The Civil Aviation Bill was presented to the Committee. It was explained that the Bill was quite technical. Its primary purpose was to ensure that there was compliance with the International Civil Aviation Organisation (ICAO), to improve civil aviation in South Africa as well as consolidation of legislation. The Bill also introduced the creation of the Aviation Safety Investigation Board (ASIB) whose primary purpose was to identify safety deficiencies, report publicly on its findings and its sole objective was accident prevention. The Civil Aviation Authority was also covered in clauses 70 to 78, and the Civil Aviation Authority Board in clauses 70 to 90. The monitoring and enforcement of regulatory compliance was set out in clauses 101 to 140. The National Civil Aviation Security Coordinator provisions were in clauses 141 to 151. Members asked why the Security Coordinator was being paid by the Department, and it was explained that some of the institutional issues would be addressed again after public comment. The comment was made that it would be useful to look at the International Organisation’s requirements and wording and that the Department must start to develop policy. Further questions related to the replacement of the Director, the position of the Executive Board, the sub entities associated with the Appeals Board, the need for the Appeals Committee, the disparity between the treatment of disabled people on different flights and airlines, and the need to look again at the clause dealing with owners of aircraft.
Civil Aviation Bill [B73 – 2008] (the Bill): Civil Aviation Authority (CAA) presentation
Mr Anwar Gany, Chief Director: Civil Aviation Authority, presented the presentation to the Committee. The Bill was to ensure that South Africa was in compliance with the International Civil Aviation Organisation (ICAO). It would be a consolidation of legislation and it would repeal the Aviation Act, 1962, Civil Aviation Offences Act, 1972, and the South African Civil Aviation Authority Act, 1998.
Mr Gany explained the purpose of the Bill. Clause 1 provided definitions. Clause 2 set out the application of the Act and what and whom it applied to. It included every person employed or doing work in connection with aerodromes, air navigation facilities, aviation facilities or designated airports. It did not apply to aircraft, airports, heliports or helistops that belonged to the South African National Defence Force (SANDF) or the South African Police Service (SAPS), aircraft or airports that were used exclusively by SANDF or SAPS or aircraft used by Customs services. Clause 3 contained the power to carry out and apply convention and transit agreements. The Minister could, in consultation with the Civil Aviation Authority (CAA,) issue proclamations for carrying out a Convention or Transit Agreement as well as ratify amendments to the Convention or Transit Agreement. Clause 4 set out the functions of the Minister in connection with the Act, Convention and Transit Agreement. The Minister was responsible for carrying out the Act and must designate CAA as the appropriate authority for the purposes of carrying out the functions of the Act. Clause 5 related to the enactment of the Convention and Transit Agreement. Clause 6 was the acquisition of land and rights in connection with licensed airports. The Minister could acquire land and interest in land adjoining or adjacent to any aerodrome and for the purpose of erection and maintenance of aids to safety in air navigation. Clause 7 spoke to permission to use land held under any reconnaissance permission, prospecting or mining authorisation. Subject to relevant legislation the Minister of Minerals and Energy could permit the use of specific land for the establishment of airports and other related functions. Clause 8 related to trespass, nuisance, and responsibility for damage or loss by registered owners and operators or aircraft. It meant that any damage or loss caused by an aircraft in flight could be recovered from the registered owner of the aircraft.
The Aviation Safety Investigation Board (ASIB) was described in Clause 9 to Clause 67. Clause 9 set out the application of the Chapter and it applied to aircraft accidents and aircraft incidents. Clauses 10 and 11 set out the establishment and objects of the ASIB. It was a juristic person. It was established to identify safety deficiencies. It was to make recommendations to eliminate or reduce safety deficiencies and report publicly on investigations and findings. Its sole objective was accident prevention. Clause 12 dealt with the ASIB jurisdiction. Clause 13 referred to the coordination of investigations. Clause 14 was about the ASIB’s compatible procedures and practices. Clause 15 dealt with the appointment of members, filling of vacancies and terms of offices. Clause 16 dealt with the procedure and requirements for appointing members of the ASIB. Remuneration, fees and expenses were referred to in Clause 17. The duties of the Chairperson of the ASIB were mentioned in Clause 18. Clauses 19 and 20 referred to the delegation of powers and quorum. Clauses 21 and 22 mentioned expenditure and the Public Finance Management Act. Conflict of interests was dealt with in Clause 23. Clauses 24, 25, 26 and 27 dealt respectively with the duties of the members of the ASIB, the appointment of staff, agreements between the ASIB and the director and the remuneration of staff of the ASIB. Independence and impartiality was covered in Clause 28. Clause 29 referred to the functions of the ASIB. Clauses 30, 31 and 32 dealt with the powers of the ASIB and the investigators. Clauses 33, 34, 35, 36 and 37 referred to the search and seizure by the investigators, the power to test the items seized, and return of the items, certificate and a public inquiry. Clause 38 referred to the notification to the Department of Transport of the occurrence of aircraft accident or aircraft incident. Clauses 39 and 40 dealt with the notification to a Minister who had an interest in aircraft accidents or aircraft incidents and the attendance and removal of observers. Clauses 41 and 42 dealt with the report on completion of investigation and manner of dealing with representations. Clauses 43 and 44 dealt with the notification of findings and the Minister’s right to respond. Clause 45 referred to the delegation of powers. Clauses 46 through to 52 dealt with on-board recording. Clauses 53 up to 57 were about the communication record and statements obtained. The reporting of aircraft accidents and aircraft incidents were referred to in Clauses 58 to 60. Clauses 61 and 62 mentioned the appearance and opinions of the investigator. Clauses 63, 64, 65, 66 and 67 dealt with the rules, offences and evidence, transitional arrangements and liability.
The Civil Aviation Authority (CAA) was covered in Clauses 70 to Clause 78. The establishment, objects, functions, staff and funding, use of name, conflict of interest, limitations of liability and ministerial order were also dealt with. The Civil Aviation Authority Board (CAA Board) was dealt with in Clauses 79 until Clause 90. These, amongst other aspects, covered the establishment and objects of CAA Board, functions, appointment of members, meetings and remuneration of members, removal of members, conflicts of interest, performance agreement with the Minister, business and financial plan, the Public Finance Management Act (PFMA) and the Annual Report. The Director of Civil Aviation was dealt with under Clauses 91 to 100. The Monitoring and enforcement of regulatory compliance by the CAA was contained in Clauses 101 to 140. The National Civil Aviation Security Coordinator provisions were in clauses 141 to 151.
Mr O Mogale (ANC) found it difficult to understand why the Security Coordinator would be paid by the Department and be so far removed from aviation.
Mr Gany replied that it was an institutional issue. Perhaps after public comment a more concrete decision might be made.
The Chairperson noted that it would be useful to look at the ICAO requirements and wording. This was related to developing a set of regulations and the Department should develop policy.
Mr Mogale was concerned by the fact that the Director, who was to be a highly qualified and technical person, would be replaced within in thirty days for whatever reason, and asked how a person with those particular skills could be replaced so soon.
Mr Gany replied that there was an Executive Board that reported to the Director. On the Executive Board, an operational board, there was a general manager of flight operations and several others that were competent and qualified and could act as Director if the need should arise.
Capt Colin Jordaan, Commissioner for Civil Aviation, added that if perhaps the Director took ill and would be out of the office for a few months then the Minister would be involved in the decision to appoint an Acting Director.
Mr Mogale noted that organised labour was emphasised. He asked where was the organised labour located since it was clear that highly technical people were required.
Mr Mogale also asked for more clarity on the sub-entities associated with the Appeals Board.
Mr Gany replied that the Bill was quite full of technical language and jargon, and because the Bill complied with Promotion of Administration Justice Act (PAJA) there was a requirement for an Appeals Committee.
The Chairperson noted that many issues would be pursued further.
Dr M Sefularo (ANC) referred to Slide 33, and asked what would happen in cases where the patient was obstructing the investigation.
Adv Leon Kellerman, Consultant, replied that it was only related to accident investigations in terms of Chapter 4, and if there was a refusal the investigator may approach the Court.
Mr M Moss (ANC) noted that on certain aircraft special cushions were allowed for disabled persons, yet on others it would not be allowed. He asked if it was an offence.
Capt Jordaan replied that all aircrafts were different. For instance not many aircrafts could accommodate guide dogs. It was left up to the operators to establish what their particular policy was, based on the type of aircraft they had. He thought that in respect of the use of special cushions, it was a particular operator that decided whether or not these could be used. All cabin crew were briefed and trained to handle blind passengers.
Mr Moss remarked that it seemed as if an attendant could judge whether or not to allow a cushion or a guide dog.
The Chairperson asked if the member had noticed the same airline being inconsistent in their policy.
The Commissioner suggested that in the operators’ manual it should be specified which type of aircraft would allow such a cushion, and place it in the regulations.
The Chairperson mentioned there was a need to be more systematic and suggested that perhaps the Committee should invite a formal representation on the issue of inconsistency.
Mr Moss noted that it was stated that if a person travelled in a wheelchair he/she had to travel with an assistant that meant that he/she would have to pay double to travel anywhere.
The Commissioner replied that it was only required in specific disabilities, very often the usual wheelchair bound people did not require an assistant.
Dr Sefularo asked why an observer or a person who had a conflict of interest were just excluded as opposed to removed.
Capt Jordaan replied that in many cases that the party may be an owner of an aircraft would be required to participate in an investigation. If that individual would exert undue influence on the investigation would be excluded.
Dr Selfularo replied that perhaps that phrase should be redrafted.
The Commissioner noted that since there was a change in the way the CAA was audited, now being audited by the AG, it had found that it was reporting on three fronts in every single area. There was a discussion with the Executive, and they believed that they could function very well without a board.
The meeting was adjourned.
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