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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION - MAHIKENG

 

CIV APP FB 01/2022

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

 

In the matter between

 

WINTERCASTLE TRADING 44 (PTY) LTD                          1^ST APPELLANT

 

DAVID MAREE                                                                    2^ND APPELLANT

 

ELIZA MAREE                                                                     3^RD APPELLANT

 

MAJORA 185 (PTY) LIMITED                                             4^TH APPELLANT

 

MULTI MEDIA ENTERTAINMENT GROUP

AIR (PTY) LTD                                                                     5^TH APPELLANT

 

and

 

RINGOPRO (PTY) LIMITED                                                 RESPONDENT

 

CIVIL APPEAL

 

CORAM: DJAJE DJP, PETERSEN J AND REID J

 

 

ORDER

 

            In the result, the following order is made:

 

The appeal is dismissed with costs.

 

JUDGMENT

 

PETERSEN J

 

Introduction

 

[1]        This appeal with leave of the court a quo (Hendricks JP – DJP as he then was) is against the whole of the judgment and order of the court a quo (save for the part where no judgment for payment was granted against the fifth appellant).

 

[2]        The respondent (plaintiff in the court a quo) instituted an action consisting of three (3) claims against the five appellants (first to fifth defendants in the court a quo). Claim A was for arrear rental arising from the use of an aircraft for the period 12 January 2015 to the date of cancellation of the agreement on 14 September 2015. Claim B was for damages arising from the premature termination of a lease for the period 15 September 2015 to 11 January 2016. Claim C was for damages arising from the first defendant’s failure to restore the aircraft to the condition it was at the commencement of the lease. In this judgment the parties where necessary will be referred to as Winter Castle (the first appellant); Mr Maree (the second appellant); Mrs Maree (the third appellant); Majora (the fourth appellant); MEGA (the fifth appellant) and Ringopro (the respondent). 

 

[3]     The court a quo found in favour of Ringopro on Claims A, B and C and issued an order in the following terms:

 

“Judgment is entered against the first, second, third and fourth defendants,        jointly and severally, the one paying the others to be absolved, for:

 

1.      Payment of the amount of R1,527,948.55;

 

2.     Interest on the sum of R1,527,948.55 at the rate of 7% per annum a tempore morae to date of payment.

 

3.     Payment of the amount of USD147,750.54 or the South African Rand equivalent as at the date of payment.

 

4.     Interest on the amount of USD147,750.54 at the rate of 7% per annum a tempore morae to date of payment.

 

5.      Payment of the amount of R291,842.07;

 

6.      Interest on the amount of R291,842.07 at the rate of 7% per annum a tempore morae to date of payment.

 

7.     Costs of suit on the attorney and own client scale.”

 

[4]        The appellants come before the Full Court seeking an order that the appeal be upheld with costs. In the place of the order of the court a quo they seek an order dismissing all the claims of Ringopro (plaintiff) against Winter Castle (first defendant), Dawid and Eliza Mare (second and third defendants) and Majora 185 (fourth defendant) with costs and granting absolution from the instance with costs in favour of MEGA (fifth defendant).

 

 Factual Background

 

[5]     The only witness to testify in the trial in the court a quo was the majority shareholder and director of Ringopro, Mr. Ryan Forrester (‘Forrester’). Notwithstanding very protracted cross examination and serious aspersions cast on the credibility of Forrester, his evidence as summarized by the court a quo at paragraph [20] of its judgment remained un-assailed in the absence of controverting evidence from the appellants. The summary by the court a quo provides the following context to Forrester’s evidence:

 

“[20]    Forrester testified in detail about the lease agreements. Upon signing of the Winter Castle lease agreement it became apparent that the first defendant was not in possession of a aircraft operation certificate (AOC) or licence and that its associated company, Multimedia Entertainment Group Air (Pty) Ltd, the fifth defendant, apparently had an AOC. There was an exchange of correspondence in this regard. One of the suggestions was that Winter Castle be placed on the AOC of Multimedia Entertainment Group Air (Pty) Ltd, the fifth defendant, in which Maree also had an interest. To enable this, a “dummy” lease was entered into between Ringopro and the fifth defendant (“the Mega lease”). The aircraft was placed on the fifth defendants’ AOC in order to permit it to operate. The first and fifth defendants were co-insured. The commencement date of the lease agreement was 12 January 2015 and the duration thereof would be until 11 January 2016. It is apparent that two lease agreements were entered into by the plaintiff for the same period in respect of the same aircraft for the first and fifth defendants.”

 

[6]    The overall factual background provided by the court a quo in addition to Forrester’s evidence, is encapsulated very succinctly at paragraphs [1] to [18] of the judgment of the court a quo, as follows:

 

         “[1]         Ringopro (Pty) Ltd, the plaintiff, is a company that inter alia lease-out aircrafts as a business. The majority shareholder and director of the plaintiff is Mr. Ryan Forrester (Forrester). On 24 November 2014 the plaintiff, duly represented by Forrester and Winter Castle Trading 44 (Pty) Limited (Winter Castle/first defendant), duly represented by Mr. David Maree (Maree), entered into a written aircraft dry lease agreement (Winter Castle lease). This was as a result that Maree, who was known in the industry of leasing aircrafts, contacted Forrester and said he was in need of an aircraft.

 

[2]        The express material terms of the Winter Castle lease agreement are that Ringopro leased to Winter Castle a Beechcraft 1900D aircraft with registration number Z[...] (“the aircraft”). The lease commenced on 12 January 2015 and endured for a period of one year until 11 January 2016. On expiry of the lease, Winter Castle would deliver the aircraft to Lanseria airport. Winter Castle would pay Ringopro an Aircraft and Maintenance Reserve (“A&R”) rental where, “A” is a basic monthly lease fee of USD38,000 per month excluding VAT. “R” is a reserve rate in an agreed amount of USD285 excluding VAT for the first 45 hours and thereafter the rate of USD350 excluding VAT per hour. Winter Castle would provide Ringopro with the hours flown each month by the third day of the following month to facilitate this billing. “CR” cycle rate is an additional fee of USD15 excluding VAT levied on engine cycles above and beyond one cycle per engine per flight hour flown. The average United States Dollar/South African Rand (ZAR) exchange rate as published by www.oanda.com at 12 noon on the 15^th day of each month would provide the exchange rate conversion for the parties to compute the invoice value in ZAR.

 

[3]        Ringopro would ensure that at delivery the aircraft would be currently serviceable, licenced, certified and maintained and would be delivered to Winter Castle in accordance with the delivery conditions attached as Schedule 2.

 

[4]        Winter Castle would be liable for the costs relating to a pre-lease inspection to be carried out by Winter Castle or its contracted agent (five working days were allowed for this) at Winter Castle’s costs. A copy of the pre-lease inspection was to be supplied to Ringopro.

 

[5]        Winter Castle and/or its agent (at its own cost) was entitled to examine the aircraft and equipment therein or arrange to be examined on delivery at Lanseria airport in order to satisfy itself that the aircraft met the delivery conditions and the complete serviceability of the aircraft, its fitness for the purpose for which the aircraft and equipment were required, and was in good sound working order and fully serviceable per the original equipment manufacturer and in accordance with the aircraft dry lease agreement. Winter Castle acknowledged and confirmed that it would ensure after its acceptance of the aircraft that it would not be entitled to claim misrepresentation whatsoever.

 

[6]        Winter Castle’s signature on the aircraft acceptance certificate constituted acceptance that the aircraft met the criteria in clause 4 of the aircraft dry lease agreement, the delivery conditions and attached pre-lease inspection/pre-lease flight report.

 

[7]        Winter Castle confirmed that at the time of delivery, the aircraft would be serviceable and free of any and all defects and/or requirement of maintenance in any form or manner. The aircraft had further complied with all service bulletins and airworthy directives requiring termination action prior to the delivery date and had a valid certificate of airworthiness.

 

[8]        Winter Castle would ensure that at termination of the aircraft dry lease agreement, the aircraft would be currently serviceable and maintained and would be re-delivered to Ringopro in accordance with the provisions attached as Schedule 3.

 

[9]        Winter Castle confirmed that at the time of re-delivery, the aircraft would be serviceable and free of any and all defects and/or requirement of maintenance in any form or manner, save for fair wear and tear excepted. Fair wear and tear excluded damage relating to harsh environments, abnormal operation of any nature to the aircraft, engines, propellers, undercarriages and/or systems, passenger abuse, abnormal or excessive cabin loading and operation on dirt or gravel airfields. The aircraft shall have complied with all service bulletins, airworthy directives requiring termination action during the term of the aircraft dry lease agreement and had a valid certificate of airworthiness.

 

[10]      Save for the maintenance reserve items, Winter Castle would be liable for all charges incurred for the maintenance of the aircraft falling outside of the aircraft dry lease agreement, together with all positioning and repositioning costs which would include fuel, landing fees, navigation fees and approach fees. Ringopro would not be responsible for any such charges.

 

[11]      All repairs and all spare parts (including engine accessories) would be for the account of Winter Castle (including freight, customs duty and insurance thereof) whilst under the aircraft dry lease agreement.

 

[12]      Ringopro would be entitled to terminate the aircraft dry lease agreement with immediate effect in the event of inter alia any payment not being made by Winter Castle within seven (7) days of receipt of written notice calling upon Winter Castle to do so.

 

[13]      Ringopro would not be responsible for loss of income to Winter Castle through damage to the aircraft irrespective of the cause of such damage or reason of downtime.

 

[14]      The fact that Ringopro (plaintiff) and Winter Castle (first defendant) entered into this lease agreement as well as the aforementioned terms of the said Winter Castle lease agreement is not in dispute.

 

[15]      At the time of the conclusion of the agreement, the second and third defendants, acting personally, and the fourth defendant, represented by the second defendant, bound themselves as sureties and co-principal debtors in solidum with Winter Castle, for all amounts payable by Winter Castle to Ringopro under and in terms of the aircraft dry lease agreement, including any interest and/or legal fees and/or disbursements. They agreed to make payment of all legal fees and disbursements that might be awarded against them on an attorney and own client scale. The first to fourth defendants do not dispute the signature of the Winter Castle’s agreement, or its terms.

 

[16]      The lease agreement stipulated that the lease would commence on 12 January 2015. At about that time, the plaintiff gave the first defendant a document setting out the full description of the aircraft, together with a pre-lease status report compiled on 12 January 2015. The pre-lease status report lists all of the components of the aircraft and itemises them with respect to their service intervals and due dates for next services.

 

[17]      A test flight was conducted and a snaglist was compiled of things to be attended to before delivery of the aircraft. These things were subsequently attended to. A detailed aircraft pre-lease inspection was also performed and a report was compiled.

 

[18]      Winter Castle took delivery of the aircraft during January 2015 as per delivery acceptance document signed by Maree. This much is common cause. It is also common cause that the said aircraft was used by Winter Castle. Invoices were presented on a monthly basis by Ringopro to Winter Castle for rental and other charges. These invoices were initially regularly paid by Winter Castle. However, at some stage Winter Castle fell into arrears due to the non-payment of invoices. Demands for payment of the said invoices were made, but to no avail. Winter Castle (Maree) terminated the Winter Castle lease agreement. This necessitated Ringopro to institute an action against the defendants.”

     

The findings of the court a quo

 

[7]        The reasoning of the court a quo in respect of the main questions adumbrated supra which is assailed in this Court, is set out as follows at paragraphs [26] – [38] of its judgment:

 

         “[26]      Mr. Vetten on behalf of the Ringopro (plaintiff) submitted that the issues to be decided by this Court are narrow, namely, (i) was the lease with Winter Castle invalid or impossible to perform by virtue of the fact that (a) Winter Castle not having an AOC or an air service licence; or (b) the alleged absence of prior written approval from the Director of the dry lease; or (ii) novated by the Mega Lease. Furthermore, can Ringopro claim interest on Claim B sounding in US dollars. He contended that if the operational rights and obligations under the Winter Castle lease were assigned to Mega, then the defence raised about the absence of prior written approval from the Director of the dry lease and the novation by Mega falls away. He submitted that because the defendants did not offer any evidence or a contrary version through testimony, the plaintiff’s version as presented by Forrester must be accepted which means that the facts are not in dispute. It is only the legal interpretation to be given thereto which contain meaningful contestation. This seems to be the nub of this case and I will deal with these issues herein below.

 

           [27]     With regard to the question whether the Winter Castle lease is valid and enforceable and whether the operational rights and obligations under the Winter Castle Lease were assigned to Mega, the following. From the evidence tendered by Forrester, which is undisputed, Maree contacted him in order to lease an aircraft to Winter Castle. Both Forrester and Maree intended to enter into a valid lease agreement of the aircraft for and on behalf of Ringopro and Winter Castle, respectively. The lease agreement documentation that were signed relates to Ringopro and Winter Castle. The correspondence exchanged for and on behalf of parties clearly indicate that the contract of lease was intended to be concluded between Ringopro and Winter Castle. This was the intention of both Forrester and Maree. The “agreement” between Ringopro and Mega was a “dummy” lease for AOC (licence) purpose. It was a “dummy” lease and not a valid commercial lease.

 

           [28]     Mr. Vetten submitted that the communique clearly demonstrated that Winter Castle remained the contracting party but that the operational rights and obligations were transferred to Mega, as permitted in terms of Clause 21.3 of the Winter Castle lease. The correspondence is completely inconsistent with the defendant’s pleaded case that the Winter Castle Lease was (i) subject to a condition precedent that was not met; (ii) impossible to perform, (iii) void ab initio; (iv) cancelled; (v) novated, replaced or substituted. To reiterate, no evidence was presented by the defendants to substantiate their pleaded case.

 

           [29]     As alluded to earlier, the Winter Castle lease was carried into effect and not the Mega lease. After the signing of the Winter Castle lease, the documentation pertaining thereto as well as a pre-lease status report, was compiled with regard to the Winter Castle lease and not the Mega lease. After conducting the test flight, a snaglist was compiled in respect of the Winter Castle lease and not the Mega lease. The delivery acceptance document was signed in relation to the Winter Castle lease and not the Mega lease, when the aircraft was delivered. No delivery acceptance document was prepared in relation to the Mega lease. A lease pack comprising of all the relevant documents in relation to the Winter Castle lease was given by Ringopro to Winter Castle. No such lease pack of documents was given to Mega. This illustrated the fact that Mega was never purported to exercise any rights under its lease agreement for reason that it was not intended to encapsulate rights to Mega, other that the right to register the aircraft on its AOC and operate it under that licence. All other rights and obligations remained with Winter Castle. This is consistent with the assignment of rights pleaded by the plaintiff, Ringopro, as submitted by Mr. Vetten.

 

           [30]     The fact that Winter Castle paid the invoices submitted to it by Ringopro stands uncontested. No such invoices for the rental of the aircraft were submitted to Mega on a monthly basis. The invoices were paid by Winter Castle and not Mega. Maree contacted Ringopro and cancelled the Winter Castle lease and not the Mega lease, as the aircraft was flown under the Winter Castle lease and not the Mega lease.

 

           [31]     With regard to the assignment of the Winter Castle lease, Mr. Van Nieuwenhuizen submitted that there are two difficulties with this proposition. At first, once prior approval is required before a contract can be entered into, absent such prior approval constitute a nullity of the contract entered into ab initio. This, he contended, is exactly what happened in this matter. The Civil Aviation Regulation (CAR) 48.03.1 stipulates:

 

“Dry lease-in

 

48.03.1 (1) (a) An operator who intends to dry lease-in an aircraft for the purpose of providing an air service therewith, shall submit an application to the Director in the appropriate prescribed form signed by both parties, together with the appropriate fee as prescribed in part 187 for prior approval to dry lease-in the aircraft.”

 

           [32]     According to Mr. Van Nieuwenhuizen, there were no rights or obligations in existence at the onset that could be transferred or delegated. The Winter Castle lease is void and no rights and/or obligations can be assigned, transferred or delegated to or by the Mega lease. No one can cede more rights then what (s)he has. Reliance was placed on the matter of Brayton Carswald (Pty) Ltd and Another v Brews 2017 (5) SA 498 (SCA).

 

           [33]     Secondly, the purported assignment in the form of a patently identical dry lease agreement signed between Ringopro and Mega sought to circumvent the fact that Winter Castle did not have a valid AOC. The “dummy” lease so entered into was to “dummy” the Director of the South African Civil Aviation Authority (SACAA). Such circumvention is illegal.

 

           [34]     Mr. Vetten submitted that the contention by the defendants that CAR 48.03.1 stipulates that an application be made to the Director of Civil Aviation to approve a dry lease, fails at a number of levels. Firstly, if the assignment of the lease has occurred, then the defendants has not adduced any evidence to show that the Director did not approve the Mega lease, which is the pertinent lease as far as CAR 48.03.1 is concerned. No such document was discovered by the defendants and the inference to be drawn is that approval was granted by the Director in respect of the Mega lease, otherwise Mega would have been operating the aircraft completely illegal from the inception. Secondly, such an application is not a condition to the validity of the lease. It is a requirement which the operator (lessee/Winter Castle) must meet in order to be able to lawfully operate the aircraft. It is not prior approval of the lease, but prior approval to the right to dry lease-in the aircraft that is to be sought and required. If the operator (lessee) does not achieve this, then it is in breach of the agreement, particularly when the agreement requires the lessee to cause the aircraft to be validly operated in accordance with the laws. That does not mean that the agreement is invalid.

 

           [35]     On the only evidence presented, it is possible that an aircraft can be on three AOC’s. This means that multiple leases can co-exists in respect of the same aircraft for the same period. The aircraft was under lease to Winter Castle but on the AOC’s of Megair, Owen Air and United Charter. This seems to be common practice. These are also the entities whose interest were noted on the insurance policy. No evidence was adduced by the defendants to prove the contrary.

 

           [36]     Even if the requirements are one that pertains to the lease rather than the right to lease-in, which is not the case, there is no indication that non-compliance would invalidate the lease. There is nothing in CAR 48.03.1, as subordinate legislation, which indicate that the regulator intended that the agreement to be void, absent compliance. It is not stipulated that such an agreement is void ab initio. There are numerous penalties for non-compliance with the regulations that emphasize that it does not mean that the lease agreement is void. CAR 48.03.1 (3) for example gives a discretion to the Director to impose certain conditions, if need be, but it does not mean that the agreement is void ad initio.

 

           [37]     I am in full agreement with the submissions by Mr. Vetten that the defence, (if it may be called one), that the agreement is a nullity and void ab initio is nothing more than an opportunistic attempt by Winter Castle to avoid its obligations to pay despite having had full use of the aircraft. In any event, Winter Castle is estopped from contending that its lack of authorisation invalidates the lease. This Court finds that the lease agreement between Ringopro and Winter Castle is valid and enforceable and it was not novated, substituted or cancelled by the conclusion of the agreement with Mega. The agreement with Mega was merely to facilitate the operating of the aircraft on a valid AOC (licence), held by Mega.

 

           [38]     No evidence whatsoever was adduced by the defendant to prove otherwise. Speaking of which, no evidence was adduced by the defendants to prove any breach of any of the conditions or obligations by Ringopro (the plaintiff). There is also no basis for the valid cancellation of the agreement, as Winter Castle did not give any notice of an alleged breach to Ringopro in order for it to remedy or rectify such breach. Winter Castle had uninterrupted use of the aircraft until it abandoned it at Lanseria airport.”

 

The grounds of appeal

 

[8]   Against the background of the findings of the court a quo, supra, the appellants’ have formulated their grounds of appeal as follows:

 

          “…that his Lordship erred on the following findings of fact and rulings of law:

 

            Section 17(1)(a)(i)

 

1.         By finding the parties, including the Fifth Defendant (“Mega”) intended to assign the right to operate the aircraft on the Mega’s Aircraft Operating Certificate (“AOC”) and under that licence.

 

2.         By finding that all other rights and obligations remained with the First Defendant (“Winter Castle”).

 

3.         By ruling that it was not a prerequisite in terms of Civil Aviation Regulation (“CAR”) 48.03.1(1)(a) that the Director of the South African Civil Aviation Authority (“the Director”) provides prior approval for the legal validity of a dry lease-in to an operator of an aircraft who intended to provide an air service therewith.

 

4.         By ruling that even if it had been a requirement in CAR 48.03.1(1)(a) that the Director was to provide prior approval of the dry lease-in agreement, as opposed to the “right to least-in”, there was nothing in CAR to indicate that such agreement would be void ab initio as there were other penalties for non-compliance and that CAR 48.03.1(3) for example gives the Director a discretion to impose certain conditions, if need be, but does not mean that the agreement is void ab initio.

 

5.         By finding that Winter Castle was in any event estopped from contending that lack of authorisation [presumably with reference to the prior approval requisite by the Director in terms of CAR 48.03.1(1)(a)] invalidated the lease.

 

6.         By finding that the “dummy agreement was merely to facilitate the operating of the aircraft on a valid AOC (licence) held by Mega.

 

7.         By ruling that attorney and own client costs were to be awarded.

 

8.         By ruling that there was no basis upon which the Plaintiff’s witness was dishonest or mala fide.

 

9.         Whereas the court should have:

 

9.1             made findings and rulings contrary to the preceding ones recorded above;

 

9.2             found that the dry lease between the Plaintiff and Winter Castle provided that Winter Castle would be the lessee and operator as it was to operate the aircraft in accordance with “its operating permit”;

 

9.3             interpreted the pleaded CAR in context and purposefully and found that the CAR themselves expressly provide that:

 

9.3.1        a dry lease is one whereby the lessee has legal possession of the aircraft;

 

9.3.2        a lease means a contractual arrangement between a lessor and a lessee whereby a property licensed air service operator gains commercial control of an entire aircraft without transfer of ownership, and which was in the form of an operating lease – dry lease;

 

9.3.3        ‘operating lease’ means an arrangement in terms of which an air service operator (lessee) obtains the use of an aircraft owned or operated by another party (lessor) for a defined period;

 

9.3.4        ‘operator’ means a natural or artificial entity, holding a valid licence and operating certificate or equivalent thereof, authorizing such entity to conduct scheduled, non-scheduled or general air services, and may be referred to as ‘airline’, ‘air carrier’, ‘air service operator’, ‘CAO’ or commercial air transport operator’, as defined;

 

9.3.5        An operator who intends to dry lease-in an aircraft for the purpose of providing an air service therewith, shall submit an application to the Director in the appropriate prescribed form signed by both parties, together with the appropriate fee as prescribed in Part 187 for prior approval to dry lease-in the aircraft [CAR 48.03.1(1)(a)];

 

9.3.6        Subject to such conditions as he or she may determine, the Director may grant approval for the lease agreement if satisfied that the aircraft to be lease-in will be operated under the operating certificate held by the lessee and the applicant will not operate the air service concerned contrary to any provision of the Act, the International Air Services Act, 1993 or the Air Service Licensing Act {CAR 48.03.1(3)(c)];

 

9.3.7        The operator of a non-type certificated aircraft used for the provision of flight training or in commercial air transport operations, as the case may be, shall not operate the aircraft unless such operator is the holder of a valid licence issued in terms of the Air Services Licensing Act and operating certificate;

 

9.3.8        No air service operator shall operate an aeroplane unless the operator is the holder of and complies with the conditions of a valid AOC issued to it including the operations specifications attached thereto, and an air services licence issued in terms of the Air Services Licensing Act;

 

9.4             found that there was no sublease agreement between Winter Castle and Mega;

 

9.5             ruled that prior approval of the director was required for the legal validity of the dry lease-in agreement between the Plaintiff and Winter Castle;

 

9.6             ruled that the onus was on the Plaintiff to allege and prove compliance with CAR, in particularly CAR 48.03.1(1)(a);

 

9.7             ruled, as it was common cause that Winter Castle did not have a valid AOC, prior approval of the lease between the Plaintiff and Winter Castle could not have been achieved;

 

9.8             ruled that:

 

9.8.1   any purported assignment was an afterthought and contrary to the express wording of the lease agreements, and the Plaintiff’s own evidence on oath, and thus absent any animus to contract;

 

9.8.2   no rights or obligations which are void ab initio could be assigned in law;

 

9.8.3   the dummy lease or leases sought to contravene CAR and thus the law, which our courts do not countenance;

 

9.9              found that the Plaintiff’s sole witness:

 

9.9.1        testified that Winter Castle had operated the aircraft;

 

9.9.2        was experienced in the leasing of aircraft for approximately 17 years and was well versed with the regulations itself and must have known of the joint requirement that both parties sign the application for prior approval of the lease by the Director, yet, the Plaintiff’s witness had no knowledge thereof. In fact the Plaintiff’s witness not only must he have known so, but he is regarded to have known so in terms of the law;

 

9.9.3        accordingly, there could have been no representation of any sorts that there had been approval from the Director for the dry lease agreement between the Plaintiff and the First Defendant;

 

9.10          ruled that the dry lease agreement was void ab initio due to non-compliance with CAR and that the requirements for estoppel had not been met in that it was common cause that by 27 November 2015 the Plaintiff was aware that Winter Castle did not have a valid AOC and thus could be no representation. Similarly, the knowledge or the dry lease similarly results in the absence of any representation requirement. In any event, estoppel may not be invoked to allow a statutory prohibition to be evaded;

 

9.11          ruled that the Plaintiff failed to prove its claim C in respect of damages which were not liquid;

 

9.12          ruled that interest claimed, were inappropriate for the reasons pleaded;

 

9.13          ruled that costs cannot be awarded on a scale as between attorney and “own” client;

 

9.14          ruled that absolution from the instance, with costs, be awarded in favour of Mega;

 

9.15          the ruled in favour of the Defendants and dismissed the action with costs on the attorney and client scale.

 

Section 17(1)(a)(ii)   

 

10.      The Court did not consider the authorities and submissions made in respect thereof, or at least provide a reasoned judgment as to their inapplicability on the facts of the case:…”

 

The main issues for determination

 

[9]        With due regard to the grounds of appeal, the parties are ad idem on the main issues or questions which were to be determined by the court a quo and on appeal in this Court. These main issues in fact formed the basis of the appellants’ defence to Ringropro’s claims in the court a quo. These main questions essentially beg the question whether the written dry lease agreement entered into or concluded between the Ringopro and Winter Castle, which is common cause between the parties, was a valid agreement that created rights and obligations in respect of operating the aircraft that was consequently assigned to MEGA.

 

[10]      It is common cause between the parties that in law only a person with a valid Aircraft Operating Certificate (“AOC”) could operate an aircraft, that Winter Castle did not have a valid AOC and that MEGA in fact had a valid AOC.

 

[11]   The main questions for determination are:

 

(i)            Whether performance in terms of the dry lease agreement was possible or otherwise stated whether the lease agreement is void by virtue of being impossible to perform?

 

(ii)          Whether prior regulatory approval was required for the conclusion of the lease agreement?

 

(iii)         Whether there was animus contrahendi to assign the operational rights and obligations in the dry lease agreement from the First Defendant to the Fifth Defendant through the dummy dry lease agreement?

 

(iv)         Whether a valid assignment was legally possible or impossible in law or otherwise stated whether the operational rights and obligations were validly assigned from the first appellant to the fifth appellant and in this connection whether the parties intended to create lawfully binding obligations through the assignment?; and

 

(v)          Whether even if the assignment of the operational rights and obligations was legally possible, any such purported assignment was otherwise a simulated, illegal and unenforceable agreement?

 

 [12]    In summary, the appellants’ main contentions on the issues is that:

 

(i)            Performance was impossible from the outset as the First Defendant did not have a valid aircraft certificate (“AOC”) and thus could not, as the dry lease agreement demanded, operate the aircraft in terms of the conditions of its AOC.

 

(ii)          The Civil Aviation Regulations (“CAR”) require the Director of Civil Aviation (“the Director”) to give prior approval for a dry lease agreement, and there is no evidence that he had done so, nor that Plaintiff even signed an application form in the prescribed manner (the onus being on the plaintiff to prove this).

 

(iii)         The Plaintiff’s own evidence emphatically confirmed that there had been no intention to create any binding rights or obligations through the dummy dry lease agreement, and accordingly there was no assignment as pleaded by it.

 

(iv)         As performance of the dry lease agreement had been impossible from inception, and as there had been no prior approval thereof by the Director, no rights or obligations were ever created capable of being assigned.

 

(v)          The assignment was patently simulated and created with the sole purpose of being a front to bamboozle the Director, as such is illegal and may not be enforced.

 

[13]     On the contrary, the contentions of Ringopro on the issues, in summary, is that:

 

(i)       The essential obligations of a lease agreement were capable of performance. Subsidiary obligations relating to the circumstances of the use of the aircraft were matters within the power of the first appellant to address, and such matters could and were addressed between the date of the signature of the agreement (24 November 2014) and the coming into force  of the contract (12 January 2015) alternatively when the first appellant took possession of the aircraft (19 January 2015). There was accordingly no impossibility of performance.

 

(ii)      The regulatory approval that the appellants rely upon pertain to the operation of the aircraft rather than the conclusion of the lease and accordingly do not affect the obligations under the lease.

 

(iii)     The only evidence presented in the matter was that of the respondent’s witnesses, and these showed unequivocally that the parties intended to assign the obligations under the lease relating to the operation of the aircraft under the first appellant’s operating certificate to the fifth appellant who held a valid operating certificate.

 

(iv)       Such an assignment is not prohibited by law. It was not simulated, illegal or unenforceable.

 

Discussion

 

[14]     At the outset, it is underscored that Winter Castle, pursuant to the dry lease agreement had possession of and utilised the aircraft commercially to transport clients for reward from 19 January 2015 when it took possession of the aircraft until the aircraft was abandoned at Lanseria Airport in Johannesburg on 14 September 2015. Notwithstanding the use of the aircraft, Winter Castle failed to perform fully in terms of its obligation to pay rental for the aircraft, which was due to Ringopro.

 

[15]     The only evidence before the court a quo, save for the common cause facts was adduced by Ringopro through its director Forrester. In the absence of any evidence controverting the evidence of Forrester, or the court a quo misdirecting itself in respect of his evidence, this Court must accept the factual findings made in respect of the evidence, as correct. As in the court a quo the nub of this matter rests on the relevant applicable law and other legal prescripts which regulate the operation of an aircraft.   

 

[16]     From the evidence in respect of the dry lease agreement and dummy lease agreement adduced by Ringopro, the following preliminary observations are made. Winter Castle did not have an AOC but MEGA did. Winter Castle could only operate the aircraft in terms of the dry lease agreement if it had an AOC. From the evidence of Forrester it remains unchallenged that Winter Castle and/or its director Mr Maree requested the conclusion of the MEGA “dummy lease” in terms of which the operational rights under the Winter Castle lease were assigned to MEGA in December 2014 and which lease was signed by Mr Maree on 9 December 2014. For Winter Castle to have operated the aircraft from 19 January 2015 to 14 September 2015, the director of the South African Civil Aviation Authority (‘SACAA’) would have to have sight of the “dummy lease” for approval, failing which Winter Castle could not have operated the aircraft for the period it did.

 

[17]     In the absence of evidence to the contrary from the appellants, it remains uncontroverted that Winter Castle and/or Mr Maree, had the aircraft placed on the operator’s certificate of MEGA and United Charter. Further, that they insured the aircraft and noted the interest of Winter Castle, MEGA and United Charter in the aircraft. They conducted a pre-flight inspection on 19 January 2015 and consequently provided a snag list to Ringopro to attend to. Ultimately, they took delivery of the aircraft upon signature of a delivery acceptance document.    

 

[18]     The defences raised by the appellants, formulated as the main questions supra, must accordingly, be considered through the prism of this preliminary background. I turn to consider the defences of the appellants formulated as the main questions. Mr. van Nieuwenhuizen deals with these questions under useful descriptive headings and it would be convenient to adopt the same approach to appreciate the issues.

 

The Main Questions

 

The validity questions

 

The impossibility of performance question

       

[19]     The question in this regard is whether performance in terms of the dry lease agreement was possible or otherwise stated whether the lease agreement is void by virtue of being impossible to perform. The main contention of the appellants in this regard is that performance in terms of the dry lease agreement was impossible from inception and therefore the dry lease agreement was void ab initio. It is indeed trite as submitted by Mr. van Nieuwenhuizen that where performance is impossible from the outset of a contract, the contract is void ab initio (impossibilium nulla obligatio).[1]

 

[20]     The crux of the possibility or impossibility of performance question in terms of the dry lease agreement is the possession of a valid AOC in terms of which Winter Castle would have been allowed to operate the aircraft. In this regard, the Civil Aviation Regulations (“CAR”) 135.06.1(1) provides that:

 

“(1)      No air service operator shall operate an aeroplane unless the operator is the holder of and complies with the conditions of a valid AOC including the operations specifications attached thereto, issued in terms of this Part and an air services licence issued in terms of the Air Services Licensing Act, 1990…”

                                    (My emphasis)

 

[21]     The requirement of a valid AOC in terms of CAR 135.01.1(1) implicates clauses 3.2 and 20.1 of the dry lease agreement, which provides that:

 

                        “Clause 3.2

                      The lessee shall cause the aircraft to be used solely to transport passengers and/or cargo in commercial or other operations for which the lessee was duly authorised by the laws of the operating country and in compliance with this operating permit, flight manual and all relevant government and Civil Aviation Authority’s procedures and regulations.”

 

                                    Clause 20.1

         It is hereby recorded that full operational control of the aircraft for all the flights conducted under this agreement shall be the responsibility of the lessee. The aircraft will be operated under the operating certificate held by the lessee.”       

(my emphasis)

       

             [22]     The high watermark of the argument of Mr van Nieuwenhuizen for  the appellants, on the question under discussion, is that performance in terms of the dry lease agreement was impossible from inception because Winter Castle could only operate the aircraft in terms of an operating certificate that it did not have, and only a person holding a valid operating certificate may operate an aircraft. This submission essentially assails the finding of the court a quo at paragraph [29] of its judgment that “Mega was never purported to exercise any rights under its lease agreement for reason that it was not intended to encapsulate rights to Mega, other than the right to register the aircraft on its AOC and operate it under that licence. All other rights and obligations remained with Winter Castle.”

 

[23]     The countervailing submission of Mr. Vetten is that the submission of Mr van Nieuwenhuizen, is made in error, premised on clause 3.2 of the lease agreement being misconstrued. The submission of Mr Vetten is essentially that the term of the lease agreement governing the use to which Winter Castle could put the leased object (the aircraft) is not a primary or defining term or naturalia of a contract of lease, but rather an obligation that Winter Castle undertook that attaches to the nature of the use that the aircraft could be put to. Winter Castle on his submission therefore was obligated to use the aircraft in accordance with its promise (obligation) failing which it would be in breach of the agreement.

 

[26]   Mr Vetten further submits that Winter Castle cannot contend that the lease is invalid because it failed to comply with its duty to use the aircraft as it has undertaken to do. On this score, the contention is that clause 3.2 makes it clear that it required the lessee to “cause the aircraft to be used …  in compliance with … all relevant government and Civil Aviation Authority’s procedures and regulations.” The consequence of Winter Castle not complying with its obligation in terms of clause 3.2 by not causing the aircraft to be validly operated in accordance with the law, would be a consequence of Winter Castle’s breach of clause 3.2 and not an impossibility of performance. The liability for the rental which was due under clause 2 would, however, remain undisturbed.

 

[27]   The problem with the impossibility of performance submission on behalf of the appellants, premised on Winter Castle not having an AOC, is contradicted by clause 20.1 where Winter Castle, in no uncertain terms represented that it in fact had an AOC in terms of which it would operate the aircraft. As correctly submitted by Mr. Vetten Winter Castle could not escape the obligations under the lease and profit from its own misrepresentation.

 

[28]   A window period of six weeks was left between the date on which the lease agreement was concluded between Ringopro and Winter Castle, from 24 November 2014 and the effective date being 12 January 2015, during which the agreement had not ‘come into force and effect’. It must be accepted, that Winter Castle despite representing that it had an AOC in clause 20.1 had no AOC. During the window period, Winter Castle remedied the fact that it did not have an AOC by assigning its rights and obligations in terms of operating the aircraft to MEGA by agreement with Ringopro. Notably, the assignment of Winter Castle’s rights and obligations in terms of operating the aircraft to MEGA (the operator) implicates and ties in with the next question on regulatory prerequisites.

 

[29]     As correctly pointed out by Mr. Vetten, a party relying upon impossibility of performance bears the onus of alleging and proving that the impossibility is not its fault.[2]  The common cause facts demonstrate that Winter Castle in fact and pursuant to its rights in terms of the lease agreement, lawfully took possession of the aircraft which was delivered to it in terms of the obligation on Ringopro to deliver the aircraft. Winter Castle could only have taken possession of the aircraft and operated the aircraft with a valid AOC. The obligation to ensure that a valid AOC was in place was on Winter Castle as is made plain in clause 3.2 read with clause 20.1 of the dry lease agreement. No such obligation was placed on Ringopro in terms of the dry lease agreement, notwithstanding the steps taken by the parties in respect of the assignment of the rights and obligations to operate the aircraft being to MEGA, which had an AOC.

 

[30]     Accordingly the finding by the court a quo that Winter Castle could and did perform in terms of the lease agreement in respect of the operation of the aircraft with a valid AOC cannot be disturbed. The impossibility of performance defence as a ground of appeal must accordingly fail.

 

The regulatory prerequisite question

 

[31]     The regulatory prerequisite question clearly implicates MEGA as the operator of the aircraft, in terms of the assignment of the rights and obligations assigned to it by agreement between Winter Castle and Ringopro. This much is clear on a reading of CAR48.03.1(1)(a) and (3) which provides that:

          

“Dry lease-in

48.03.1(1)(a) An operator who intends to dry lease-in an aircraft for the purpose of providing an air service therewith, shall submit an application to the Director in the appropriate prescribed form signed by both parties, together with the appropriate fee as prescribed in part 187 for prior approval to dry lease-in the aircraft.

           

48.03.1(3) Subject to such conditions as he or she may determine, the Director may grant approval for the lease agreement if satisfied that –

 

(a)      the aircraft to be leased-in is type-certificated in accordance with the requirements prescribed in part 21;

 

(b)      the aircraft to be leased-in will be maintained in accordance with an approved maintenance schedule and current manufacturer’s maintenance manual;

 

(c)    the aircraft to be leased-in will be operated under the operating certificate held by the lessee and the applicant will not operate the air service concerned contrary to any provision of the Act, the International Air Services Act, 1993 or the Air Service Licensing Act, 1990;…”

(my emphasis)

 

[32]     The question which has been formulated in this regard is whether the dry lease agreement is valid in the absence of prior approval by the Director of the South African Civil Aviation Authority (“the Director”). Paragraphs [31] to [36] of the judgment of the court a quo is assailed under this question.

 

[33]     The appellants take issue with the finding of the court a quo that it was not the dry lease agreement that required the prior approval of the Director, but only the “dry lease-in” of an aircraft. The court a quo is said not to have considered or applied the correct legal principles in this regard.

 

[34]     Mr van Nieuwenhuizen submits firstly that, as there can be no notional distinction between the “dry leasing-in” of an aircraft and an agreement to dry lease-in the aircraft; in order to lease-in an aircraft, a lease must exist, as a lease is a contract there is no distinction in South African law between a contract of lease, and a lease. Secondly, that the finding of the court a quo ignores and is in direct conflict with CAR 48.03.1(3) – which expressly records that the prior approval of the “lease agreement” is required by the Director. Thirdly, that even if prior approval was required for the dry-leasing in, as opposed to a dry lease agreement (hypothetically assuming there was a distinction), then there was still no evidence that such approval was sought as provided for in CAR 48.03.1(1), which results in no prior approval for the dry leasing in of the aircraft by Winter Castle; and the consequent act of concluding the dry lease agreement to give effect to the dry leasing-in, are of no force or effect.

 

[35]     Reliance for these contentions is predicated on Pietermaritzburg Congregation of Jehovah’s Witnesses v Pietermaritzburg City Council 1973 (4) SA 306 (N), where the following was said about analogous legislation in the form of section 171(2) of the Local Government Ordinance, 21 of 1942 (N), which provided that:

 

“171. Alienation by Council of immovable property.

 

(2)       The Council may with the prior consent of the Administrator and subject to such conditions as he may approve or prescribe -

 

(a)       sell immovable property by public auction or public tender;”

 

At 311A – H:

“The words of the Ordinance must be given their natural meaning, in their proper context. The word prior has been inserted in sec. 171 (2) of the Ordinance by special amendment. Its normal and natural meaning is before or voorafgaande. It does not mean simultaneous. It is quite unambiguous. On any basis, the argument of Mr. Hunt implies that the purpose sought to be achieved by sec. 171 (2) is adequately achieved by the simultaneous (as opposed to prior) granting of approval by the Administrator. It does not appear to me to be so. It may well be that the mischief sought to be eliminated by the sub-section, cannot adequately be eliminated by the introduction of a suspensive condition (in the terms suggested) into a contract of sale.

 

As stated above, the wording of the Ordinance is quite clear: the special amendment draws attention to the importance of the word prior. There are, no doubt, many valid reasons why the prior consent of the Administrator is required. One is dealing with a public body which is disposing of its immovable property. The price quoted may be below market value. The general public have an interest in the matter and may object, either to the sale in principle or to its conditions. Other public bodies may have an interest in the matter. Other churches may have an interest, as happened here. It is unnecessary to multiply examples of bodies or persons which have a legitimate interest in the matter. The Administrator is not to be presented with a conditional sale for approval, but with a mere proposal. These reasons persuade me that the word prior has advisedly been inserted in sec. 171 (2) by the legislature. In the context of this sub-section, it does not mean simultaneous. Accordingly a suspensive condition, as contended for by Mr. Hunt is not permissible. This conclusion is fortified by the special insertion of the expression ‘or prescribe’ in the same sub-section in 1947.

 

I agree with the submission of Mr. Feetham that the words used by the Ordinance in secs. 171 (5), 171 (6), 171 (8), 172 173, (especially sec. 173 (2), as well as the procedural provisions of these sections, also support the conclusion that the Administrator is called upon to consider a mere proposal to sell (or lease). He must apply his mind to such a proposal and may disapprove of it in principle, or modify or amplify the proposed conditions.

 

In this case, in my view, no contract of sale came into being, assuming that the first respondent did in fact purport to accept the applicant’s offer conditionally.”

 

[36]     Mr. van Nieuwenhuizen ultimately contends that from the context of the legislative and regulatory framework as set out above, that the Legislature and Executive is primarily and predominantly concerned with safety of civil aviation and to provide a system whereby aircraft lease agreements involving South African air service operators, South African registered aircraft and foreign registered aircraft operated by South African air service operators, are closely monitored by the Director. The Regulations he submits are replete with factors that the Director must consider in this regard and that there are no factors to suggest anything to the contrary. He further submits that CAR 48.03.1(3) goes even further and empowers the Director to impose conditions for the approval of the dry lease agreement and that if the court were to sanction a dry lease agreement which had not been approved by the Director, then the very situation that the Legislature and Executive sought to avoid, would be circumvented. Hence, it is the law that our courts impose invalidity in such circumstances. For these reasons he contends that if the dry lease agreement is invalid, Ringopro had no rights to enforce flowing from it, and its claims should have been dismissed.

 

[37]     Mr Vetten, on the contrary, contends that the reasoning of the appellants under this question is erroneous and predicated on a misreading of CAR48.03.1(1)(a) and (3).

 

[38]     Essentially, the contention of Mr Vetten is that the aforesaid Regulations applies to an operator of an aircraft rather than the owner or lessor of the aircraft and therefore places no obligation on the lessor (Ringopro) or lessee (Winter Castle). Further to this he submits that if it was the legislature’s intention to outlaw leases that had not received approval, it would have directed the Regulations to the parties to the lease. The purpose of securing the Director’s approval the submission further goes, is to review a checklist provided by CAR48.03.1(3) to establish if the operator (MEGA) is appropriately licensed to operate the aircraft.

 

[39]     The aircraft could not have been operated without the prior approval of the Director under the dry lease in question. Whether or not the operator (MEGA) complied with Regulation CAR48.03.1(1)(a) does not affect the lease agreement between Ringopro and Winter Castle. The contention by Mr Vetten that what requires approval is the dry-lease in rather than a dry lease, which the court a quo agreed with, cannot be faulted on an interpretation of the meaning attributed to these concepts in the CAR. Simply put, the dry lease-in refers to the operation of an aircraft under a dry lease. 

 

[40]     It is common cause that the aircraft was listed on the AOC’s of Megair, Owen Air and United Charter, notwithstanding the fact it was under lease to Winter Castle. The ineluctable deduction is that if the aircraft was listed on the AOC’s of these entities that multiple leases were in place is respect of the same aircraft over the same period. As the court a quo further noted, the interest of these entities was noted on the insurance policy for the aircraft. The only interest of the Director in the lease agreement relates to the requirements in CAR 48.03.1(3) which impacts on the operation of the aircraft in accordance with the law. In the absence of any controverting evidence, the probabilities weigh heavily in favour of the fact that the Director in fact did approve the dry-leasing in of the aircraft lease agreement which had to be presented by MEGA and/or Winter Castle in compliance with CAR48.03.1(1)(a).

 

[41]     Again, even if there was non-compliance with the aforesaid CAR, Winter Castle was not excused from its obligations to pay the rentals due in terms of the lease. I re-iterate that compliance with the relevant Regulations was in the hands of Winter Castle and MEGA on a plain reading of the Regulations. Ringopro was under no statutory obligation to comply with the Regulations.  

 

[42]     In the final analysis, MEGA would not have been in a position to operate the aircraft if it failed to comply with CAR 48.03.1(1)(a) to have its dry-in lease approved. Further, logic would dictate that absent approval by the Director, none of the pilots or third parties who have an interest in the lawful operation of the aircraft or would have allowed themselves to fall foul of the applicable legislative prescripts. Insurance cover was provided for the aircraft, which in all probability would not have been the case if the legal requirements for operating the aircraft were not in place.

 

[43]     If the prescripts of the CAR were not complied with by MEGA, which invalidates the lease agreement and renders it void ab initio as the appellants would want the Court believe, it could easily have sought to cancel the contract before the effective date agreed upon.

 

[44] As CAR48.03.1(1)(a) places the obligation for compliance on the operator (MEGA), whether or not MEGA complied, is clearly a matter which MEGA should have peculiar knowledge of. In Macleod v Kweyiya (365/12) [2013] ZASCA 28; 2013 (6) SA 1 (SCA) (27 March 2013), Tshiqi JA rei-iterated that:

 

“It is not a principle of our law that the onus of proof of a fact lies on the party who has peculiar or intimate knowledge or means of knowledge of that fact. The incidence of the burden of proof cannot be altered merely because the facts happen to be within the knowledge of the other party. See R. v. Cohen,  1933 T.P.D. 128. However, the Courts take cognizance of the handicap under which a litigant may labour where facts are within the exclusive knowledge of his opponent and they have in consequence held, as was pointed out by INNES J, in Union Government (Minister of Railways) v. Sykes,  1913 A.D. 156 at p. 173, that “less evidence will suffice to establish a prima facie case where the matter is peculiarly within the knowledge of the opposite party than would under other circumstances be required”.’

 

[45]     The duty of MEGA as operator of the aircraft is clear in terms of CAR48.03.1(1)(a). Therefore, whilst the burden of proof which is placed on Ringopro cannot be altered merely because MEGA should have knowledge of compliance with CAR48.03.1(1)(a). In the absence of evidence from MEGA and or Winter Castle on compliance with this peremptory requirement, and considering the fact that MEGA operated the aircraft, the ineluctable deduction must be that MEGA complied with the statutory prescript.

 

[46]     The court a quo accordingly cannot be faulted on its reasoning that compliance with CAR48.03.1(1)(a) is not a pre-condition to the validity of the lease, but rather a precondition for the lawful operation of the aircraft under the lease. 

 

[47]     The appellant’s reliance on Pietermaritzburg Congregation of Jehovah’s Witnesses v Pietermaritzburg Council, supra would have been convincing if the obligations in CAR48.03.1(1)(a) fell upon Ringopro, which it does not, and therefore the authority does not avail the appellants.

 

[48]     The regulatory prerequisite defence as a ground of appeal must similarly fail.

 

[49]     What remains are the assignment and illegality questions. In my view, there is no need to engage these questions in light of the findings on the two preceding questions which are intertwined. The assignment question has reached prominence on appeal, is of no moment and irrelevant. The assignment and illegality issues serve to detract from the real issue whether the lease is binding on the appellants and in terms of which the appellants are bound to payment of the rental due to Ringopro for the use of the aircraft and for that matter even if the aircraft is not used, in terms of the lease agreement. I accordingly do not propose to engage the assignment and illegality questions, in light of the findings above.

 

Conclusion

 

[50]        The appellants have failed to demonstrate that the court a quo erred in respect of its findings. The appeal accordingly stands to be dismissed.

 

Costs 

 

[51]     Costs follow the result. Ringopro as the successful party is accordingly entitled to the costs of the appeal.  

 

Order

 

[52]     In the result, the following order is made:

 

The appeal is dismissed with costs.

 

 

A H  PETERSEN

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

I agree

 

 

 

J T DJAJE

DEPUTY JUDGE PRESIDENT OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

I agree.

 

F M M REID

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

 

APPEARANCES

COUNSEL FOR APPELLANTS:	ADV H P VAN NIEUWENHUIZEN
Instructed by:	Bosman & Bosman Attorneys
	c/o Labuschagne Attorneys
	19 Constantia Drive, Riviera Park
	MAHIKENG
COUNSEL FOR RESPONDENT:	ADV    D J VETTEN
Instructed by:	Darryl Furman & Associates
	c/o Smit Stanton Inc.
	29 Warren Street
	MAHIKENG
DATE OF HEARING:	24 MARCH 2023
DATE OF JUDGMENT:	28 JULY 2023

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