THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Not reportable

CASE  NO: 346/06

In the matter between :

ANTHONY JOHN KRIEL
Appellant

and

HENDRIK BEUKES
Respondent

___________________________________________________________________________
Before:
STREICHER, MAYA JJA & MUSI AJA
Heard:
15 MAY 2007
Delivered:
31 MAY 2007
Summary:
Illegal use of aircraft – claim for payment in respect of such use
dismissed.
Neutral citation:
This judgment may be referred to as Kriel v Beukes [2007] SCA 74
(RSA)
___________________________________________________________________________

THE COURT

THE COURT:
[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. 1  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.2 The par
delictum rule to which the appellant’s counsel referred finds no application in

1 Regulation 47.00.10 provides as follows:

(1)
If the holder of a certificate of registration transfers to another person the right of possession of
the aircraft specified in the certificate, such holder shall, within 14 days from the date of
transfer notify the Commissioner . . .
(2)
. . .
(3)
An application for registration by the person to whom the right of possession of the aircraft
referred to in subregulation (1) is transferred, shall be made in terms of regulation 47.00.5
within 14 days from the date of transfer.
(4)
A certificate of registration shall expire on the fifteenth day after the date on which the holder
of the certificate of registration has transferred to another person the right of posession of the
aircraft.
(5)
From the commencement of the fifteenth day after the date on which a certificate of
registration expires, no person shall use the aircraft specified in the certificate unless, and until
such time as –
(a) the aircraft is registered in the name of the person to whom the right of possession  of the
aircraft is transferred; and
(b) such person holds a certificate of registration issued by the Commissioner.

2 See Mathews v Rabinowitz 1948 (2) SA 876 at 878.

these circumstances.3 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:
The appeal in respect of the claim by the respondent (the plaintiff in
the court a quo) is upheld.
The appeal in respect of the counterclaim by the appellant (the
defendant in the court a quo) is dismissed.

3 Loc cit.

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