Civil Aviation Bill [B73-2008]: further deliberations

Meeting report

Civil Aviation Bill: Further Deliberations
The Chairperson noted that the Committee would go through the clauses that it had considered the previous day, and get a report back from the Department of Transport (DOT) on the changes made following the discussions. He noted that the State Law Adviser had asked about the A-list. After this morning, the Committee hoped to be able to have an A-list that could be presented on Wednesday. He urged Members to check all the details themselves.

Mr Anwar Gany, Chief Director, Department of Transport, took the Members through the newly prepared document, referred to as the Version of 6 November.

Clause 70
Mr Gany noted a minor insertion of the words "of the".

Clause 71
Mr S Farrow (DA) asked whether setting of strategic goals should be put in as an object.

The Chairperson said that this question went back to the issue of the Models. It would have been inserted in Model 1, but Model 3 had been generally agreed by the Committee, and was being used as the basis for this draft.  The strategic objectives of the Civil Aviation Authority (CAA) in Model 3 were set not by the CAA itself, but by the International Civil Aviation Organisation (ICAO) Convention, and by the Department of Transport.

Clause 72
Mr Gany noted a change on Clause 72(1)(b), which had changed the word "secure" to "ensure".

The Chairperson noted that in respect of 72(1)(g) there was a concern raised about possible duplication with Clause 100B. He asked that this be double-checked.

Mr Kim Gorringe, CEO, Commercial Aviation Association of South Africa, referred to Clause 72(1)(j), and said that the use of the words "aircraft operators" might imply inclusion of private pilots. He thought that this was probably intended to apply to "air service operators" and cargo operations. It was not intended that security programmes be developed by every private pilot.

Members agreed to change the wording to “air service operators”.

Clause 73
Mr Gany noted that 73(1)(h) had been deleted as it duplicated what was already in (f)

Clause 74
There were no changes.

Clause 75
Mr Gany noted a change to Clause 75(1)(a) and (b), which now specified the need to oversee the corporate governance of the CAA, and to provide strategic direction on corporate governance.

Mr Farrow said that if this was mentioned here, then surely it should also be listed in the objects under Clause 81.

The Chairperson reiterated that the CAA received its broad mandate from the Convention, legislation and through the Minister, and its main strategic objective was aviation safety and security. These objectives were not worked out by the CAA. This clause, however, was speaking to the Board's direct responsibilities and functions, and one of its key functions was the provision of strategic direction on corporate governance.

Mr B Mashile (ANC) raised a query about 75(1)(c). He suggested that the word "excellence" should be replaced with "service delivery".

The Chairperson said that the issue was slightly more than delivery as it related to quality and quantity. He suggested that perhaps "service standards" was a better term.

Members agreed that the Chairperson's suggestion be followed.

Mr Gany highlighted the changes to subclause 75(2)(d), which noted that the Board must determine policy for conditions and remuneration of employees, other than for the Director. He noted that the Director's conditions were set out also in Clause 84(4).

Mr Farrow noted that the Director's remuneration was to be determined by the Minister and Director, and there was reference to "in consultation with the Civil Aviation Authority Board". However, he saw no reference to this in Clause 75.

The Chairperson pointed out that Clause 75 dealt with what the Board could do itself. If the Board differed with the views of the Minister, this must be sorted out by a process. In the case of a deadlock, the Minister's view would prevail. He did not think that there was any contradiction between the two clauses.

The Chairperson commented that Model 3 still had its problems, particularly when it came to the Director, who had a slightly bifurcated relationship. This was the reason why the corporate governance model excluded the Director as an individual.

Mr Mashile asked if there was any necessity for sub clause (2)(e)

Mr Gany conceded that both (d) and (e) could be combined. It was agreed that this should be done.

Further discussions at a later stage were held in terms of Clauses 75(2)(a) and (b). (see discussions under Clause 95) and it was agreed to remove the word "implement” from both these sub clauses.

Clause 76
Mr Gany pointed out that Clause 76(1)(e) had been amended to reflect that two Board members must be representatives of the civil aviation industry, of whom one must have financial expertise and the other must have aviation operational experience.

Mr Farrow noted that already in subclause (d) there was a requirement for financial management. The same was being requested in (e). He wondered if there was not rather a need for a legal person, to deal with the various Conventions and legal obligations.

Mr Mashile noted that he had raised a similar question on the previous day, and the response he had received was that the first person would have general financial management experience, whilst the second should have skills acquired in or specific to this industry. The industry representatives had themselves asked for one of their representatives to be skilled in aviation financial management.

Mr Gany noted that the Board was entitled to take legal advice on issues from outside, so it would not really be necessary to have legal expertise on the Board.

The Chairperson said that sometimes Boards were not aware that they should be taking legal advice. He noted that this was going to be a small Board, and he thought that it was good to be specific, but he was mindful of concerns to avoid setting too stringent requirements that would reduce the possible numbers who may qualify for appointment.

Mr Mashile said that the issue was the availability to serve on Boards. He pointed out that there was a shortage of qualified accountants and auditors.

The Chairperson suggested a composite clause, combining (d) and (e), along the line of "three representatives from the civil aviation industry, with suitable financial management, legal and aviation operations experience." One person might well have at least two of those skills, and he did not think there was such a shortage of skills in this industry as in others.

The Chairperson noted that subclause (f) set out that a person who was involved in organised labour, which assisted the operational side, was required. This was relevant because of the roles.

Mr Gany noted that subclause (2) had been amended, to indicate that the members of the Board mentioned in (a) to (f) (in other words excluding the Director, who was now listed separately) were subject to certain conditions.

Mr Gany then read out the new sub clause (4), relating to the compilation of a short list of not more than ten members, which must be published in the Gazette for public comment for a period of not less than 30 days.

Mr Gany noted that a time period for notification of Parliament within 30 days had been inserted into subclause (5).

Subclause (6) was also now making reference to the Board members, other than the Directors

Clauses 77 to 80
There were no changes.

Clause 81
Mr Gany noted that 81(1) stated that the remuneration and allowance were now to be determined by the Minister, in consultation with the Minister of Finance.  

Mr Mashile thought that this should be worded as "after consultation with the Minister of Finance".

Members agreed that the change should be made

Mr Farrow questioned whether in subclause (2) the word "transport" should not read "travel".

Ms Hala Sangoni, State Law Adviser, Office of the Chief State Law Adviser, agreed.

Mr Gany said he would insert whichever term was consistent with other legislation.

Clause 82
Mr Gany noted that in Clause 82(1) it was now stated merely that the CAA Board was required to submit a corporate governance plan annually, but the date was not specified.

Clause 83
There were no changes.

Clause 84
Mr Gany noted that Clause 84(1) now specified that a person may apply, as well as be nominated, for appointment as a Board Member. There was new wording for Clause 84(1)(b). The requirement for notification of Parliament within 30 days after appointment was also included.

Mr Mashile pointed out that Clause 84(1)(c) began with the word "after" although this word also appeared at the general heading to the numbered subparagraphs. He suggested that the first “after” be removed, and that each of the subclauses should then commence with “after…”

Mr Farrow suggested that alternatively the words "The Minister, after receipt of the comments..." could be used.

Ms Sangoni, State Law Adviser, suggested that the word "after" in clause (1)(c) could be removed.

The Chairperson thought that the content of subclause (1)(c) did not follow logically from the preceding sub clauses. Subclauses (a) and (b) set out the steps that must be completed prior to the appointment. After those had been completed, then the Minister would proceed with his part of the appointment process. He suggested that it made more sense to split the clause, so that (a) and (b) were put together under subclause (1), and what was currently in (1)(c) would become a new subclause (2).

Mr Gany agreed to make this change.

Mr Gany said that in the existing subclause (2) the words "must take into account" had been used, as they were stronger than the original "have regard to".

Mr Gany ran through the changes in subclauses (2)(a) and (b), and (4).

The Chairperson noted that subclause (4) referred to "in consultation", whereas the previous similar wording had been changed. He asked if this was correct, and if the Board should have a veto.

It was agreed that this would be changed to "after consultation with the Minister of Finance and the Board.

Mr Gany noted that the words "and must obtain a top secret security clearance" had been added in to sub clause (7).

Mr Mashile asked if such a clearance category existed under that name.

Mr Gany noted that the Public Service requirements referred to “top secret security clearance”, and that meant that persons with this clearance were permitted to access documents marked “top secret”.

Mr Gany referred to the changes made to subclause (9)(b), following comments on the previous day. A Director could be removed if he or she materially failed to comply with the conditions of the performance agreement entered into as contemplated in Section 93".

The Chairperson noted that the words "if the Director" should be inserted at the beginning of subclause (b).

Mr Gany noted the changes to subclause (c), where the word "disability" had been removed.

Mr M Moss (ANC) confirmed that this clause was now better worded than originally.

Mr Mashile referred to Clause 84(10)(1)(c). The word "is" had been used. However, if a person was already a political office bearer, he would in any event be ineligible for appointment. This word should therefore be deleted.

Mr Gany agreed.
 
Clause 85
There were no changes

Clause  86,
Mr O Mogale (ANC) questioned whether there was any necessity for Clause 86(2)(d).

Mr Gany said that this could be dropped.

Clause 87
Mr Gany noted the changes to subclause (5), by the insertion of "on behalf of the Civil Aviation Authority"

Mr Farrow noted that a possible duplication with clause 72(c) had been raised on the previous day.

Mr Mashile questioned whether the words ‘on behalf of the Civil Aviation Authority” were needed at all. 

The Chairperson noted that the listed functions of the CAA in issuing certificates, licences or authority (set out in Clause 72) used slightly different words. He said that the Director could do these functions on behalf of the Authority, and would have the power to sign.

Mr Gany said that if there were delegation powers provided for later. He noted that an individual should be identified in the legislation as the responsible delegated person.

Mr Gany said that there needed to be a person identified in the Department to be responsible, should there be queries on it.

Clause 88
There were no changes.

Clause 89
Mr Gany noted that in clause 89(3) there was now provision for the appointment of an Acting Director, and that subclauses (5) and (6) then also made reference to this office.

Mr Mashile questioned Clause 89(3)(b), saying that the two reasons contained in that subclause should be separated out to two separate paragraphs, the first of which should deal with absence, and the second of which should deal with "any other reasons".

Mr Gany noted the point and agreed that the two reasons would then be incorporated into a revised subclause (b) and a new subclause (c).

Clauses 90 and 91
There were no changes.

Clause 92
Mr Gany noted insertion of the word "written" before “approval of the Minister”.

Clause 93
Mr Gany said that the clause now referred to "an agreement or agreements" and that the words "and responsibilities" had been deleted.

Clause 94
Mr M Moss (ANC) referred to several repetitions of the words "Civil Aviation Authority" in this clause.

Mr Gany agreed that this typographical error would be corrected.

Clause 95
Mr Gany noted that Clause 95(1) said that the Director "may appoint such employees as are necessary to enable the CAA to properly carry out its functions."

Mr Mashile noted that the approved staff establishment may require fifteen inspectors, but this clause, as worded, seemed to enable the Director to employ people over and above that approved establishment. He felt that there should be a specific linkage between appointment and approved establishment.

Mr Gany noted that the Board could determine the remuneration and conditions. Provided the Director did the appointments within the budget and governance there should be no problem. He suggested that perhaps a reference to Section 75(2)(d) could be inserted.

The Chairperson agreed that the Board might not specify exactly how many people could be appointed in each class of employees, but that good governance guidelines, such as not straying out of the budget, and remuneration to be guided by the policy framework, must apply.

Mr Mashile responded that the salary budget would be based on an organogram, and he reiterated his concern that this clause was not linked to an approved policy, nor to the budget, which would have been drafted on the basis of the numbers of personnel needed.

The Chairperson noted that the CAA was not functioning out of a budget allocation, but was levying fees and effectively self-funding from that. If there was a decrease in air traffic, there would be a decrease in levies, but also on the work required, and it might need to cut down on the complement. This was why good governance guidelines must be followed. This was not quite the same as the DOT structures, where the staff requirement could be clearly set out, and there was a need to be more flexible.

Mr Gany pointed out that Clause 95(2) quantified how the remuneration was derived.

Mr Gany referred Members back to Clause 75(2).

The Chairperson then raised a query on Clause 75(2)(d), asking if the Board would be implementing policy.

Mr Gany conceded that it would not. Members agreed that the word "implement" must be removed from  Clauses 75(2)(a) and (b).

Mr Farrow questioned whether the Public Finance Management Act (PFMA) might require the CAA to do implementation.

The Chairperson said that it would do oversight, as the financial sub committee of the Board would oversee the implementation on the ground by the internal financial structures.

Mr Gany pointed out that Clause 80 outlined what must be done by the Board’s Committees.

Mr Mashile wondered if there should be a reference to employment and the conditions of employment in Clause 75(2)(b).

The Chairperson suggested that there should be a specific sub clause to refer to this. There should be a human resources policy strategy, which would include, for instance, affirmative action and disability employment levels. The Director should be empowered to deal with this within the broad policy. He suggested that a general reference, in Clause 95(1), back to Clause 75(2), would be appropriate.

Mr Gany then read out a suggested draft. In Clause 95(1), the words “subject to Section 75(2)” would be inserted. In Clause 95(2) the words  "as directed by the Civil Aviation Authority Board's remuneration policy, as contemplated in Section 75(2)(d)" would be inserted

Clause 96
Mr Gany noted that there was now a prohibition on false or misleading use of the names “South African Civil Aviation Authority”, ”Civil Aviation Authority” and the acronyms “CAA” or “SAACA” by unauthorised persons.

Mr Mogale noted that he did not think that the use of acronyms in legislation was correct.

The Chairperson said that the original draft had mentioned only the full names, but the industry had pointed out that the acronyms were in common use, and that abuse of these acronyms should also be addressed. The terms had been defined, and the acronyms were not being used in the legislation, save in this specific clause, where they appeared in the context that the acronyms were named. They were not used as any form of abbreviation in the legislation.

A State Law Adviser suggested that the acronym could be defined.

The Chairperson did not agree that this would achieve the specific objectives of this clause, which was essentially setting out the “trademark” acronyms.

Clause 97
Mr Gany noted that the words "in writing, annually or as and when such conflict may occur" had been used.

The Chairperson agreed that this was useful.

Mr Farrow noted that there had been a debate the previous day on what would be done if a person failed to disclose a conflict of interest, but nothing specific had been set out for that instance.

The Chairperson said that discussions had been held on whether there should be references to the Labour Relations Act, but Members had felt that the more general words "fair, unbiased and proper exercise of the functions" were preferable to avoid the situation where something might be left out.

Mr Gany explained that if an employee were to develop a conflict, for instance by his wife joining SAA, then the Director would be able to place that employee to work with another airline.

Mr Mashile said that this clause was confusing, as it described the situation that could be taken to move an employee disclosing a conflict away from possible conflict areas, although it purported to deal with a person who had failed to disclose. It said nothing about corrective measures.

Mr Gany noted that all employees in the CAA signed conflict of interest clauses. If they breached the clause, this would lead to disciplinary steps.

The Chairperson agreed that Mr Mashile had a good point. As presently worded, Clause 97(3) contained a list of steps that would be taken where there had been disclosure, and used the word “may”. He suggested that a separate sub clause should deal with the failure to disclose.

Mr Gany conceded that this was correct. He suggested that sub clause (3) should be redrafted to read: "if any person referred to in subsection (1) discloses an interest contemplated in subsection (1), the Director may take such steps as he or she considers necessary...".

A new sub clause (4) clause, reading: " If any person fails to disclose a conflict of interest as contemplated in this Section, the Director must take appropriate disciplinary action" would then be added.

Clause 98
Mr Farrow said that the clause should be worded "Neither an employee of the CAA individually, nor the Authority itself, is liable .."

Members agreed with this suggestion.

Clauses 98, 99 and 100
Mr Gany noted that there were no changes to these clauses.

Indemnity Insurance
Mr Mashile noted that on the previous day the question of insurance being taken out by the Civil Aviation Authority in respect of indemnification of employees was mentioned. He enquired whether there was an intention to include this provision, or whether it was merely a point of discussion.

The Chairperson pointed out that inserting such a provision would turn the Bill into a money bill, and for this reason it could not be written into the legislation. 

Mr Gorringe pointed out that if the employee was acting in the scope and course of employment, then the common law principles of vicarious liability would apply and a person injured would be able to claim.

Outstanding matters
Mr Gany noted that the clauses in respect of the Airline Safety Investigation Board and National Aviation Security Coordinator, as discussed earlier this week, must still be included and finalised in another revision to the draft.

The Chairperson asked that these be included in the “A” list although the precise wording had not been finalised; this could be done at the next meeting. He asked also that the grammar, numbering and consistency should be checked by the State Law Advisers.

Mr Theo Hercules, State Law Advisor, noted that there would be a number of consequential amendments but that his Office would try to do so. 

The Chairperson noted that the next meeting would be at 09h00 on Wednesday 12 November, at Committee Room 1, 90 Plein Street.

The meeting was adjourned.