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IN THE SOUTH GAUTENG HIGH COURT OF SOUTH AFRICA

JOHANNESBURG

CASE NO: 19188/2008

DATE: 2011-08-30

In the matter between

PUZZLE MARKETING CC........................................................Plaintiff

and

WELLCO AIR SERVICES CC..................................................Defendant

MND AIRCRAFT ELECTRICAL CC...........................................Third party

J U D G M E N T

WILLIS J:

[1] This morning I was asked to make a ruling in terms of Rule 33(4) relating to separation of issues. I did so with the agreement of the parties. The separated issue which I have to determine today arises from paragraph 8 (b) of a minute of a pre-trial conference dated July 2011. The conference itself was held on 3 June 2011. The questions to be answered are the following:

"With reference to paragraphs 5 and 7 of the plaintiff's particulars of claim (as amended) in paragraphs 4 and 5 of the defendant's plea –

i. Whether the plaintiff (duly represented by Nick Spencer) and the defendant (duly represented by Peter Hartwell) concluded an oral agreement on 31 August 2006 in terms of which the defendant was required to perform the work contemplated by paragraph 6 of the plaintiff's particulars of claim (as amended) on the left engine of the aircraft ("the agreement") –

ii. If so further whether the plaintiff acting pursuant to the agreement entrusted the aircraft to the defendant to an agent duly authorised to carry out the work envisaged by the agreement –

iii. If so further whether such agent, while acting in such capacity, pursuant to the agreement thereafter on 31 August 2006 performed work on the left engine of the aircraft."

[2] It is common cause that in March 2006 Mr Nicholas Spencer, the sole member of the plaintiff, concluded an offer to purchase of a Beechcraft Baron B55 serial number TC1360, registration ZS-AJV. The aircraft was, at the time, owned by the defendant. It was being sold by Aero Export Aerosols, a business that was operated by one Mr Bruce Theunissen, on behalf of the defendant.

[3] The offer to purchase contains a standard clause which provides that a pre-purchase inspection should be undertaken expeditiously as possible and should the inspection disclose that the aircraft and the systems are not in the sole judgment of the purchaser airworthy the purchaser may cancel the transaction or renegotiate the costs of possible repairs with the seller.

[4] The standard form is designed to ensure that no aircraft is sold in South Africa for purposes of flying the same unless it is in an airworthy condition upon transfer. At the relevant time of conclusion of this agreement the defendant was, at all material times, represented by Mr Peter Hartwell, a qualified maintenance organisation in respect of that particular aircraft.

[5] The defendant was engaged to ensure that the aircraft was in the so-called ‘airworthy’ condition at the time that it was transferred to the plaintiff.

[6] There were persistent problems with the fuel pump of the left engine of the aircraft. These had been attended to over a course of time by the defendant prior to the critical date in question namely 31 August 2006.

Mr Nick Spencer testified on behalf of the plaintiff that, at the time of negotiating the purchase of the aircraft (which was his first aircraft), he was in the process of taking flying lessons to become a qualified pilot. Having established good acquaintance with Mr Peter Hartwell during the course of his taking lessons in flying aircraft. Mr Spencer requested that Mr Peter Hartwell's company (the defendant) continue to be the AMO (Aircraft Maintenance Officer) in respect of the aircraft once he had taken transfer.

[7] Mr Hartwell conceded that such a conversation may have taken place, but denies that any firm terms of agreement in regard thereto were agreed between the parties. Mr Spencer pointed out that all the relevant logbooks remained with the defendant at the time of the critical incident of 31 August 2006.

[8] The probabilities are overwhelming that Mr Spencer would have wanted to continue the relationship of the defendant as AMO in respect of the aircraft in question. It simply would not make sense for him to change this relationship especially as he was a new purchaser and somebody learning to fly (if one may use the expression). I accept (and indeed this seems to have been the evidence of Mr Spencer as well) that there were no firmly concluded, precise terms of rates to be charges in regard to the work done. Self evidently (and this happens all the time in ordinary life throughout South Africa) - and this indeed what was pleaded ultimately by the plaintiff in response to questions by the defendant - there would have been an agreement between the plaintiff and the defendant that the Defendant would act as AMO for the plaintiff and that the Defendant’s rates and charged would have been the reasonable going rate for such services and supplies as applied in the market.

[9] The aircraft in question had been sent for refurbishing by an entity known as Sky Trim. Although I have been criticised by Mr Kruger as being disparaging when I referred to Sky Trim as being ‘interior decorators’, I intend no disparagement to them whatsoever. On the contrary, the evidence of Mr Spencer was that they had done a superb job. There is nothing wrong with being an interior decorator or a refurbisher of an aircraft.

[10] On 31 August 2006 Mr Spencer went to Rand Airport to collect his aircraft. First he had to get it out at Sky Trim to fly it to Lanseria Airport where he had a hanger where the aircraft was to be birthed. Lanseria Airport is moreover where the flying instruction school from which he was receiving lessons was situated. The left fuel pump presented difficulties. Fuel would not go to the left engine. The left engine could not be started.

[11] Mr Spencer was understandably irritated as it was a persistent problem. According to Mr Spencer he then contacted Mr Hartwell of the defendant and reported the problem. Soon thereafter Mr Desmond Kurt Handares arrived and seemed to have attended to the problem. According to Mr Spencer,

Mr Handares climbed into the aircraft and using a manual undercarriage lever wound open the undercarriage door. Underneath the aircraft, with a spanner in hand, he went to work. A few moments later, he got back into the aircraft, switched the fuel pump back on and closed the undercarriage doors with the manual lever.

[12] When Mr Spencer and his pilot, Jeff Furrow, were told that all was well, they started on the relevant check list again, climbed into the aircraft and started her up. There were some helicopters nearby and out of courtesy they rolled forward to prevent propellers from blasting them. The aircraft coached forward about half a metre and then there was an almighty crash. Severe damage girthing the left wing, the propeller, the engine, the elevator tail, undercarriage and fuselage occurred. The problem arose it would seem, because the undercarriage had not properly been closed. This gives rise to the claim.

[13] Mr Hartwell has been emphatic that he was not contacted by Mr Spencer on 31 August. Mr Handares says that he was contacted by one Rico who worked for Sky Trim and that is why he went out. It is quite clear (and indeed it is common cause) that Mr Handares did go out as described by Mr Spencer. The question then is: why did he go out? There was no relationship between Mr Handares and Mr Spencer at that time. They hardly knew one another ‘from a bar of soap’. This is common cause. It is the evidence of both Mr Handares and Mr Spencer. Accordingly, Spencer would not, on the balance of probabilities, have contacted Mr Handares directly. That is indeed the evidence of Mr Spencer. Against the background of facts it is highly probable that, if the defendant as AMO for whoever was the owner, Mr Spencer would have contacted Mr Hartwell. The defendant as AMO been attending to the problems that required fixing before transfer could take place. He had specifically been attending to the difficulties relating to the left pump. The

notion that he may have contacted Rico at Sky Trim, in this particular context, is ridiculous. I put it to Mr Kriegler, who appeared for the plaintiff, that it was as absurd as somebody phoning an interior decorator to get a plumbing problem fixed in their house. Mr Kriegler thought it was a good analogy, but Mr Kruger thought that I was being disparaging about Sky Trim. The point is that it would have made no sense whatsoever for Mr Spencer to have contacted Sky Trim, the refurbishers, in order to get the fuel pump repaired.

[14] It must be borne in mind that Mr Spencer was anxious and excited, most probably, to be flying to Lanseria in his new aircraft as soon as possible. It may well have been that Rico phoned Mr Handares. This could have been the case because, after Mr Spencer had contacted Mr Hartwell, Mr Hartwell battling to get hold of Mr Handares could have contacted Rico: the offices or the premises of Sky Trim and Rico were near to one another.

[15] Be that as it may, if one takes into account the well known balancing exercise to be done in the light of cases such as National Employers Mutual General Insurance Association v Gany 1931 AD 187 at 199, AA Onderlinge Assuransie Assosiasie v De Beer 1982 (2) SA 603 (A), Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie 2003 (1) SA (SCA) at para [5], Koster Koöperatiewe Landboumaatskappy Bpk v Suid-Afrikaanse Spoorweë en Hawens 1974 (4) SA 420 (W) at 425, African Eagle Life Assurance Co Ltd v Cainer 1980 (2) SA 234 (W) at 237, National Employers’ General Insurance v Jagers 1984 (4) SA 432 (ECD), Baring Eiendomme Bpk v Roux [2001] 1 All SA 399 (A) at para [7] and if one has regard to the totality of the evidence and the objective probabilities, it is clear that the plaintiff would have contacted the defendant, asked the defendant to sort out the problem which existed was the left fuel pump and that the defendant would have agreed to attend thereto and would have engaged the services of Mr Handares on its behalf to do so. Accordingly, all the questions to be answered by this court are to be answered in the affirmative, in favour of the plaintiff.

[16] The defendant is to pay the costs of the plaintiff in determining this issue.

Counsel for the plaintiff: Adv M Kriegler SC.

Counsel for the defendant: Adv N S Kruger.

Attorneys for the plaintiff: Norton Rose South Africa

Attorneys for the defendant: Viljoen Francis and Chester.

No appearance for the third party.

Date of hearing: 30 August 2011.

Date of judgment: 30 August 2011.

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