.
This is
basically a juridical problem in the solution of which considerations
of public policy may play a part. This is sometimes
called “legal
causation”.”
The Constitutional Court went on in
Lee
to emphasize that our
law does not require an inflexible application of a substitution
exercise in the application of the “but-four”
test: a
flexible and commonsense approach should be adopted. The Court does
not require of a plaintiff to establish the necessary
causal link
with certainty, but rather to establish that the wrongful conduct
was a probable cause of the loss. This calls for
a sensible
retrospective analysis of what would probably have occurred, due
regard being had to the facts of the case and what
one would expect
of people in the ordinary course of human affairs.
So, one must ask onesself, would commercial tandem paragliding
opportunities have been available to the general public during
the
Easter weekend of 2004 had SAHPA and the CAA done what was expected
of them: to have taken relatively straight-forward and
inexpensive
steps to put a stop to what was known to be an illegal activity?
In this regard, what would have been required of SAHPA was to issue
a firm and unequivocal directive to its members by way of
its
regular electronic newsletter that the activity was proscribed, and
that pilots who continued to participate therein would
lose their
ratings. Further steps would have been to withdraw permission to
non-compliant pilots to use SAHPA’s affiliated
clubs’
launch sites. And, one could also contemplate a publicity drive to
bring the situation to the attention of an unsuspecting
public.
As for the CAA, it employs an inspectorate with fairly wide powers,
as one sees in the decision of the Court
a quo
in the
V
and A Waterfront Properties
case
supra
. Indeed, the names
of certain of the personnel mentioned in that case (Messrs Broberg
and Cloete) also cropped up in this matter.
It was never suggested
by the CAA in this case that enforcement of the legislation would
have presented any realistic or insurmountable
problems. And rightly
so – it can hardly be alleged that the CAA lacked the legal
teeth, or the necessary manpower to bring
commercial tandem
paragliding to a halt. Further, our courts must assume that law
enforcement through the usual methods such
as the grounding of
aircraft, criminal prosecution of offenders and even interdicting
such conduct, if necessary, would have
had the desired effect.
I am therefore satisfied that the Plaintiff has established, on a
balance of probabilities, that the failure by SAHPA and the
CAA to
enforce the statutory regimé and to stop the unlawful
activity in question has been shown to be causally connected
(in the
sense that Corbett CJ in
International Shipping
spoke of
“
factual causation
”) to her injuries. In any
event, the issue was ultimately not seriously challenged in argument
by
Messrs Bekker SC and Mokoena SC
– for good reason.
Common sense tells one that had these two bodies taken the necessary
steps to stop the activity, the
opportunity for the Plaintiff’s
“
walk on the wild side
” would simply not have
arisen.
Turning to the second leg of the causation enquiry(the so-called
“
legal causation”
), the Court’s task
touches on,
inter alia
, considerations of public policy. In
International Shipping
28
Corbett CJ referred to the following passage from
Fleming
29
as a useful summary in that regard:
“
The second problem
involves the question whether, or to what extent,the defendant should
have to answer for the consequences which
his conduct has actually
helped to produce. As a matter of practical politics, some limitation
must be placed upon legal responsibility,
because the consequences of
an act theoretically stretch into infinity. There must be a
reasonable connection between the harm
threatened and the harm done.
This inquiry, unlike the first, presents a much larger area of choice
in which legal policy and accepted
valued judgments must be the final
arbiter of what balance to strike between the claim to full
reparation for the loss suffered
by an innocent victim of another’s
culpable conduct and the excessive burden that would be imposed on
human activity if a
wrongdoer were held to answer for all the
consequences of his default.”
In my view, an organ of State such as the CAA will be held strictly
to account for the failure to adequately discharge its statutory
functions. The proper control of all forms of aviation activities is
absolutely essential in a world where aviation has become
an
integral part of daily life: from commercial and cargo carriage to
private conveyance and leisure – time activities.
And, it is
important to bear in mind that the purpose of such control is to
ensure not only the safety of those being conveyed
on an aircraft,
but also those ordinary people on the ground, many of whom still
gaze up in wonderment as a huge passenger aircraft
thunders overhead
on its way to some distant destination.
DISCURSUS
– VOLENTI NON FIT INIURIA
In the context of considering legal causation, it is necessary to
touch on a defence to the claim raised by both SAHPA and the
CAA.
This was the application of the Roman law maxim
volenti non fit
iniuria
30
which is generally, and loosely, referred to as “
the
voluntary assumption of risk
”.
As
Burchell
31
points out, there are really two defences raised when the maxim is
resorted to by a defendant. The first is consent, in the sense
that
a plaintiff consented to intentional infliction of harm upon
herself. The second is the knowledge and appreciation of the
risk
inherent in the activity involved and the agreement to run that
risk.
It seems to me that the Plaintiff’s decision to “
take
a walk on the wild side
”, was taken with the full
appreciation that she was embarking on a potentially dangerous
activity: to her it was potentially
“
wild
”. And,
there can be no doubt that running off a slope on the side of a
mountain as a means of launching onesself into manned
flight is
inherently dangerous. To that end the participants wear protective
gear such as crash helmets and flying suits to limit
injury, and
attempt to minimize the risk by choosing optimal weather conditions,
or by declining to fly when the weather is adverse
or unpredictable.
In this case, in seeking to establish this ground of justification,
SAHPA and the CAA bore the onus of establishing the
volenti
defences pleaded.
32
Neither of these parties adduced any evidence on the point in the
attempt to discharge the onus of proof but relied rather on
cross-examination of the Plaintiff (which in any event was limited),
and the general circumstances surrounding the case.
In
Vorster
, which remains the leading case in our law on the
defence of
volenti
, Ogilvie Thompson CJ observed that while
the dividing line between a
volenti
defence and contributory
negligence may sometimes be blurred, the relevant criteria to
establish the former as a defence are
radically different from the
latter. The touchstone for such proof was “
knowledge,
appreciation and consent
” on the part of the party alleged
to have consented. In defining the approach to be adopted the Chief
Justice said the
following
33
:
“
The Court must, in my
view, thus perforce resort first to an objective assessment of the
relevant facts in order to determine what,
in the premises, may
fairly be said to have been the inherent risks of the particular
hazardous activity under consideration. Thereafter
the Court must
proceed to make a factual finding upon the vital question as to
whether or not the claimant must, despite his probable
protestations
to the contrary, have foreseen the particular risk which later
eventuated and caused his injuries, and is accordingly
to be held to
have consented thereto. The foregoing appears to me to afford a
practical method of dealing with what is admittedly
a somewhat
difficult problem, to be in general conformity withour decisions
insofar as they touch this point…”.
In the instant case the
volenti
defence is of course taken,
not by the person who was responsible for the paragliding flight in
which the Plaintiff was injured,
but by a party distant to the event
itself. The riposte by SAHPA and the CAA is really “
you
have no claim against me arising from a breach of my statutory
duty/duty of care because you accepted the risk of injury to
yourself when you agreed to fly with De Villiers
”.
Applying the approach advocated in
Vorster
, the important
criterion which must be put into the equation is knowledge on the
part of the Plaintiff that the activity itself
was unlawful –
it is only when that is factored in that one can consider whether
the Plaintiff participated in the activity
with the full knowledge
of the risks attendant upon the flight. The Plaintiff’s
evidence before the Court that she would
not have flown with De
Villiers had she known that the activity was illegal does not really
help one: it is a subjective state
of mind and indeed, one would not
have expected an answer to the contrary.
One must rather establishwhether the Plaintiff is likely to have
consented to the risk from an objective assessment of the facts
of
the case. Notwithstanding her frank admission to enjoying a bit of a
thrill (“
a walk on the wild side”
), I have little
doubt, having seen the Plaintiff testify, that she would not have
participated had she been told that tandem
flying for reward was
prohibited. As her professional qualification suggests, the
Plaintiff is an intelligent person. She was
a woman in her mid 30’s
who had not come to South Africa with the express intention of
partaking in paragliding or other
forms of adventure sport -she was
expecting to be flown over the Atlantic Seaboard for a short flight
to view the Waterfront
from the air.One was left with the impression
that the Plaintiff is not what is sometimes referred to colloquially
as “
an adrenaline junkie
” – a phrase which
I understand to refer to a person who has a predisposition to
engaging in adventure sports and
similar activities. In fact she
struck me as someone who is of a somewhat retiring disposition.
I would think that had the Plaintiff been told of the true situation
she would most probably have declined the offer. She appears
to be
the sort of person who would abide by the law rather than contravene
it. In saying this I must bear in mind also that the
Plaintiff was
in a foreign land and would most likely not have had knowledge of
the consequences of participating in an illegal
activity. That
factor, too, was likely to have influenced her decision not to
participate.
However, in my view it is not necessary to conclusively decide this
point at the level of evidentiary burden since I am of the
view that
it is inimical to our law that the
volenti
defence may be
raised where the activity “
consented to
” is
proscribed by statute. The following hypothetical example springs to
mind. The relevant authority is aware that a helicopter
used for
recreational flips is not airworthy due to a technical defect. This
notwithstanding, the helicopter is not grounded
and is permitted to
fly. When the helicopter crashes as a result of the aforesaid
defect, a claim is brought by an injured passenger
against the
responsible authority based on the breach of its duty of care to the
passenger and its failure to prohibit the aircraft
from flying.
To permit the authority to raise the
volenti
defence in such
circumstances would be to recognize and to legitimize the otherwise
unlawful conduct of a statutory body. Such
an approach seems to me
to be
contra bonos mores
in a constitutional dispensation
demanding a high degree of transparency and accountability on the
part of its public administration
in general, and organs of State in
particular. In this regard I am mindful of the provisions of,
inter
alia
, secs 40, 41 and 195 of the Constitution and the fact that
public policy is now “
deeply rooted in our Constitution and
the values that underlie it”.
34
The approach in English law for more than a century has been that it
is not open to a party who acted in breach of a statutory
duty, to
escape liability by relying on the
volenti
principle.
35
The decision of the House of Lords in the
ICI
case has been
cited with approval in four cases in our country
36
,
all of them in relation to the question of vicarious liability in
the employment environment. It is true that the four English
cases
to which I have referred also arose in the employment situation (or
contract of “
master and servant”
as it was then
known) and dealt with a similar theme
viz
. the employer
requiring the employee to undertake a task that was forbidden by
statute or regulation, the employee being injured
in the process and
the employer disavowoing liability on the basis of the
volenti
maxim.
The courts in England consistently refused the employer the right to
rely on the
volenti
defence in those circumstances.
While the English approach to the defence of
volenti
when
there was a statutory breach at play arose out of a contractual
relationship between the litigating parties, it was recognized
generally in South Africa by
McKerron
37
in the leading text book on delict:
…
(A)ccording to the
generally accepted view, the maxim cannot be set up as a defence to
an action based on the breach of a statutory
duty. The duty, it is
said, is imposed by the legislature and its existence cannot
therefore be affected by the conduct of the
injured party. But it is
arguable – in our law, at least any rate, if not in English Law
– that if the injured party
not only knew of the danger but
also knew of his statutory right to protection, and nevertheless
dispensed with the performance
of the duty, he cannot subsequently
complain of its breach. See
Morrison
v Anglo Deep G.M. Ltd
1905 TS 775
at 781; Wheeler v New Mertin Board
Mills Ltd
,
supra.
”
I am of the respectful view that this approach is still applicable
several decades later, particularly in light of the constitutional
imperatives in relation to public administration set out in sec 195
of the Constitution.
38
It is, in my mind, accordingly contrary to public policy to
postulate a situation where a statutory duty of an organ of State
to
enforce the law can be defeated by a defence of
volenti
,
particularly in circumstances where it has been shown that the
injured party had no knowledge of the statutory prohibition.
I therefore hold that there is no merit in the defence of
volenti
non fit iniuria
put up by SAHPA and the CAA.
CONCLUDING REMARKS ON CAUSATION
Following upon that digression, I revert to the question of legal
causation. In
Lee
39
the Constitutional Court observed that the purpose of establishing
legal causation was to ensure that there was a reasonable
connection
between the breach of the duty and the harm caused. The link is most
important because “
the consequences of an act or omission
might stretch into infinity
” or “
impose an
inordinate burden on the State
” leading to “
indeterminate
liability
”.
I have found that the Plaintiff did not “
consent to the
risk
”. It was never suggested that the Plaintiff was
partially responsible for her injury by way of contributory
negligence,
nor was it argued by either
Messrs Bekker SC or
Mokoena SC
that to hold SAHPA and/or the CAA liable for the
Plaintiff’s damages was “
likely to have a ‘chilling
effect’ on the performance of administrative or statutory”
functions
40
.
It is possible, I suppose, that some rogue pilots may have ignored
the instructions of the authorities (had the latter done what
they
should have) and flown for reward because of the lure of easy money.
There is no suggestion however, that De Villiers was
a pilot of that
sort. As a highly experienced international pilot one must assume
that, had he been told that the activity was
unlawful, he would not
have flown commercially. And so, at the end of the day, one must
adopt a common sense approach and ask
the following question: had
SAHPA and the CAA done what they should have in regard to the
prevalence of tandem paragliding for
reward, would the Plaintiff
have flown with De Villiers on Monday 12 April 2004? The answer must
be an unequivocal “
no
”
.
I am accordingly
satisfied that the question of causation has been established on a
preponderance of probabilities.
CONCLUSION
In the light of the aforegoing, I am satisfied that the Plaintiff
has established that SAHPA and the CAA owed her a duty of care,
that
they breached that duty of care, that their breach was wrongful and
that it was causally related to the injuries she suffered.
Accordingly I make the following order
:
A. The Fourth and Fifth Defendants are found to be jointly and
severally liable for such damages as the Plaintiff may prove to have
been suffered by her as a result of the paragliding accident in which
she was involved on 12 April 2004 at Hermanus, Western Cape.
B. The Fourth and Fifth Defendants are jointly and severally
liable, the one paying, the other to be absolved, for Plaintiff’s
costs of suit herein, such costs to included the costs of two counsel
where employed.
C. The Plaintiff is declared to have been a necessary witness.
_________________
GAMBLE, J
FOR
PLAINTIFF : Adv. S.P. Rosenberg SC and
Adv.
P.A. Corbett
INSTRUCTED
BY : Malcolm Lyons Brivik Inc
FOR
FOURTH DEFENDANT : Adv. S.J.. Bekker SC and
Adv.
J. du Plessis
INSTRUCTED
BY : Savage Jooste & Adams Inc
c/o
Norton Rose SA
FOR
FIFTH DEFENDANT : Adv. P.L. Mokoena SC and
Adv.
M.B. Legoce
INSTRUCTED
BY : Werksmans Attorneys
DATES
OF HEARINGS : 28 and 29 November 2013; 3, 4 and 5 December 2013; 29
January 2013; 18, 19 and 20 February 2013; 20 March 2013
DATE
OF JUDGMENT : 20 September 2013
1
Mr.
Asquith was not called to testify in this matter but his general
observations regarding the technical aspects of the sport
do not
appear to be open to serious challenge
2
Documents
in the Court bundle show that he had flown extensively both locally
and abroad - as co-incidence would have it also
in Turkey.
3
The
phrase was understood by the older persons present in Court to be a
reference to an anthem to Hedonism performed by the American
Rock
Singer, Lou Reed, in the 1970’s.
4
The
witness was qualified as an expert in terms of Rules 36(9)(a) and
(b)
5
As
appears more fully hereunder, the Aero Club was the body delegated
by the CAA to supervise recreational aviation.
6
Non-Type
Certificated Aircraft, under which paragliders resort
7
A
“Part” is a section of the CAR’S also sometimes
just referred to as “Regulation”. e.g. “Part
61”
or “Regulation 61”.
8
The
Plaintiff testified that she flew tandem in Turkey in about 1996 and
Manzoni said paragliding started as a sport in 1987 and
that he
migrated from hang gliders to paragliders in about 1992.
9
Van
Rooy v Law Society (OFS)
1953 (3) SA 580
(O) at 584A-585B.
10
See
s
ections 12(2) and (3) of Act 115 of 1990.
11
See
for example
Cape Town Municipality v Bakkerud
2000 (3) SA
1049
(SCA);
Cape Metropolitan Council v Graham
2001 (1) SA
1197
(SCA);
Olitzki Property Holdings v State Tender Board and
Another
2001 (3) SA 1247
(SCA);
Malherbe v Eskom
2002 (4)
SA 497
(O);
Minister of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA);
Minister of Safety and Security v Carmichele
2004 (3) SA 305
(SCA);
Jacobs v Chairman, Governing Body, Rhodes
High School and Others
2011 (1) SA 160
(WCC);
McCarthy
Limited t/a Budget Rent-a-Car v Sunset Beach Trading 300 CC
t/a
Harvey World Travel and Another
2012 (6) SA 551
(GNP).
12
At
1054D
13
441
E
14
445B
15
Rule
1.7
: “Air Navigation Regulations shall be observed and
complied with at all times.”
16
See
rules 1.11 of each respective revision.
17
www.iol.co.za/news/south-africa/western-cape/man-killed-while-paragliding-1.1449921
;
www.paraglidingforum.com/viewtopic.php?t=53435
18
Revision
2.1 March 2008, clause 1.6
19
Clause
1.4 of the SAHPA Operations and Procdures Manual of December 1992.
20
For
the record it should be mentioned that Mr. Allan was a SAHPA
Committee member and later succeeded Mr. Manzoni as Chairperson.
He
was also the SAHPA “investigation official” who filed
the accident report in respect of the Plaintiff’s
accident.
Given that pilot negligence is no longer an issue in this matter,
his apparent exoneration of the First Defendant in
that report, does
not fall to be considered in this judgment.
21
“
S19:
Limitation
of liability
:
No person, including the State, is liable in respect of
anything done or omitted in good faith in the exercise of a power or
the
performance of a duty in terms of, or by virtue of this Act, or
in respect of anything that may result therefrom.
22
S20:
Indemnification of State and certain State employees:
Notwithstanding any legal provision to the contrary the
State and its officers and employees acting in the performance of
their
duty shall not be liable for –
(a) Any loss or damage caused by the death of or injury
to any person while conveyed in any aircraft owned, operated or
chartered
by the State through its Department of Transport or while
entering or mounting or being in such aircraft for the purpose of
being
conveyed in it or while being in or alighting from such
aircraft after having been conveyed in it, if that person was so to
be
conveyed otherwise than in the performance of his duty as an
officer or employee of the State; or
(b) Any loss of or damage to any goods conveyed in such
aircraft otherwise than in the interests of the State.”
23
The
Huey Extreme Club v South African Civil Aviation Authority,
case
no. 10549/2003;
V and A Waterfront Properties (Pty) Ltd and 1
Other v Helicopter and Marine Services (Pty) Ltd and 2 Others
[2004] 2 All SA 664(C)
; and on appeal at 2006(1) SA 252(SCA);
Helibase (Pty) Ltd v Commissioner for Civil Aviation and Others
[2009] ZAWCHC 136
(13 February 2009).
24
See
para 78 of the affidavit of
Khalatse Colbert Marobela
jurat
17 December 2003.
25
Carmichele
v Minister of Safety and Security and Another
2004 (3) SA 305
(SCA) at 324B
26
Lee
v Minister for Corrrectional Services
2013 (2) SA 144(CC)
at
161B.
27
International
Shipping Company (Pty) Ltd v Bentley
1990 (1) SA 680
(A) at
700E-I.
28
701B
29
The
Law of Torts, 7
th
ed at 173
30
“
An
injury is not done to one who consents
”
31
Principles
of Delict
p68
et seq
32
Santam
Insurance Company Ltd v Vorster
1973 (4) SA 764
(A) at 780G
33
781D
34
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC) at 333C-D.
35
Baddeley
v Earl Granville
(1887) 19QBD 423;
Wheeler and Another v New
Merton Board Mills Ltd
1933 All ER (Reprint) 2008 (CA);
Bowmaker
Ltd v Tabor
[1941] 2 All ER 72(CA)
;
Imperial Chemical
Industries Ltd v Shatwell
[1964] 2 All ER 999
(HL) – “
The
ICI case
”.
36
Santam
Insurance Company Ltd v Vorster
,
supra
, at 778 A;
De
Welzim v Regering van Kwazulu en ‘n Ander
1990 (2) SA 915
(N) at 923 G;
Midway Two Engineering and Construction Services v
Transnet BK
1998 (3) SA 17
(SCA) at 22 B;
Bezuidenhout NO v
Eskom
2003 (3) SA 83
(SCA) at 92 H.
37
The
Law of Delict 7
th
ed (1971) p73
38
Steenkamp
NO v Provincial Tender Board, Eastern Cape
2007 (3) SA 121
(CC)
at 134 para 29.
39
171
para 68
40
Steenkamp
NO’s
case
supra
at 140B