Review of Space Affairs Act: briefing by South African Council for Space Affairs

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Trade and Industry

24 February 2015
Chairperson: Ms J Fubbs (ANC)
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Meeting Summary

The Department of Trade and Industry (DTI) had embarked on a process to review the current legislative and regulatory prescripts governing space activities in South Africa. The review was motivated inter alia, by the developments in the national space arena since the enactment of the Act, which influenced changes on institutional mandates and responsibilities. There were also developments in the international space arena that needed to be taken into account when implementing the national obligations under the United Nation (UN) Treaties and practical steps needed to be put in place for industry participation in space activities. As a signatory to major UN treaties on outer space, South Africa was required to align its regulatory framework with these international space treaties. South Africa’s current space programme had outgrown the legislative framework foreseen in the South African Space Affairs Act. The Act did not cover the regulation of functions of space objects such as earth observation, communications or navigation or the use of satellite derived information. Space activities should include in particular the launch, operation, guidance, and re-entry of space objects into, in and from outer space. The Act fell short on addressing national developments and needs and it needed to reflect domestic space needs such as policy objectives, commercialisation and industrialisation

There were shortcomings that had been identified in terms of definitions, the scope of application, authorisation and licensing and continuing supervision. Other shortcomings related to safety and environmental considerations, liability and insurance, registration and in-orbit transfer of ownership

 The review of the space legislation was critical for South Africa in order to expand and clarify the scope of the Act, the dual use technology and civil and military applications. It would provide for an effective and responsive licensing procedure, streamline and strengthen the interface with other relevant government departments, agencies and legislation and safeguard public or national interests.  This would result in improved regulatory and administrative support as well as support for the development of a local space industry.

The Committee discussed the timeframe SACSA envisioned to have the Bill tabled in Parliament. Members wanted clarification on the involvement of the Department of Justice and Constitutional Development in the review of the Act. The Committee focused on the types of licensing required to be involved in space activities, the consultation process and whether the Act would ensure fair industry participation.

The Committee discussed South Africa’s liability by offering scenarios such as scenarios such as foreign companies operating in South Africa, land locked countries such as Lesotho and Swaziland and interference by objects from another country. Members felt it was important that a Draft Bill should be tabled before the end of this year.

Meeting report

Opening Remarks

The Chairperson welcomed everyone to the meeting. She recognised the Chairperson of the Portfolio Committee on Science and Technology, Dr Bevin Goqwana, who was also attending the meeting. She mentioned that the consideration of the minutes would be deferred to the next meeting.

Briefing by South African Council for Space Affairs (SACSA) on Review of the Space Affairs Act, No. 84 of 1993

Ms Nomfuneko Majaja, Vice-Chairperson, SACSA, said the Department of Trade and Industry (DTI) had embarked on a process to review the current legislative and regulatory prescripts governing space activities in South Africa. The review was motivated inter alia, by the developments in the national space arena since the enactment of the Act, which influenced changes on institutional mandates and responsibilities. There were also developments in the international space arena that needed to be taken into account when implementing the national obligations under the United Nation (UN) Treaties and practical steps needed to be put in place for industry participation in space activities. As a signatory to major UN treaties on outer space, South Africa was required to align its regulatory framework with these international space treaties.  South Africa was party to the following treaties:

-The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the "Outer Space Treaty"), entered into force on 10 October 1967;

-The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the "Rescue Agreement"), entered into force on 3 December 1968;

-The Convention on International Liability for Damage Caused by Space Objects (the "Liability Convention"), entered into force on 1 September 1972;

-The Convention on Registration of Objects Launched into Outer Space (the "Registration Convention"), entered into force on 15 September 1976;

-There were also 11 United Nations Principles on various aspects of space activities which were not legally binding, but were persuasive when considering international space law norms and regulation.

South Africa’s current space programme had outgrown the legislative framework foreseen in the Act. The Act did not cover the regulation of functions of space objects such as earth observation, communications or navigation or the use of satellite derived information. Space activities should include in particular the launch, operation, guidance, and re-entry of space objects into, in and from outer space. The Act fell short on addressing national developments and needs and it needed to reflect domestic space needs such as policy objectives, commercialisation and industrialisation. It should reflect a strengthened secretariat compared to the current status quo.

There were shortcomings that had been identified in the current legislation, summarised as follows:

Definitions

There was a need to define terms and redefine terms used in the Act such as dual purpose technologies; launching; licence; outer space; space activities; spacecraft; space industry; space-related technologies; suborbital trajectory; weapons of mass destruction.

Scope of Application

There was no actual provision on the scope and application of the Act.  The general scope had to be deduced from Section 11 of the current Act.

Authorisation and Licensing

Section 4 defined the National Authority as SACSA while sections 11-15 provided for licensing processes. Licence differentials should to be taken into consideration including different types of licences and different types of space objects and ownership.

 Continuing Supervision

Section 10 provided for appointment, duties and powers of Inspectors. Section15 provided for the role of SACSA in case of accidents while Section 9 provided for constitution of Boards of Inquiry.

Safety and Environmental Consideration

Sections 11 and 15 referred to safety standards but not detailed sufficiently for effective clarity. These were left to be included in Regulations. It also needed mention of new UN Regulations such as the use of nuclear power sources and space debris mitigation guidelines. Section 11 imposed conditions arising out international obligations, such as Outer Space Treaty and the Liability Convention.

Liability and Insurance

Section14 provided for Duties and Liabilities of licencee or insurance as Conditions of Licence. It also used general language and there was no specific third party liability expressed as a requirement. Security might be required to meet obligations incurred. There was also limitation on liability, i.e. domestic vs. international liability.

Registration

There was no provision on registration of space objects and it also needed to mention the space registry which was the mandatory registration of space objects.

In-Orbit Transfer of Ownership

There was no provision on transfer of space objects in orbit. It should be included and give the detailed process on when the regulator should be notified which will affect changes in the registry.

The next steps were the continuation of public consultations and the drafting of the Bill with relevant stakeholders. The Bill would then be tabled to the relevant bodies; and the regulations would be drafted. The review of the space legislation was critical for South Africa in order to expand and clarify the scope of the Act, the dual use technology and civil and military applications. It would provide for an effective and responsive licensing procedure, streamline and strengthen the interface with other relevant government departments, agencies and legislation and safeguard public or national interests.  This would result in improved regulatory and administrative support as well as support for the development of a local space industry.

Discussion

Nr N Koornhof (ANC) asked what the timeframe was in terms of seeing something tabled.

Ms Majaja replied that the timeframe indicated that all consultations with the stakeholders and the public, as well as all parliamentary processes would be concluded by the end of November 2015.

Mr B Nkongi (ANC) asked when the Committee would receive the detailed document on the Act and the proposed amendments, because it would assist it in making informed decisions. If space was to be used in the military context, he asked how far SACSA had gone to make this Act a developmental space policy. Space was occupied by many elements and by many foreign countries and if an accident happened in South Africa’s space due to interference by objects from another country, he wanted to know which country would be held liable.

Ms Majaja replied that it had been picked up during the review process that the dual use of technologies was creating confusion and it would be taken out of this Act and would be considered under the Non-Proliferation Act, which was another Act within DTI. The Space Policy that was launched in 2009 strongly talked to space as an aspect to be used for peaceful purposes and socio-economic development. The use of space in the observation of earth for disaster management, the weather, agriculture, communication and navigation was what the policy talked to.

Adv Lulu Makapela, Councillor, SACSA, replied that space activities were risky and hazardous. It was important to put mechanisms in place to make sure these activities were authorised and supervised. It was also important to ensure that these activities did not harm the interests of South Africa and its citizens, that it did not harm national security or go against the country’s foreign policy objectives. Space represented an altogether different area in international law. Within its international responsibilities, the state was liable for the actions of its national or private entities. There was a Liability Convention which mandated countries to accept liability for those actions. Third party liability balanced the interest of the state with the interest of private entities and individuals participating in space.

Adv A Alberts (FF+) asked why the Moon Treaty had not been signed. In terms of the composition of the ad hoc committee or working group to review the Act, he asked why it was only represented by government departments and why the Department of Justice and Constitutional Development was involved. He asked that SACSA elaborate on the type of licences that would be involved.

Ms Majaja replied that the ad hoc committee should be differentiated from the working group. The ad hoc committee of SACSA was composed of members of DTI, members of the Council for Science and Industrial Research (CSIR), a private legal representative, members from the Department of Science and Technology (DST) and the Department of Telecommunications. The DTI Director-General realised that a legal team fully inclusive of all relevant of institutions was needed and these representatives were part of the working group. It also included representatives from the Aerospace and Maritime industry association. The Department of Justice and Constitutional Development was involved because it provided advice in any state law or constitutional development. Over the period that SACSA had been operating a number of applications had been received.

Adv Makapela replied that the Moon Treaty talked to the sharing of space and its benefits. It was a very important treaty, especially for developing countries like South Africa. It basically stated that states should share the benefits from activities that happened on the moon or in outer space. Sharing was a problem, because major countries that spent vast amounts of money and resources in space struggled to see the benefits of sharing whatever they might discover as being beneficial to their countries. Developing countries proposed a convention in terms of sharing, but most developed countries were opposed to the convention, because they did not see the benefits of sharing in light of their vast financial investments in space. During the ratification of both the Registration and Liability Conventions, South Africa was considering the Moon treaty, but time was needed to understand the reasons for South Africa not ratifying the convention. There were different licence categories, because in the beginning nobody even considered that private companies or individuals would ever have the resources to be able to participate in space activities which were generally regarded as government initiatives. This had evolved because the United States of America actually started the process of commercialising outer space. Any company that wanted to launch a satellite had to register and obtain a licence. If the satellite was launched from any other state or territory, South Africa was still responsible and had to ensure that both countries were launching states. Even though the treaties themselves did not prohibit the use of communication for military purposes, it totally excluded putting weapons of mass destruction in outer space. Another type of licence dealt with the participation of entities, because when the satellite was in outer space, it still needed to communicate with people on the ground in terms of maneuvering and controlling the satellite.

Ms P Mantashe (ANC) asked if only government departments were consulted with, because the public should be allowed to have some input.

Dr Goqwana asked that the Committee be provided with a summary of all the relevant Acts and convention, in particular the Moon treaty. As politicians, the main aim was always to transform the country, especially in light of South Africa’s history. South Africa was a developing country, but should be wary of being dictated to by other developed countries. There also seemed to be a focus on universities when rural areas needed to be included in the development aspect. Lesotho and Swaziland were basically in South Africa and in most respects depended on what South Africa did. He asked who would be financially liable if something happened in space if those countries had the capacity to participate and he wanted to know if it could be incorporated into the Act.

Ms Majaja said this Act required serious consideration of fair industry participation and the issues of transformation would be considered. In terms of land locked countries like Lesotho and Swaziland, this issue would have to be considered as well, because such discussions would probably have to take place in collaboration with the Southern African Customs Union (SACU).

Mr Nkongi said talks would soon turn to ‘privatisation’ of space. He asked if a foreign company operating in South Africa could apply to be registered and if so, who would be liable if an accident happened in space.

Ms Majaja replied that the treaties on Registration and Liability would guide such a process, because a foreign company could apply and be registered in South Africa, but might want to launch the satellite in its country of origin.

Adv Makapela replied that current legislation already prescribed that foreign companies operating in South Africa needed to be registered here, because of other implications.

Dr Z Luyenge (ANC) asked how boundaries in space were determined.

Adv Makapela replied that there were no boundaries in outer space and security was a main and ongoing concern for most countries. It had to be ensured that a satellite in space would only focus on the area it was supposed to cover. It was important to work together so that countries would be able to share data to improve resource management.

The Chairperson said the Committee did not participate in the International Astronautical Congress (IAC) of which both DST and DTI were involved in and she asked if SACSA had any information on the upcoming Congress because the committees would like to participate this year. There seemed to be a list of stakeholders that were consulted, beyond those noted in the presentation and it would be useful if the Committee could get the complete list of stakeholders.

Ms Majaja said the IAC would take place in Jerusalem this year in October. Details on the specific dates would be forwarded to the committees and Members could perhaps familiarise themselves with last year’s proceedings in terms of preparation for the Conference.

The Chairperson said it was important for the Draft Bill to be finalised toward the end of 2015. She asked DTI to reply in writing on what was being done to capacitate young people to participate in these activities. The Committee appreciated this briefing, but requested that all documentation should be forwarded to Members. She thanked the Department and SACSA and the meeting was adjourned.

                                                                         

 

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