Sheriff for Krugersdorp v United Aviation Services

• Jurisdiction: South Africa
• Judge: Mokgoatlheng J
• Judgment Date: 20 February 2009
• Docket Number: 1099/2007
• Hearing Date: 24 June 2008
• Court: Witwatersrand Local Division

Mokgoatlheng J:

INTRODUCTION

(1)

The second claimant seeks an order setting aside the attachment of a Gulfstream G159 aircraft ("The aircraft") with registration number 25-ALX effected by the Sheriff on the 29 November 2007.

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Mokgoatlheng J

(2)

The first claimant as the plaintiff issued summons against Tramon Air (Pty) Ltd, the defendant, for payment of the sum of 36, 204.12 USD for services rendered at the instance of the latter. The first claimant in terms of Rule 31(5) applied for and was granted default judgment against the defendant.

(3)

Pursuant to a warrant of execution, the Sheriff on the 29 November 2007 attached the aforementioned aircraft. The first claimant alleges that the ownership of "The aircraft" vested in the defendant at the time of its attachment at Lanseria Airport.

(4)

The second claimant in terms of Rule 58(3)(b) instituted these interpleader proceedings alleging that it was the lawful owner "The aircraft" and accordingly, seeks the upliftment of the aforementioned attachment.

(5)

Ahmed El-Hage the managing director of the second claimant alleges that on the 12 September 2006 the latter concluded a contract with the defendant in terms whereof it purchased "The aircraft" from the defendant for the sum of 450, 000.00 USD.

(6)

The second claimant alleges that the sale became perfecta on 4 April 2007 on payment of the outstanding balance, that pursuant thereto from the 24 April 2007 the ownership of "The aircraft" vested in it.

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Mokgoatlheng J

(7)

The second claimant contends that when the Sheriff attached "The aircraft", the defendant did not have any right, title and interest in the said aircraft because ownership vested in it.

(8)

The second claimant alleges that "The aircraft":

(a)

was on the 15 October 2007 flown from outside the Republic of South Africa to Lanseria Airport in order that repairs be effected on it at its instance as the owner thereof and for its own account;

(b)

"is presently still registered with the South African Civil Aviation Authority in the name of Tramon Air (Pty) Ltd the defendant as a result of a delay to obtain the necessary South African Customs and South African Revenue Services clearances to have the aircraft deregistered";

(c)

it is a South African customs requirement that "The aircraft" be present in the Republic of South Africa for inspection and other regulatory requirements before a clearance certificate is issued, that pertinently it was for this reason that it was returned to the Republic of South Africa;

(d)

the sale was perfecta, in that the essentialia of the contract were fully complied with, and delivery of "The aircraft" was effected, that consequently the second claimant was the common law owner of "the aircraft".

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Mokgoatlheng J

(e)

the fact that "The aircraft" was still registered by the South African Civil Authority in the name of the defendant, the said registration does not detract from the legality of the second claimant's ownership thereof; and

(f)

the definition of "owner" in section 1 of the Aviation Act 74 of 1962 "The Act" does not necessarily purport to refer only to persons who are the actual common law owners of an aircraft.

(9)

The first claimant alleges that;

(a)

"The aircraft's" ownership...