Civil Aviation Bill [B73b-2008]: briefing by Department of Transport

NCOP Public Services

27 January 2009
Chairperson: Mr R Tau (ANC, Northern Cape)
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Meeting Summary

The Chief Director of the Department of Transport briefed the Committee on the provisions of the Civil Aviation Bill [B73B-2008].  The Bill ensured South Africa’s compliance with the International Civil Aviation Organisation conventions and allowed the country to comply with the requirements to retain its Category 1 status issued by the Federal Aviation Administration.  The Bill made provision for the establishment of an Aviation Safety Investigation Board, a National Aviation Safety Program, a Civil Aviation Authority, a Civil Aviation Authority Board and a Civil Aviation Regulations Committee.  The Bill consolidated existing legislation pertaining to civil aviation and made provision for the repeal of the Aviation Act (Act 74 of 1962), the Civil Aviation Offences Act (Act 10 of 1972) and the South African Civil Aviation Authority Act (Act 40 of 1998).  Consequential amendments to other affected legislation were listed in Schedule 2 to the Bill.

Members asked questions about the inclusion of privately-owned aircraft, the responsibility for ensuring the airworthiness of aircraft, the current responsibility for investigating aviation accidents, the allowance for foreign visiting forces, the independence of the ASIB, the nature of the advice and recommendations made by ASIB to the Minister, the provisions concerning apportionment of blame and legal consequences to ASIB, the disqualification of persons with criminal convictions from membership of ASIB and the CAAB, the re-opening of investigations into earlier accidents, the services at airports, the imposition of a maximum term of 30 years for certain offences, the responsibility for prosecuting offences committed on board an aircraft, the financial implications of the Bill, the availability of sufficient skilled personnel, the safety and security measures at smaller airports and the control over liquor consumption and unruly behaviour by passengers on board aircraft.

Meeting report

Briefing by Department of Transport
Mr Anwar Gamy (Chief Director: Department of Transport) briefed the Committee on the provisions of the Civil Aviation Bill (see attached document).

The purpose of the Bill was to allow South Africa to comply with the International Civil Aviation Organisation (ICAO) conventions, to allow the country to retain its Category 1 status as determined by the Federal Aviation Administration (FAA), to improve civil aviation safety and security in South Africa and to consolidate existing aviation legislation.  The Bill made provision for the establishment of an independent Aviation Safety Investigation Board (ASIB) in compliance with Annex 13 of the Chicago Convention (the Convention on International Civil Aviation drawn up in Chicago on 7 December 1944) and the establishment of a National Aviation Security Program to promote more effective control of the safety and security of aircraft and airports.  Aircraft and facilities under the control of the South African Defence Force (SANDF) and South African Police Service (SAPS) were excluded from the provisions of the Bill.

Mr Gamy presented a summary of the 168 Sections contained in the Bill.  The relevant definitions were included in Section 1.  Section 2 covered the application of the Act.  Section 3 dealt with the application of the Chicago Convention and the Transit Agreement (the International Air Services Transit Agreement drawn up at Chicago on 7 December 1944).  Section 4 detailed the function of the Minister of Transport.  Section 5 made provision for the enactment of the Chicago Convention, Transit Agreement and protocol.  Sections 6 and 7 made provision for the acquisition of land and rights to the use of land related to airports.  Section 8 dealt with the trespass, nuisance and responsibility for damage or loss by the registered owners and operators of aircraft.

Sections 9 to 46 dealt with the establishment, jurisdiction, objects, requirements for and appointment of members and staff, functions and powers of ASIB and the reporting on investigations into accidents.  Sections 47 to 58 dealt with access to and use made of on-board recordings and communications records.  Sections 59 to 61 covered the reporting of aircraft accidents.  Sections 62 and 63 detailed the appearance and opinions of the investigator in court.  Section 64 made provision for rules to be made by ASIB.  Sections 65 and 66 detailed offences and evidence.  Sections 67 and 68 made provision for transitional arrangements and the liability of staff and members of ASIB.  Sections 69 and 70 made provision for the appointment of commissions and boards of enquiry by the Minister of Transport.

Sections 71 to 74 made provision for the establishment of a Civil Aviation Authority (CAA) and Sections 75 to 84 dealt with the establishment of a Civil Aviation Authority Board (CAAB).  Provisions concerning the Director of the CAA were contained in Sections 85 to 93.  Sections 94 to 101 included general provisions regarding the CAA.

Sections 102 to 112 covered matters related to aviation security.  Sections 113 to 116 dealt with regulatory compliance by the CAA and the issue of compliance certificates.  Sections 117 to 121 made provision for appeals against decisions and Sections 122 to 128 dealt with the establishment and role of appeal committees.  Sections 129 to 131 detailed procedures for identifying and notifying differences and for the issuance of exemptions and interception orders.  Section 132 made allowance for the transfer of functions and duties.

Sections 133 to 144 detailed offences and penalties.  Sections 145 to 148 made provision for search, seizure and powers of arrest.  Sections 149 to 153 dealt with the delegation of powers, acts taking place outside South African borders, jurisdiction, extradition and the admissibility of statements. Section 154 covered the powers of the Commander on board aircraft.

Sections 155 to 162 allowed for the promulgation of regulations and the establishment of a Civil Aviation Regulations Committee (CARC).  Section 163 dealt with the technical standards for civil aviation.  Sections 164 to 168 made provision for transitional provisions, the repeal and amendment of affected legislation, the binding of the State to the Act, and the short title and commencement of the Act.

Schedule 2 detailed the consequential amendments to other affected legislation and the repeal of the Aviation Act, 1962, the Civil Aviation Offences Act, 1972 and the South African Civil Aviation Authority Act, 1998.

Discussion
Mr V Windvoël (ANC, Mpumalanga) requested clarity on the phrasing in the long title to the Bill with regard to the establishment of an independent ASIB.  He said that mention was only made of commercial aircraft and wanted to know if privately-owned aircraft was included as well.  He asked if provision was made for ensuring the airworthiness of aircraft before take-off.

Ms M Oliphant (ANC, KwaZulu Natal) noted that the Bill made provision for the establishment of ASIB and asked who was currently responsible for investigating accidents involving aircraft.  She requested clarity on the provision for allowing representatives of a foreign visiting force to attend accident investigations.  She requested clarity on the independence of ASIB and its responsibility for advising the Minister.  She asked why the remuneration of ASIB staff was included in the Bill.  She noted that ASIB was allowed to establish its own directorate and questioned the advisability of such a provision when ASIB was tasked with carrying out its functions on behalf of the Minister.  She noted that ASIB advised the Minister on the findings of investigations into accidents and asked if the Minister was also advised on the actions that needed to be taken.  She asked if the Department of Transport should not be prescribing the manner in which ASIB operated.

The Chairperson noted that ASIB had no right to apportion blame or liability and may not determine civil or criminal liability (see slide 14 of presentation).  The provision appeared to be in conflict with the allowance for ASIB to institute or defend any legal action (see slide 31 of presentation) as there had to be some apportionment of blame for the matter to be brought to court to be defended.  Section 16 prohibited a person who had a criminal conviction from serving as a member of ASIB.  He asked if any allowance was made for persons who had a criminal conviction resulting from relatively minor crimes, such as the theft of a loaf of bread by a child who was driven by hunger.

In response to Mr Windvoël’s questions, Mr Gamy explained that the purpose of ASIB was to ensure the prevention of aviation accidents by means of improved safety measures and by ensuring that corrective action was taken to prevent the recurrence of incidents.  He pointed out that the definition of “air carrier” included all aircraft whether scheduled or unscheduled and included smaller privately owned aircraft.  The only accidents not investigated by ASIB were those involving aircraft belonging to the SANDF and the SAPS.  He agreed to consider including the phrase “commercial or non-commercial” in the Bill as suggested by Mr Windvoël.

Mr Gamy said that the Department of Transport was responsible for the CAA, which carried out inspections of aircraft and which was responsible for the technical safety of aircraft.  ASIB was responsible for submitting reports on accident investigations and for making recommendations to the Minister.  He explained the role played by ASIB as an independent body for the purpose of preventing aviation accidents.  ASIB can not initiate legal action and had no prosecuting authority.

Replying to Ms Oliphant’s questions, Mr Gamy said that current accident investigations were undertaken by the CAA.  However, the CAA can not investigate itself if an accident was caused by some negligence by the CAA.  The establishment of ASIB addressed this current weakness.  The provisions under Section 13 related to incidents involving a visiting force not covered by the provisions dealing with all other types of aircraft.  He explained that the provision for the remuneration of board members covered the issue in general terms and omitted any specific mention that could result in future changes to the legislation.

Mr Gamy said that the function of ASIB was highly specialised and the body had no prosecuting authority.  ASIB issued reports and communicated with the relevant Minister in writing.  The intention was to promote consistency in its operations and written reports were circulated to all affected parties to allow for comment and input that will assist in the prevention of further incidents.  He explained that ASIB acted on behalf of the State and allowed the State to conform to the ICAO conventions and agreements entered into.  He remarked that South Africa was lucky that no major air disaster had occurred on South African soil so far but it was essential that ASIB was established as soon as possible.

In response to Mr Tau’s question, Mr Gamy pointed out that Section 16 1 (i) dealt with the disqualification of members of ASIB in terms of specific legislation dealing with forgery and corruption, rather than with the theft of bread by a small child.  The Chairperson however felt that the provisions under Section 16 1 (j) could include further offences and suggested the issue was investigated further.

Mr Windvoël requested that copies of the conventions signed by the State were made available to the Committee.  He asked if provision was made for an investigation into an accident to be re-opened when new information became available after the investigation was completed.  He cited the example of the 1986 crash in which the President of Moçambique, Mr Samora Machel, was killed.

Mr Gamy referred the Committee to the Schedules attached to the Bill for further information on the relevant conventions.  He undertook to make copies of Annex 13 to the Chicago Convention available to the Members.  He explained that existing legislation made provision for accidents occurring in South African air space but that ASIB would not be expected to re-open investigations to accidents dating back to 1986.  He pointed out that provision was made for the Minister to appoint a commission of enquiry to re-investigate any accident.

The Chairperson suggested that the provisions relating to the disqualification of members of ASIB and the CAA in Sections 16 and 80 were brought into line.  He suggested that Members of the Committee considered making suggestions to the Department in this regard.

Mr Windvoël requested clarity on the provisions related to required services at airports.

Mr Gamy explained that the facilitation services that allowed airports to be licensed were prescribed in legislation such as the Airports Company of South Africa (ACSA) Act.

Mr Windvoël questioned the imposing of a maximum sentence of 30 years under Section 133, dealing with offences and penalties.  The Chairperson suggested that the issue was reconsidered by the legal advisers.

The Chairperson asked who was responsible for prosecuting offences occurring on an aircraft in flight.

Mr Gamy replied that the Commander in charge of the aircraft was responsible for prosecuting persons responsible for actions that endangered the aircraft.

The Chairperson remarked that airlines from Cuba and Algeria allowed passengers to smoke on board in contravention of international conventions.  Mr Gamy was unaware of appropriate regulations that allowed South African authorities to deal with the matter.

Mr Windvoël remarked that there was a need to extend security and law enforcement at airports during the 2010 FIFA Soccer World Cup.  He was concerned that the financial implications of the Bill made no mention of such additional security measures.  He was also concerned that security measures at smaller airports were not of the same standard as applicable at the larger airports.

Ms Oliphant was concerned over the supply of sufficient personnel to staff the various bodies.  She asked whether a program was in place to develop future resources.  She expressed concern over the consumption of liquor on board aircraft and asked if there were appropriate regulations in place to allow flight personnel to control unruly passengers.

Mr Gamy replied that the majority of provisions in the Bill were already provided for financially in terms of existing budgets.  He mentioned that a safety charge of R10 per ticket was levied and paid over to the CAA.  In the event of an accident investigation, the State was responsible for the funding of an investigation team.  There were no financial implications related to the Civil Aviation Regulations Committee as the promulgation of regulations was largely a consultative process incurring no additional costs.  Provision was made to allow the CAA to generate additional income by making its services available to other parties.

The Chairperson pointed out that the chairperson of ASIB will be appointed on a full-time basis and the members will be refunded for out-of-pocket expenses.  This implied that there will in fact be additional financial implications.

Mr Windvoël remarked that ASIB must be an independent body and should therefore have its own adequate source of income to ensure its independence and financial ability to carry out its responsibilities.

Mr Gamy confirmed that smaller airports had to comply with certain minimum safety requirements and were part of the national air security and safety plan.  Flights destined to the larger airports had to comply with the safety regulations applicable at the destination.

Responding to Ms Oliphant’s question, Mr Gamy advised that there was a global shortage in aviation skills.  The growth of the industry and demand for skills in developing countries such as China and India exacerbated the skills shortage.  Short-term measures such as the recall of skilled persons who took early retirement were in place but the industry was concerned over the sharp decline in the quality and quantity of mathematics and science graduates.  Both the Department of Transport and the industry had skills development strategies in place but the bar for entry was high and a low percentage of applicants made the grade.

The Chairperson remarked that the industry appeared to be closed to previously disadvantaged persons.  He asked what measures the Department took to assist potential students to enter the industry and suggested that schools were visited to enlighten pupils on the possibilities in the aviation industry.

Mr Gamy noted the Chairperson’s suggestions.  With regard to the serving of liquor, he advised that aircraft personnel reserved the right to refuse to serve liquor to certain persons aboard.  He said that regulations were in place to address the unacceptable behaviour of passengers.

The Chairperson said that the Committee was unable to finalise the Bill during the meeting.  He requested the assistance of the Parliamentary law advisers to investigate and to advise the Committee if further amendments to the Bill were necessary with regard to the references to the Constitution in different Sections of the Bill, the disqualification of board members with criminal convictions, the imposition of the maximum term of 30 years for offences and the phrasing of the long title.

The meeting was adjourned.

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