Civil Aviation Amendment Bill: public hearings day 2

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Transport

17 February 2021
Chairperson: Mr M Zwane (ANC)
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Meeting Summary

Video: Portfolio Committee on Transport

The Portfolio Committee on Transport convened on a virtual platform to receive a submission on the Civil Aviation Amendment Bill from Mr Herman Wildenboer, a legal aviation consultant, and to receive responses to public submissions on the Bill from the Department of Transport.

Mr Wildenboer suggested several changes to the Bill related to the Civil Aviation Regulations Committee, the independence of the accident investigation process and the Commissioner of Civil Aviation. He thought that it would be impractical to make the Minister of Transport responsible for granting exemptions. He voiced concern about the extension of security-related powers to authorised officers of the Civil Aviation Authority and the removal of certain references to international standards.

Members of the Committee asked some clarity-seeking questions and asked Mr Wildenboer to expand on his views on the role of the Civil Aviation Regulations Committee as well as the independence of the agency responsible for accident investigations.

The Department responded to public submissions on the Bill made the day before and earlier, by Mr Wildenboer. The Department explained that the proposal would make the Civil Aviation Authority the preferential creditor only for the passenger safety charge and the fuel levy, which were collected on its behalf. The removal of sections providing for the establishment of Civil Aviation Regulations Committee had been thoroughly discussed itself and there had been unanimous agreement. Moving its establishment to the level of regulations would not compromise its independence.

The Department agreed that the accident investigator would ideally be a completely independent agency, as provided for in the Act, but this chapter of the Act had not been proclaimed for financial reasons. The Bill provided for the best arrangement given the financial constraints. The Department’s view was that since the power to make regulations lay with the Minister, so too should the power to grant exemptions. If this led to an excessive number of exemption requests, then the regulation itself should be changed. The Department did not foresee inappropriate security-related powers, functions and duties being conferred on officers authorised by the Aviation Authority.

Members of the Committee expressed some concern that the Department was brushing aside the submissions from the public. They also requested figures of the actual cost of establishing an independent accident investigator.

 

Meeting report

The Chairperson opened the virtual meeting, welcoming the Members, support staff and the all the guest delegates before introducing the agenda of the meeting.

He also welcomed the apologies from Minister of Transport and from the Director-General (DG) of Department of Transport (DoT). He then invited Mr Herman Wildenboer, a legal consultant, to make his submission.

Presentation by Mr Herman Wildenboer
Mr Wildenboer drew attention to several consequential amendments that would need to follow the replacement of the word “airport” with the word “aerodrome” in the definitions of the Bill. For clarity, the definition of “Executive responsible for Aircraft Accident and Incident investigation” should indicate that the functions, powers and duties of this executive were prescribed by regulations. He did not think that four months were enough time for the various processes involved in determining charges, levies and fees, particularly the processes of the Civil Aviation Regulations Committee (CARCom). He then substantiated why he felt that the four-month period should be increased.

A separate fees committee as contemplated in the Bill would also increase the time taken and would duplicate the functions of the CARCom fees subcommittee. He suggested that it would be prudent to make additional amendments to section 76 of the Act to ensure that the board of the Civil Aviation Authority (CAA) was prohibited from obstructing the Civil Aviation Commissioner from performing his duties. He expressed concern that the amendments to section 130, which would require exemptions to be granted by the Minister of Transport, would cause delays. The CAA currently had the technical and legal expertise to be able to process exemption requests efficiently. He was also concerned that the amendments to sections 52, 56-59, 140 and 145-148 of the Act extended security-related powers, functions and duties to authorised officers of the CAA that properly belonged to members of the South African Police Service (SAPS) and the South African National Defence Force (SANDF), including search, seizure and arrest.

Finally, he did not agree with the deletion of Section 163 of the Act; he said that it was unjustified because the deduction of international aviation standards does not require physical insertion of the said standard. It is incorporated by reference (by the Direction) to the proposed standard by its title, name and year of issue. It does not form physical part of the CAPS document. A copy of the said document is available in the office of the Director at present, for necessary information. For this reason, the existing subsection two has to remain as it indicates the process for the issuing of the international aviation standard. It does not make provisions for the reduction of the standard by view of reference.

Discussion
Mr K Sithole (IFP) requested clarity on Clauses 13, amendment of section 74 of the Act, especially regarding the role of the Minister of Finance. He pointed out that the draft Bill had a contradiction: it proposed that the Finance Minister would no longer need to authorise the increase of levies by the Transport Minister; the same Bill then says that there would still be a need for permission from the Finance Minister.

He also requested an explanation of the significance of the proposed changes to Clause 14.

Mr M Chabangu (EFF) asked why it was necessary to replace the word “airport” with “aerodrome.” He also wanted to know why the Minister of Finance always overruled the Minister of Transport.

Mr C Hunsinger (DA) appreciated the level of detail in the presentation. He asked Mr Wildenboer to state his credentials and authority for the record. What was his opinion on the removal of the CARCom in the Bill? He recalled that Mr Wildenboer had written an opinion on aviation crashes in 2006 and asked whether the provisions of the Bill were in line with that opinion.

Responses
Mr Wildenboer said that he had received a BA (LLB) from the University of Pretoria; he had been employed as a legal advisor in the DoT for 12 years, as a legal advisor in the CAA for 17 years and was currently an occasional consultant for the CAA. The reason for replacing “airport” with “aerodrome” was to bring legislation into line with International Civil Aviation Organisation (ICAO) documentation. It also had slightly wider application than “airport.” He understood that changes to fees, charges and levies were to be approved by the Minister of Finance as a matter of principle.

The proposed additions to Clause 14 prohibiting the obstruction of the Commissioner by the board were a response to revelations of the Judicial Commission of Inquiry into Allegations of State Capture (The Zondo Commission).

He insisted that CARCom was a crucial institution. It allowed the CAA to fine-tune proposed regulation changes and ensure their compliance with ICAO recommendations. Its members gave their time voluntarily, without expecting compensation. He could not recall a single occasion in which there had been disagreement with the Minister of Transport on the compliance of CARCom’s suggestions with ICAO recommendations. His view, expressed in 2006, that accident investigation should be separate from the CAA was unchanged, but he supported the provisions of the Bill for CAA officials to be seconded to the DoT for the purposes of an investigation and that they would report to the board of the Aviation Safety Investigation Board (ASIB).

Department of Transport: response to public submissions
Adv. Adam Masombuka, Chief Director: Legal Services, DoT, presented the Department’s response to the public submissions on the Bill. He explained that the proposal would make the CAA the preferential creditor only for money collected on its behalf. Currently, the passenger safety charge and the fuel levy were collected on behalf of the CAA. It would not be the preferential creditor for any other debt and there would be no compromise of the Companies Act or any other legislation. He also said that section 155(1) was an empowering provision, giving the Minister the power to regulate the creation of a trust account by an entity that collected money on behalf of the CAA. This was a standard business practice. He said that the removal of sections providing for the establishment of CARCom had been thoroughly discussed with CARCom itself and there had been unanimous agreement. Moving its establishment to the level of regulations would not compromise its independence.

The State Law Advisor had not found the extension of the limitation of liability in Clause 24 to be unconstitutional. The Department agreed that the ASIB would ideally be a completely independent agency, in compliance with ICAO Annexure 13 and as provided for in the Act, but this Chapter of the Act had not been proclaimed for financial reasons. These reasons had been communicated to ICAO.

The Bill provided for the best arrangement given the financial constraints. He drew attention to the difference between ICAO’s minimum standards and recommended practices, observing that a completely independent accident investigation board was only a recommended practice and not a minimum standard. Complete independence would be pursued when finances allowed.

The change of designation from “Director” to “Commissioner of Civil Aviation” was just a name change to ensure consistency, as “Director” referred to a particular level of senior management in government departments. He agreed with consequential amendments to bring consistency in the use of the word “aerodrome,” but the definition of “airport” should not be deleted as it had a slightly different meaning in ICAO documentation. The Minister would not have to give permission for an SANDF aircraft to use a shared military/civilian airport, as transportation on behalf of the State was exempted from the provisions of Section two.

The assessment of relevant expertise and qualifications for prospective ASIB board members would be done by the Commissioner and experts appointed by the Minister of Transport. The release of interim investigation reports would be prescribed by regulations. It was not appropriate to call ASIB a monopoly as it was discharging a function of the State, not providing a service for reward.

He explained that the four-month period was the delay between the publication of regulations, after they had been discussed, and their coming into effect. It was not the period during which the regulations would be subject to discussions. The Department did not support changes to Clause 14 to prohibit the CAA board from attempting to obstruct the Commissioner, as it had already prohibited the board from obstructing the Commissioner. The Department’s view was that since the power to make regulations lay with the Minister, so too should the power to grant exemptions. If this led to an excessive number of exemption requests, then the regulation itself should be changed. The Department did not foresee inappropriate security-related powers, functions and duties being conferred on CAA authorised officers. The proposed fees committee was not redundant because some CAA fees were not channelled through CARCom.

Finally, although the amendments to section 163 removed references to international standards, such standards would still be incorporated through regulations.

Discussion
Mr Hunsinger asked if there was a different way to achieve the same effect as making the CAA the preferential creditor. He reminded the Department that the Committee had requested a breakdown of the different levies, fees and charges in the aviation industry. This would help the Committee consider the question of the CAA’s creditor status. He was disappointed that this had not been provided, and he was also concerned that the Department seemed to be attempting to brush off some of the points made by the public.

Mr L Mangcu (ANC) agreed that the Department should have provided a breakdown of levies, fees and charges as requested, and he shared Mr Hunsinger’s concern about the Department’s attitude to public submissions. It raised the question of whether the Department understood the purpose of public participation in the development of legislation. Members of the public gave their opinion freely and without being compensated and their input should not be brushed aside. He asked about the difference in the cost of the ASIB as provided for in the Bill versus the Act.

Mr P Mey (FF+) asked whether the reports on the 14 accidents involving private aircraft in January 2021 would be available to the Committee. If not, why not?

Mr Chabangu asked what method should be used to ensure that state entities and private companies did not find themselves using money due to the Department. Who would ensure that the money was held in a trust account and who were the signatories of that account?

Mr Sithole asked the Department to clarify the reason for changing the head of civil aviation from being referred to as a Director to a Commissioner, because commissioners were usually associated with investigation responsibilities.

He also asked for clarity on the difference in the investigations conducted by the SANDF and those by the Civil Aviation Authority.

Responses
Adv. Masombuka explained that the change of title from Director to Commissioner conferred no new status on the holder. It was simply intended to distinguish the head of Civil Aviation from senior management in the Department, which was what the title of Director typically referred to.

He said that a document explaining the breakdown of fees and charges had been sent to the Committee the day before the meeting. He asked Ms Babalwa Ndandani, Senior Manager: Legal and Aviation Compliance, CAA, to summarise the document.

Ms Ndandani explained that the passenger safety charge was collected from passengers by airlines on behalf of the CAA. Before COVID-19, about 75% of the CAA’s budget had come from this charge. Fuel distributors on behalf of the CAA collected the fuel levy from fuel suppliers. It contributed about 2.8% of the CAA’s budget. There were other fees, which contributed about 15% of the budget, but preferential creditor status was being sought for the first two only.

Mr Levers Mabaso, Acting Chief Director: Aviation Safety, Security, Environment and Search and Rescue, DoT, acknowledged that the Department’s response to comments might come across as dismissive. This might be due to the fact that it was not responding directly to them, but indirectly, through the Committee. He noted that the Bill had been extensively work-shopped with the involvement of most of the public contributors before being introduced. He explained that Chapter 4 in the Act, which provided for the establishment of an independent ASIB, had been included in response to the threat of significant safety findings against South Africa. Thereafter, National Treasury had refused to fund it and the Department had been trying for a number of years to find the estimated R50m required. The arrangement provided for in the Bill was a way to bridge the financial challenges of a fully independent ASIB. The ICAO had grudgingly accepted the current interim arrangement, which was based on a memorandum of agreement between the Minister of Transport and the Director of the CAA, but a fully independent ASIB remained the Department’s ideal arrangement.

He said that accident investigation reports were public documents and would thus be available to the Committee. He explained that trust accounts were established by whoever collected money on someone else’s behalf.

Conclusion
Mr Hunsinger acknowledged that he might have overlooked the document sent the day before. He observed that the percentages provided by Ms Ndandani added up to 92.8% and asked where the remaining 7.2% of the CAA’s budget came from.

Adv. Masombuka undertook to provide this information.

The Chairperson thanked the Members, support staff, DoT delegates, Mr Herman Wildenboer and other guests for attending the meeting.

The meeting was adjourned.
 

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