Civil Aviation Amendment Bill: deliberations

Meeting report

The Chairperson announced that public hearings on the National Road Traffic Amendment Bill would take place on 10, 11, 16, 17 and 18 March 2021.

Civil Aviation Amendment Bill
Adv Alma Nel, Committee Content Advisor, took the Committee through each clause of the Bill.

Clauses 1-7
The Committee accepted Clause 1 on definitions with the inclusion of the proposed Portfolio Committee (A-list) changes.

Adv Nel drew attention to the inclusion of Customs alongside the South African National Defence Force (SANDF) and the South African Police Service (SAPS) in Clause 2(c).

Mr L Mangcu (ANC) recalled that there had been some discussion of this change and asked what its effect would be.

Mr L MacDonald (ANC) agreed as the Bill should not hinder the SANDF or SAPS in any way.

Adv Nel said the Department had explained the purpose of this change. The SANDF and SAPS had always been included in the principal Act; the Bill only added Customs.

Mr Mangcu accepted this explanation.

The Committee accepted Clause 2.

Adv Nel noted that Clause 3 provided for the removal from section 1 of the requirement for the Minister of Transport to consult with the Civil Aviation Authority (CAA) in ratifying amendments to the Convention on International Civil Aviation and the International Air Services Transit Agreement.

Mr Mangcu understood that agencies such as the CAA acted on behalf of the Minister of Transport but wondered why the requirement to consult with the CAA had been removed.

Adv Adam Masombuka, Chief Director: Legal Services, Department of Transport (DoT), explained that the change would align the Act with section 231 of the Constitution, according to which the negotiating and signing of international agreements was the responsibility of the executive branch. It was normal practice, however, for the Minister to consult with relevant entities within the Department.

Mr K Sithole (IFP) suggested that perhaps the word “may” in this section should be changed to “must” if it imposed a constitutional obligation on the Minister.

Mr Mangcu did not think that consultation with a department entity took any power away from the Minister unless it was an obligation. Were there occasions in which similar provisions had caused problems? The process of consultation actually enriched the Minister’s authority. He did not support this amendment.

Ms M Ramadwa (ANC) asked what the current practice of consultation was.

Mr C Hunsinger (DA) said that section 231 of the Constitution was clear that it was the prerogative of the executive to ratify international agreements. He did not see a reason that consultation with the CAA should be obligatory.

Mr T Mabhena (DA) agreed.

Mr Mangcu accepted Mr Hunsinger’s argument and withdrew his objection to the amendment.

Adv Masombuka said that in practice the Minister did consult with relevant stakeholders. He explained that changing “may” to “must” would make consultation obligatory, adding that in general, if a decision had to be taken “in consultation” then consensus was required, whereas if it had to be taken “after consultation” then one party could make any decision after the consultation.

Adv Nel asked the Committee to confirm its support for Clause 4, which would delete section 4(4) of the Act.

Mr Sithole asked for the reason for the deletion and what its impact would be.

Mr Frank Jenkins, Senior Parliamentary Legal Advisor, explained that the section simply was not necessary as its provisions were covered by other legislation.

The Committee accepted Clause 4.

The Committee accepted Clause 5, which contained minor consequential amendments.

The Committee accepted Clause 6, which contained technical amendments.

Mr Sithole requested clarity on the impact of Clause 7 on section 8(3), which limited the application of section 8(2) if damage or loss was wilfully cause by the person who suffered it.

Adv Nel replied that section 8(3) was not being amended and would not be affected.

The Committee accepted Clause 7.

Clause 8 (substitution of Chapter 4)
Adv Nel noted that most of the public submissions received had dealt with this clause, which would establish the Aviation Safety Investigation Board (ASIB). The independence of ASIB in particular had come up regularly. She drew attention to the proposed section 15 which dealt with the appointment of the ASIB board. The A-list of Committee changes proposed to insert a provision for the board to be appointed by the Minister.

Mr Hunsinger remembered that the Committee had agreed that the appointment of the Board would be done by Parliament, not the Minister, or that Parliament would at least be interviewing candidates and drawing up a shortlist from which the Minister could choose the board members.

Mr Mangcu did not recall the Committee agreeing to this but did not have any objection to the proposal.

Mr McDonald did remember the committee’s agreement.

Mr P Mey (FF+) asked for confirmation if this would mean that the Portfolio Committee would submit a shortlist to the Minister.

Mr Hunsinger confirmed this. The procedure would be similar to the procedure for appointing the board of the South African Broadcasting Corporation (SABC) as provided for in the Broadcasting Act.

Mr Mey supported the proposal.

Adv Jenkins suggested that, for budgetary reasons, the Minister should submit a list of candidates to Parliament, which would conduct interviews and return a shortlist to the Minister. The Minister had to be the appointing authority, however, as ASIB would be performing an executive function. The Committee would have to decide on certain details, such as how long the shortlist would be.

Mr Sithole asked for clarity on the media channels that the Minister would use to advertise board positions, as provided for in the substituted chapter's section 15(2) as well as section 11(1)(a).

Adv Nel replied that “the media” usually referred to the full range of channels, including newspaper, radio and social media.

Adv Masombuka added that in practice, board positions would be advertised in newspapers, the gazette and on radio. As things stood, the Minister would then appoint a committee including aviation experts to prepare a shortlist from which the Minister would appoint the board members. If the Committee wanted Parliament to be involved it would have to decide how the process was initiated.

Mr Hunsinger suggest that the Minister should initiate the process. Parliament should conduct interviews and return a shortlist of recommended candidates to the Minister for final approval.

Ms Ramadwa asked where Parliament’s oversight role would fit into this proposal.

The Chairperson observed that the proposal was modelled after the procedure of appointing other boards, such as the SABC board. Parliament would have no oversight if it was not involved in the appointments.

Mr Mangcu proposed that the Committee should base the process on the process used for appointing the SABC board and other similar entities.

Mr Sithole agreed that the Committee should look at the appointment of the SABC board for reference.

Adv Nel explained that the appointment of the SABC board was initiated by Parliament, which conducted interviews and submitted a shortlist to the President, rather than the Minister. She agreed with Adv Jenkins that gathering nominations could be an expensive process and moreover it was already budgeted for within the Department. It might therefore make sense for the Minister to advertise board positions and submit nominees to Parliament.

Mr Hunsinger agreed with this suggestion. He suggested that the Committee adopt the most transparent possible system, given that the ASIB was an internationally aligned entity dealing with safety.

Mr Levers Mabaso, Acting Chief Director: Aviation Safety, Security, Environment and Search and Rescue, DoT, cautioned that one of the Department’s audit findings had been about the slow pace of appointing officials, promulgating regulations and passing legislation, and called for whatever process was adopted to avoid unnecessary delays.

Mr Hunsinger replied that this was a valid point. He assured Mr Mabaso that the appointment of the ASIB board would be prioritised. He proposed that the Committee accept the principle of parliamentary involvement.

Adv Jenkins suggested that the involvement of Parliament should follow the preparation of a shortlist of ten candidates by the expert committee appointed by the Minister.

The Committee accepted the principle of parliamentary involvement in the appointment of the ASIB board and that this involvement would take place after the Minister had prepared a list of nominees.

Adv Nel summarised proposed sections 16 to 28, recalling that the enormous cost of an underwater salvage operation in the event of an aviation accident over water had been raised in the public submissions. She also drew attention to section 28 dealing with the independence of the ASIB board, which had been a concern of several public stakeholders.

Mr Sithole asked what “special skills” would be considered in appointing board members in section 16(b)ii and how transformation would be provided for. He was concerned that new staff would not be able to enter the industry.

Mr Mabaso replied that the “special skills” considered were required to satisfy international standards. These included weather, air traffic control, piloting and engineering specialisations. It would not be desirable to have a board member without these special skills. Transformation would be promoted through the appointment of investigators.

Mr McDonald wondered if a levy for accident investigations might be added to air ticket costs, as proposed by Mr Rennie van Zyl, given that a large investigation could potentially bankrupt the CAA.

Mr Hunsinger supported Mr McDonald’s suggestion. He recalled that the passenger safety charge contributed 75% of the budget of the CAA and suggested that it might need to be renamed. What was included in this charge and how was it allocated? A levy for accident investigations would have to be ring-fenced to prevent it becoming part of a general revenue stream.

Mr Mabhena noted that the current budget for accident investigations was only about R30m per year. As an accident investigation could potentially cost billions of rands, a source of funding needed to be found. To guarantee ASIB independence, this funding should preferably come from outside the CAA and Department. He recalled that the CAA had proposed that the ASIB would share its office space. This might compromise its independence, as officials from the two entities would fraternise and become familiar with each other.

Adv Jenkins explained that according to section 77 of the Constitution only the Minister of Finance could introduce a new levy. This would therefore require buy-in from National Treasury. The Portfolio Committee could however introduce legislation to ensure that funds were ring-fenced for ASIB.

Mr McDonald agreed with the idea of setting aside a portion of the passenger service charge for accident investigations.

Mr Mabaso said that the passenger safety charge had always been intended to provide funding for accident investigations but he was unable to say precisely what fraction was currently used for this purpose. He suggested that the Minister might be able to promulgate a regulation setting aside a certain portion of the charge, as well as the fuel levy, for the purpose. He did not however think it was possible to appropriate funding for every eventuality. There would always be special cases, such as the Malaysia Airlines Flight 370. The budget would be based on historical trends of the aviation industry.

The Committee accepted sections 29 to 40, which described ASIB functions and powers.

Adv Nel looked at proposed sections 41 to 44 on investigation reports. She recalled that there had been a suggestion that an inquest should be triggered automatically and there had also been some discussion on the relevance of the sections to the Promotion of Access to Information Act and the Protection of Private Information Act.

Mr McDonald requested that the Act should explicitly provide for draft accident reports to be sent to Parliament. The two accidents involving the Boeing 737 MAX in 2018 and 2019 illustrated the cost of delays in releasing accident reports. Even if South African airspace was not as busy as other places, the country needed to be prepared for an accident. An inquest should also be triggered automatically by a fatal aircraft accident. In the case of the CAA calibration aircraft accident, the family members of the victims were still in the dark, more than a year after the accident, because of the way the investigation and reporting was being done. A draft report should be released every few months.

Mr Hunsinger said that interim reports should also be released in the case of a lengthy, extended investigation, perhaps every six months. He recommended that proposed section 41(1) be changed to require that the report be tabled to Parliament and the CAA as the regulator of aviation in addition to the Minister and the public. He said that inquests simply did not happen and there needed to be a formal mechanism through which family members were informed. Firmer procedures around inquests and communication with families were required.

Mr Sithole agreed that accident reports should be tabled to Parliament. He was concerned however that the requirement of section 41(2)(a) that ASIB must send a copy of the report to any person who had a direct interest in its findings was too broad.

Adv Jenkins agreed with the policy of sending interim or draft accident reports to Parliament, as its members were representatives of the public, and did not think there was any legal barrier.

Mr Mabaso said it was necessary to distinguish preliminary reports and final reports. According to the Chicago Convention, the investigator was obliged to release a preliminary report if the investigation was taking a long time. He recommended that only the final report should be tabled to Parliament, as it should not influence the report. He noted that the accident investigation division of the CAA was currently required to submit quarterly reports to the Minister. Whatever the Committee decided, he suggested capturing it in regulations rather than the Act itself as these matters had to align with international standards which did change from time to time.

Mr Hunsinger confirmed that he was suggesting the final report should be tabled to Parliament.

Adv Nel summarised sections 45 to 52, drawing attention to the inquest provisions in section 52. These provisions related to the release of an on-board recording as part of an inquest, not to the question of triggering an inquest in the event of a fatal accident, which the Committee had discussed.

Mr Hunsinger was convinced that an inquest should be triggered automatically and the investigator must be obliged to communicate with the victim’s family. The inquest should run concurrently with the investigation and there should be communication with the family even in a non-fatal accident.

Mr McDonald agreed with this proposal.

The Committee accepted sections 53 to 62.

The Committee accepted sections 63 and 64 on the rules of ASIB, sections 65 and 66 on offences against ASIB, and sections 67 and 68 on transitional arrangements and the liability of ASIB board members and related parties.

Clauses 9-13
The Committee accepted Clause 9, which made minor corrections to section 69 of the Act, Clause 10 which made minor changes to section 71, and Clause 11, which amended section 72 by adding environmental protection to the objects of the CAA as well as making minor and technical changes.

Mr Hunsinger recalled that several public submissions had raised concern about the future role of the Civil Aviation Regulations Committee (CARCom). The committee should not overlook these concerns as it worked through the individual clauses.

Adv Nel replied that concerns about CARCom would be addressed when the Committee deliberated on Clause 60, which amended section 155 of the Act. She went on to summarise Clause 12, which amended section 73, adding environmental protection to the functions of the CAA.

Mr Mabaso drew attention to Clause 12(e), which changed the wording of section 73(g) to mandate the CAA to perform flight inspection services. In light of the recent accident involving a CAA calibration aircraft, there was the possibility of an imminent policy shift that would remove the CAA’s responsibility for performing these services. He suggested that it might be prudent to remove Clause 12(e) in anticipation of the approval of the new policy.

Adv Nel said that the Committee could discuss the matter but she did not think it should change a clause on account of a possible future policy shift.

Adv Jenkins agreed. The Department should be clear on what it wanted. The Bill was creating a legal foundation. The legislation needed to provide for the present needs of the CAA and if policy changed in future, the legislation could change too. Otherwise, the Department was opening itself up to potential legal challenges.

Mr Mabaso accepted that the clause should remain.

Adv Nel summarised Clause 13, which amended section 74 of the Act dealing with the funding of the CAA. She drew attention to the proposed addition in the A-list which would grant the CAA preferential creditor status for fees and levies collected on its behalf, and recalled that some public submissions had raised concerns about it. The Department had clarified that preferential creditor status would apply only to fees collected on behalf of the CAA, such as the passenger safety charge.

The Committee accepted Clause 13 with the addition.

The Committee adopted minutes of the meetings on 10 and 16 February 2021.

The meeting was adjourned.