Call For Separation of Powers in Civil Aviation Investigations

Call For Separation of Powers in Civil Aviation Investigations

Civil Aviation in South Africa is a highly specialised area of law because it stands in both local and international waters. The Department of Transport (DOT) is the Governing Body of State and is responsible for the regulation and coordination of transportation in South Africa which includes, amongst others, Civil Aviation. The web of connectedness between all relevant bodies is complex. For example, the DOT defines the acceptable levels of safety (ALOS). In compiling its definitions, the DOT is guided by recommendations from the South African Civil Aviation Authority (SACAA), but it is only the latter authority that oversees the safety programmes being implemented in practice (which is discussed below).

At this stage, there are 13 pieces of legislation that regulate various sectors of the Aviation industry. Below is a brief discussion of the key ones.

 

1.         The Aviation Act, 74 of 1962 (“The Aviation Act”)

The Aviation Act (now repealed in its entirety by the Civil Aviation Act, 13 of 2009)[1] effectively ratified South Africa’s acceptance of the International Civil Aviation Convention (also known as the Chicago Convention) which made us a Contracting or Member State of the International Civil Aviation Organisation (ICAO). Notwithstanding its repeal, the provisions therein are similar to those in the Civil Aviation Act and are thus relevant here. The first part of the Aviation Act regulated aspects such as flying over territories of other Contracting States, Aircraft Nationality, Measures to facilitate Air Navigation, Regulatory and Technical requirements of Aircrafts, as well as the so-called “international stands and recommended practices” (SARPs). The second part of the Act referred to the general principals and application of the Convention. ICAO, is currently based in Montreal, Canada, and the Air Navigation Commission (which is a technical body within ICAO) is responsible for the development of SARPs. The third part of the Aviation Act regulated international air transport. The fourth part of the Aviation Act dealt with other aspects such as special agreements, disputes, defaults, mandatory arbitration, appeals, penalties, war and emergency.

 

2          The Civil Aviation Act, 13 of 2009 (“The Act”)

This second piece of legislation has a narrowed and specialised nature, with more focus being placed on internal and external aspects of South African Aviation Law. Amongst other things, SACAA [through Part 1 of Chapter 6 of the Act] and the Civil Aviation Authority Board (CAAB) [through Part 2 of Chapter 6 of the Act] were established through this Act. It also provided for the “establishment of an independent Aviation Safety Investigation Board” (a requirement of the Chicago Convention), more commonly referred to as the Accident and Incident Investigation Division (AIID). The AIID reports functionally to the Minister of Transport (at the DOT) through the Deputy Director-General: Civil Aviation insofar as it relates to accident and incident investigation. SACAA is then responsible for managing operational resources to conduct investigations ‘without interference’. For the exclusive purposes of accident and incident investigation, SACAA establishes all necessary processes to enable the Executive responsible for aircraft accident and incident investigation to report to the Minister of Transport through a panel appointed for that purpose. The staff, accredited representatives, experts and advisors of the accident and incident investigators are supposed to serve impartially and independently to exercise, carry out and perform their powers, duties and functions in good faith and without fear, favour, bias or prejudice, subject only to applicable legislation and the Convention. SACAA does not interfere with the functions of aircraft accident and incident investigators, including the production of accident and incident reports. Whilst provision has been made for the Aviation Safety Investigation Board (ASIB) in the Act [through Part 3], in reality, the AIID appears to have replaced the ASIB in practice. Section 155 of the Act allows the Minister to make Regulations regarding the carrying out of, or the giving effect to, the Act, the Convention and any Transit Agreement. So too does section 163 of the Act empower the Director for Civil Aviation (DCA), currently Poppy Khoza, to issue technical standards for civil aviation on the matters that are prescribed by regulation.

From November 2006, all Member States to the Chicago Convention are obliged to implement a State Safety Programme (SSP). Therefore, SACAA established a State Aviation Safety Programme (SASP) in January 2017 in order to achieve “an acceptable level of safety in Civil Aviation” including policy, objectives, risk management, assurance, and promotion.[2]

The allocation of responsibilities between the divisions of SASP is too complex to be summarised in a short article. Suffice to say, SASP affects two industries: ‘Service Providers’ and ‘Regulators’. Service providers (e.g. Airports Company South Africa (ACSA)) have functional and technical roles, whereas the Regulators are tasked with inter alia collection pure factual data, forensic assessment of collected data, apportionment of responsibility for incidents and accidents, and compliance checks insofar as the legal implications are concerned. Two examples of Regulators are (1) the International Air Services Council (IASC) whom are responsible for licensing control, and (2) the South African Civil Aviation Authority (SACAA). Aircraft Safety Operation Division (ASO) is responsible for licensing and aeroplane fitness control.

The Industry Liaison Forum is dreamed to be a powerful stage for SACAA to liaise with professionals in the industry on logistical and practical issues. For example, Ms Poppy Khoza (Director of Civil Aviation) announced that a process has been developed to troubleshoot issues relating to customer service and backlogs in examinations by December 2018.[3] A similar organisation to this is the Civil Aviation Regulations Committee (CARCOM) which was established through Part 11.03.1 of the Civil Aviation Regulations 2012.[4] It is a “consultative and advisory” forum constituted of members and stakeholders of the Industry, mainly the service providers. The body itself is tasked with advising the Minister of Transport on proposals with regards to inter alia the introduction of any regulation to be made under section 155 of the Act, the amendment or withdrawal of any regulation made under section 155 of the Act, and the introduction, amendment or withdrawal of any technical standard to be issued under section 163 of the Act. The Secretariat of CARCOM is SACAA’s Legal and Aviation Compliance Division (LAC). The LAC’s functions are carried out through, amongst others, Regulation Development, Enforcement, ICAO compliance and general legal advisory services. The Enforcement Department is responsible for overseeing investigations and enforcing action, ensuring adherence to South African Aviation legislation, regulations, and technical standards.

The most popular litigation results from either damages suffered through transportation incidents (gross or negligent),[5] or the refusal to issue or amend licenses.[6] SASP, on a practical level, aims to reduce the frequency of the former (through its ALOS). In comparison, very little attention is being paid to the latter area of conflict.

ASIB (through AIID) and SASP are not one in the same, although disguised to have similar objectives. The overreaching problem is that the LAC is the secretariat for CARCOM and all of these committees form part of SACAA, who in turn advise the DOT on all regulatory and technical matters pertaining to civil aviation. Put simply, SASP was created by SACAA, is managed by SACAA and also enforced by SACAA. Challenges to decisions or appeals to rulings made will, on average, have to go through at least two channels before being heard in a High Court. On the other hand, if ASIB, as envisaged in the Act, were to be enacted in the true spirit and form through which it was envisaged, it would be an entirely independent board that would be accountable to the Department of Defence. [7] ASIB would have a wide mandate and have the vital benefit of to exercise its powers independently.[8] It would be a powerful institution which, for unknown reasons, has not been ratified but has instead been replaced by the AIID. As an example to this point, one need only consider Section 113 of the Civil Regulations, 2011 to understand the immense powers of investigation that are available to those investigators which would, arguable, achieve more if they were exercised independent from SACAA.[9]

Ultimately, I believe there is a grey area in the separation of powers, and system of checks and balances, between those who created the rules and those who enforce them. SACAA is the de facto reporting body for the AIID, LAC, and CARCOM. As it currently stands, the potential for abuse exists where the consequences for same may not receive the same or similar repercussions if an independent board were there to oversee the process. Given the increasing number of incidents and accidents, as well as compliance issues, that have arisen in recent years, there is no doubt that proper separation is required. It is necessary not only to protect the members who are affiliated to SACAA, but also the so-called ‘innocent bystanders’ who utilise Aviation services. It cannot be disputed that there exists a need for evidence to be collected in an untampered manner, analysed by a team of impartial persons where no conflict of interest is possible. This is arguably the standard that was envisaged by ICAO in its Convention. Just by way of example, the United Kingdom, Pakistan and South Korea all have independent Investigations Board (Pakistan being the youngest of the named countries).[10] According to an audit conducted, SACAA ranks number 33 in the world but there are aspirations to achieve top-10 results for accident investigation and certification.[11] Sadly, as SACAA is a parastatal, it requires funding and I suspect that this is the biggest reason for it not being able to form the ASIB as envisaged.

Whilst there appears to be no challenge to the lack of dichotomy on the part of any investigations team, even insofar as licensing is concerned, it is envisaged that a civilian wishing to challenge both the licensing process and reporting process may be possible.

 

Aleisha Oliver

Practising Attorney


[1] Section 166(2) of the Civil Aviation Act 2009, read with Schedule 2

[2] State Aviation Safety Programme: www.caa.co.za/SMS Documents/Safety Programme.pdf (Accessed on 6 July 2018 at 13:49)

[3] www.aeroclub.org.za/wp-content/uploads/2014/11/ILF-Feedback.pptx (accessed on 9 July 2018 at 10:55AM SAST)

[5] See Impala Platinum Ltd v Koninklijke Luchtvaart Maatschappij NV and another [2007] 1 All SA 545 (SCA), KLM Royal Dutch Airlines v Hamman [2002] 3 All SA 484 (W), Mano et Mano v Nationwide Airlines (Pty) Ltd and others [2007] 2 All SA 227 (SCA), Welkom Municipality v Masureik and Herman t/a Lotus Corporation and another [1997] 2 All SA 144 (A)

[6] See Caledonian Airways Limited v Transnet Limited t/a South African Airways and another [1997] 1 All SA 673 (W), Millionair Charter (Pty) Ltd v Chairman International Air Services Council and another [1998] 4 All SA 391 (T)

[7] Chapter 4, Parts 1 to 3 of the Civil Aviation Act

[8] For more on the objects and jurisdiction of the ASIB, see Sections 11 and 12 of the Civil Aviation Act

[9] http://caa.mylexisnexis.co.za/# (Accessed on 9 July 2018 at 11:15AM SAST)

[10] On the United Kingdom, see https://www.gov.uk/government/publications/how-we-investigate/how-we-investigate (accessed on 9 July 2018 at 11:51AM SAST); on Korea, see http://araib.molit.go.kr/intro.do?gubn=english (accessed on 9 July 2018 at 12:03PM SAST); on Pakistan, see https://tribune.com.pk/story/1257094/free-caa-safety-investigation-board-first-independent-inquiry/ (accessed on 6 July 2018 at 09:39AM SAST)

[11] Op cit 3