$175 000 lawsuit against Air Zimbabwe flops

A Harare couple's claim for $175 000 in damages against Air Zimbabwe (Airzim) for allegedly neglecting two children left under the care of its staff on a South Africa-bound flight has failed at the High Court.

Charles Banga and his wife Tsungirirai filed the suit in September last year.

They claimed that their two minor children, whose ages were not given, were neglected by the airline's staff on and off a flight to Johannesburg, South Africa, in March last year.

They sought a claim of $75 000 for the alleged psychological trauma, pain and suffering caused to their children, while demanding $100 000 for themselves.

Airzim, represented by Advocate Tawanda Zhuwara, excepted to the summons and declaration.

Adv Zhuwarara argued that claims arising out of air travel were specifically governed by the Warsaw Convention. He said the claims should fall squarely within the precincts of the convention.

Any claims falling outside the Warsaw Convention, he submitted, could not be sustained.

Claims under the Warsaw Convention are limited to instances of death or wounding of a passenger or any other bodily injury by a passenger.

Since the couple's claim arose from a breach of contract and possibly delict, Adv Zhuwarara said, their claims should be thrown out.

On the other hand, the couple argued that the Warsaw Convention did not provide the "sole and exclusive" remedies to claims arising from carriage by air.

Through their lawyer, the couple also argued that the convention did not specifically exclude claims arising from common law.

They said the Warsaw Convention actually incorporated psychological trauma and distress.

The couple attacked the Convention describing it as an archaic piece of legislation which was not justifiable in a dynamic and democratic legal system such as "ours".

After hearing arguments by both counsel, Justice Loice Matanda-Moyo agreed with Adv Zhuwarara's submissions and upheld the exception.

She said it was clear that claims arising out of carriage by air were exclusively governed by the Warsaw Convention.

"Where the Convention provides no remedy it follows there is no remedy," said Justice Matanda-Moyo.

"The reason is so as to achieve a uniform application of the carriage laws without resorting to domestic law."

Justice Matanda-Moyo said it was trite that the claim should be based on the Warsaw Conven- tion.

She found that the claim was based on the alleged breach of contract and delict hence it was untenable at law.

"I am of the view that the exception has been well taken and is upheld," she said dismissing the claim with costs on an attorney-client scale.

The couple sued the airline is seeking redress for breach of an agreement for allegedly neglecting the two minors.

The couple claimed that it bought Airzim tickets for the children who were visiting a relative in South Africa.

The airline crew was supposed to give attention to the children, but the defendant, according to the couple, failed to fulfil its obligations in that it failed to provide assistance to the minor children.

They alleged that a travelling stranger was given the children's travel documents and helped them through immigration, arguing that the decision traumatised the minors.

The couple said Airzim had admitted being at fault, but was refusing to compensate them.