Minister on aircraft accident findings; DoT Quarterly Performance; National Road Traffic A/B; Public Protector Report subcommittee report back

Meeting report

The Chairperson accepted an apology from Mr K Sithole (IFP), and invited the Minister of Transport, Mr Fikile Mbalula, to introduce the first presentation.

Minister Mbalula asked Mr Albert Morudi, Acting Executive Manager: Aircraft Accident & Incident Investigations, South African Civil Aviation Authority (SACAA), to present the report on the investigation into the fatal crash of the calibration aircraft ZS-CAR in January 2020.

investigation into the fatal crash of ZS-CAR

Mr Morudi emphasised that in terms of International Civil Aviation Organisation (ICAO) standards, the purpose of the investigation was not to apportion blame or liability for the accident. He outlined the institutional arrangements in terms of the relevant ICAO standards, under which the investigation had been conducted. According to the recommendation of a preliminary report, the conduct of the investigation had been delegated to Ethiopia. After COVID-19-related delays, a draft report was completed in August 2021, which South Africa had commented on, and the final report was issued in November 2021. The investigation could be re-opened by Ethiopia, with South Africa’s consent, if new and significant evidence became available. The findings of the investigation included:

- that records related to the performance of the pilot in command (PIC) in an unusual altitude recovery simulation exercise were missing;
- that the annual inspection of the flight data recorder (FDR) had not been conducted, rendering the aircraft’s Certificate of Airworthiness invalid; and
- that the aircraft had experienced three incidents in the 12 months leading up to the crash, including a damaged throttle cable, and an oil smell and smoke in the cabin that had led to a decision to replace Engine 1.

The probable causes of the crash identified by the investigation included:

- the presence of cloud cover that obscured the mountainous terrain;
- the inability of the crew to recover from an unusual altitude; and
- lack of supervision and a disregard for civil aviation regulations by the operator.

The recommendations of the investigation included:

- SACAA should install cockpit voice recording (CVR) in calibration aircraft;
- SACAA should ensure operators install FDRs that record all parameters required by the regulations;
- The South African Aviation Incident Investigation Board (AIIB) should be independent of state authorities and other entities that could compromise investigations;
- SACAA should conduct an in-depth review of Flight Inspection Unit (FIU) operations, and ensure pilots are proficient in unusual altitude recovery.

Discussion

Mr C Hunsinger (DA) asked if Engine 1 had actually been replaced after the decision to replace it had been taken. It was clear that the aircraft did not have approval to fly at the time of the crash. Would it be correct to say that it had been operating recklessly for at least ten months? Why had the SACAA allowed the aircraft to be used, despite the fact that it was not airworthy? He pointed out to the Minister that other aircraft, such as those operated by South African Airways, ComAir and Airlink, were grounded when they were not airworthy. There seemed to be two sets of rules.

He asked what the reaction of technicians to the smoke in the cockpit had been. How had it been formally reported to SACAA? He asked why the report had been officially released in South Africa only on 23 January 2022. Why had there been a delay, and why had paragraphs 19-30 been missing when it was finally released? Who was responsible for this, and was it permissible in terms of international standard procedures? Had there been any communication on the content of the report between SACAA and Ethiopia between the issuing of the report in November 2021 and its South African release?

He recalled the Ministerial Order of May 2016, in which the Minister had expressed the desire for the head of aircraft investigations to report directly to the Minister. Soon thereafter, the head of aircraft investigations had left his post. He found it disturbing that this had not been investigated and suggested that the Committee should summon this official. He pointed out that according to ICAO standards, the investigations body was required to be independent, and he recalled that when the Committee had raised this during deliberations on the Civil Aviation Amendment (CAA) Bill, the Department had argued that it would be unaffordable. It would be irresponsible if the Committee did not now look at this issue again. The report revealed that the cause of the crash had been serious negligence and disregard for regulations and carelessness, not human error. The Committee should recall the Bill, and push for it to establish a fully independent incident investigator.

Mr L McDonald (ANC) argued that in general, aviation accidents started long before the actual incident and that in this case, the accident had really started on 8 November 2019 when smoke had been detected in the cockpit. This particular model of aircraft was very old and dangerous. He asked if the investigators had tested fuel samples. Had the blood alcohol content (BAC) of the ground crew been checked? He hypothesised that the FO had been at the controls and had lost spatial awareness in the clouds. He was upset that the report had been tabled to Parliament long after it had been issued, and even after it had been released to the media.

Mr L Mangcu (ANC) said it was unclear what the Committee was expected to do with the presentation. Was it being asked simply to note it, or to respond to it with some action? What actions had been taken so far in response to the report?

Mr P Mey (FF+) maintained that air travel remained comparatively safe, but observed that SACAA had not been abiding by regulations at the time of the crash, as revealed by the investigation report. The underlying cause of the accident was a lack of maintenance. What would be done to prevent future accidents?

Mr M Chabangu (EFF) did not think that the report had provided a true reflection of what happened on the day of the accident. He asked for confirmation of whether the aircraft was airworthy and if not, why SACAA had operated it. Had SACAA been warned about the state of the aircraft by the former head of accident investigation, Mr Peter Mashaba, and if so, what had it done? There had been a serious incident just two months before the crash, and the investigation had found that SACAA had not been compliant with regulations. Had the relevant manager been held accountable for this? When would the separation of the investigation board from SACAA, as recommended by the report, be implemented? Why was the report not released in South Africa immediately? He agreed that the cause of the accident was negligence and that the report should therefore be noted but not accepted.

Responses

Mr Morudi confirmed that Engine 1 had indeed been replaced. He was not in a position to say why the aircraft had not been grounded, as he was not privy to the processes within the regulator. He emphasised again, on the question of negligence, that the investigation had not been intended to establish liability, but added that he could not rule out the possibility of negligence.

He agreed with Mr McDonald agreed that accidents were a long time in the making. In this case, there were tell-tale signs. He could not confirm whether any of the crew had lost spatial awareness but observed that the report’s finding that the crew switched from visual flight rules (VFR) to instrument flight rules (IFR) without preparation did suggest spatial disorientation. He did not recall anything in the report about the BAC level of the ground crew.

The missing paragraphs had been a mistake by the Ethiopian investigator which had later been corrected. He confirmed that the aircraft had not been airworthy at the time of the accident because the FDR had not been maintained, and because the certificate had not been renewed after the replacement of Engine 1. He could not say why it had been operated despite this. Leaked WhatsApp messages sent by his predecessor, Mr Mashaba, suggested that SACAA had been warned to look into the airworthiness of the aircraft. He did not know if the warning had been heeded, nor could he confirm the authenticity of the messages. The accountable manager for the operation was Ms Poppy Khoza.

Ms Sindisiwe Chikunga, Deputy Minister of Transport, pointed out that three different reports had been written about the incident. First, the preliminary report by the AIIB, then the draft report by Ethiopia and lastly the final report issued in November 2021. The first two had not made any substantial adverse findings. The final report, however, had contained new, adverse findings, which the affected bodies had not had the opportunity to respond to. This was why SACAA was appealing the report. She also encouraged members to read articles by Mr Charlie Marais, a pilot, and Mr Mark Young, a journalist, that were critical of the report.

Minister Mbalula said he was unable to comment on the merits of the report itself as it was being appealed by SACAA in accordance with civil aviation regulations, which allowed any aggrieved party 60 days to appeal. Once the appeal process had been completed, the Department would attend to each of the findings. It had released the report to the public well within the 12-month period allowed.

He recalled that the CAA Bill, which was currently being considered by the National Council of Provinces, provided for the establishment of an independent Aviation Safety Investigation Board (ASIB). ASIB would be established when the Act was passed, so the processing of the Bill should not be delayed.

The renewal or termination of employment contracts did not fall within the purview of the Minister. The AIIB reported directly to the Minister, but employment matters fell within the purview of SACAA, and labour laws were sufficient for any employee who believed they had been treated unfairly by their employer. The need to arrive at the truth of the matter was the reason the investigation had been delegated to Ethiopia.

He agreed to share future reports with Parliament first, even though there was no rule mandating this. He explained that the purpose of presenting the report had been for the Committee to note it and that the Department would provide the Committee with updates on the implementation of the recommendations. The Department would also investigate the possibility that SACAA had been warned about the condition of the aircraft.

Discussion on Committee’s response to investigation report

The Chairperson noted that the report was being appealed, and said that the Committee should look for opportunities to engage and act on its contents.

Mr Hunsinger maintained that the Committee should extend its oversight responsibility by summoning Mr Mashaba. It would benefit the Committee to get his insight and understanding, in addition to or contrary to the report. He was concerned that the Deputy Minister appeared to consider the three reports as equivalent, whereas in fact they had very different statuses. There could be only one final report and one conclusion. The Committee could not simply note the report and walk away. SACAA was responsible for the entire civil aviation space and it had to retain a certain level of credibility. Therefore it would be irresponsible not to call Mr Mashaba.

Mr T Mabhena (DA) recalled that the Committee had pushed hard for the ASIB to be completely independent of SACAA during its deliberations on the CAA Bill. The Committee had questioned whether it was possible for the ASIB to be truly independent if it was funded by SACAA and shared office premises with it. The Department had resisted the idea, but the Minister’s remarks seemed to show that he was aligned with the Committee’s view.

Mr Mangcu said that Mr Hunsinger had raised important points. He supported the proposal to summon Mr Mashaba. Although it would not change the contents of the report, it might influence the Committee’s response.

The Chairperson reminded Members that the report was under appeal. It was possible that it might look very different after the appeal had been concluded, which would mean that the Committee would have to revise its decisions. He proposed that it defer any decision until the appeal was concluded.

Mr Hunsinger understood that the window for an appeal had closed, contrary to the Minister’s remarks. The contents of the report were final, and it was now up to the Committee to note and respond to it. However, it was the Committee’s responsibility to react to the negligence, disregard and carelessness described in it. The input of Mr Mashaba would help the Committee to decide how to react.

Mr Mabhena agreed that the contents of the report were final and that Mr Mashaba should be summoned, but asked for clarity on what exactly the Committee would be asking from him. Would he be asked to make a presentation on his version of events, or would it be a question-and-answer session? What would the procedure be?

Mr Mangcu wondered what the Committee would do if Mr Mashaba provided information that was contrary to the contents of the report. He was concerned that the Committee was setting itself up to be criticised for jumping to conclusions. He was completely in support of robust oversight, but what if the report was set aside by a court? He proposed that the Committee seek a legal opinion on whether the appeal was permissible, and what implications it would have for the Committee’s response.

Ms M Ramadwa (ANC) supported Mr Mangcu’s proposal. The Committee should note the report as presented and defer any decision until there was clarity about the appeal process.

Minister Mbalula confirmed that he had received an appeal on 27 January 2022, and maintained that Civil Aviation Regulation 12.05.2 clearly permitted an appeal within 60 days of publication of the report.

The Chairperson accepted the Minister’s remark and noted the report. He recognised that an appeal was pending but agreed that a legal opinion could be sought. He confirmed that Mr Mashaba would be summoned once clarity had been obtained.

DoT report on its 2021/22 second and third quarter expenditure and performance

Minister Mbalula said that the Department of Transport had managed the uncertainties caused by COVID-19 better during this period. It had continued to mitigate the spread of the virus and intensified its work to clear backlogs without losing sight of annual deliverables. It had achieved 84% of its third quarter performance targets, slightly below its achievement in the second quarter, and it had put remedial action in place where there had been under-performance, taking to heart the Committee’s call for decisive action on under-performance.

There had been underspending of R2.88bn (9%) in the second quarter, mostly due to delays in transfers to the Passenger Rail Agency of South Africa (PRASA) due to non-compliance, and the payments were eventually made during the third quarter. There had been underspending of R1.7bn in the third quarter, which included Public Transport Network Grants (PTNGs) withheld temporarily from non-compliant municipalities. The South African National Roads Agency Limited (SANRAL) had lost toll revenue and suffered infrastructure damage due to unrest in Kwazulu-Natal, and the Department had allocated R62.6m to SANRAL to mitigate the effect of these losses. Phase 2 of the City of Cape Town’s MyCiti bus programme had been falling behind schedule, and R1.34bn in transfers for this project had been withheld after the City had requested that they be rescheduled.

Mr Mthunzi Madiya, Acting Director-General, DoT, confirmed the reasons given by the Minister for the underspending in the second and third quarters, adding that underspending on goods and services at the end of the year had been anticipated and that management was reviewing procurement plans to improve spending in this area. 47 posts out of a target of 50 had been filled, including 19 at senior management level, although 27 of the 47 were internal promotions. Funds earmarked for the implementation of the Administrative Adjudication of Road Traffic Offences (AARTO) Act had been declared as savings due to the court judgment that it was unconstitutional.

Mr Makoto Matlala, Chief Financial Officer, DoT, outlined the Department’s expenditure per programme and by economic classification, indicating where there had been underspending, and the reasons. In particular, the R1.35bn underspent on public transport in the third quarter was due mainly to the withholding of PTNGs to non-compliant municipalities and slow spending on taxi recapitalisation, which was demand-driven. He summarised spending on transfer payments, Provincial Roads Maintenance Grants (PRMGs), Public Transport Operating Grants (PTOGs) and PTNGs, and indicated adjustments to the budget, the largest of which was related to the slow progress on the City of Cape Town’s MyCiti bus programme.

Mr Bosa Ramantsi, Chief Director: Strategic Planning, Monitoring & Evaluation, DoT, outlined the Department’s non-financial performance in the third quarter, drawing particular attention to areas of under-performance.

A draft freight migration plan (road to rail) had been developed, which had identified Transnet’s loss of market share during COVID-19 as a key emerging risk for the plan.

There had been a delay in the development of draft regulations for autonomous vehicle technology. The National Rail Bill had not been submitted to the Economic Sectors, Employment and Infrastructure Development (ESEID) cluster due to delays to the approval by Cabinet of the National Rail Policy, on which it depended.

Stakeholder consultations on the integration of road traffic law enforcement agencies into a single entity had not been completed because negotiations with National Treasury on the cost implications were still ongoing.

The Maritime Development Fund Bill and the Maritime Merchant Shipping Bill had not been submitted to the ESEID cluster, as comments from the state law advisor were still being incorporated.

The Department’s response to COVID-19 was also summarised, and references to annexures with information on its response to reporting requests by National Assembly were included.

Discussion

Mr McDonald asked the Department to clarify the percentages on expenditure on slide 8, as they did not seem to add up. The rail programme expenditure for the two quarters, for example, added up to 108%. Did this mean there had been overspending? He observed that another R108m had been spent on the public transport network in Mangaung, but there was absolutely nothing to show for it. What had the money been spent on? Buses bought two years ago had not transported a single passenger. How many taxis had been scrapped? He said that the Department’s performance indicators were completely divorced from reality. Percentages were high, billions were spent but nobody could actually take a train. Infrastructure remained unusable.

Mr Mabhena recalled that the Committee had suggested a mechanism to monitor the spending of PTNGs. If this had been established, and it had detected that some cities were not going to meet spending milestones, what interventions would have been possible? Would the Department have simply folded its arms and withheld the transfer? The spheres of government should avoid working in silos.

Could the Department give an update on the status of the AARTO Bill and its appeal against the court judgment that had declared it unconstitutional? What had happened to the AARTO pilot projects, and the money collected? What would happen to people with fines if the Department’s appeal failed?

He appreciated that the taxi recapitalisation programme (TRP) was demand-driven, but asked what, if anything, the Department was doing to encourage uptake by taxi associations. What was causing the slow uptake? What was it doing to encourage operators to apply for licences? The TRP account was being treated as a general transaction account because it underspent every year and its funds were then shifted to other programmes. Perhaps the Department should look at the success of the Arrive Alive campaign for inspiration.

Ms N Nolutshungu (EFF) asked for details of how the Department had revised its procurement plan to mitigate the anticipated underspending on goods and services. She observed that the same reason, lack of capacity, had been given for the last three years for the failure of municipalities to spend PTNGs. What plans had been put in place to capacitate municipalities? How much progress had been made on the resettlement of people living in PRASA rail reserves in Cape Town, and when would it be complete?

She shared Mr Mabhena’s concern about the slow uptake of taxi recapitalisation. What was the Department doing to speed it up? Was there any progress from the taxi lekgotlas on the taxi subsidy?
Of the 144 bursaries the Department had funded, only one person with a disability had benefited. The Department should look to increase this number.

DoT's response

Mr Matlala explained that the expenditure percentages referred to the percentage of the annual budget that had been spent up to the end of the quarter in question. He assured the Committee that there had not been overspending.

The Chairperson asked for outstanding questions to be answered in writing before 15 March because of time constraints.

Deputy Minister Chikunga undertook to respond in writing to all questions, including the question on the AARTO Bill appeal, as the Department took the view that the Constitutional Court should pronounce finally on the constitutionality of the legislation.

Mr Mabhena commented that on a previous occasion, municipalities had been given a chance to respond in writing, but their responses had not been received. Written responses were often treated as an opportunity to dodge accountability. The Committee must put in place a mechanism to track the receipt of written responses.

The Chairperson accepted the point and asked the Committee Secretary to track the Department’s responses and follow up.

Deliberations on National Road Traffic Amendment Bill A-list

Clause 7, amending section 3I of the principal Act
The proposed change to this clause was the insertion of references to the Criminal Procedure Act into provisions related to the impounding of motor vehicles. 

Clause 8, amending section 3L of the principal Act
The proposed change to this clause was a change to the title of the section.

Clause 10, amending section 5 of the principal Act
The proposed change to this clause had been the suggestion of the sub-committee investigating illegally converted panel vans. It would insert references to ‘applicable traffic laws’ into provisions related to the sale of modified and imported motor vehicles.

Mr Mangcu, who chaired the sub-committee, confirmed that the suggested wording captured the sub-committee’s sentiments.

Clause 14, amending section 8 of the principal Act
The proposed change was to replace this clause with a clause that would repeal section 8 of the principal Act, which was a repetition of section 8A(3).

Clause 15, amending section 8A of the principal Act
The proposed change to this clause was to insert provisions for local authorities to operate driving licence testing centres (DLTCs) and mobile learner’s licence testing facilities.

Clause 17, amending section 11 of the principal Act
The proposed change to this clause was a minor drafting change.

Clause 18, inserting section 11A into the principal Act
The proposed change to this clause was the removal of provisions for an organisation, as opposed to a person, to be appointed as a provincial inspectorate of DLTCs.

Clauses 19 and 20, amending section 13 of the principal Act
The proposed change was to remove this clause, which provided for a new category of provisional driving licences, as the Committee did not support the introduction of this category.

Clause 21, amending section 15 of the principal Act
The proposed change to this clause was to replace the references to ‘provisional licences’ with references to ‘driving permits,’ and to insert a new sub-section 15(g).

Ms Phumelele Ngema, Parliamentary Legal Advisor, observed that the actual content of 15(g) was not in the A-list document.

Adv Alma Nel, Content Advisor, Portfolio Committee on Transport, confirmed this. She said she would clarify the contents of the paragraph 15(g) with the State Law Advisor.

Clause 22, inserting section 15A into the principal Act
The proposed change was to remove this clause, as it was unnecessary.

Clause 24, amending section 17 of the principal Act
The proposed change to this clause was the insertion of provisions for online learner’s licence test applications.

Mr Mangcu commented that driving schools in Gauteng were causing havoc, perhaps because this change would affect their business of applying on behalf of learners.

Adv Nel recalled that driving schools had not objected to this specific change, which was not yet in the Bill. As far as she remembered, the driving schools’ concerns had related to making appointments, which they often did on behalf of their students. She understood that the reason for requiring in-person applications was to verify the identity of the applicant. However, it seemed to her that the more important factor was to verify the identity of the person being awarded the licence, to ensure that they were the same person who had taken the test.

Mr Mangcu accepted the explanation and moved in support of the change.

Committee business

The Chairperson asked the Committee to approve the sub-committee’s request for an extension of its scope of work and terms of reference.

Ms Ramadwa moved for approval.

Mr Mabhena seconded.

The minutes of the meeting on 1 March 2021 were adopted.

The meeting was adjourned.