74 SA Flyer Magazine
We have the greatest
Constitution in the world.
Not only am I very proud
of it, but most legal and
constitutional experts on
this planet will agree with
me.
R
UTH Bader Ginsburg,
a US Supreme Court
justice said, “It really is,
I think, a great piece of
work that was done. Much
more recent than the US
Constitution.” Harvard constitutional law
scholar Cass Sunstein called it “the most
admirable Constitution in the history of the
world.”
Even Americans, who fervently cherish
their own 230-year-old Constitution are
envious of ours. Our courts have ercely
protected our Constitution and our rights
from attacks by devious political interests,
and they continue to be a bastion against
the excesses of the corrupt.
AVIATION LAW
Our aviation laws and regulations,
however, are founded in international
treaties. Where our courts are joined to
uphold our Constitution, international
treaties are often violated because their
enforcement is generally done through
diplomacy and negotiation rather than
through the courts.
In a domestic environment, regulations
form the basis for safety and security in
commercial aviation. The main bulk of
regulations applicable to general aviation
have been developed as common sense
rules that are intended to promote safe
operation of aircraft by pilots and aircraft
owners. There is something of a culture
among pilots who see such regulations as
being benecial to themselves and their
passengers and that violating them could
well be perilous to their own health and
longevity.
But aviation authorities often take a
somewhat different view, seeing regulations
as things to be enforced, from which
revenue from nes can be generated and
as a vehicle for political, commercial and
even corrupt purposes.
In South Africa, our Constitution is
under siege by the very people who are
charged with protecting it. Graft and
corruption dominates our daily news, and
an understanding of how our Constitution
works has become a necessary tool for our
very survival and the survival of the aviation
industry, which faces enormous challenges,
from the smallest private aircraft to our
national airline itself.
CRIMINAL LAW
AOPA has dealt with many matters over
the years through its Pilot Protection Plan,
where difculties with legal matters have
posed a threat to general aviation pilots and
aircraft owners.
In any instance where there may
be a contravention of the Civil Aviation
Regulations (CARs) or any other aviation
law, no matter how minor, it is considered
to be an offence under South African
law. Not only is this detailed in the CARs
themselves, but the foundation of South
African criminal law, namely the Criminal
Procedure Act, denes an offence as “an
act or omission punishable by law”. It’s as
simple as that.
There are wide misconceptions,
perhaps brought about by watching too
much American TV, that minor offences
such as parking tickets do not constitute
crimes, but that is not the case in most
countries in the world, including SA. The
USA is unique, in that it distinguishes
between ‘felonies’ for serious crimes and
‘misdemeanours’ for minor transgressions.
In South Africa, even the tiniest
offence which may be punishable only
by a mere verbal rap over the knuckles,
still constitutes a crime, and there is only
one set of procedures for dealing with it.
Important to us is that any transgression of
any of the CARs and most other aviation
laws is an offence and therefore punishable
by our criminal justice system.
THE RIGHT TO REMAIN
SILENT
AOPA BRIEFING AIRCRAFT OWNERS & PILOTS ASSOCIATION – SOUTH AFRICA
Even when you feel threatened by inspectors, don't try to proclaim
your innocence there and then. Keep quiet and get professional help.
WORDS:
CHRIS MARTINUS
75 SA Flyer Magazine
CONSTITUTIONAL RIGHTS
Our Constitution recognises this and
the Bill of Rights makes provision that
our criminal law system is not abused.
Some may have noticed that the proposed
AARTO Act, which seeks to create an
American-style ‘misdemeanour’ system for
minor trafc offences and which excludes
portions of our criminal procedure system
runs into constitutional difculties which
have hampered its implementation.
Most relevant to us is the part of the
Constitution which deals with the rights of
accused persons. If someone is accused of
any offence, they are entitled to a fair trial
before an ordinary court, to be presumed
innocent, be proven guilty beyond a
reasonable doubt, to remain silent and not
to be compelled to give self-incriminating
evidence. There are several other rights,
but these are the most important in most
instances.
Although the CARs may indicate that
the CAA and its Director may mete out
AOPA BRIEFING AIRCRAFT OWNERS & PILOTS ASSOCIATION – SOUTH AFRICA COLUMNS
BELOW: South Africa's Constitution is
excellent - let it protect you.
76 SA Flyer Magazine
punishments, neither the CAA nor its
Director are a court of any description and
they may only dish out punishment with the
agreement and submission of the accused
person.
Submitting to an arbitrary and often
very unfair summary punishment system
which the CAA has been running in-house,
independent from usual judicial norms, is
highly inadvisable.
THE RIGHT TO REMAIN SILENT
AOPA and any lawyers worth their salt
will advise their clients to shut up and seek
representation when a conict arises with
a person in authority. Many great judges
have said the same thing: never make a
statement or representations to a person in
authority under any circumstances. Above
all, do not ever be tempted to get into a
heated argument with an ofcial, inspector
or policeman where it has become
clear that you are the subject of some
investigation for possibly contravening the
law.
“But how could an honest person do
such a thing?” many may cry. It seems only
right to proclaim one’s innocence, to set the
record straight there and then – it’s not. It is
amazing, however, that even attorney pilots
are willing to make statements. Pilots are
particularly prone to thinking, “I know what
I’m doing. I’m smart. I can deal with this.”
There are several reasons why you
should not talk when you are suspected of
some infringement:
1. There is just no way that it can
help you. You cannot talk your way out of
being accused of something, ever. Any
information you provide cannot be used by
an inspector to nd you innocent, because
a court will reject what you said as hearsay.
On the other hand, anything you say to the
inspector can be used against you.
2. If you are guilty, there can be no
benet to you. We all agree that the guilty
must be punished, but what is the rush?
Wait and see what the case is that is being
built against you. If you should be punished,
your rights are there to ensure that you are
treated fairly. If you make statements or
representations, these can be used in court
as a confession, even if the CAA’s case
against you falls apart for other reasons.
3. Even if you are completely innocent
and you deny your guilt and mostly tell the
truth, it is far too easy to get carried away
and inadvertently say something that may
hang you – no matter how smart you think
you are.
4. And if you only tell the absolute
truth, you will still always give them some
information that can be used to nd you
guilty. The basic function of the right to
remain silent is to protect innocent people
who might be ensnared by ambiguous
circumstances. Too many people see these
rights as being a shelter for wrongdoers, but
by talking too much, you may be offering
an alternative offence for which you will be
nailed.
5. Mistaken or unreliable interpretation
of law or evidence can crucify you. CAA
inspectors are well known for making up
regulations and then nding against people
on the facts. The frequent “low-ying”
accusations and enforcements are salient
examples. It’s not illegal to y low if you are
not a danger or severe nuisance to other
people on the ground or in other aircraft.
Sadly, innocent people in all walks of
life convict themselves out of their own
mouths. In the many cases where DNA
testing exonerated innocent people who
had sometimes served 20 years in prison,
25% of the defendants had been convicted
on the basis of their own incriminating
statements.
WHY WON’T PEOPLE SHUT UP?
Every cop knows that people are
inherently honest and that is our biggest
downfall. We have an overwhelming urge
to tell our story. We desperately want to
explain what happened in the fervent hope
that the ofcer or inspector who is quizzing
us will see things from our perspective.
People even talk when not being asked any
questions.
Another reason people want to talk is
because we want the problem to go away
as quickly as possible. We will rush to tell a
story, often a wildly alternative one, just to
try to get our problem over and done with.
In doing so, we often confess to yet another
crime.
Inspectors and other ofcials know this.
They’re professionals and do their job every
day. You, on the other hand, are not even
an amateur. Would you, even if paid big
money, take on a professional boxer if you
have never boxed in your life? Of course
not. So why try to outwit a professional
enforcement ofcer?
TRICKS
There are many well-known tricks that
enforcement ofcers and policemen have
up their sleeves, even when they have
nothing on you.
They will tell you what they know, and
then slip in some deliberate mistakes or
inaccuracies. In your eagerness to show
them that they are wrong, you will tell them
what they want to hear. If you get just a
little too excited in showing them how
brilliant you are and how dumb they are,
you may slip in just a teensy-weensy little
white lie – which will nish you. If it can be
shown that you told them something that
is demonstrably untrue, no matter how
irrelevant, your credibility will be shot.
In contrast, enforcers can lie and
mislead you as much as they want, without
suffering any penalty. They know it and they
use it. When it comes to catching you out,
the playing eld is not level, not even for the
most educated and intelligent individual.
The CAA’s favourite trick is to get you
to play their game and agree to follow a
procedure they have cooked up, thereby
following an undertaking in the hope that
will get you off the hook. If you check the
news, you will see that this method is used
not just to take down the little guy, but
whole airlines.
CONCLUSION
In almost every matter in which AOPA’s
assistance has been sought regarding
enforcement matters, the accused has
been utterly unable to resist the urge to
engage the CAA by making voluminous and
usually incriminating representations. Only
when those representations do not bear the
expected fruit do these individuals turn to
AOPA for help, or engage the services of an
attorney. By then, much of the damage has
already been done.
Another frustrating aspect is that pilots
arrogantly presume that those at the CAA
are clueless about their own regulations.
For that reason, AOPA gets many requests
for “a good aviation attorney” when things
start going horribly south. Well, the High
Court has ruled that these enforcement
procedures “are of a criminal nature”. In
enforcement matters, you need a good
criminal lawyer, not someone who just
drafts contracts and negotiates deals that
inevitably blow up in your face.
If you nd yourself in an enforcement
situation, remember to zip your lip and get
help rst – silence is golden.
j
AOPA BRIEFING
