C of A
COURT OF APPEAL OF LESOTHO
M Z VAN
GEMERT 2nd Appellant
GOVERNMENT OF THE KINGDOM
LESOTHO 1st Respondent
ATTORNEY GENERAL 2nd Respondent
HELD AT :
FRIEDMAN, J. A.
were injured while being conveyed in a helicopter which crashed into
a mountain in the vicinity of the Mohale Dam in
They contend that the helicopter crashed as a result of the
negligence of the pilot who was
of the Lesotho Government and was acting in the course and scope of
his employment. They sued the Lesotho Government (first
represented by the Attorney General (second respondent), for damages
in the sums of Ml2 161 432,00 and M249 879,79
respectively. At the
trial it was agreed that the question of liability should be
determined first. After both appellants had testified
their case. Respondents' counsel then applied for absolution from the
instance which was granted. It is against the
order so made that this
appeal has been brought.
Declaration it was stated that in October 1993 appellants were in the
employ of Rodio South Africa (Pty) Ltd as geotechnical
managers at the Mohale Dam Site in the Lesotho Highlands. The
Declaration proceeded as follows:
"4 (b) In pursuance of an agreement between Rodio and the Royal
Lesotho Defence Force entered into on or about 29 October
was supplied to Rodio by the Royal Lesotho Defence Force a helicopter
on hire to airlift equipment and supplies at the
Mohale Dam Site on
the 2nd November 1993 ("the mission").
was an express alternatively an implied term of the agreement
between Rodio and The Royal Lesotho Defence Force that:
(j) there would be supplied by the Royal Lesotho Defence Force with
the helicopter a helicopter pilot;
(ii) while engaged upon the mission the pilot would be and remain
subject to the orders and control and discipline of the Royal
Defence Force in particular so far as concerned the manner in which
he was to pilot the said helicopter and the conditions
in which he
would pilot such.
pursuance of such agreement a helicopter and a pilot, namely Captain
Samuel Mokora arrived at Mohale Village on 2 November
1993 and on
that day undertook the mission.
the course of the mission the Plaintiffs were conveyed in the
helicopter in order to assist with the airlifting of the equipment
and to indicate to the pilot where the equipment and stores had to
helicopter was equipped with a net, the function whereof was to
contain stores equipment or other goods.
the course of the mission, the net with its contents was dropped
from the helicopter onto a platform, whereafter it rolled
platform down the mountainside.
Pilot decided to retrieve the net and at his instance the Plaintiffs
accompanied the pilot in the helicopter with a view to
pilot in such retrieval.
the course of carrying out such retrieval the helicopter
crashed as consequence of the rotors thereof coming into contact with
the side of the mountain."
response to a Request for Further Particulars as to whether the
agreement was oral or in writing, appellants stated:
"The agreement was entered into by way of a written order
addressed to the Royal Lesotho Defence Force which was orally
by the Royal Lesotho Defence Force. A copy of such order
containing the terms of the agreement is annexed hereto marked 'A'."
relevant portion of annexure "A" reads as follows:
ON HIRE TO AIRLIFT EQUIPMENT AT MOHALE DAM SITE @ R1600.00 PER HOUR
TIME RATE R300.00
HOURS SCHEDULE TO BE SIGNED ON SITE WITH RODIO PERSONNEL
IS PLANNED FOR TUESDAY -2/11 /93
FUEL MUST BE TAKEN TO SITE NETS TO BE TAKEN TO SITE".
allegations respondents pleaded as follows:
"5.1 The Defendants admit that an agreement was reached between
and the Royal Lesotho Defence Force by way of a written order
addressed to the Royal Lesotho Defence Force and which was orally
accepted by the Royal Lesotho Defence Force. The Defendants
furthermore admit that annexure "A" to the Further
is a copy of the written order.
5.2 In terms of the written order, a helicopter was to be provided by
the Royal Lesotho Defence Force for hire for the carriage
equipment and persons to a bore site on the western slope of the
Senqunyane River, in Lesotho."
denied that the pilot was negligent but went on to state that -
"16.2 If the abovementioned Honourable Court should find that
the Defendants are liable to the First Plaintiff, all of which
denied by the Defendants, then, and only in that event, the
Defendants allege that the First Plaintiff was conveyed in
governed by the provisions of the Carriage by Air
Regulations, 1978 and in terms of Regulation 4 thereof as read with
in schedule 1 thereof, the liability of the Defendants to
the First Plaintiff is limited to the sum of M40 000,00"
defence was pleaded in respect of second appellant's claim.
dealing with the evidence that was led at the trial it is necessary
to consider how the application for absolution was dealt
with in the
court a quo. At page 4 of his judgment the learned judge stated that
" At the close of plaintiffs' case Adv Penzhorn S.C for the
defendants applied for absolution from the instance mainly on
ground that Plaintiffs' claims based purely on common law as they
admittedly are, are untenable in the light of the Carriage
Regulations 1978 read with the principal Act namely The Carriage By
Air Act, 1975".
learned judge proceeded to consider the Warsaw Convention 1929 as
amended at the Hague in 1955 as well as the Carriage by Air
and the Carriage by Air Regulations, 1978. Having quoted extensively
from two House of Lords decisions to which he had
been referred by
respondents' counsel, namely Sidhu and Others v British Airways plc:
Adnett (known as Sykes) v British Airways
plc  1 All ER 193 and
Fellowes for Herd) and Another v Clyde Helicopters Ltd  1 All
ER 775, the learned judge concluded
"I have accordingly come to the inevitable conclusion that the
Carriage By Air Regulations 1978 read with the Carriage By
1975 as well as the aforesaid carriage by air conventions provide
exclusive cause of action and sole remedy in respect
of claims for
loss, injury and damage sustained in the course of, or arising out of
carriage by air."
necessary to point out at this stage that Sidhu's case dealt with an
international flight which was not the case with the
flight in the present case. For reasons dealt with below the court
held that a claim for damages under the common law
permissible; the only possible claim was one brought in terms of the
Warsaw Convention which dealt with international carriage.
case is thus distinguishable from the present case.
case the contract in question provided in terms for the carriage of
police officials on a helicopter piloted by a pilot
employed by the
defendant. The helicopter crashed causing injuries to a police
sergeant on board. The court held that he was being
reward and that, for the reasons dealt with below, his claim was
limited to the maximum amount stated in the English
Carriage by Air
Acts. The relevance of Herd's case depends on whether appellants were
being conveyed on the helicopter for reward,
a question which will be
of section 3(1) of the Carriage by Air Act, No 35 of 1975, the
provisions of the Warsaw Convention as amended at the Hague,
are stated "subject to this Act", to be of force and effect
in Lesotho. Section 6 of the Carriage by Air Act provides
respect to any cases of carriage by air which are not governed by the
Conventions, the Minister may, subject to sub-section
regulations applying the rules, with any exceptions or modifications
specified by him. Sub-section (2) provides that
the regulations must
include inter alia Article 24 of the Second Schedule to the Act. The
Second Schedule contains the Warsaw Convention
with amendments made
in it by the Hague Protocol. Article 24 of the Schedule reads as
" (1) In the case covered by Articles 18 and 19 any action for
damages, however funded, can only be brought subject to the
conditions and limits set out in this Convention.
the cases covered by Article 17 the provisions of the preceding
paragraph also apply, without prejudice to the questions as
are the persons who have the right to bring suit and what are their
17 reads as follows:
"The carrier is liable for damage sustained in the event of the
death or wounding of a passenger or any other bodily injury
by a passenger, if the accident which caused the damage so sustained
took place on board the aircraft or in the course
of any of the
operations of embarking or disembarking."
Article 17 applies to the damages suffered by appellants, they would
have to bring their case under the Conventions and the carrier's
liability would, in terms of section 4 of the Carriage by Air Act, be
limited to M40 000 each. They would have no claim under the
law. See Sidhu's case, supra.
Articles, i.e. Articles 24 and 17, apply only to carriage by air
which is governed by the Conventions, i.e. to "international
carriage" as defined in the Conventions. It is common cause that
at the time of the crash in the present case the helicopter
engaged in international carriage. As the Conventions have no
application it is necessary to consider whether the Carriage
Regulations published in Legal Notice No.51 of 1978, apply.
2(1) of the Regulations reads as follows:
"These regulations shall apply to the carriage of persons,
baggage or cargo by air which -
not governed by any of the Conventions named in section 3 of the
Carriage by Air Act 1975; and
performed either -
(j) for reward or hire by any person or body or the State; or
(ii) gratuitously by an air transport undertaking."
common cause that the carriage of appellants was not governed by the
Conventions and that the Royal Lesotho Defence Force
is not an "air
transport undertaking". Consequently the only basis on which the
Regulations could apply would be that
the carriage of appellants was
for reward. If the Regulations apply, appellants would have no common
law remedy. They would be
limited to claiming under the Regulations
and their claims would be limited to M40 000 each. (See Articles 22
and 24 of Schedule
1 to the Regulations.) Had that been the position,
at best for first respondent it would have been liable to appellants
in an amount
of M40 000 each. In that event absolution from the
instance could not have been granted in respect of their entire
therefore to consider whether respondents pleaded that Appellants
were being transported for reward, and whether there
is any evidence
on which such a finding could have been made.
paragraph 5.2 of the Plea it is stated that in terms of the written
order a helicopter was to be provided "for hire for
of equipment and persons". There is no basis for the inclusion
of the words "and persons"; the written
order dealt only
with the airlifting of equipment. However, Mr. Penzhorn who, with Mr
Woker, appeared for respondents, submitted
that it was an implied
term of the order that not only equipment but also persons would be
carried in the helicopter. He contended
that such an implied term had
been pleaded in answer to the
for Particulars to the Plea. Respondents were asked, in regard to
paragraph 5.2 of the Plea:
"(a) Is it intended to aver that the written order contained a
term that the provision of the helicopter was for the carriage
so, the Defendant is requested to specify what words on the written
order are relied upon for this averment.
not, the precise grounds should be specified for the averment that
the provision of the helicopter was for the carriage of
addition to the carriage of equipment"
response to this Request was as follows: "The Defendants aver
1.1 the helicopter was engaged in the carriage of cargo and the
Plaintiffs (as appears inter alia from paragraphs 8.1 and 11.1
1.2 such carriage was undertaken for hire and/or reward pursuant to
the express and/or implied terms of the agreement pleaded in
paragraph 5.1 and 5.2 of the plea."
paragraphs 8.1 and 11.1 of the Plea respondents admitted that
appellants were conveyed in the helicopter. This admission does
provide an answer to the question whether respondents intended to
aver that the written order contained a term that the helicopter
provided for the carriage of persons.
already pointed out, there is no express term in the written order to
the effect that the helicopter was to carry persons. The
reference to the "implied terms of the agreement" leaves
the court in the dark as to what the alleged "implied
are. In argument Mr Penzhom attempted to define the implied term by
stating that the agreement was for the conveyance
of equipment and
whatever was incidental thereto, including the conveyance of persons.
Needless to say, as no such implied term
was pleaded, no evidence was
directed to it.
Court Rule 22(3) requires a defendant to state which facts in the
Declaration are not admitted and to what extent. He must
"clearly and concisely state all material facts on which he
relies". The purpose of this Rule is to enable
each side to come
to court prepared to meet the case of the other and to enable the
court to isolate the issues it is to adjudicate
upon. See Frasers
Lesotho Ltd v Hata-Butle (Pty) Ltd (C of A (Civ) No 21 of 1998.)
"implied terms" to which reference was made in respondents'
Further Particulars did not comply with these requirements.
pleading could not have conveyed either to appellants or to the court
what respondents' case was.
can only be implied if it is necessary in the business sense to give
efficacy to the contract. See Reigate v Union Manufacturing
 1 KB 592 at 605; Lanificio Varam SA v Masurel Fils (Pty) Ltd
1952(4) SA 655(A) at 660G. It must also not conflict with
provisions of the contract's express terms (Frank v Ohlsson's Cape
Breweries Ltd 1924 AD 289 at 296-7). I turn now to
the evidence that
was led at the trial in order to determine whether, applying these
tests, there is any basis for a finding that
the agreement was
subject to the implied term suggested by Mr. Penzhorn during
Appellant testified that he had been engaged in preparing level
platforms at various sites on the mountain, on which drilling
could be mounted to perform drilling operations for the recovery of
core samples from the rocks. The helicopter was to transport
drilling rigs to the sites. On 2 November 1993 the helicopter arrived
with two cargo nets in which the equipment was to be
facilitate the transportation of the rigs, the equipment had been
dismantled. The parts were placed in the cargo net.
The captain of
the helicopter was told where the sites were to which the equipment
was to be transported. It was explained to him
that the sites would
be visible from the air as there were people there waiting for the
equipment. The captain nevertheless requested
that one of Rodio's
personnel accompany him to show him where the sites were. It was
decided that first appellant would be the
best person to accompany
him and so first appellant climbed on board the helicopter. The
equipment was then taken to the first
came to the delivery of the equipment to the second site, second
appellant requested the pilot to give him a lift to the
site where he
would await delivery of the equipment which it would have been was
his responsibility to assemble. He climbed on
board the helicopter,
the captain having agreed to drop him off at the top of the mountain
which was about 30 metres above the
platform at the second site.
However, the pilot did not drop second appellant off as arranged.
Instead, he decided to attempt to
retrieve the cargo net which had
fallen off the helicopter during the despatch of the equipment at the
second site, before returning
appellants, who were both on board the
helicopter, to the base site. It was during the manoeuver aimed at
the recovery of the net
that the helicopter crashed.
cross-examination it was put to first appellant that it was part of
that someone would have to show the pilot where the equipment was to
be dropped. First appellant's response was that he
was not aware of
the terms of the agreement. It was then suggested to him that the
captain would not know where to drop the equipment.
replied that the captain would have been able to see the sites as
there were personnel there who would mark them.
It was put to him:
'So your evidence is in a nutshell that the reason why you were on
the helicopter was because it was at the
request of Captain Makoro",
to which he replied: "That is correct".
appellant corroborated first appellant's evidence as to the
circumstances under which both were on the helicopter at the
the crash. Like first appellant, second appellant denied that it was
necessary for anyone to accompany the pilot. He also
knowledge of the details of the contract.
evidence adduced at the trial it cannot be said that there was an
implied term in the contract for the hire of the helicopter
to include the carriage of persons. The court a quo made no finding
on the question whether appellants were being conveyed
helicopter for reward. However, on the evidence led at the trial
there was no room for such a finding. Such an implied term
any event be at odds with the clear express terms of the order form,
which I have quoted above.
follows that appellants were entitled to institute a common law
delictual claim for the damages they alleged they suffered.
unnecessary to consider the evidence which they led on the issue of
the pilot's negligence. Suffice it to say there was sufficient
evidence of negligence to defeat an application for absolution from
the instance at the close of appellants' case.
for absolution from the instance was consequently wrongly made.
appeal is upheld with costs. The orders of the court a quo are set
aside and the following order is substituted therefor:
for absolution from the instance dismissed with costs."
Delivered at Maseru this 15th day of October 1999
OF COURT OF APPEAL
appellants : Mr. R. Selvan SC
respondents : Mr. G. Penzorn SC (with him. Mr. Woker)
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law