Court sequel to doomed emergency flight

The fatal aircraft crash which killed five people near Cape Town International Airport on 16 August 2015 has resurfaced in court after the families of the two pilots opted to sue Westair and the Namibia aviation authorities for N$12 379 800.

Elana Naudé, Rejancca Naudé, and Abraham Jacobus Espag, are suing Westair Aviation, the Namibian Directorate of Civil Aviation Authority (NDCAA), the works minister and the attorney-general.

The patient on the fated emergency air ambulance flight, Gabriel le Roux and his daughter, Charmaine Koortzen from Oranjemund, Steven Naudé, the pilot in command and his co-pilot Amore Espag both of whom were employees of Westair and both of whom operated the flight as well as the paramedic on board, Alfred Ward, all died on 16 August 2015 when the aircraft crashed close to Cape Town International Airport in South Africa.

Elana Naude, former wife of the captain on the flight, seeks payment to the tune of N$3 253 200 and N$2 500 000 in damages, while the couple's daughter Rejancca wants payment of N$1 626 600 and N$2 500 000 for damages. Abraham Jacobus Espag, the third plaintiff in the matter, is the biological father of the co-pilot and he seeks N$2 500 000 for damages.

The plaintiffs also took issue with the constitutionality of provisions of the Carriage by Air Act (CBAA) of 1946, also known as Warsaw Convention of 1929, which limits a two-year period within which claims against aviation authorities may be submitted from the date of the aircraft accidents. Namibia is signatory to the act.

In this case it is argued that the period expired on 16 August 2017. The investigation report into the accident was released on 20 September 2017, three weeks after the prescribed date.

“There is no reason to apply a prescription period different to the period of three years provided for by the Prescription Act of 1969 to the time within which damages claimed against a privately owned air carriage operator in Namibia have to be instituted,” plaintiffs emphasised in particulars of claim.

The South African Civil Aviation Authority conducted an extensive investigation into the accident and its causes and produced a first report under the heading; “Aircraft Accident Report and Executive Summary”. The findings described the actions of Westair and the aircraft crew that caused the accident, as reckless and negligent.

Prior to the release of the report, none of the plaintiffs were informed of facts, evidence and circumstances they had to present for the purposes of establishing a cause of action. They consequently argued that they had no opportunity

“These limitations encourage a perception of unaccountability, lack of supervision over actions of the employees of operators, and the proliferation of negligence and recklessness on the part of private operators in Namibia,” the plaintiffs argued.

According to them this is compromising the safety of aviation and passengers making use of air services in Namibia.

“There is no justification for treating a privately owned carrier registered with the aviation authorities in Namibia any different to any other defendant facing a delictual claim by a plaintiff arising from the recklessness or negligence of such privately owned carrier,” they maintained.

They stated this causes the Warsaw Convention to be part of the CBAA and part of Namibian legislation.

“For such reason the provisions of the CBAA incorporating the provisions of the Warsaw Convention are subject to the provisions of the Namibian Constitution,” the plaintiffs argued in the particulars of their claim.

They asserted that the CBAA and the Convention limit and/or violate their fundamental human rights and freedoms as contemplated by Chapter 3 of the constitution in number of respects.

“There is no constitutional justification for the general applicability of the Convention to carriers in private ownership, registered as such with the aviation authorities in Namibia, such as the defendants,” they argued.

The background to the lawsuit is an emergency air ambulance flight which departed from Eros Airport on the night of 15 August 2015 to collect the patient in Oranjemund and transport him to Cape Town.

The captain in charge of the Cessna 441 was Steven Naude and Amore Espag acted as the co-pilot. Both were employed by Westair. The paramedic on board was Alfred Ward.

Between 04:29 and 05:44 on 16 August 2015 and approximately eight nautical miles north of the Cape Town International Airport, the aircraft collided with terrain after it had been cleared to land at the airport. All five on board were killed.

According to them the Warsaw Convention had its origins in 1929 international carriage by air was in its fledging stages and had to be protected against lawsuits that could have a crippling effect on the development of the industry. Government-owned airliners were also protected.

“There have never been any cogent grounds upon which to, a century after the promulgation of the Warsaw Convention, protect modern-day private enterprises undertaking national and international carriage in the manner done by operators such as Westair,” they maintained.

They argued the limitations imposed by CBAA and the convention upon prospective litigants against carriers such as Westair are unconstitutional.

They add that the South African Civil Aviation Authority's investigation showed, “various damning findings about the negligence and/or recklessness of Westair and its lack of supervision, overseeing actions and lack of control over its employees,” the plaintiffs alleged in their particulars of claim.

According to them there were further damning conclusions about the capacity and competence of the NDCAA.

The issue of licensing, the experience of the co-pilot and various other alleged oversights are addressed in the South African probe, all of which are damning, according to the plaintiffs, to the Namibian aviation industry.

The lawsuit is still at a pre-trial stage.



FRED GOEIEMAN