Cape Times: 27 Sep 2005
Waterfront victory as court grounds 'unsafe' helicopter
By Staff Writer
The V&A Waterfront has won a victory in court which forces the grounding of a Vietnam War Huey helicopter, which has been used for tourist flights over Cape Town.
The aircraft was operated from the Waterfront helipad leased to Helicopter & Marine by V&A Waterfront Properties. The judgment was issued by the Supreme Court of Appeal (SCA) in Bloemfontein yesterday and overturned a Cape High Court judgment which effectively allowed the Huey Extreme Club and Helicopter and Marine Services to operate the Bell Huey from the Breakwater East Pier, despite a Civil Aviation Authority grounding order issued last year.
On the basis that an allegedly unairworthy craft taking off and landing from its property constituted a safety hazard, the Waterfront initially took the matter to the high court after the helicopter's operators refused to obey the grounding order.
The Huey's owners won that case, which was then taken on appeal to Bloemfontein.
Yesterday a full bench of the SCA, led by Justice P Howie, ordered that the companies "be interdicted and restrained from operating the Bell helicopter ... from the helipad situated (in the) V&A Waterfront, Cape Town, pending the upliftment of a grounding order issued by the South African Civil Aviation Authority on January 7, 2004".
It also ordered the companies to pay the Waterfront's costs.
Justice Howie said: "The threatened use of the helicopter in conflict with the grounding order was in law a threat to invade the V&A's clear right to stop illicit operation of the craft at the premises. The respondents' threat to ignore the grounding order amounted ... to a threat to breach their lease (with the Waterfront).
"As no other ordinary legal remedy except an interdict could protect the V&A's rights, the high court application ought to have succeeded."
In finding for the V&A, he said that all the requirements for an interdict had been met.
The Supreme Court of Appeal said, therefore, it was unnecessary for the V&A to prove that the helicopter was unairworthy.
V&A Waterfront managing director Derick van der Merwe said they were obviously happy and relieved by the judgment.
"We were actually more concerned about them operating and ignoring the (CAA's) grounding order. For the public's safety we had to do what was necessary.
"As soon as they satisfy the CAA, then the ban can be lifted. The aircraft has to have an approval certificate. Our problem was mainly the ignoring of the grounding order," said Van der Merwe.
He said the V&A Waterfront didn't have to do much now as the judgment spoke for itself.
"They (Huey Extreme Club) were obviously in court and we don't have to do much on our side," said Derek van der Merwe.
Helicopter and Marine Services director Gary van der Merwe said he would be able to make a full comment only once he had read the judgment.