The Department of Transport briefed the Committee on the proposed amendments that were made for the Civil Aviation Bill, following requests by the Committee in the previous week. In respect of the National Aviation Security Policy, it was explained that a new Clause 100A had been drafted, and that the title had been changed, by deletion of the word “civil” before “Aviation”. This was in line with international referencing, but it was agreed that there should be a definition that made it clear that this Bill was dealing with civil, as opposed to military, aviation. Questions were asked about the inter-departmental coordination, and it was agreed that there was a difference between the policy, as outlined in sub clause (a) and the coordination in subclause (m), and therefore a revision would be made that specified this. The National Aviation Security Committee was discussed, and its roles and functioning outlined. It was suggested that specific reference be made to the National Coordinating Committee. The industry representatives noted that there was a need to develop the security programme specifically in consultation with the industry. Although the International Civil Aviation Organisation Security Manual did impose some confidentiality requirements, Members felt that consultation in general could and should be held, and the Department was asked to come up with wording that would achieve the right balance. In respect of subclause (b) Members asked that the repeated wording be removed, and asked questions around subclause (g), but it was explained that this subclause related to work that would be done by the Coordinating Committee. Members discussed whether there could possibly be duplication, and agreed to look more closely at this aspect again when considering the functions of the Civil Aviation Authority, but the Department said that it was possible also to deal with this in the guidelines.
Members questioned whether subclause (j) contained a policy issue, but the Department explained that this clause arose out of the requirements of the International Civil Aviation Organisation (ICAO), and that it was not intended that the Department would be attending to human resource issues, but only ensuring that the policies were being addressed to achieve compliance. The words “within the Department” would be inserted into subclause (m). It was agreed that “establishment” was a preferable word to “implementation”. A suggestion that there be specific reference to Annex 17 of the ICAO convention was not generally supported.
In respect of consultation, it was generally agreed that there should be a consultative process that did not unduly hamper either side, wherever appropriate, as well as ongoing engagement with all stakeholders.
The Department then submitted revised wording for Clause 15, which set out the procedure and requirements for appointment of members of the Aviation Safety Investigation Board. Members questioned the wording in clause 15(2)(d), and asked that the process be revised so that Parliament would not be involved in the selection or short listing, which should be done by experts, but that the shortlist of names should be published so that any objections could be raised, before the final appointment was made by the Minister. Members also asked that there be a stipulation as to the minimum size of the shortlist. Members questioned the practicalities of such a small Board, but were assured that the Board would not be conducting investigations, but reviews, that it would be the contact point as it was more independent, and to ensure institutional separation. Members noted that there were further references to the National Assembly being involved in other processes, such as removal and suggested that this was not necessary, and that Parliament should not become involved in what were essentially management issues, especially as other checks and balances, such as the right of appeal, existed.
The Department then circulated another document concerning the Civil Aviation Authority (CAA). The Committee discussed the issues, centring on working out a structure for the CAA on which the Department, the Committee and the representatives of the CAA and other stakeholders could agree. The three possible models were having a full board, having no board, with the CAA being a purely regulatory authority, or having an adjusted corporate-governance centred board. Members also discussed related issues around emergency exceptions, reporting lines between the Director, the Board and the Minister, compliance with international regulations, the “user pays” principle, commercialisation and the background to the Chicago Convention.
The CAA was asked to explain the process that applied when a civil aviation accident happened and the Committee also discussed the structure of the Accident Investigation Unit (AIU). Explanations were provided for the procedure in the event of an accident, how the AIU was linked to the CAA, the particulars of their funding and administration and their independence.
Members then continued discussions on the composition of the CAA. Concerns were expressed about the Director being solely responsible for response on safety and security issues. A full board with the Director as a member of the board seemed to find favour, but Members expressed the need to the provisions around the director, the Board’s accountability and the reporting lines. International parity was important, and it was imperative that the CAA must not be fettered or paralysed in the face of a national threat. The Chairperson felt that more practical approaches must still be examined. He was unsure about the necessity for the Board, and expressed fears about the possibility of prejudicial influence over the director. He was personally supportive of stakeholders having an active role. He asked the Department to formulate proposed organograms for each possible model as a starting point for the continuation of deliberations on the following day.
Civil Aviation Bill (the Bill): Further proposed amendments and deliberations
The Chairperson reminded the Committee that the Department of Transport (DOT) had been asked to do some work on the critical areas of the Bill. Apparently the Department had made good progress on the security issues, and the Committee's request around the structure and appointment of the Board for accident safety reports had been dealt with. However, what remained as an issue was the interaction between the airlines, the current Board of the Civil Aviation Authority (CAA) and the new Authority. The Department was still working on that, and he asked for a further report on how far the process had gone.
Mr John Morrison, CEO, Airlines Association and Chairman of Aviation Compliance Solutions, noted that there was a summary of amendments, setting out the changes incorporated into the full document, but he commented that most people had not seen it.
Mr Anwar Gany, Chief Director: Civil Aviation, Department of Transport, noted that a number of the amendments that the Department of Transport (DOT) had made in the first few pages of the document, that he would speak to that morning, were dealing with minor issues. He suggested that perhaps there should be greater focus on the issues of principle at the outset, as the Department could return to the minor wording issues later. He noted that the references on this document referred to the thick document circulated to some Members of the Committee.
National Aviation Security Policy
Mr Gany said that the security aspects of the document were set out at page 116 of the document, and referred to the proposed new Clause 100A. He explained that the page references on this document matched the pages of the document that was being amended, so that the pages did not run in chronological sequence. He noted that the highlighting showed changes to the original Bill. Anything that had a line through the word had been deleted, bold and underlining showed additions.
Mr Gany noted that the new title was "National Aviation Security Policy” The word “civil” had been deleted, and this was in line with international practice and wording. The proposed new Section 100A (a) set out that the Department was responsible for development of the National Aviation Security Policy.
In terms of the new 100A(b), the Department would be responsible for the compilation, revision and development of the National Aviation Security Programme (NASP), in compliance with the international Convention.
Mr B Mashile (ANC) said that Members had understood coordination to mean inter-department coordination and he asked how that featured in the Bill.
Mr S Farrow (DA) felt that the deletion of the work "civil" opened up a series of possibilities. He cautioned that this Bill related to airline operations in a civil, as opposed to military, context. He asked if the removal of the word "civil" would not broaden the scope too much, and perhaps create confusion in the minds of the public.
The Chairperson said that Mr Gany had explained that this was done because of the policy issues, but the definition would make it clear that this Bill would relate to civil matters.
Mr Gany noted that a reference to subclause (m) would show that the Department had clearly defined what was meant by coordination. Subclause (a) was dealing with the development of the programme as a policy, but in addition, the Department had a series of other related responsibilities, which included coordination amongst other States, agencies, and cross-coordination. He felt that Mr Mashile's point was covered.
The Chairperson noted that there was a difference between the policy and the coordination.
Mr Kim Gorringe, Chief Executive Officer, Commercial Aviation Association of Southern Africa, asked what the difference was between revision and development.
Mr James Davies, Partner, Webber Wentzel Attorneys, on behalf of the Airlines Association of Southern Africa (AASA) and Aviation Co-ordination Services, asked whether this was a line-by-line presentation, or whether it was covering the position.
The Chairperson noted that it was not yet line-by-line, but the Committee needed to get a sense of what had been done.
Mr Mashile said that he appreciated the contents of sub-clause (m) but he was unable to make a link between (m) and (a), in respect of coordination. He had thought that the coordination mentioned under (a) was in respect of the security. However, under subclause (p) it seemed that this related to communication.
The Chairperson said that what was at issue was the important coordination role in regard to implementation of the programme. A number of players would have responsibility in terms of implementation. Mentioning coordination in the earlier part of the clause might create some uncertainty as to who was coordinating what.
Mr Gany said that coordination related to dealing with the agencies. He said that the functions of the Coordination Committee could not be written into the legislation.
Mr Farrow said that he could not understand the aspects of coordination. He asked who would be heading up this, whether the Department was a member or whether it would be taking command of this. He said that there was some confusion.
Mr Gany said that prior to having this Bill there was a programme on aviation. There were various regulations, and one spelt out the National Aviation Safety Committee (NASC), chaired by the Director General of the Department of Transport (DOT). There were clear regulations that gave guidance on what this Committee did and how it was comprised.
Mr Farrow noted that if the Department was to be responsible for bringing together the other departments, then surely it should be responsible to doing the coordination. He felt that this was a key function.
The Chairperson said that the Department must have a key coordinating role in terms of aviation security. He asked why the Coordinating Committee was not being referred to.
Mr Gany noted that perhaps the word "and relevant departments" could be inserted.
The Chairperson said that this was not quite the point. He thought that (a) was dealing with one function – namely developing the policy programme. How it was coordinated in practice should be dealt with more clearly, in another sub clause. He asked why the National Coordinating Committee (NCC), chaired by the Department, was not being referred to, since it was already in existence.
Mr Gany said that there would not be a problem in inserting that reference.
The Chairperson said that the core issue was how to ensure that there was clear responsibility and clear lines of accountability.
Mr Morrison asked a policy question around sub clause (a). This spoke to the security programme, but there was nothing to say that this must be developed in consultation with the industry. This had been a weakness in the past.
The Chairperson agreed that there must be proper participation and consultation and that proper expertise must be brought in to achieve a proper balance. Whenever there was a need to move fast, there should be clarity that enabled this to be done.
Mr Gorringe said that the National Aviation Security Plan was based on the International Civil Aviation Organisation (ICAO) security manual, that was open only to the aviation authorities of the country. He cautioned that a requirement that there be consultation about the programme could be in conflict with what ICAO required.
The Chairperson agreed that secrecy issues must be preserved, but this did not mean that there could not be consultation. Appropriate consultation on appropriate issues could still be held; it was not necessary to divulge everything but matters of principle could certainly be discussed.
Mr Gany agreed.
The Chairperson asked the Department to try to find a way to achieve the right balance between confidentiality and consultation, stressing that this should not be done in a high handed way. The consultation would refer more specifically to the coordinating mechanism that existed in regulation and practice already. In the definitions the security policy would be clarified as policy that related to civil aviation.
Mr Gany then turned to sub-clause (b), noting that the Department was responsible for the establishment, production, promulgation and review of the national civil aviation security programme.
Mr Davies asked how far the definition of "establishment' would go.
Mr Gany said “establishment” meant to get the programme in place.
Mr Gorringe asked if that was not the responsibility of the Civil Aviation Authority (CAA).
Mr Gany said it was the State's responsibility. The CAA would be tasked with enforcement and ensuring that the programme could be implemented.
Mr Mashile wondered whether, wherever the word “civil” appeared, there was a need to delete it in this clause, in view of the deletion of this word from the title.
The Chairperson said that the National Aviation Security Policy would not contain the word “civil” any longer, but the term “civil aviation” would still appear in the Bill.
Mr Mashile said that sub-clause (b) contained a repetition, and suggested that the words “the responsibility” at the start of this subclause should be removed, since there was already a reference to responsibility in the main body of the clause, before the sub clauses.
The Department agreed.
Mr Gany moved to subclause (c), noting that the word “guidelines” had been removed.
Mr Gany explained that in subclause (f) the policy was to ensure that surveys and inspection of security standards and security measures were conducted. The word "conduct" surveys was removed.
Mr Gany noted that subclauses (i), (j), and (k) had been deleted, and a new (i) was inserted. The reason was that the content of these clauses had referred to operational issues, and this content would now be detailed in the clauses dealing with the CAA matters.
Mr Mashile asked, in relation to subclause (g), what would happen if the Department was not happy about a document received for analysis, and whether it would have any power or recourse to call for further information.
Mr Gany said that the CAA was responsible for enforcement at an operational level.
The Chairperson asked if (g) was not setting out what would be attended to by the Coordinating Committee.
Mr Gany said that this was correct.
Mr Rod Winson, Compliance Manager, AvSec, said that the Coordinating Committee would sit at least once a quarter to determine what was necessary.
The Chairperson said that there would still need to be an entity that would do the collation and analysis daily and that would be done by the Department.
Mr Gany responded that the CAA and other agencies would receive and collate documents. All the different agencies would in fact be working simultaneously.
The Chairperson said that it was necessary to refer back to the heading. This said that it was the Department's responsibility to do what was said under (g). It had been said that National Intelligence Agency (NIA) and other agencies or institutions would collect the information. However, the Department would have to ensure that the information was collated and integrated in one place.
Mr Winson said that the national Committee was the pivotal working coordinator, but there were times that might require heightened security issues. Someone needed to make sure all information was correlated, would need to form the agenda, and ensure that the right issues were brought up. That should be the function of the Department. He felt that the clause was acceptable.
Mr Farrow cautioned that if there was no clarity on the national security, then there would be difficulty. He said that what had been contained in (i), (j) and (k) had replicated some of what was contained in (g). He suggested that it could be possible that two letters be received from two different agencies, and wondered how the DOT would ensure that duplication could be curbed.
The Chairperson noted that (j) used the word “dissemination”, in relation to practices, whereas (g) referred to “information”, which perhaps would need to be disseminated to the SAPS.
Mr Gany explained that there must be a contact point for security information. There were recommended practices, but the State must disseminate to various agencies.
The Chairperson said that the Committee should look more closely at what went to the CAA at a later stage.
Mr Winson said that in practice, ICAO would send guidelines for implementation in relation to, for instance, carriage of aerosols and gels. The Department would disseminate information to CAA. They would then send it own to the agencies they controlled, such as airlines, airports and so on, and would ensure that the guidelines were being complied with.
Mr Mashile said that he still did not feel that his question about (g) had been answered. If information or a threat was sent through to the Department, which did not contain sufficient detail, he wanted to know what more the Department could do to get further information or order anyone to do any other work. A reading of (g) seemed to indicate that whatever was sent to the department was assumed to be adequate. There was not provision for the situation where there might be misinformation or inadequate information.
Mr Gany responded that this was a valid point, but that the Department would not become involved in the day to day running of the operations. The programmes would be implemented by the stakeholders. The industry would have to ensure that if information was not forthcoming, then the various government agencies at airports, including NIA, could be brought in. The contact nodal point for security was the Department. The Chief of Aviation Security would profile and relay information down to the CAA and other stakeholders. It was not possible to put everything in the legislation, but that situation could be included in the NASP and be dealt with by the different stakeholders.
Mr Gany then moved to the new (i) and (k), noting that there was an insertion of the words "in respect of the" in (i) and that the words “and recommendations” had been taken out, as had operational issues around "evaluation methodology”.
Mr Davies said that the whole of Clause 100A was setting up policy issues. He questioned whether (j) was in fact a policy issue, and, if not, whether it should not be deleted. The point had been made that previously six instances had sometimes been duplicated. Everyone was accepting the demarcations, but he was not sure that (j) was a policy issue.
Mr Morrison said that the DOT was surely not in a position to advise airlines and airports how to use human resources.
Mr Winson explained that this clause was inserted as a result of the 11th Amendment from ICAO. It addressed the situation where often technology would be in place, with the necessary competencies, but the training programmes being offered meant that the machinery was not being used properly; hence ICAO had thought it necessary to have a requirement to couple technology and human resources issues. There were guidelines on how to operationalise and implement the criteria.
The Chairperson accepted the point, but pointed out that DOT should be ensuring that these aspects of policies should be complied with. This was different from the Department doing the human resources itself. The DOT would have to ensure that human resource allocations and training happened, but Departmental people would not be deployed to do this allocation and training. He asked that the DOT consider and come up with wording that met this concern of ICAO but did not stray into the issues themselves.
Capt Colin Jordaan, CEO and Commissioner, Civil Aviation Authority, noted that it was necessary to ensure that there were not two entities giving the same input.
The Chairperson said that the wording should be along the lines of: " must ensure that due attention is paid to..."
Mr Gany did not see any harm in not having this clause in the Bill. He would however consult with Mr Winson and see how this could be drafted
Mr Gany then referred Members to subclause (m), noting that the Department would insert a reference to “within the Department” into this clause, to answer the concerns expressed earlier.
Mr Gany noted that there were no further changes to (n), (o) and (p),
Mr Gorringe said that "establishment" was an implementation type of concept. He suggested that an alternative would be to leave the word out.
The Chairperson said that this harked back to the previous conundrum. The Department must produce a programme, but must ensure that such a programme was being implemented by someone else. He said that the Department was responsible for the production, promulgation and review of the programme, and for ensuring its implementation.
Mr Gany said that “establishment” was possibly a better word to use than “implementation”.
Mr Winson agreed. The programme was established through the response of the airlines and airports to meet the national programme, and the procedures would become effective when they were approved. The whole process of a national programme response was to ensure the continuation of the standards.
Mr Gorringe referred to the wording detailing the State’s obligations around government policies and asked if there should not also be reference to “to ensure compliance with Annex 17 and government policies". Annex 17 detailed policies. He also asked if the reference to “government policy” was not too broad, and should rather detail “government security policy”.
The Chairperson said that there must be compliance with overall government policies, so perhaps environmental policies would also need to be complied with. He did not agree that this should necessarily be limited as suggested.
Mr Winson said that there were other abstract clauses in other annexes that equally applied. He did not think that there should be a reference only to Annex 17 – although it could be included in (a), it should not be included in any other subclauses.
Mr Gorringe said that he had understood that the Department’s responsibilities would be confined to NASP. He therefore thought that Annex 17, which mandated the NASP, should be mentioned. The other requirements might impact more on the CAA's responsibilities.
The Chairperson noted his comment, but said that it was desirable to keep the wording broader. Members did not generally agree with Mr Gorringe’s suggestion.
Mr Mashile asked for clarity on the intention behind (p).
Mr Winson said that aviation was developing rapidly. There were two test sites where approved technology was being used and there was a need not to work in isolation but to benchmark with the world and ensure that matters were being brought in.
Mr Mashile noted that he was referring to what was happening in
The Chairperson noted that the fallout from that would be significant.
Mr Davies asked if the consultation with the industry would apply to all issues, or only in the context of the security industry.
The Chairperson noted that the consultation process would need to be inclusive.
Mr Mashile felt that the consultation, as much as it should be encouraged, must still ensure that the Department could do what it needed, without being unduly hampered by the industry. He agreed that there was a need to define how far the consultation must go, and to ensure that the Department was not being blocked by over-zealous requirements.
Mr Farrow noted that this was a two-way stretch. It was possible to start implementing, but policies had an impact on the airline operations. There should be a consultation process that was all-embracing and that built good relationships with the national security agencies, so that things were not simply imposed on the industry.
The Chairperson suggested that there should be wording, probably inserted after subclause (b), to the effect that when the Department fulfilled its duties, wherever appropriate (to cover the confidentiality aspects) there should be effective consultation with appropriate people and an ongoing engagement. There were other parts of the Bill that also referred to consultation.
Mr Davies suggested that perhaps the industry should sit down with the Department and agree on the wording.
The Chairperson said that there should be agreement not just with operators, but also other affected parties. He thought that everyone understood the spirit of what was being proposed.
Mr Gany said that this was what Annex 17 spoke to.
Aviation Safety Investigation Board
Mr Gany tabled a new document containing the proposed new Clause 15, which set out the procedure and requirements for appointment of members of the Aviation Safety Investigation Board (ASIB), filling of vacancies, term of office and further issues.
He read through the new Clause 15(1) and noted the principles of subclauses (a) and (b). Clause 15(2) set out the nomination process. The competencies were set out in subclause (3).
Mr Mashile questioned whether 15 (2)(d) was achieving the intention. He noted that Parliament would have to be notified of any appointment within 30 days. However, he pointed out that by this time the process would have been completed, and asked what would happen if there were objections raised to any nominee.
The Chairperson said that the Members had something rather different in mind to what the Department had drafted here. They did not want Parliament to be the selection board, or even to be involved in the short listing, but did want the shortlist of names, once compiled, to be published, so that at that point any objections could be raised, prior to the final appointment. The process would thus be that the Department or Minister would call for nominations by way of the Government Gazette, some other entity or experts would do the shortlisting, the shortlist should be published for noting of objections – to Parliament if necessary – and the final selection would be made by the Minister.
Mr Gany agreed that this could be done.
The Chairperson noted that this was a small Board, consisting of a Chairperson, Deputy Chairperson and three others. The Minister could invite a number of aviation experts to assist. It was slightly unusual in that there were stipulations around who could be on the selection panel, as set out in subclause (2)(e).
Mr Mashile asked where the procedures around the shortlist were set out. He would not like there to be a situation where the shortlist was too small.
The Chairperson agreed, and suggested that it should be stipulated that the shortlist should be “not less than” a certain number.
Mr Mashile then questioned whether there should be any particular emphasis as to what the qualifications of the Chairperson of the Board should be.
The Chairperson said that it was preferable not to do so.
Mr Morrison said that the Board would consist of two full time and three part time members. Having regard to the number of accidents taking place, he wondered if there were enough members on the Board, or whether perhaps a bigger board was not needed to spread the load.
The Chairperson noted that there was a need to consider the practicalities.
Mr Gany noted that Board would not be moving around. There were full- time investigators and the Board was essentially to review the investigations and the final outcome.
The Chairperson noted that the members would be specialists. The Bill did require a lot of routine investigation to be done by CAA. He asked who would decide who did what.
Mr Gany noted that ASIB got the “first bite of the cherry” and would normally investigate the more serious accidents. ASIB became the contact point.
The Chairperson asked why the CAA would not be the investigation point.
Mr Gany responded that the nature of the Board and the possibilities of conflict meant that it was preferable for ASIB to do so. The ASIB was seen as more independent. There was provision for a Memorandum of Understanding to cover issues around more resources, but there was institutional separation between the Department, CAA and ASIB.
Mr Mashile noted that the ASIB would be an independent monitor, but questioned where its financial resources would emanate. He said that the Board could be fully industry-based, and he questioned whether the interests of the Department would be protected.
Mr Leon Kellermann, Consultant, DOT, referred to the proposed Section 22, saying that specific sections, dealt with the functions of the board members. He thought that this would answer the questions.
The Chairperson noted that there would be an appropriated budget. ASIB was an independent Board, although it was appointed by the Minister, and was a juristic person with representation from the aviation industry, but excluded government employees, in line with international practice.
Mr Kellermann drew the Committee’s attention to page 44 of this document, relating to removal of Board members.
The Chairperson noted that there had been great discussion around the SABC Board provisions.
Mr Farrow did not think that the Portfolio Committee need become involved if it was necessary for the Minister to discharge a Board member, and suggested that the Minister should have the right of removal.
The Chairperson noted that as currently worded, the Minister could suspend, but not remove. This clause was being inserted to guard against a Minister who might remove on a whim. However, he was not sure that it was entirely necessary, as surely a person removed from office would have a right of appeal.
Capt Jordaan said he was not sure of the original intention. He cited the hypothetical example that if the Board had found the Department negligent in not doing something, the Minister might take retributive action against the Board.
The Chairperson took that point, but pointed out that the criteria for removal were specified in subclause (3). If the removal was not in compliance with the law, there were other remedies. This Board was quite different from the public broadcaster, which was a politically sensitive body, and whilst he appreciated that the latter might need Parliamentary intervention, he did not think this was necessary for this Bill.
Mr Farrow suggested that it might be possible to insert a safeguard, such as the Minister having to notify Parliament should there be a need for removal, but he agreed it was not necessary to have a debate in the House.
Mr Mashile thought that (3)(c) was self-defeating, and suggested that the word “consecutive” should be left out, as a Member might only attend every third meeting, which he felt should justify removal.
The Chairperson thought that there was merit in keeping the word “consecutive” in, pointing out that it was the usual wording, and that the person in the example cited by Mr Mashile would be falling foul of subclause (b) in any event.
Mr Farrow noted that there was a reference in Clause 16A to the Performance Management system. He felt that there was too much involvement of Parliament in the general running of matters as the Bill was currently worded.
The Chairperson noted that on page 45 there were several references to the National Assembly’s involvement, and he did not think that it was always appropriate, and suggested they could be deleted.
The Department agreed.
Civil Aviation Authority
Mr Gany noted that most of the key stakeholders were present at the meeting, and he suggested that perhaps discussions could be held between them and the Department on the more detailed issues over the lunch break. Issues of accountability and responsibility could then be debated.
Members started to work their way through the thick batch document. A question was raised as to why some of the definitions had been left out. When it was explained that the bundle from which some people were working was not the final document, the Chairperson decided that the meeting would be adjourned and resume when the “cleaned up version” was made available.
Proposals around Civil Aviation Authority (CAA)
In the afternoon session, Mr Anwar Gany reported back the discussions on structure of the CAA. One possible structure was a corporate-type structure with executive and non-executive elements, as well as a Board and a director reporting to the Minister. The Director would be reporting to the Board and the Board would then report to the Minister who would have oversight over the CAA. The CAA would have functions in relation to safety and security and the Board would be responsible for corporate governance and ensuring compliance.
He mentioned that the
He referred to the last meeting of the Department of Transport (DoT) on the Bill, the consultations with stakeholders and subsequent meetings with Webber Wentzel and the Chairperson of the CAA Board. They were still of the view that the Board must constitute a number of parties and should comprise people with financial and human resources skills. They had agreed that the authority was the sum of its parts. The CAA must consist of the people holding positions as director, board members and staff.
Mr Gany noted that the Department had no problem with this view. The process that was envisaged was that the Director should be appointed by the Minister, on recommendation of the Board. The Director's reporting lines were in line with other aviation agencies around the globe. Because he would make determinations on safety and security oversight, following the regulations, the Director would have to interact with the Minister. The Department had discussed with Webber Wentzel the inclusion of an urgency clause for the Director, to provide an avenue to bypass the normal processes if this was necessary to allow speedy responses to emergencies.
Regarding the structure and functioning of the Board, the idea was that the functionality and objectives of the CAA would fall under the Board's oversight. The Board should not have control or get involved with the operations. There should be a clear definition of the responsibilities. He referred to the Working Document on Chapter 6 of the Bill, and specifically to Clause 75 (see attached document). The DOT proposed that subclause (a) be reconsidered, (b) be removed and that (c) would be changed to read "to provide oversight for strategy in accordance with Clause 72 of the Bill".
The Chairperson remarked that it seemed that some compromises had been made. He commented that (a) and (c) would create a wide scope for the Board. He asked if that would not be a rather inelegant compromise, and if it was not drafted in terms of compliance regulations. He remarked that this was really a political discussion rather than a discussion on the detail of the Bill. It seemed that the Board was really responsible for the CAA in the full sense of the word.
Mr B Mashile (ANC) expressed the opinion that much of the difficulty in this Bill came from trying to separate the Director from the Board, and he was not convinced by the reasons offered for that separation. He thought this would cause problems in terms of financial issues and delivery of services.
The Chairperson responded that he thought there were three options. The first option would be to have a full- blooded Board, but in order to accommodate security matters, there must be a contingency and de-contingency plan. The second option was that there be no Board, in which case the CAA would merely be a regulator that implemented regulations as set out by government. The third option would be to have a reduced form of a Board, which would be limited to dealing only with corporate governance, whilst the CAA would continue with the real job of safety and security as a separate body. He added that the Public Finance Management Act (PFMA) made allowance for this. Personally, he would prefer either no Board, or a limited Board. The detail must still be described. He would be inclined towards the third option, to retain the element of control. The Committee needed to make a policy decision based on deliberations.
Mr Mashile said that he would prefer a full Board. The board functionaries could include those who needed direct access to the Minister. They could then report back to the Board on those discussions. The Board could be accountable for the finances, efficiency and service delivery.
Mr O Mogale (ANC) responded that there was a need to be consistent. In his view, there should not be a Director who would not have to listen to the Board. He suggested that there might be the possibility of drawing a line where the Director was only accountable to the Board and the Board was then directly responsible to the Minister. In essence this would set up a direct line of reporting. The Committee should guard against making laws that were contradictory.
Mr S Farrow (DA) asked for clarification on where the problems arose. He asked the representatives of the CAA where there was currently potential for conflict of roles and responsibility for accidents or emergencies. He also asked what the CAA was calling for in terms of clear reporting and the adjustments to the model put forward.
Mr Mashile responded that perhaps there were issues of security and confidentiality. He added that there might be a need to consider the vetting of the Board members to address the issues of confidentiality.
Mr Desmond Golding, Chair: Financial Services, CAA, responded that the view of the CAA Board was that there had been some progress in taking matters forward from the draft that was initially tabled. Sub-clause (4) talked to the established rules that there would be accountability - the Board was an accounting body and accounted to the Minister. The Director would then report to the Board. These reporting lines had been narrowed down. The Board function could be outlined in this direction. He agreed there must be compliance with the PFMA. There was a need to draw a distinction between oversight and becoming involved in operational management. \Mr Golding also agreed with the view that there was a need to deal with emergency situations directly without convening the full board. He commented that the Board had no fundamental problems.
In respect of the matters of safety and security, he noted that there were practical reasons why the Board needed to have the ability to become involved in setting up of the activities, in order to budget for them. There was also the issue of remuneration to consider. It was not desirable to expose the political head to these crisis situations, as the Minister had other issues to deal with. There needed to be dedicated capacity to deal with emergencies. In general he felt that the CAA, the political head and industry were moving closer together on these issues.
The Chairperson responded that he was hearing support for his first proposal.
Mr Davies stated that their first fundamental concern was the different centres of power. The hybrid model now arrived at was a compromise. The main issue for the international aviation agencies was who would be responsible for taking action in a crisis. This point was still not clear, and his clients needed clarity on this responsibility. He noted that the Board would have much the same functions as any other corporate board.
Mr Morrison responded that the CAA’s core function was safety and security. The CAA was meant to run on commercial principles. There was the possibility of abuse if the Director were to have too much power.
The Chairperson noted that continued references were made to “commercialisation”. He noted that there must surely be a distinction between a commercial organisation and a government agency with private stakeholders.
Mr Gorringe stated that the CAA functioned on the “user pays” principle, where the industry funded the CAA and therefore should have a say in the spending and the level of service they received. That was the rationale behind the model
The Chairperson responded that he was less and less persuaded that the “user pays” model was appropriate for a body concerned with safety and security.
Mr Mashile agreed that the CAA needed to be a State body, as it was concerned with safety and security, rather than a body that operated on a fully commercial basis, as the latter would not be in the best interest of the public.
Mr Mogale suggested that the Members should finalise the issue they were debating, rather than dealing with the recognition of the other stakeholders
The Chairperson responded that he was trying to understand the political choices that the Committee must make. He was not sure that a Board was needed. If the decision was that there should be a Board, then he did not want it to be tangled up in public issues. The critical area of safety and security should not become commercialised. He theorised that the trend towards commercialisation had that started in the 1990s in
Mr Golding responded that the Board’s interpretation was clear. The issue of safety and security was a public matter. Although industry may have other commercial interests, safety and security was not a commercial interest, and that was precisely why there was a need for a more active Board, to take accountability beyond one individual, backed by a plan and executive strategy outside the normal thinking. This would foster accountability, and would not necessary detract from safety and security aspects. There was, in his view, no need for a day-to day functionary such as a CEO, as this was an oversight board, and the political head was the Minister. These powers needed to be clearly assigned.
Mr Morrison responded that the “user pays” principle was a principle that most countries subscribed to, where aviation authorities paid for the services delivered. He said that to reject this would be a backward move, which would also be contrary to the direction of the rest of the world.
The Chairperson responded that the Committee was not entirely insensitive to that and was not completely opposed to the “user pays” principle. The Committee was trying to determine how it would fit in the policy and strategic setting, and how to ensure that public interest was included.
Mr Farrow stated that his original understanding was that the Commissioner was the person in charge of oversight in the CAA, and that CAA also had a safety and security department with its own director who acted with certain powers pertaining to safety and security. Because of the necessity of the government-to-government liaison, he asked if there could be an all-embracing role of the director of the CAA.
Capt Jordaan gave the Committee some background on the difference between the civil aviation entities and some of the other entities with whom the Committee might deal. He explained that
Capt Jordaan explained that the CAA was not an organisation that had to compete in a commercial environment and take a strategic direction in order to ensure its own survival, and so it was dissimilar in that respect from a board in a commercial organisation. The CAA was a regulator and had two separate functions. One was to provide services to industry related to licensing and the issue of permits. If that service was not provided, industry would object that the CAA was not performing its function. The second function related to the regulatory requirements. Problems had arisen in the past because the CAA had allowed itself to be directed by various elements in industry, and ICAO had pointed out that this was incorrect. The FAA had also pointed out that the CAA had been remiss in allowing self-regulation, which did not accord with international requirements. As a result of this, CAA’s relationship with the industry had undergone radical change in the last year. Now, for the first time, the CAA had the ability to go into industry and perform its correct functions, in a manner that was independent and free of political interference.
Capt Jordaan noted that the CAA could not comment on whether there should be a Board, but wished to note that the role of the CAA was clearly pre-determined as upholding the International Convention in the broader context of the country.
Accident Investigation Unit (AIU)
Mr Farrow asked what the role of the functionary was when an accident happened, and how that was currently handled in the CAA.
Capt Jordaan responded that there was an independent Accident Investigation Unit (AIU) funded by the DoT, which resided within the CAA. Until the new legislation was promulgated, there had been appointment of an interim Safety Advisory Board (SAB), which would meet on a regular basis. The SAB consisted of members of industry with appropriate backgrounds (similar to what was envisaged in this Bill). The AIU conducted all of the accident investigations. However, it was necessary for the AIU to concentrate on major accidents as defined by ICAO. There was a permanent stand-by list for response to accidents, and the investigators in charge would notify the CAA and request assistance, if required. The Safety Advisory Board would oversee the AIU output on a quarterly basis. The reports would be analysed by experts, who could either accept the report or send it back for review. Once satisfied, the Safety Advisory Board would send the report to the Commissioner, the recommendations would be published, and taken to the CEO. The current legislation provided for a process of feedback. The SAB was gearing up for the new legislation. CAA recognized that it had to become involved at the point of the accident, must ensure that it was robust and that there was a good relationship with the AIU.
Capt Jordaan commented that the Commissioner/CEO currently had regulatory responsibility, but had no ability to carry out that role. Combining the roles of Commissioner/CEO would enable the incumbent to harness a team of people to put the safety and security regulations into effect.
Capt Jordaan commented that Members had raised the issue of security clearance. Currently it took eight or nine months to complete the full clearance procedure. However, that kind of clearance was not required for the day-to-day oversight, and the majority of the security oversight rested with the airports, where deficiencies were noted and reported back to the National Aviation Security Committee (NASC)
Mr Mogale asked if the AIU was commercial or independent.
Capt Jordaan responded that the appointment of the Head of the AIU was done in conjunction with the DoT. The “user pays” principle did not apply and there was independence in that the salaries of the AIU staff were paid by the State.
Continuation of deliberations on the CAA
The Chairperson summarised that the CAA had a dual responsibility; firstly as the local regulatory entity that implemented international aviation protocols and conventions, from which much of the regulation was derived, and secondly as a service provider to industry, for which industry would pay. However, there were instances where industry was not getting the services required. He asked how the private stakeholders could interact when they were not getting the proper services, and if there was a way to institutionalise the monitoring.
Mr Gorringe noted that he had experience both from the industry and regulatory points of view. He recalled a comment that industry was affecting the regulatory ability of the CAA. His impression was that this was not correct. The dissatisfaction expressed in the FAA audit arose from management dysfunction within the CAA. The responsibility of the Commissioner was really around safety and security aspects, and he appreciated why it was necessary to have a direct line to the Minister on these matters. However, he commented that he thought there had been a mistake, as there was nothing in the legislation to say that the CEO worked for the Commissioner. Many of the administrative issues could be sorted if the safety and security function was separated from that of the service delivery. He believed there should be a hierarchy in the CAA where the Board would control the service delivery, via the Director. This would solve many of the problems and allow industry to interrogate standards of service delivery. He also commented that the idea that the Commissioner was not able to execute the legislation was also incorrect, as all licences and permits issued by the CAA were done in the name of the Commissioner –.
Mr Golding stated that the Board was quite clear that it wanted an effective regulator. The Board did not determine policy, as it was not in their ambit. Policy was determined by the Department and by international protocol. The Board would then determine strategy, to ensure that the policy was implemented. When problems arose there was a need for strong structures of accountability, and that must be overhauled. The Board wanted to work effectively with all role players.
Mr Gany responded that the DoT was not necessarily advocating a Board for the CAA. All the options raised could work. The Department had held consultations on the issue. This industry did not have to invest in the same way as a commercial industry would, and it was concerned with safety and security oversight and service delivery under very clear regulations. The line of reporting was that the administrator of the CAA was to be appointed by the political head, with a direct line to the Minister. This would take care of the urgent contingency action. Neither ICAO nor the FAA had any problem with a Board. They simply wanted assurance that regulations would be adhered to, that the person in charge had authority, and a direct line to the political head to allow for the correct response in an emergency. There were many examples, internationally, of this direct line of reporting, which were based upon the purpose of implementing the regulation and catered for instances of urgency
Mr Mashile stated that had suggested that some Members of a Board could account to the Minister and then report back to the full meetings of the Board, and he enquired whether that would be workable or had any potential problems.
The Chairperson responded that this was moving in the direction of a hybrid.
Mr Morrison responded that he and Capt Jordaan would not disagree. There were only three countries remaining in the world that still had both a CEO and a Commissioner. Africa had the worst aviation safety record in the world, but
Mr Davies noted that the CAA had dual roles of service delivery and regulation. Any contemplated structure for the CAA must play to the service delivery aspect, but the question was how to regulate from a policy perspective. There was a need to structure the Board so that it encompassed checks and balance, industry participation and some measures to temper the possibility of a “rogue” director. Industry ensured the safety and security of passengers in the air, and should be allowed the opportunity to contribute.
Mr Farrow agreed. The aviation industry was keeping the coffers of the CAA filled, and their views must be represented clearly. It would be a matter of grave concern if a director was the only person empowered to ensure that someone responded to safety and security issues.
Mr Gany responded that the director would be completely separate, and would be a technically competent private person, rather than a public employee.
The Chairperson commented that the views expressed indicated the greatest support for the notion of having a Board. This Board appeared to retain the corporate governance function but was beginning to broaden a little. He suggested that the next step was that Members must look at the proposals in the discussion document.
Mr Gany suggested that Members should look at the exigency clause, as the Department needed to hear the views in order to get a more full formulation.
Mr Morrison asked if he had correctly understood that in cases of exigency the director would approach the Minister directly.
Mr Gany confirmed that this was correct.
The Chairperson noted that contingency was very hard to deal with, and would require almost daily contact between the Department, Director and the Board. He asked if such a clause was really needed.
Mr Gany responded that it was needed to reinforce the straight line of reporting between the Director and the Minister.
Mr Davies responded that he had no problem with that. He asked if his understanding was correct that the Minister would appoint the Board, and that the Director would be a member of the Board.
Mr Gany replied that it was correct, and that both the Authority and the Executive would thus be represented of the Board.
The Chairperson stated that the contingency provision might end up posing problems and challenges. Whilst there was a need to comply with international requirements, there must also be clarity on the interface.
Capt. Jordaan pointed out that there had been instances in the past where industry had told the CAA what to do. That had now changed. It was difficult to “serve two masters”. This was really a question of the Board giving direction to and complying with international regulations, and overseeing service delivery. The legislation needed to speak to the processes of appointment and impeachment, and Parliament’s role in these processes.
Mr Farrow responded that it was possible to have a Departmental head, whose job description could be clearly defined and who was supported by the necessary staff, and who could report to the Board. There was nothing in the legislation that said that the Director could not talk to the Minister.
Mr Mashile noted that the Committee still needed to tighten up its thinking on the provisions dealing with the Director, the Board’s accountability and the reporting line. If they did not get this right, the Director would have endless procurement problems.
The Chairperson added that international parity was imperative to national interests. The CAA could never be paralysed in the face of a national threat. Whilst it was clear that there must be compliance with the Convention, the Committee had not yet adequately explored the current approaches being followed. He reiterated that his own experiences made him unsure about the Board, and he would like some interaction to assure him that there would not be prejudicial influence over the Director.
Mr Morrison responded that there could be a formal understanding that if the Director was not in conflict with the Board on an issue, then there would be no problem with the Director alone approaching the Minister. However, if there was a conflict, then the Chairperson of the Board should also have the right to join the Director in reporting to the Minister. This might be a way to achieve a compromise.
Mr Golding responded that as the strategic independence of the organisation would be impacted, the Department had to set the policy. The Board would then implement that policy. He drew a parallel to the running of the South African Reserve Bank. National Treasury, being in control of fiscal policy, did not interfere with the repo rate decisions of the Reserve Bank. If that kind of scenario could be achieved, then there would not be objections. This was a dynamic relationship and should not prevent the director from interaction in the interests of the organization, as long as the Board was fully briefed. In emergencies, the Director should be able to go directly to the Minister.
Mr Gorringe responded that one outstanding problem was the industry fees, and he suggested that there be a move away from the Board model on the setting of fees and the monitoring of service levels.
The Chairperson replied that this added to the issues in respect of which the paying users should be able to comment. He, personally, liked the idea of stakeholders having an active role.
The Chairperson asked the Department to formulate different organograms to reflect the aspects discussed. These options should show how the Board might work in different scenarios, and this would be a useful starting point for the discussions on the next day.
The meeting was adjourned.
- We don't have attendance info for this committee meeting
Download as PDF
You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.
See detailed instructions for your browser here.