Civil Aviation A/B: deliberations; Committee Report on DoT 2019/20 Quarter 4 performance; Committee Strategic Plan

Meeting report

Opening Remarks

The Chairperson welcomed all Members to the meeting and asked the Committee Secretary if all Members were in attendance and if there were any apologies.

An apology was received from Mr M Chabangu (EFF).

The Chairperson said today’s meeting would start with the deliberations on the Civil Aviation Amendment Bill (B44-2018). The Department will be responding to submissions on the Bill and the withdrawal of a submission by Mr P Mashaba, Executive: Accident and Incident Investigation Division.

Department of Transport (DOT) Responses: Civil Aviation Amendment Bill

Mr Alec Moemi, Director-General (DG), Department of Transport (DoT), began by addressing the withdrawn submission by Mr Mashaba. Although the DG held that it would have been best for Mr Mashaba to personally respond to this issue, the DG had asked the aviation branch to follow-up with him to not only better understand the content of the submission, but all the reasoning behind the withdrawal.

The DG said that while the Department was coordinating the processes relating to the amendment of the Bill, a task team was established to which Mr Mashaba was party to. The task team was championed by SA Civil Aviation Authority (SACAA) and work had been conducted within the DoT regarding the same matter. As such, there existed consensus on what was to be submitted to the Minister to table before Cabinet and Parliament. Following the submission made independently by Mr Mashaba, his colleges within the task team engaged with him to understand and seek clarity on the content of the submission, following which Mr Mashaba elected of his own volition to withdraw his submission. The DG requested that a response be written listing the issues contained within Mr Mashaba’s original submission.

Continuing his presentation, the DG sought the Chairperson’s permission to respond to the issues raised by Mr Mashaba within his withdrawn submission. Firstly, he noted that Mr Mashaba had proposed that the definition of Director of Investigation be removed and replaced with the insertion of an Executive Responsible for Accident and Incident Investigations. Referring to the presentation the definitions aligned with the substantive provisions outlined in clause 8, which will become Section 26.1A of the Bill, no longer makes mention to Director of Investigations. A definition will not be provided within the definition section of the Bill. Referring to Annex 13 of the International Civil Aviation Organization (ICAO), he indicates that this does not provide for the definition of a Director of Investigation, and that the role of Director of Investigations was found to be unimplementable, and thus resulted in its definition being deleted from the current version of the amendment. The DoT found that such a definition was provided for under section 33.1, and states that an investigator may be designated by the Civil Aviation Safety Investigation Board to investigate any aircraft accident or incident within the country.

Moving on to the issue of the appointment of Members to ASIB, he noted that such a decision lies with the Minister. Annex 13 does not regulate the appointment of ASIB members but rather clarifies that experts are meant to assist the Minister in appointing members, while ensuring the bodies independence.

In response to Mr Mashaba’s notion that Section 10 of the Bill did not state under which Act ASIB would be established under, it was noted that the Bill does in fact provide for such, specifically in Clause 8, Section 10. ASIB members perform their functions on a part-time basis, primarily meeting for the consideration of draft aircraft accident and incident reports.

The DG then addressed the concerns that the Secretariat provided by the DoT would undermine ASIB’s independence, stating that such services should be differentiated from division-making processed. The staff provided by the DoT would only provide administrative support to ASIB, and in no way affect or influence their decision-making processes. Regarding the establishment of ASIB as a new independent public entity, discussions had already been conducted with National Treasury, however such a model was deemed to be unaffordable and thus the DG was directed to follow current best practices.

Moving to address Mr Mashaba’s concerns regarding the deletion of provisions within section 31 of the Act, he said that all provisions related to ASIB existing as a stand-alone entity have been reformulated in order to accommodate the proposed implementable best practices. Making further mention to the deletion of provision within section 31, he explains that the new section 28.5 covered the powers regarding the investigation of aircraft accidents and incidents (see presentation). The DG clarified section 34.5, that investigators would not be required to produce a letter of his or her appointment within ASIB but rather a document confirming their appointment to investigate aircraft accidents and incidents.

Addressing Mr Mashaba’s concerns that section 51 currently calls for the sharing of onboard recordings with any person carrying out an investigation into an aviation accident or incident, the DG clarified that as per section 13 these recordings are only shared with the law enforcement agencies who are entitled to such information. However, he added that the provision may be amended by the Committee to only provide for sharing these onboard recordings by means of a court order.

Regarding, Mr Mashaba’s concerns that section 61 calls for investigators to appear before judicial inquests, the DG referred to ICAO Annex 13 Standard 3.1 outlining the roles of investigators (see presentation)

Concluding the content contained within Mr Mashaba’s submission, the DG then addressed the rule making process, noting that a clearly defined consultative process is to be followed by ASIB requiring rules to be published within the Government Gazette, followed by a request for all interested persons to make representation upon such rules.

Addressing the response made by Mr R van Zyl that the splitting off the positions of Commissioner and CEO could result in findings against South Africa by ICAO and the FAA, the DG clarified that all powers, functions, and responsibilities remain the same and that what is occurring is merely a name change (see presentation)

Regarding Dr Brian Sucklings submission stating that the definition of “aircraft in flight”, as currently contained in the Bill, was not in line with the accepted definition and intent contained in the American FAA Regulations (14 CFR 1.1) the ICAO Annex 1 definition or the JAR-FCL 1.001 definition, the DG notes that neither of these three instruments make mention to the definition of “aircraft in flight” and that such a term was one of aviation security, drawn from the “Protocol to Amend The Convention on Offenses and Certain Acts Committed on Board Aircraft” Treaty (see presentation)

Regarding the establishment of Trust Account’s as per section 155, the DG agreed that such funds collected should deposited within Trust Accounts (see presentation)

Lastly, on the Committee’s request for the envisaged ASIB organogram and business plan in terms of the Bill, while ASIB will become a legal entity, it would not be a standalone body. As such, it will not be appointing full time staff, and will not be responsible for its own financial management (see presentation)

Discussion

The Chairperson thanked the DG for the presentation and resolved that if the Committee had no further clarity seeking questions, deliberations on the matter at hand would continue in the subsequent meeting.

Mr C Hunsinger (DA) agreed that the Bill should be fast tracked but clarity is needed on three points. He said the Bill, in its current form, lacked specific mention on the additional proposed rules and regulations discussed by the DG. Presenting the Bill in its current “open ended” form to Parliament, and passing it as an Act, would create an “open door” that would allow for the addition of such rules and regulations at a later stage. Secondly, further explanation is needed on the references made towards the independence of the Aviation Safety Investigation Board (ASIP). While agreeing with the DG that a separate entity would cost more, something not feasible under the current economic climate, the notion towards establishing a separate entity signified the importance of ensuring independence through the separation of particular functions and roles. He asked how such levels of independence are ensured for under the current legislation and asked the DG if the Committee should not include further operational details within the Bill to ensure the adequate provision of this level of independence.

Mr Hunsinger questioned the focus of ASIP’s functions being a preventative organ, as opposed to being directly involved in the investigation of the causes of civil aviation accidents. As it currently stands, the creation of a judicial inquest into the causes of civil aviation accidents is a distinct process, however Mr Hunsinger proposes that it should rather be a naturally occurring process that is automatically triggered following any report to ASIP that involves the loss of life.

Mr L Mangcu (ANC) sought clarity on what processes had been followed, and what progress has been made thus far to establish the relevant implications that the amendment at hand poses upon the Insolvency Act. Additionally, further explanation is needed with regards to the presentation of ID cards by civil aviation investigative authorities.

Mr T Mabhena (DA) asked if the sole reason for not making ASIP a completely independent organisation outside of SACAA was due to the cost implications. The independence of ASIP would ensure that any investigations conducted by the unit would be done without fear or fair, and thus exist beyond reproach. While recognising that previous deliberations had raised the issue that the body which serves to investigate civil aviation accidents and incidents is currently also housed at the SACAA allowing for the pooling and sharing of human resources, he notes that various funding mechanisms may exist that would allow ASIP to be self-sufficient and independent.

Responses

In response to Mr Hunsinger’s proposal for an automatically triggered judicial inquest, the DG voiced that it is possible. However, in order to avoid the onerous task of amending the Inquest Act to include such provisions, the Committee need to explore placing an obligation upon those that investigate such accidents to open an inquest docket. The Inquest Act currently allows individuals acting in formal capacities, not just members within the affected families, to do so. The DG proposed that the Committee consult with a parliamentary legal advisor to discuss including a clause which makes it mandatory to open an inquest docket following civil aviation accidents that result in fatalities.

The DG replied to Mr Mangcu’s request for clarity on the processes and progress made thus far.  He noted that written submissions have been made to the acting DG of the Department of Justice, along with the legal advisors of Parliament on three occasions, however responses have not been received. He said that this would be pursued further by his Department and requested further assistance from the Committee in order to direct what further avenues should be utilised moving forward.

On the issue regarding the presentation of ID cards, the DG referred to section 34.5 of the proposed amendment stating that civil aviation investigative authorities may be called upon to produce certification attesting that they have been appointed to investigate a specific civil aviation accident that has occurred. Such a requirement was not unique, and indeed applied to many civil servants such as ambassadors, police officers and Members of Parliament alike, especially when dealing with sensitive matters.

The DG replied to Mr Hunsinger’s concerns stating that the law-making process followed within South Africa in fact requires that the regulations be constructed at a later stage. Further, it is not within his purview, but rather the Minister’s, to state whether the regulations would be finalised before the Bill is presented to Parliament, and that certification by the state’s lawyer is required prior to the regulations being gazetted. In part 1, section 3.b of the amendments, the Bill notes that the regulations will need to be tabled before Parliament by the Minister within 14 days of publication.

With regards to the independence of ASIP, the DG said that while cost implications where a key reason behind the decision not to construct an independent body, it was not the sole reason. Although the Incident Investigative Directorate exists within SACAA, it is in fact independent and writes separate reports to SACAA. Further, despite sharing administrative systems, they do not share information with the Director of SACAA. He recognises that the overlap between these bodies may be a concern for some, however it was accepted by Parliament though the advice from Treasury as they are of the belief that the creation of a new public entity was not warranted, both on cost and workload grounds.

The DG praised the impressive nature of South Africa’s incidents and aircraft navigation safety landscape. Excluding the SACAA incident, which unfortunately resulted in the loss of four lives, over the last five years, the country had not experienced any fatal accidents within the commercial air space. However, there have been a few incidents within the private aviation sphere. He said that despite being accountable for the management of airspace, the Department is not responsible for the servicing and maintenance of private aircraft beyond the airworthiness certification requirements. With South Africa’s airspace track record being exemplary, the DG asked how Members would justify the creation of a standalone unit, costing millions annually, that would be tasked with investigating only a few incidents a year, rather than following the current model. Stakeholders within the aviation sector such as the Airlines Association of Southern Africa (AASA) or the Board of Airline Representatives of South Africa (BARSA) all attest to the efficacy, independence, and lack of departmental interference as suggested, of the current aviation legislative environment. 

The Chairperson thanked the DG for his responses and voiced that Committee deliberations on the matter would continue in the subsequent meeting.

Consideration of the revised Strategic and Annual Performance Plan of the Committee

The Chairperson announced that a brief presentation will be given by the Committees’ content advisor, Adv Alma Nel, on the adjustments made to the Strategic and Annual Performance Plan as a result of the COVID-19 virus.

The DG asked if he could be excused from the meeting.

The Chairperson thanked the DG and granted permission to vacate the seat.

The Chairperson asked Adv Nel to proceed with the presentation.

Adv Nel reminded Members that after presenting the first draft of the strategic performance plan, the Committee had to wait for Parliament to finalise the Strategic Plan and for it to be received from the DoT. The current draft incorporates Parliament’s policy priorities in greater detail, it includes all Members comments on the Committee’s focus for the year 2020 as well as a few amendments to illustrate how Covid-19 has and would impact the Committee’s work. The document remains largely unchanged with the inclusion of COVID-19 issues under 2.1.with minor edits made within the table of action. The document also makes note that the Committee has continued its meetings through the use of the virtual platforms as well as smaller delegation oversight visits. Despite the unforeseen challenges, the Committee has been able to continue with its work.

Under 2.1, the key issues facing the Committee are discussed and highlights the impact the national lockdown has had on the transportation sector.

Under 2.2, the Committee’s areas of focus remain unchanged.

She said that amendments were made within the plan moving forward and the Annual Performance Plan (APP) to include the new legislation passed.

Within the table of action under 2.4.4, travel dates have been moved to 2021/2022, however it is unclear when the study tours and oversights to Brazil and France will take place due to Covid-19. These dates take into consideration the possibility of a second wave and the development of a vaccine and are likely to change in the future.

Adv Nel said that much like the Strategic Performance Plan, minor changes were made to the APP.

Mr McDonald stated that he has not received this document and asks if it could be made available.

The Committee Secretary responded that Members had received this document a few months ago.

The Chairperson reminded Members to please speak through the Chair.

Adv Nel suggested deferring the matter of the APP to a later stage in the meeting until Members receive the email of the document.

The Chairperson agreeed and requested to move on to the consideration and adoption of the Committee’s Report on the 2019/20 fourth quarter expenditure of the Department of Transport.

Members agreed.

Report of the Portfolio Committee on Transport on the 2019/20 Fourth Quarter Expenditure Of the Department Of Transport

The Chairperson requested Members begin with Committee observations and recommendations as Members are already familiar with the Report.

Members agreed.

The Chairperson read through the observations which all Members agreed with.

The Chairperson read out the recommendations.

Mr Mangcu asked if it is possible to consider including the dates of when events should be taking place. He also recommended removing the paragraph starting with “in addition”, as it comes across as an attempt to micro manage the municipalities.

Mr Hunsinger agreed with both matters raised. The Department cannot be held responsible for educating local municipalities on basic information regarding how processes operate - it is up to local governments to establish an understanding of departmental procedures. However, this matter deals with a specific incident of noncompliance from the municipality which has resulted in the withholding of funds to Nelson Mandela Bay. The specifics on the progress of interventions are being requested in order to move into a stage of compliancy as service is being withheld from innocent citizens. He argued that sanctions cannot be placed on service delivery because the local government is incapacitated. A balance must be established - if not the DoT, who else can intervene on the matter to ensure citizens are no longer unfairly impaired?

The Chairperson said that the funds came from the national Department of Transport which the Committee is policing. It has not only allowed municipalities to function, but is responsible towards ensuring that they function in accordance to what is stipulated in the Constitution. He agreed that the municipalities must be held accountable for their inability to perform in the manner they had sworn to. However the Committee must not lose sight of the fact that if funds are withheld, the service cannot be performed and calls on Members to assist in correctly addressing the issue.

Mr Hunsinger said that the recommendation offered by Mr Mangcu to set deadlines in place is invaluable in achieving the Committee’s goal. The DoT can either manage or pass the deadlines onto the local governments (at this point, Mr Hunsinger experienced poor connection).

Mr Hunsinger moved for the adoption of the Report including deadlines.

Mr McDonald supported the submission of deadlines, as it has become an ongoing matter plaguing the Committee. When asking the DoT for reports on progress made, no indication is given as to when the Committee would receive them.

The Chairperson agreed and asks Members to elaborate on an appropriate timeframe for deadlines on progress plans.

Mr K Sithole (IFP) asked for clarity on what is meant by the timeframe and to which matter a timeframe would be awarded.

The Chairperson said it referred to the paragraph under 5.1. He asked Mr Mangcu to suggest a date.

Mr Mangcu said that a reasonable timeframe would be 30 days from the adoption of the Report.

Members agreed.

Referring to point two, Mr Mangcu suggested that the same 30 day timeframe be included.

Members agreed.

Under 5.3 and 5.4, the Chairperson suggested the 30 day timeframe be included

Members agreed.

On 5.4, Mr Mangcu agreed with the inclusion of the 30 day time frame, and indicated that the Report is a litmus test of the Committee’s ability to effectively execute its role. He noted that over the last five financial years, the exact recommendation has been repeatedly suggested.

The Report was adopted with amendments.

Adoption of Committee Minutes

The Committee considered and adopted the minutes of 9, 10 June and 14 July 2020.

The Chairperson asked if there were any matters arising.

Mr Mangcu said that there had been a request for information on certain points that were not received. On 3.7 a request was made for statistics to be provided on the challenges of mobility experienced during lockdown levels four and three. Noting that the country is now at level two, it has become evident that the Committee’s requests are not being fulfilled.

On 3.1.2, he said that the Committee had asked for the statistics for drivers fined for over loading contraventions during lockdown levels four and three. It is highly concerning that these requests are continuously not met.

The Chairperson said that the matter should be reiterated and followed-up with a letter to the DoT. He agrees with Mr Mangcu that the Committee’s requests need to be taken more seriously.

Mr Mangcu moved for the adoption of the minutes for 14 July. Mr McDonald second the motion for adoption.

Adoption of the Annual Performance Plan of the Committee

The Chairperson invited Adv Nel to return to her presentation now that Members have received the second draft of the document.

Adv Nel took the Committee through the document. Changes were made in paragraph seven to include the Covid-19 narrative. However, the document remained largely unchanged.

The Chairperson thanked Adv Nel and asked Members if there are any questions or concerns.

Mr Hunsinger commends Adv Nel for her input and the extensive work gone into formulating these documents and suggests including the desire for joint Committee meetings which had been voiced in past sittings.

Referring to page four of the APP, Adv Nel illustrates that the desire has been included, however amendments will be made to better articulate the intention.

The Report was agreed to.  

Meeting adjourned.