Special Hearings — Helderberg Flight Special Hearing — 1998-06-02

MARTINUS GERHARDUS WILLEMSE: The policy which I was looking at was totally different to for instance safety policy because airline policy and aviation policy is something quite independent and very specialised.  It was very important for us in South Africa to understand what was happening globally.
 The two things which were very closely interconnected were the following.  What was the policy in other countries in respect of aviation policy and that is reflected in your bilateral air agreements and was important for us to understand what the policy would be of our department of transport and especially civil aviation, how would they structure our air agreements in future.  
 So for an airline in a country it is extremely important to understand that so that the government and the department don't decide overnight, for instance that it is now in the interests of the country to move towards an open skies policy whilst the infrastructure is not prepared for that step.  
 As against the situation with a disaster or an accident like the Helderberg, that is a completely different field and I would like to answer you as follows.  The reason why I did not become involved at all in the Helderberg disaster was that after the accident took place I played a very limited role because I was looking at the marketing side of things and I was managing the affairs of the next of kin.
 All the other legal aspects, for instance in dealing with the finalisation of claims, claims instituted by the next of kin, negotiations with our insurers.  There were several sets of negotiations involved.  The settlement of claims in South Africa and also in other countries where passengers came from, such as Japan, Taiwan, Korea, I think there were passengers as far afield as England and the United States.
 This was all dealt with by the office of the chief legal advisor in Transnet itself.  So from the airlines' side we didn't interfere at all.  The chief legal advisor played that part and I was no longer part of his team and he dealt with the attorneys of the insurers because you immediately have to involve them when there is an accident and they, I'm referring you to the insurers in turn then appointed their own attorneys in the respective countries and instructed them to start up with the negotiations with the next of kin with a view to settlement of claims.
 My impression was that the most important aspect here was to see whether in relation to the claims flowing from the Helderberg disaster whether this could be finalised as soon as possible in context of the international convention governing claims.  And that's how the matter was dealt with so I was not at all involved in that aspect because I was no longer functioning as a legal advisor.  I hope that answers your question.

GLENDA WILDSCHUT: A question I was going to ask and that was about claims, insurance claims and so on.  Are you saying that the insurance claims were not handled by SAA but by some other department and so which department, if you can just repeat that for me?

MARTINUS GERHARDUS WILLEMSE: Yes.  It was the office of the chief legal advisor of, at that stage we were not called Transnet, I think we were called the South African Transport Services.  So in other words we had the legal advisor, with his team and he took over that function on behalf of Transnet of the company as such, well we weren't even a company at that time but of SATS, and he co-ordinated all the liaison with the insurers and with their attorneys and their various legal representatives.

GLENDA WILDSCHUT: Right.

MARTINUS GERHARDUS WILLEMSE: So he served as, let's call it, as a central point to then act into South African Airways and then from there into the legal advisors of the various countries.  So I know that there was interaction between his office for instance and our offices in Taiwan and in Tokyo and all over the show.

GLENDA WILDSCHUT: And as marketing chief at that time, would you have co-ordinated all of those functions, would you have insured,

MARTINUS GERHARDUS WILLEMSE: No.

GLENDA WILDSCHUT: That people were reasonably happy with claims and insurance payouts and so on?

MARTINUS GERHARDUS WILLEMSE: No.  That was the function of the insurers as such.  We didn't interfere.  Their liaison was strictly with the office of the chief legal advisor and he would inform us of the progress that they were making.  It's quite a structured environment in which you operate in an airline and with airline claims because you are dealing with a Warsaw Treaty which places a limitation on that which can be claimed and that applies to all international cargo or flight and then you have certain protocols which pushes up the amount that can be claimed.
 So, in the case of the Helderberg, if I remember correctly, the maximum amount which could be paid to any passenger or next of kin was defined in the conditions adhering to your ticket which said that the liability of the airline is subject to the following international treaties as amended by the Hague Protocol and whatever conventions which were applicable.
 So, it was quite neatly circumscribed and all that had to be determined by the insurers was actually the ultimate quantum, the amount which had to be paid out and we found that in the case of the Helderberg, the insurers were prepared to go for the maximum amount that could be  paid out because I think that the dilemma which they faced was that once they started settling in a country such as Taiwan for instance, the Japanese and the Koreans would expect exactly the same settlement to make sure that there was no discrimination.
 Because one country's attitude was that his citizens were no less valuable than the citizens of another country but these amounts were all determined by those international conventions and I can't remember whether the amounts were calculated in dollars or whether it was SDR or what but it was easily converted.

GLENDA WILDSCHUT: So are you saying that there were differential payments made out to the different passengers on the flight?

MARTINUS GERHARDUS WILLEMSE: No.

GLENDA WILDSCHUT: Based on the tickets they have and the class they were flying or whatever.

MARTINUS GERHARDUS WILLEMSE: No.

GLENDA WILDSCHUT: Or relationship between the insurer and the countries that these people came from?

MARTINUS GERHARDUS WILLEMSE: No.  There was no difference.  That is the point I am trying to make.  The settlements which were concluded made very certain that there was no distinction made between passengers so there was parity in the offers made in terms of settlement to next of kin.
 So unfortunately I can't talk about the detail because I wasn't involved but what I do know as a result of conversations that took place was that from our side, from the airlines side, we said that we should try to not cause any delays so that the negotiations as far as settlements were concerned could commence as soon as possible so that the next of kin not gain the impression that the airline was unwilling to pay out.

GLENDA WILDSCHUT: And is there a difference between what, well, in terms of employees of SAA, look you've got passengers, people who are not employees on the flight.

MARTINUS GERHARDUS WILLEMSE: Yes.

GLENDA WILDSCHUT: And then you had employees of the company who are also victims of this disaster, particularly the crew and so on.  Now in terms of SAA and insurance paid out to employees.  Can you explain to us what happened there?