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Last Updated: 3 December 2005
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
CASE NO 392/2004
In the matter between
V & A WATERFRONT PROPERTIES (PTY) LTD
First Appellant
VICTORIA AND ALFRED WATERFRONT (PTY)
(LTD) Second
Appellant
and
HELICOPTER & MARINE SERVICES
(PTY) LTD First Respondent
THE HUEY EXTREME
CLUB Second Respondent
THE SOUTH AFRICAN
CIVIL AVIATION AUTHORITY Third
Respondent
________________________________________________________________________
CORAM: HOWIE P, ZULMAN, NUGENT JJA, COMBRINCK ET CACHALIA AJJA
________________________________________________________________________
Date Heard: 15 August 2005
Delivered: 26 September 2005
Summary: Requirements for final interdict – meaning of ‘injury’ in phrase ‘injury ... committed or reasonably apprehended’ – includes invasion of contractual right.
________________________________________________________________________
J U D G M E N T
________________________________________________________________________
HOWIE P
HOWIE P
[1] The issue in this
case is whether all the well-known requirements for final interdict relief were
met.
[2] The first appellant company, through its managing agent, the second
appellant company, lets various commercial properties at the
Cape Town harbour
waterfront. One of them is a helicopter landing site (‘the
premises’). The other party to the lease
of the premises is the first
respondent company. It owns and operates helicopters, including one originally
used in the Vietnam war
and known in the relevant flying fraternity as a
‘Huey’ (‘the helicopter’). The first respondent’s
sole director is also chairman of the second respondent, The Huey Extreme Club,
a juristic person, to which the helicopter is made
available and whose members
fly it recreationally. The first and second respondents’ respective
activities in operating the
helicopter are conducted at and from the
premises.
[3] In January 2004 The South African Civil Aviation Authority, the
third respondent, issued and served an order, in terms of the
Civil Aviation
Regulations promulgated under the Aviation Act 74 of 1962, grounding the
helicopter until the airworthiness of the
aircraft could properly be assessed by
its officers.
[4] When it was intimated on behalf of the first and second
respondents that the grounding order would be ignored the appellants applied
in
the High Court at Cape Town for an order that the respondents
‘Be
interdicted and restrained from operating the .... helicopter ... from the
(premises) pending the upliftment of (the) grounding
order
...’.
The matter came before Comrie J who dismissed the application
and refused leave to appeal. The appellants appeal with the leave
of this
Court. The third respondent has taken no part in the appeal and abides the
court’s decision. For convenience I shall
refer to the first and second
respondents as ‘the respondents’ and to the third respondent as
‘the Authority’
[5] The Court below considered that the grounding
order had, for present purposes, to be regarded as valid and that the first
appellant
had a clear right to insist that the respondents complied with it for
as long as it stood. The court nevertheless found that, relief
having been
sought in final form, and in the face of a deposition on behalf of the
respondents that the helicopter was, and remained,
at all relevant times,
airworthy, the appellants had failed to establish that they had a reasonable
apprehension of harm.
[6] The lease contains two provisions which are
material now. In the first the lessee undertook to comply strictly with the
regulations
and rules of, inter alia, the third
respondent.[1] The second forbade
contravention by the lessee of any statutory regulations relating to or
affecting the carrying on of the lessee’s
business in the
premises.[2]
[7] Operation of the
helicopter would necessarily involve taking off and landing at the premises and
constitute an activity within
the course of first respondent’s business.
Such operation would conflict with the grounding order. That order was
empowered
by, or itself constituted, ‘regulations and rules’ of the
third respondent. Furthermore, the order was founded on statutory
regulations
which bore on the operation of the helicopter. Consequently the regulations,
through the order, affected the carrying
on of the business at the premises in
so far as operation of the helicopter was concerned.
[8] Therefore, if the
grounding order has, for present purposes, to be regarded as valid, the
respondents’ threatened operation
of the helicopter entailed a threat to
infringe the appellants’ rights under the lease provisions referred
to.
[9] For the respondents it was alleged in the opposing affidavit, and
urged before us, that the grounding order was the product of
reviewably
irregular and thus unlawful administrative action. It was therefore argued
that the order was invalid and that disregard
of it would not be unlawful and
could not constitute breach of the lease.
[10] The defence which the
respondents sought to raise in this respect has sometimes been called
‘collateral challenge’.
Its applicability was examined and explained
by this court in Oudekraal Estates Pty Ltd v City of Cape Town and
Others. [3] In brief, it is
applicable in proceedings where a public authority seeks to coerce a subject
into compliance with an unlawful administrative
act.[4] If these proceedings are not
of that nature then the grounding order will have legal effect until set aside
by a reviewing court.
[11] The argument for the respondents was that the
application in this case was really brought by the appellants on the
Authority’s
behalf and that the latter sought to coerce the respondents to
comply with the allegedly invalid grounding order. I disagree. The
third
respondent was joined at its own request in the court below and an answering
affidavit was deposed to on its behalf by its
Senior Manager: Airworthiness. The
affidavit did not canvass the procedural and unfairness issues encompassed by
respondents’
review grounds but focused on the merits of the grounding
order. In addition, the deponent declared that the third respondent abided
the
High Court’s decision and offered its testimony to assist the court in
determining the issue between the appellants and
the respondents.
[12] In
support of the respondents’ argument reliance was placed on a letter from
the Authority to the second appellants Property
Area Manager. It was written two
days after the grounding order. Having referred to the order, the writer
requested that the second
appellant refuse access for the helicopter’s
operation from the premises. The submission for the respondents was that this
indicated that the Authority was in truth the applicant.
[13] While it is
understandable that the Authority would want to invoke the appellants’
assistance in combating what it regarded
as unlawful operation of the aircraft,
neither the Authority’s joinder nor its letter just referred to advance
the respondents’
case. Quite without the need for any reliance on the
reasons for the grounding order, or the Authority’s joinder for that
matter,
the appellants were entitled entirely on their own account to take legal
action against the respondents. They could do so not to
enforce the grounding
order but to enforce the lease. It is not adverse to them that the terms of the
interdict sought were aimed
at compliance with the grounding order with no
mention of the lease. Had the interdict merely demanded compliance with the
relevant
lease provisions it would not have been specific enough. Moreover
compliance with the grounding order was necessary to achieve
compliance with the
lease.
[14] In addition nothing justifies the conclusion that the proceedings
amounted in reality to an attempted enforcement by the Authority
against the
respondents or an endeavour by them to review the Authority. Neither in form nor
substance was the case geared to address
those questions which needed to be
resolved if the central issue for decision was the validity of the grounding
order.
[15] In the circumstances the proceedings a quo were not such
that the defence of collateral challenge was available. The grounding order
therefore had to be regarded as valid.
The consequence is that its
infringement by the respondents would have brought about a breach of the lease
if indeed the first
respondent bore the obligations of lessee.
[16] The
respondents sought to argue that the first respondent had the rights of lessee
but none of the obligations. Reliance was
placed in this regard on the relevant
contractual documentation which, it was contended, supported this
submission.
[17] What the papers reveal is that initially the premises were
leased by the first appellant to CHC Helicopters (Africa) Proprietary
limited.
Later, that lessee’s rights and obligations were assigned to Wealth
International Network Proprietary Limited. Later
still, the current lease
documentation was signed. The signatory parties were the first appellant as
lessor and the first respondent,
the latter being specifically referred to
throughout the signed document as ‘the tenant’. In badly drawn but
nonetheless
understandable preambles to the signed document it was recorded that
the first appellant and Wealth International Network had entered
into a new
lease ‘on the same terms and conditions’ as before and that Wealth
International Network had ‘ceded
and assigned its rights under the
lease’ to the first respondent. It was this last reference to rights but
not obligations
which prompted the argument.
[18] The contention overlooks
that in legal parlance ‘assignment’ normally means the transfer of
both rights and obligations
but that its interpretation is in any event
dependent on context.[5] If use of
‘assigned’ in addition to ‘ceded’ is not enough to
indicate the transfer of more than rights, the
context makes it unarguably clear
that the first respondent assumed not only the rights of lessee but the
obligations as well.
[19] It follows that the respondents’ threat to
ignore the grounding order amounted at the same time to a threat to breach the
lease.
[20] The respondents contended nevertheless that breach did not
constitute ‘injury’ for purposes of the second essential
requirement
for final interdict relief which was expressed in the classic formulation as
‘injury actually committed or reasonably
apprehended’.[6] The argument
was that ‘injury’ in that phrase had necessarily to entail physical
harm or pecuniary loss. The appellants
had consequently to show, so the
contention proceeded, that the helicopter was unairworthy and that its operation
involved risk to
life and property.
[21] The argument is founded on neither
authority nor principle. The leading common law writer on the subject of
interdict relief
[7] used the words
‘eene gepleegde feitelijkheid’ to designate what is now in the
present context, loosely referred to as
‘injury’. The Dutch
expression has been construed as something actually done which is prejudicial to
or interferes with,
the applicant’s
right.[8] Subsequent judicial
pronouncements have variously used ‘infringement’ of
right[9] and ‘invasion of
right’.[10] Indeed, the
leading case Setlogelo[11]
was itself one involving the invasion of the right of possession. Of course
it is hard to imagine that a rights invasion will not
be effected most often by
way of physical conduct but to prove the necessary injury or harm it is enough
to show that a right has
been invaded. The fact that physical means were
employed or physical consequences sustained is incidental.
[22] In the
present case therefore the threatened invasion of the first appellant’s
rights under the lease constituted proof
of reasonably apprehended injury. It
was not necessary for the appellants’ success to show that the helicopter
was unairworthy
or what the chances were of a fatal or destructive
crash.
[23] Coming to the third and final requirement, the respondents
submitted that an interdict was not the only appropriate remedy. It
was said
that the first appellant could sue for damages or cancel the lease. This
argument cannot prevail. The first appellant is
entitled to enforce its bargain:
to obtain the lessee’s promised rental while preventing the latter from
conducting itself
in a manner that involves breaking the law. The only ordinary
remedy which provides it with the necessary protection is an interdict.
Cancellation would be quite the opposite of that to which the first appellant is
entitled. And damages would be difficult to prove
if possible to prove at all.
Lessors of commercial complexes stipulate for provisions like those in issue
because they want, understandably,
to maintain the standing or repute or safety
or appeal of their properties. However, whether a particular lessee’s
contraventions
of the law, and consequent breaches of its lease, have led to
financial loss because aspirant or even existing tenants do not want,
in view of
the contraventions, to be involved in the complex, could be exceedingly
problematic to prove.
[24] For these reasons the application in the court
below should have succeeded and the appeal must succeed.
[25] It remains to
mention that a good deal of time was devoted in the appeal to the question
whether the appellants were, by interdict
proceedings, really seeking
contractual relief in the form of specific performance and, if so, whether they
needed to fulfil the
requirements for a final interdict. In reliance on the
views of Professor RH Christie The Law of Contract, 4th ed,
618-9, they argued that there was no such need. One may indeed say that had the
prayer expressly been for specific performance
many of the same issues may have
arisen as have arisen. However, an interdict having been sought, and the
requirements for it having
been met, it is unnecessary to decide whether the
appellants’ argument was right.
[26] The following order is
made:
1. The appeal is allowed, with costs, including the costs of two
counsel.
2. The order of the court a quo is set aside and substituted for it
is the following order:
‘(1) That the first and second respondents be
interdicted and restrained from operating the Bell helicopter, registered
as ZU-CVC-B205 UH 1 H, from the helipad situated at Building 200,
Breakwater East Pier, V&A Waterfront, Cape Town
pending the upliftment
of a grounding order issued by the South African Civil Aviation Authority on
7 January 2004;
(2) The first and second respondents are ordered,
jointly and severally, to pay the first and second applicants’ costs,
such costs to include the costs of engaging two counsel.’
_______________
HOWIE P
CONCURRED:
ZULMAN JA
NUGENT JA
COMBRINCK AJA
CACHALIA
AJA
[1] Clause 6.3.5.1 reads: The
Lessee shall be obliged to obtain and maintain for the duration of this lease
including any renewal thereof,
the requisite licences and all the necessary
approvals from inter alia the Department of Transport, The South African Civil
Aviation
Authority, The Port Captain and any other Authority who may require
approval for the operation of a helicopter landing site. The
Lessee undertakes
to strictly comply with the regulations and rules of such
authorities.
[2] Clause 6.8
contains the following: ‘The Lessee shall not contravene (or permit the
contravention of) any law, bye-law, statutory
regulations or the conditions of
any licence relating to or affecting the occupation of the Premises or the
carrying on of the Lessee’s
business in the Premises, ...’
[3] 2004 (6) SA 222
(SCA)
[4] At 244
C-D
[5] Simon NO v Air
Operation of Europe AB and others 1999 (1) SA 217 (SCA)
228I
[6] Setlogelo v
Setlogelo 1914 AD 221, 227.
[7]
Van der Linden, Judicieele Practijcq 2 19 1; Koopmans Handboek
3 1 4 7.
[8] Blackburn v
Krohn (1855) 2 Searle 209, 211; Bok v The Transvaal Gold Exploration and
Land Co (1883) 1 SAR 75,
76.
[9] Rossouw v Minister of
Mines and Minister of Justice 1928 TPD 741,
745.
[10] Von Molkte v Costa
Areosa (Pty) Ltd 1975 (1) SA 255 (C),
258D
[11] 1914 AD 221.
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