Van Der Molen v South African Civil Aviation Authority (57741/2021 ; 57742/2021) [2023] ZAGPJHC 988 (5 September 2023)

Van Der Molen v South African Civil Aviation Authority (57741/2021 ; 57742/2021) [2023] ZAGPJHC 988 (5 September 2023)

The court held that exceptions based on non-compliance with the Institution of Legal Proceedings Against Certain Organs of State Act are not properly raised by way of exception, as the Act provides for condonation and waiver, and such procedural points must be pleaded by way of special plea. The statutory exclusion of liability under section 99 of the Civil Aviation Act applies only to acts done in good faith; since the plaintiffs allege bad faith, the exception fails. Regarding the duty of care, the court found that the pleaded facts are sufficient to establish a legally plausible cause of action, and that exception proceedings are inappropriate for determining complex or novel legal...

Citation
[2023] ZAGPJHC 988
Parties
Plaintiff: Miles Van Der Molen; Plaintiff: Cemair (Pty) Ltd; Defendant: South African Civil Aviation Authority; Defendant: Simphiwe Salela
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
5 September 2023
Case Number
57741/2021 ; 57742/2021
Procedural Posture
Exception Application / Exception to Particulars of Claim in Two Related Actions
Outcome
Exceptions dismissed with costs.
Judges
Fisher
Legal Topics
Institution of Legal Proceedings Against Organs of State Act, Duty of Care, Statutory Exclusion of Liability, Defamation, Aquilian Action, Administrative Decision Review
Civil Procedure Delict Land and Property Institution of Legal Proceedings Against Organs of State Act Duty of Care Statutory Exclusion of Liability Defamation Aquilian Action +1 more

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Parties

Miles Van Der Molen

Plaintiff

Cemair (Pty) Ltd

Plaintiff

South African Civil Aviation Authority

Defendant

Simphiwe Salela

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim in Two Related Actions

Legal Issues

  1. 1 Is the exception process competent to raise lack of compliance with the Institution of Legal Proceedings Against Certain Organs of State Act?
  2. 2 Is the liability of the second defendant excluded under section 99 of the Civil Aviation Act?
  3. 3 Does the duty of care relied on by the plaintiffs in the Cemair action establish a cause of action?

Ratio Decidendi

The court held that exceptions based on non-compliance with the Institution of Legal Proceedings Against Certain Organs of State Act are not properly raised by way of exception, as the Act provides for condonation and waiver, and such procedural points must be pleaded by way of special plea. The statutory exclusion of liability under section 99 of the Civil Aviation Act applies only to acts done in good faith; since the plaintiffs allege bad faith, the exception fails. Regarding the duty of care, the court found that the pleaded facts are sufficient to establish a legally plausible cause of action, and that exception proceedings are inappropriate for determining complex or novel legal...

Court Disposition

Exceptions dismissed with costs.

Orders

  • The exceptions are dismissed with costs.