Civil Aviation Amendment Bill: consideration of written submissions and departmental responses

Meeting report

The Chairperson welcomed Committee Members, officials from Parliament and the Department of Transport (DoT), and members of the public to the virtual meeting. The purpose of the meeting was to hear presentations from members of the public who had submitted comments regarding the proposed amendments to the Civil Aviation Amendment Bill of 2018, and to afford the DoT an opportunity to respond to the submissions.

Mr Hlupheka Mtileni, Committee Secretary, said apologies were received from Ms B Mathevula (EFF, Limpopo), who was travelling to Cape Town, Ms M Mamaregane (ANC, Limpopo), who was attending a Joint Standing Committee meeting, and Ms M Moshidi (ANC, Free State), who needed to be excused early due to a meeting with the Chief Whip.

There were three submissions from the members of the public. These were from:

• Mr Rennie van Zyl, an International Civil Aviation Organisation (ICAO) retiree and independent aviation consultant;
• Mr Herman Wildenboer, a legal aviation consultant; and
• Mr Kevin Storie, Chief Operations Officer (COO): Commercial Aviation Association of Southern Africa (CAASA).

Submission by Mr van Zyl: International Civil Aviation Organisation (ICAO) retiree and independent aviation consultant

Mr van Zyl said that the reason for his submission was his vast experience in drafting aviation legislation. He had been involved in the drafting of the Civil Aviation Act of 2009. There needed to be a realistic Aviation Act that was compatible for the next ten years, as there would likely to be another opportunity to make amendments only ten years after the amended Bill was passed.

The Aviation Safety Investigation Board (ASIB) was established as per the current Act, but it was not staffed by the Department of Transport (DoT), due to Treasury directing the Department to allocate funds from its allocated budget. Without a commitment from the DoT to staff the ASIB, the proposed amendments to the Aviation Bill would not yield its desired results. ASIB needed to be classified as a juristic person for its status as an aviation authority to be ratified, and for it to get the adequate support it needed to effectively function.

He raised a concern about definitions included in the proposed amendment. The changed definition of ‘air services’ had consequences for the Air Services Licensing Act (Act No.115 of 1990). It proposed the deletion of the exception provisions, which would then require any flight in South Africa to obtain an air services licence, which may have unintended consequences. This was especially the case when there was no proposed amendment of the air services definition in the Air Services Licensing Act. To avoid confusion, the original definition in the current Civil Aviation Act should be retained to avoid undue conflict that may arise from the amendment.

The title change of Director of Civil Aviation to Commissioner of Civil Aviation needed to be reviewed, as it was an international norm for air services' organisations to be headed by a director or director-general. The change to a commissioner could be equivalent to a commissioner of oaths. There were cost implications for such a change, as software programming, licences and manuals would need to bear the new title.  

The DoT needed to make a clear distinction between "aerodrome" and "airport." The inclusion of facilities in the definition of aerodrome was considered an airport. Did the Department wish to regulate airports inclusive of its associated services such as customs and the movement of people, or did it wish to regulate aerodromes, which was the area in which aircraft flight operations took place?

There was a need to clarify the appointment of the executive responsible for aircraft accidents and incidents investigations (EAAI), should aircraft accidents arise. ASIB should be included in the appointment of the responsible executive, as the appointment by the SACAA to the position may create a conflict of interest, where the executive may criticise the SACAA leadership and likely not get their contract renewed due to this. The appointment should be made by ASIB, with the chosen executive reporting to the ASIB leadership.

There was also a need to clarify which minister would be responsible for ensuring recommendations were actioned if there was an investigative report on accidents between domestic aviation and the military. It had been recommended that the minister responsible for aviation should not be tasked with actioning recommendations from investigative reports. The Presidency should be the first point of reference for an investigative report, or a minister outside aviation.

The current Act had strict appointment requirements. ASIB members were appointed on the basis of the years of experience they had, along with a list of competencies that were required for their appointment. The proposed amendment, however, now states that members should have relevant expertise and qualifications. How would this be determined, and by whom?

The financing of the ASIB needed to be properly managed, especially when there were aircraft accidents. Would the DoT be involved in ensuring ASIB’s budget was adequately controlled, or would it be confined to strict requirements determined by the Department of Finance or Treasury?

The expansion of limited liability, as proposed in the amendment, was too wide, and gave the SACAA undue powers to make determinations on how best those limitations could be applied. It should rather be limited to employees of the SACAA to prevent them from being seen to be above the law.

The exemptions proposal of having the Minister sign off on all exemption requests was not practical, as the Minister would be inundated with such requests. The requests should remain with the Director so that it averted an exemption crisis, like the fire-arm licensing which was difficult to process.

The amendment Bill should retain section163 (3) of the current Act, which pertains to retaining international aviation standard documentation which may be required for compliance, investigative or inspection purposes. It could be difficult and expensive to obtain documentation from multiple sources, especially when amendments had been incorporated into any technical standard. It was for this reason that the Director should be the designated person to have a copy of each standard and their amendments should such documentation be required by any interested party, either free of charge for inspection at a location approved by the Director, or an interested party could make copies at their own expense.  

Submission Mr Wildenboer: Legal Aviation Consultant

Mr Wildenboer said that Mr van Zyl’s presentation addressed most of his own concerns about the proposed amendment. The proposed change of "airport" to "aerodrome" was not consistently changed throughout the Bill, nor were there specific exemptions that applied to why "airport" was used. The Committee needed to ensure that "aerodrome" was used throughout the Act, and not in certain sections. This also applied to the use of the word "heliport" where it was appropriately listed in the definitions section and affected sections within the Act.

The role of the EAAI did not appear in chapter four of the Act. Currently, the EAAI was limited to the appointment and management of investigators. They should be empowered to provide guidance in investigations and other operational matters. The inclusion of the EAAI in chapter four would allow for such empowerment.   

The four-month notification period to increase fees, charges and levies to the industry appeared too long, due to several factors. The Minister of Finance must indicate to the Minister of Transport that proposed increases were acceptable, which may take some time. Industry consultations were also required to take place, and the Civil Aviation Regulations Committee (CARCom) needs to receive public comments for consideration before finalising its position on proposed fees. The entire process could take a minimum of six months to finalise, so the four-month notification period of fee increases should rather be reduced to two months in order not to delay the implementation of fee changes in the industry. The proposal of a fees committee in the amendment already exists in the current Act, and consists of members from the aviation industry. A new fees committee as per the amendment would be a duplication of an existing structure.  

Echoing Mr van Zyl’s remarks, Mr Wildenboer said that the function of exemption approvals should remain with the Director/Commissioner, as they meet the technical and legal divisions regularly to consider all exemptions. Shifting the approvals to the Minister would cause an administrative backlog and cause delays which would be detrimental to the aviation sector.

Attention needed to be drawn to the distinctive functions between authorised persons and authorised officers. Authorised officers were involved in safety issues, whereas authorised persons were involved in security issues. Search and seizures were designated to authorised persons such as the South African National Defence Force (SANDF) and the South African Police Service (SAPS), but the current amendment seemed to extend such powers to authorised officers such as civil aviation inspectors, which would be a drastic increase in powers to officials who were not within the ranks of the SANDF or SAPS. The amendment should ensure that such power was retained only by authorised persons.

Submission by Mr Storie: Commercial Aviation Association of Southern Africa

Mr Storie said that the CAASA had been in existence since 1944, and represented 40% of the aviation industry, inclusive of domestic and independent airports, maintenance organisations, training schools, charter companies and fourth industrial revolution (4IR) drones.

He agreed with Mr van Zyl's and Mr Wildenboer’s presentations, and added that the amendment bill needed to balance South Africa’s international and domestic aviation standards. He also raised concern about the proposed definition of "air services." The current definition in the Act was in line with Article 96 of the Chicago Convention on International Civil Aviation, and appeared in the Air Service Licensing Act. There was currently an integration process of both domestic and international air licences which the definition of "air services" should reflect, but which was currently not the case. The deletion of "schedule" and "public" from the definition meant that non-air services would be required to have a licence to operate, which would create undue bureaucratic processes and would hinder economic development in the country. As such, the definition should align to the Chicago Convention as well as concerns raised by the presenters and the industry.

The title change of "Director" to "Commissioner" would be a significant cost to the aviation industry. There was no value in the change, except for incurring the cost to changing the title in all documentation that governs the industry. This would put further strains on the industry which had already suffered the consequences of the COVID-19 pandemic, and the title change also moved the country away from international best practice.

Regarding the exemptions as empowered by the Minister, the DoT did not have the expertise to determine what kind of exceptions were granted. The Department must either create a unit that is dedicated to exceptions, or have regular and efficient discussions with the air services regulator. Currently, there were no such interactions between the Air Services Licensing Council or the Air Services Regulator, which was already causing bureaucratic uncertainty. Such uncertainty was causing South Africa to lose revenue-generating aircraft to neighbouring and international countries. The appeal process which DoT would be empowered to institute was also an area of concern because of the long duration it would likely take for a decision to be made. It would result in grounded operations for airlines, which would lead to a loss of income. The proposed exemption authority and appeals process to the Minister and DoT was not a practical solution, and should be reviewed.

The expansion of powers to authorised officials such as civil aviation inspectors when it came to search and seizure requests, which was currently reserved for authorised persons such as the SANDF, SAPS and the South African Revenue Service (SARS), should be reviewed. There should be a coordinated effort between all parties within their defined and limited scopes to avoid unnecessary groundings of flights and further bureaucratic processes which would cause undue inconvenience in the industry.

The removals of sections 156-162 and the amendment of section 163 would undermine the independence of the respective industry and security bodies to debate and create regulations, and have them promoted to the Minister. If it was under the Director or Commissioner, it would result in undue bias, which would not reflect the industry’s realities. There had been attempts of this nature which needed to be avoided in the future.

The inclusion of the words "shall endeavour to consult with relevant stakeholders" regarding charges and fees under section 74 (c) gives the SACAA discretion to consult the aviation stakeholders. This goes against the constitutional importance of mandatory engagements with stakeholders, and would likely not pass constitutional muster if placed before the courts.

CAASA, as an official aviation body, was not consulted when the draft amendment was proposed. Smaller aviation bodies and state-owned entities like ACSA were consulted, but this was not extended to CAASA and its membership despite the percentage it occupies in the aviation industry.

Mr Storie warned that certain aspects of the Bill in its current form failed to protect the general aviation and recreation industry. It would place South Africa in a similar position as other African states where IACO frameworks had replaced a domestic aviation framework. There had been a decline in key aviation activities, which were the industry’s feeders and growth areas. The Bill needed to help grow the industry so that it could employ 50% of the youth entering the aviation market and strengthen the industry going forward.

DoT's response

Ms Elizabeth Mpye, Chief Director: Aviation Unit and Regulation, DoT, outlined the Department’s response to each of the submissions. Critical to the Department’s response was that it had consulted extensively with various stakeholders.

She said that the name change of the Director of Civil Aviation to Commissioner of Civil Aviation was to eliminate the confusion caused within government departments, as a director was normally related to the first level of Senior Management Service (SMS). It would go back to the original title prior to the 2009 amendment. This would not impact on the decision-making powers, functions and responsibilities bestowed upon the Director under the title change, nor would it change the validity of documentation, licences, authorisations etc. The change would also not have any financial implications, as there was no requirement to change any documentation to reflect the change.

The ideal position of the Department would have the ASIB as a complete entity with the ability to function fully with staffing and financial resources. The current policy decision of government had been that there would be no establishment of a new entity, nor would Treasury provide funding for it. The current bill also did not provide such a creation, which was why the Department was pushing for the amendment to enable or find an alternative route to such a creation. It was only when ASIB could be established as a complete entity that it could be classified as a juristic person. This would also address the supposed conflict of interest in SACAA being in a conflict of interest situation when appointing the EAAI. The EAAI would be responsible for managing investigators, who would be designated by the ASIB to investigate specific accidents. The Executive would not be responsible for the designation of investigators, but the management of the investigators, which was meant to enhance independence.

Pertaining to the definition of "aerodrome," South Africa drew its definition from Annexure 14 of the Chicago Convention on International Civil Aviation, which includes an airport with aeroplanes and heliports. This would ensure that where provisions that applied to both aeroplanes and heliports, the word aerodrome would be used. This was also the case in the Civil Aviation Regulations and Technical Standards. It also applied to the definition of air services, which was not in conflict with Article 96 of the Convention and section 1 of the Air Services Licensing Act, 1990.The proposed definition includes aircraft operated regardless of reward or scheduled basis. Safety and security precautions must be followed in either circumstance.

The recommendation that the minister responsible for aviation regulations should not be the same person to receive accident reports comes from the ICAO, which advises member states to follow its recommendations. However, it was understood that some states were not always able to do so, including the proposal that the minister in charge of aviation should not receive accident reports. South Africa had achieved a high score for accident and incident investigations under the current arrangements of the designated minister, but a pathway for further independence would be explored once further solutions had been explored.

The Commissioner of Civil Aviation and experts appointed by the Minister would be responsible for assessing the relevant expertise and qualifications of ASIB members prior to their appointment.

The Office of the Chief State Attorney Adviser had stated that the Bill, regarding search and seizure provisions, was constitutional.

The four-month notification period regarding fees was universally adopted by the industry for the various bodies and institutions to make the necessary changes to their systems and follow the new fee structures that had been approved.  

The expansion of the limitation of liability was to ensure that personnel that were not designated by the SACAA were afforded the same protection as employees of the organisation.

The exemption requests should be conferred by the Minister to ensure that exemptions were complied with. Should there be extensive requests for exemptions, a regulation would need to be drafted to respond to the caseload of requests.

The amendment provides a clear separation of authorisation between safety and security personnel, and that authorisation would take place on a case-by-case basis.  

With regard to the establishment of a fees committee, the aim was to regulate fee adjustments, as some fees were not channeled to CARCom. This would ensure broader industry participation and ensure fee standarisation across the industry.

The proposed deletion of section 163 (3) was to avoid copyright infringement of ICAO’s intellectual property. Access to ICAO’s documentation could be accessed on their website, whether freely or purchased.

The proposed removal of sections 156-162 and amendment of 163 had been discussed at CARCom, which had agreed with the removal after discussions with the Department. CAASA was an active member of CARCom, which would have given it an opportunity to raise any concerns regarding the section removals. CARCom was an advisory board which the Minister consults when making regulations. As such, it was not clear how the independence of CARCom would be undermined by removing the proposed provisions.

The Department did not have a list of consultative bodies. Consultations were based on the relevance of the issues being discussed, and which consultations would be conducted with affected stakeholders. The Department would be open to further engagements with CAASA outside the current amendment process, as they were indeed a key stakeholder in discussing civil aviation issues.

Discussion

Mr T Brauteseth (DA, KZN) thanked the presenters for their presentations, as they had helped him to understand the technicalities of the aviation industry. Their insight was helpful to the Committee, as they were in better position to provide recommendations to the National Assembly and guide how the NCOP’s Members would vote for the Bill.   

Mr M Rayi (ANC, Eastern Cape) agreed with Mr Brauteseth, saying the submissions and responses of the industry experts and DoT were coherent. He asked if indeed the NCOP would vote on the proposed bill amendment, considering it was a section 75 bill which provinces traditionally did not vote on. He also wanted to find out from Adv Frank Jenkins, Senior Parliamentary Legal Advisor, if a government department made a submission about a bill, like in the case of the Department of Defense (DoD), they would be required to present their submissions to the Committee like the industry experts and the DoT. Departmental submissions were usually discussed at a Cabinet level, so there was seemingly no need for a public presentation, unless requested.

Responses

Adv Jenkins said that policy issues such as management processes and title changes had already been responded to by the DoT. The most important aspect of the Bill was the search and seizure provision which Parliament had considered, since the Financial Intelligence Services Bill which was referred to the Legal Office in 2016 had also considered search and seizure within its provision. The Office had received senior counsel's advice on what search and seizure was and under what conditions such requests were permitted. It had been advised that search and seizures were permitted under licensed premises or, in the absence of such premises, permission had to be obtained and/or certain requirements must be fulfilled. He would look at the proposed provision in the Bill and report back to the Committee to see if it was acceptable.

The Legal Office must ensure there was consistency and high quality with all proposed legislation.  There would be a review to ensure all proposed definitions and use of terms were consistently applied throughout the Bill. There would also be a review of the potential conflict of interest in the appointment process of the EAAI. One could not assume that there would be a conflict of interest, as it had to be specifically defined in accordance with legislation, nor could it be assumed that an entity would flout its processes to be in a conflicted situation.

Ms Raksha Haricharan, State Law Adviser, said her office was satisfied with the DoT’s responses to the submissions made before the Committee.

The Chairperson said that the bill was a section 75 bill. The Select Committee must still deliberate on the feedback received from the public, and there were key areas where Adv Jenkins had to report back to the Committee. This would help it to advise the National Assembly on its position when it was tabled for a vote.

Adv Jenkins said that when bills were presented by a department and the designated ministers, it was accepted that the ministers had already consulted the relevant departments at the Cabinet level to which departmental submissions were shared. The Legal Office required the minister to state which departments they had consulted. In this case, the Department of Defence (DoD) should have been consulted, or submissions made to the DoT. He said that the Legal Office would have a look at the DoD’s submission in the interests of good quality legislation, and would refer back to the Committee once their submissions had been reviewed.

Ms Haricharan said DoD had raised concern about section 15 of the proposed amendment. She said that the way the section was written was not a drafting error and that it was of the view of her office that the section and its meaning was clearly written.

Adoption of minutes

The Chairperson asked that the Committee further defer the adoption of the minutes from its meeting with the Passenger Rail Agency of South Africa (PRASA) on 8 September 2021. This was to allow the Committee Secretary time to include the outstanding matters raised by the Committee from its previous sitting.

The Chairperson thanked all presenters for appearing before the Committee and helping it to understand the significance the bill would have on the aviation industry. He also thanked them for the coherent manner of their presentations, which would help them to consult further with all affected stakeholders. There were high expectations by the Committee on Cabinet, particularly the Minister and the DoT, to ensure that the concerns raised were taken note of and that it was in the best interest of the country to have a robust and fruitful legislation. The Committee was also thanked for making the meeting a success and for their input.

The meeting was adjourned.