Gradus and Others v Sport Helicopters also known as Sport Aviation and Another (19879/2008) [2012] ZAWCHC 365 (28 November 2012)

Gradus and Others v Sport Helicopters also known as Sport Aviation and Another (19879/2008) [2012] ZAWCHC 365 (28 November 2012)

The court found that the plaintiffs failed to discharge the onus of proving that Robert MacDonald inherited the delictual liability from his late father’s estate. The evidence established that only ongoing operational liabilities were assumed by Robert MacDonald under an interim arrangement with the executor, and not the pre-existing liabilities arising from the helicopter accident. The estate of ESD MacDonald remained the correct legal entity for the plaintiffs’ claims. The court further held that the plaintiffs incorrectly cited Robert MacDonald as the defendant and that their claims against him had become prescribed under the Prescription Act. The direct evidence of both Robert...

Citation
[2012] ZAWCHC 365
Parties
Plaintiff: Allan Leonard Gradus; Plaintiff: Vicki Gradus; Plaintiff: Richard Charles Pierce; Plaintiff: Sharon Adrienne Pierce; Plaintiff: Maurice David John Stock; Plaintiff: Andrea Joy Stock; Defendant: Sport Helicopters also known as Sport Aviation; Defendant: Charl Anton van Zyl
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
28 November 2012
Case Number
19879/2008
Procedural Posture
Civil Trial / Separated Issues Trial on Prescription and Liability
Outcome
Plaintiffs’ claims against the first defendant are dismissed with costs, including costs of senior counsel.
Judges
K MATTHEE
Legal Topics
Prescription Act, Inheritance of Liabilities, Delictual Liability, Sole Proprietorship, Incorrect Citation, Burden of Proof
Civil Procedure Delict Prescription Act Inheritance of Liabilities Delictual Liability Sole Proprietorship Incorrect Citation Burden of Proof

Case Brief

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Parties

Allan Leonard Gradus

Plaintiff

Vicki Gradus

Plaintiff

Richard Charles Pierce

Plaintiff

Sharon Adrienne Pierce

Plaintiff

Maurice David John Stock

Plaintiff

Andrea Joy Stock

Plaintiff

Sport Helicopters also known as Sport Aviation

Defendant

Charl Anton van Zyl

Defendant

Procedural Posture

Civil Trial / Separated Issues Trial on Prescription and Liability

Legal Issues

  1. 1 Whether the plaintiffs’ claims against the first defendant have become prescribed under the Prescription Act, 68 of 1969.
  2. 2 Whether Robert MacDonald, as the new proprietor, inherited the delictual liability arising from the helicopter accident or whether such liability remains with the estate of the late ESD MacDonald.
  3. 3 Whether the plaintiffs have cited the correct legal entity in their claim.

Ratio Decidendi

The court found that the plaintiffs failed to discharge the onus of proving that Robert MacDonald inherited the delictual liability from his late father’s estate. The evidence established that only ongoing operational liabilities were assumed by Robert MacDonald under an interim arrangement with the executor, and not the pre-existing liabilities arising from the helicopter accident. The estate of ESD MacDonald remained the correct legal entity for the plaintiffs’ claims. The court further held that the plaintiffs incorrectly cited Robert MacDonald as the defendant and that their claims against him had become prescribed under the Prescription Act. The direct evidence of both Robert...

Court Disposition

Plaintiffs’ claims against the first defendant are dismissed with costs, including costs of senior counsel.

Orders

  • The plaintiffs’ claims against the first defendant have become prescribed in terms of the Prescription Act, 68 of 1969.
  • The issues raised in paragraph 7 of the plaintiffs’ particulars of claim (as amended) read with paragraph 8 of the first defendant’s plea (as amended) are decided in favour of the first defendant, who has accordingly been incorrectly cited.