January 2019 | www.sayer.com

TATE capture

was South Africa’s

word of the year for

2017 in the wake

of Public Protector

Thuli Madonsela’s

November 2016

“State of Capture”

report. The report found widespread

corruption through the capture of prominent

individuals and state institutions in order to

control decision-making and benet private

interests.

Madonsela’s report has had far-reaching

consequences leading to further revelations

of misconduct – the Zondo Judicial

Commission of Inquiry into Allegations of

State Capture being the most notable – and

yielding some astonishing disclosures of

wrong-doing. The Zondo Commission is in

full swing at time of writing, with Minister of

Public Enterprises Pravin Gordhan having

given his testimony.

Despite the ongoing exposure of

endemic looting of almost every facet of

government, business and society, the

public is becoming desensitised to the

overwhelming evidence of institutionalised

theft. Undeterred, as the net inexorably

closes around them, the capturers and

crooks now unleash insults, accusations and

opprobrium upon their accusers in order to

deect criticism and muddy the waters.

The virulent attacks from the crooks are

AOPA BRIEFING

REPORT: CHRIS MARTINUS

State Capture is dened as: a systemic political corruption in which private interests,

through covert channels that may be unlawful, signicantly inuence a state’s decision-

making processes for their own advantage.

CAPTURED

The objective of aireld registration was to shift the

responsibility and thus the liability onto the aireld owner.

www.sayer.com | January 2019

so vicious that President Cyril Ramaphosa

has made public appeals to protect Gordhan

as well as others who speak out against

corruption. “Our task is to support and

defend people like Pravin Gordhan and a

number of others that are going to come

forward” he says.

POWER

There is nothing more important to a

pilot, aircraft owner or operator than the

bits of paper issued by the authorities. The

pride of holding a pilot licence, certicate

or other permit that conrms competence

or compliance, takes on even greater

signicance than the skills, qualities and

diligence that went into acquiring it in the

rst place.

There is good reason for this. To y

without those piles of paper is not only illegal,

but could also open the pilot or aircraft owner

to liability in case of an accident and even an

insurer rejecting a claim because of minor or

irrelevant non-compliance.

This places enormous power in the

hands of bureaucrats to ensure sheep-like

compliance from those who seek those

coveted documents. As in other areas of

government in South Africa, those powers

are often abused – and the lure of controlling

those powers becomes irresistibly attractive

to the unscrupulous. The civil servants know

that anyone who dares to resist is easily

grounded indenitely and, if the applicant’s

income is dependent on aviation, he or she

can be forever nancially ruined. Still worse

is that ignorant, unqualied and unprincipled

government ofcials are easily captured

by outsiders – and that is what has been

happening.

THE REGULATORY PROCESS

Our Civil Aviation Act mandates that

consultative structures must be established

for the purpose of making regulations

and introducing technical standards.

Stakeholders from commercial aviation,

general aviation and recreational aviation

must be represented on these committees

so that there may be openness and

transparency in the rulemaking process.

Unfortunately, this consultative process

was captured years ago. Recreational

aviation was the rst to fall prey. The

regulations have entrenched ‘approved’

organisations being paid compulsory

‘membership fees’ if they toe the line. The

soon to be defunct RAASA was little more

than a front company that receives CAA

funds, manned by CAA ofcials and self-

appointed people who purport to represent

the interests of recreational aviation.

AIRPORT CAPTURE

One of the biggest challenges that

AOPA has faced is the ongoing onslaught by

those who seek to ‘capture’ general aviation

airelds. Many have wondered why there

has been such a determined effort to force

through regulations to compel licensing and

‘registration’ of all unlicensed GA airelds

not solely by CAA, but in collusion also by

CAASA, RAASA, Aero Club and others.

The objective is certainly not safety, nor

is it national security. It is not because of

the risk that small airelds are being or may

be used for smuggling or other nefarious

activities. But, as per the line in that 1976

corruption-busting movie ‘All the President’s

Men’ you must ‘follow the money’.

It comes as no surprise then that the

recent E-Bury lawsuits regarding licensing

of a new GA aireld attracted opposing

afdavits from Grand Central Airport’s Gary

Renault and testimony and afdavits from

Lanseria’s Charles Norval, both of whom

are CAASA directors. Lanseria and Grand

Central were also parties to that matter in

the High Court. The evidence from Civil

Aviation Director Poppy Khoza and CAA

executive Gawie Bestbier did not go down

well, nor did their furtive efforts to delay the

matter for more than seven years.

The judgment of High Court Judge

Elizabeth Kubushi was scathing: “I am of

the view that this application was brought

without sufcient grounds and was just an

abuse of process. I am satised that the

applicant [CAA] should in the circumstances

be mulcted with a punitive cost order.”

And this is what is desperately unfair.

CAA, an essential organ of state, takes the hit

for large costs orders, when it is the ofcers

of that institution and their collaborators that

took CAA down that road for reasons only

they know. Ultimately, it is the tax-paying

public that pays for their malfeasance.

So, what is the reason for the onslaught

on small unlicensed airelds? The answer

is twofold. The rst is that existing airports

do not want competition and are happy to

capture malleable ofcials to shut down any

possible competitors.

The second is more bizarre and even

more immoral. A pilot or operator ying to

an unlicensed airport has always taken

responsibility for ensuring that it is safe to

land there. This is not a requirement at

licensed airports, since these are regularly

inspected and must conform to specied

standards. This responsibility is even written

into most aircraft insurance contracts and

also carries over into the liability insurance

that commercial operators are required to

carry. Of course, insurance is expensive

and the spectre of an accident where a

commercial operator or its pilot erred is a

problem. If a commercial operator lands

an aircraft full of high-value tourists at an

unsuitable aireld and has an accident, it

could nd itself at the wrong end of massive

damages claims for deaths or injuries.

So what are they to do? Well, their clever

solution is to shift the responsibility and thus

One of the biggest

challenges that AOPA

has faced is the ongoing

onslaught by those who

seek to ‘capture’ general

aviation airfields.

COLUMNS

January 2019 | www.sayer.com

the liability onto the aireld owner, who often is a game lodge owner

with no knowledge whatsoever about aviation matters. This solution

is not only dishonest, but also irresponsible and a grave danger to the

public visiting our smaller tourist destinations.

It therefore appears that the entire ‘voluntary registration’

drive on which CAA embarked a decade ago was not to ensure

safety, but to shift liability. Registration certicates carried only

one proviso: “that the operator of the registered aerodrome

shall endeavour to comply with the basic aerodrome safety

measures under duty of care to promote overall safety.”

In other words, someone with no aviation knowledge or experience

now carries responsibility for the safety of paying commercial

passengers, rather than the operators and pilots of commercial

carriers. One wonders what persuasion was exercised on our CAA

ofcials to try so hard to create such a massive danger to aviation

safety?

PART 93

I have written much about Part 93 of the Civil Aviation

Regulations. This appalling piece of regulation was signed into law

by one of our transient Ministers of Transport at the end of 2015.

It seeks to force corporate operators, who by denition are non-

commercial, to follow restrictive regulations similar to, or even more

onerous than, those applicable to scheduled commercial carriers.

Part 93 requires a company that operates its own aircraft to conform

to myriad requirements concerning runway lengths, numerous staff

to perform bizarre functions and a number of outlandishly impossible

requirements. These requirements would be hopelessly impractical,

particularly for corporates who operate only one or two smaller

aircraft.

There was an immediate outcry from corporate aircraft owners

and pilots. Almost immediately, CAASA rode to the rescue after

having, together with their CAA friends, issued an exemption that

lightens the burden. In this way, they protected an unconscionable

regulation which cannot succeed. AOPA brought a proposal that it

should be scrapped. “No”, said CAA’s Gawie Bestbier. “There must

have been good reasons why CARCom recommended this regulation.”

“Well, then” said AOPA, “the law requires that written reasons must

be furnished as to why the proposal to scrap is without merit.” To

date, no reasons have been forthcoming from CARCom, CAA or any

other parties.

In November 2017, a CARCom subcommittee considered

proposals to amend Part 93 to make it more palatable. The meeting

was well attended by nearly all of the larger commercial operators.

But there were only a handful of non-commercial operators of private

corporate aircraft. I got the feeling that the ranks of commercial

operators were staring at our little group of private operators like a

pack of hungry hyenas. “What are you doing here?” we asked.

“We are here to operate your aircraft for you under part 93”, they

said.

So there you have it. Part 93 was intended to create work for

commercial operators by making it impossible for most corporates to

operate their aircraft themselves, as they have previously been doing.

This scheme may be illegal as the Air Services Licensing Act and

foreign laws do not allow a separate company to operate the aircraft

for the benet of another company. Our Air Services Licensing Act

is fairly permissive in this regard, allowing a subsidiary company or

a person in its employ to operate its aircraft, but outsiders are clearly

excluded.

But if you have captured the ofcials who enforce the laws, why

worry? They will turn a blind eye.

Instead, corporate operators continue to operate under the

uncertainty of regularly-renewed exemptions. And the owners of

private-use airelds continue with the doubt of whether or not they

will have to assume the responsibilities and liabilities of commercial

operators at some time in the future.

Unfortunately, the regulatory process has become a farce.

Director of Civil Aviation Poppy Khoza has exacerbated this through

her campaign of trying to exclude representation from those whose

rights are adversely affected.

AOPA BRIEFING

operators continue

to operate under

the uncertainty of

exemptions

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