[1]
The appellant instituted action in the magistrate’s court for the payment of an amount in
respect of the hire of his aircraft by the respondent. The respondent defended the action and claimed damages allegedly having been
suffered by him as a result of the appellant having breached the contract of hire. The magistrate granted judgment in favour of the
appellant in an amount of R4 283,22, granted absolution from the instance in respect of the respondent’s counterclaim and ordered
the respondent to pay the costs. An appeal to the Eastern Cape Local Division succeeded with costs in respect of the claim as well
as the counterclaim and the magistrate’s order was substituted with an order dismissing the appellant’s claim and granting
the respondent’s counterclaim in an amount of R2 037 with costs. With the leave of this court the appellant now appeals against
the judgment of the court a quo.
[2]
It is common cause that the parties entered into an agreement in terms of which the appellant hired
his aircraft to the respondent at a certain rate per hour and on condition that certain fees in respect of the aircraft be paid by
the respondent. The respondent needed the aircraft for training purposes. In his counterclaim he alleged that it was a term of the
agreement that he would be allowed to use the aircraft until he had obtained his commercial pilot’s licence, that the appellant
breached this agreement by terminating his use of the aircraft and that he sufferred damages as a result. The court a quo would seem
to have accepted that an agreement on the terms alleged by the respondent had been proved. In my view it erred in doing so. The appellant’s
evidence was not to that effect and the respondent tendered no evidence as to what the terms of the agreement were. According to
the respondent he had no personal knowledge as to the terms of the agreement of hire as the agreement was concluded on his behalf
by third parties. The third parties’ evidence as to what the terms of the agreement of hire were was never tendered. In the
circumstances the court a quo erred in upholding the appeal in respect of the counterclaim.
[3]
The respondent used the aircraft during the period 7 May 1998 to 25 May 1998 for 17.3 hours. At
that time the aircraft had been in the possession of the appellant for more than a year. The appellant had acquired the aircraft
from Messrs Fowles in whose names it was still registered. In terms of the regulations made in terms of s 22 of the Aviation Act
74 of 1962 the use of the aircraft during the aforesaid period was illegal. Regulation 47.00.10 provides that a certificate of registration
of an aircraft expires on the fifteenth day after the date on which the holder of the certificate has transferred to another person
the right of possession of the aircraft. From the commencement of the fifteeenth day after the date on which a certificate of registration
expires the use of the aircraft is prohibited until such time as the aircraft is registered in the name of the person to whom the
right of possession of the aircraft is transferred and until such time as such person holds a certificate of registration issued
by the Commissioner. The appellant¡¯s claim is therefore a claim for payment in respect of the illegal use of his aircraft. Such a claim cannot
be countenanced by a court. The par delictum rule to which the appellant¡¯s counsel referred finds no application in these circumstances. The court a quo therefore correctly upheld the appeal in respect of the appellant¡¯s claim.
[4]
It follows that the appellant’s appeal in respect of his claim for payment in respect of the
use of the aircraft by the respondent should be dismissed and that his appeal in respect of the respondent’s counterclaim should
be upheld. In the circumstances it would be fair and practical if each party were to pay its own costs ie if no order as to costs
be made in respect of this appeal, the appeal to the court a quo and the trial in the magistrate’s court.
[5]
The appeal is dismissed and the following order is substituted for the order of the court a quo:
1
The appeal in respect of the claim by the respondent (the plaintiff in the court a quo) is upheld.
2
The appeal in respect of the counterclaim by the appellant (the defendant in the court a quo) is dismissed.
3
The following order is substituted for the order of the court a quo:
(a)
The plaintiff’s claim is dismissed.
(b)
The defendant’s counterclaim is dismissed.
__________________________
P E STREICHER
JUDGE OF APPEAL
_________________________
M M L MAYA
JUDGE OF APPEAL
_________________________
H M MUSI
ACTING JUDGE OF APPEAL
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.RTF of original document