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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

CASE NO: 37102/14

DATE: 17 OCTOBER 2014

In the matter between

DELMON MINING AND CIVILS (PTY) LTD

T/A DELMON AVIATION.................................................................APPLICANT

And

CITIJET AIR CHARTER (PTY) LTD.................................FIRST RESPONDENT

SKYCARE MAINTENANCE........................................SECOND RESPONDENT

HAROLD MCGARRY.....................................................THIRD RESPONDENT

Practice - Urgent application - for delivery to applicant of logbooks records and documents in respect of aircraft owned and operated by applicant - documents required for imminent mandatory performance of MPI service on aircraft - first respondent as the erstwhile airworthiness co-ordinator in possession of documents - first respondent’s refusal to comply based on unsustainable grounds – application held to be urgent – relief sought granted.

J U D G M E N T

VAN OOSTEN J:

[1] This application comes before me by way of urgency. The applicant is the owner of a certain Diamond Aviation Industries 4 seater aircraft, registered in San Marino, and presently stationed in Nigeria, for the performance of survey work from which the applicant derives an income. The first respondent was appointed by the applicant in January 2014 as the airworthiness co-ordinator in order to manage and provide safety oversight in respect of the aircraft. The appointment of such co-ordinator is a requirement in terms of the relevant applicable aviation statutes and regulations of the Civil Aviation and Maritime Navigation Authority of San Marino where the aircraft is registered. The second respondent performs services as an aircraft maintenance officer (AMO) and the third respondent is an aircraft maintenance engineer (AME). They were both previously employed by the applicant and are joined to this application merely as interested parties. Only the first respondent has entered the fray.

[2] The applicant seeks an order compelling the first respondent (the respondent) to surrender to it certain books, records and documents relating to the aircraft (collectively referred to as ‘the logbooks’). There is some dispute as to the exact nature of the logbooks but the applicant accepts the respondent’s identification of those in its possession in paragraph 6 of the answering affidavit to which the relief sought is confined. The logbooks are required for a mandatory major period inspection (MPI) which in the near future has to be performed on the aircraft. The respondent refuses to part with the log books based on a number of grounds to which I shall revert.

[3] The dispute between the parties must be considered against the following background. The applicant states that that it has recently appointed one Davies as AME and Wingman Aircraft Maintenance as AMO. Concerning the respondent it is common cause that it was the appointed by the applicant as the airworthiness co-ordinator of the aircraft in January 2014. It is the applicant’s case that the appointment of the respondent has been ‘revoked’ which the aviation authorities in San Marino were advised of in an email. The email, a copy of which is attached to the papers, in fact confirms that the authorities were advised that Mr Alan Bridger was now the person responsible for the continued airworthiness of the aircraft. It must therefore be accepted that the contractual relationship between the applicant and the respondent has been terminated.

[4] The first ground relied on for the respondents refusal to comply with the applicant’s request is that the handing over of the documents would lead to a different AME and AMO being tasked to perform the MPI of the aircraft which, if not properly executed, would expose the respondent to the risk of being held liable for damages or may negatively impact on its good name and reputation. In the same breath, the respondent attacks the qualifications and competency of Davies to be appointed and act as the applicant’s AME. The relevance of these assertions escapes me. The respondent, at this point in time, is a third party in respect of which no contractual relationship with the applicant exists. The applicant is entitled as it has done, to appoint new officers and it will have to satisfy the aviation authorities in San Marino that all requirements in this regard have been met. It is not for the respondent to usurp that role. In any event, the applicant has ex abudante cautela shown that Davies is duly qualified

.

[5] The further ground for the refusal is this. The respondent claims a lien in respect of the logbooks based on an amount allegedly owing to it by the applicant. Reference is made and reliance placed on an invoice dated 13 October 2014 which, significantly, is the very same date on which the answering affidavit was signed. Be that as it may, the invoice reflects the amount due as R285 000.00 in respect of ‘Management of the aircraft and provision of technical oversight’ of 10 units at R25 000.00 each plus VAT. Questionable as the bona fides of the invoice may be, it evidences nothing more than a debtor-creditor relationship which, as correctly submitted by counsel for the applicant, does not give rise to a lien as now relied on by the respondent. Counsel for the respondent however, had this string to his bow: he summited that the lien existed in respect of unjust enrichment on the basis of the applicant’s patrimony having been unjustly enriched by the services rendered. The contention is legally untenable and falls to be rejected. No lien exists and the respondent, accordingly, cannot withhold delivery of the logbooks to the applicant. The applicant did offer, as an alternative, to pay the amount claimed into trust as security should a lien exist but I am not satisfied that an order to that effect is justified.

[6] The last ground for refusal should not detain me for much longer. The respondent claims privilege in respect of the logbooks on the basis of it constituting confidential information. The basis for the confidentiality of the logbooks has not been disclosed. None exists. The confidentiality of the logbooks is sought to be derived from an agreement concluded between the respondent and the manufacturer of the aircraft engines, Technify Motors GMBH. The contention is misconceived: the applicant as the owner of the aircraft and also the logbooks is entitled to be placed in possession thereof. The possibility of a breach of confidence by the respondent vis-à-vis Technify plainly does not arise.

[7] The respondent challenged the urgency of the matter. It batted for the second and third respondents in contending that the MPI could just as well be performed by them. No justification exists for such an inroad into the applicant’s freedom of contract. Urgency undeniably exists beyond commercial urgency in that the logbooks are required for the imminent MPI to be performed. It cannot be expected of the applicant to simply await its turn on the ordinary opposed motion roll in respect of an opposed application which, as has now been become apparent, is opposed on unsustainable grounds.

[8] In the result the following order is made:

1. The first respondent is ordered to immediately hand to the applicant the books and documents referred to in paragraph 6 of the respondent’s answering affidavit.

2. The first respondent is ordered to pay the costs of the application.

FHD VAN OOSTEN

JUDGE OF THE HIGH COURT

COUNSEL FOR APPLICANT ADV C VAN DER MERWE

APPLICANT’S ATTORNEYS DAVID HUGO ATTORNEY

COUNSEL FOR RESPONDENT ADV N KRÜGER

RESPONDENT’S ATTORNEYS VILJOEN-FRENCH & CHESTER INC

DATE OF HEARING 14 OCTOBER 2014

DATE OF JUDGMENT 17 OCTOBER 2014

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