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T
HE safety concerns of the
aviation regulators around
the world must therefore
stem from a very different
basis than for commercial
aviation operations, which
are dened as “the carriage of passengers
or cargo for reward”. This concept of freedom
is therefore dened and considered in the
Chicago Convention and the standards
owing from that 1944 agreement. The
standards dictate:
Freedom of action. The maximum
freedom of action consistent with maintaining
an acceptable level of safety should be
granted to international general aviation.
And what is that ‘acceptable level of
safety?’ Well, the standards clearly dene:
Level of safety. The Annex should
ensure an acceptable level of safety to
passengers and third parties (third parties
meaning persons on the ground and
persons in the air in other aircraft). Also,
as some international general aviation
operations (typically under 5 700 kg) would
be performed by crews less experienced and
less skilled, with less reliable equipment, to
less rigorous standards and with greater
freedom of action than in commercial air
transport operations, it was therefore,
accepted that the passenger in international
general aviation aircraft would not
necessarily enjoy the same level of safety as
the fare-paying passenger in commercial air
transport. However, it was recognised that in
ensuring an acceptable degree of safety for
third parties, an acceptable level of safety
for ight crews and passengers would also
be achieved.
ICAO gave this much consideration
when drafting Annex 6, Part II, which is
the document covering general aviation
operations. In commercial operations, the
paying passenger is sacred: regulations
must provide for the safety of the paying
passenger above all other considerations.
But in GA, where there is no such thing,
the safety of third parties is the main priority,
not the safety of the occupants of the GA
aircraft. It is impossible for ‘one size ts
all’ regulations to deal with ying everything
from a paraglider to a large private jet
aircraft.
Attempts to take the responsibility for
safety away from the pilot and owner of a
private aircraft opens two cans of worms:
not only do attempts to regulate the pilot’s
choices impinge upon the freedoms of GA,
but the regulator nds itself becoming fully
AOPA BRIEFING
REPORT: CHRIS MARTINUS
General aviation has always been about
freedom. Not only the feeling of freedom
and exhilaration of the joys of ight, but also
about the freedom of choice. A GA pilot has
the freedom to decide where, when and how
to conduct a ight and therefore carries the
responsibility of assessing risk and complying
with the relevant laws that protect others
from the pilot’s actions.
FLYING OVER
THE CUCKOO’S NEST
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75
responsible for the safety of the occupants
– and therefore liable should anything go
wrong.
CLOUD CUCKOO LAND
The regulators at the SA Civil Aviation
Authority, who mostly lack relevant technical
qualications or expertise in aviation, appear
to have no understanding of these fairly
simple precepts. At a CARCom meeting,
the representative form the Department
of Transport, Mr Levers Mabaso, was
alarmed to discover that there were
several aspects of GA that were
not regulated or prescribed at all.
“All aspects of aviation must be
strictly regulated,” he said.
The folly of this narrow and
dictatorial way of thinking is
exemplied by the claim for
R17 million in damages
instituted against
defendants SACAA,
RAASA and the Aero
Club as a consequence of the
death of acclaimed aerobatic pilot
Glen Dell at an airshow at Secunda.
Briey, Dell crashed as a result of a late
inverted spin recovery during his air show
performance. Dell survived the impact with
minimal injuries, but was fatally burned as
a consequence of the subsequent re –
which was not timeously extinguished by
the under-equipped and ill-trained local re
brigade who were tasked with providing
re-ghting for an airshow. The basis of the
claim is that the regulatory environment
that had been created by the defendants
in the case had approved inadequate
emergency services.
This begs the question: if there had
been no prescribed approval process,
would Glen Dell have satised himself that
adequate re-ghting measures were in
place? It would nevertheless have been his
own responsibility to ensure his own safety
if the defendants had not conferred that duty
of care upon themselves.
The concept that the defendants
attracted liability by interfering with an
individual’s own responsibilities appears to
be lost on CAA. They seem to be victims
of the aphorism that says that if you only
have a hammer in your tool box, every
problem looks like a nail, and are likely to
respond with yet more regulation to ‘nail’ an
inherently risky activity, which simply cannot
be regulated into safety.
CUCKOO REGULATIONS AND BIG
SALARIES
Recent regulations that make us wonder
about the sanity of the custodians of aviation
are the promulgation of major tariff increases
across the board. The CARCom meeting at
which they were approved was something
one would expect to have
happen at an asylum for the insane, rather
than at a meeting which genuinely seeks to
consult with affected parties.
Before the meeting started, chairperson
Ms Mmanare Mamabolo insisted that I come
into the passage where she wanted me to
sign a bizarre document in which AOPA
would agree to make representations to the
Director whenever AOPA members elect
their own ofcers or appoint such ofcers to
particular functions. Obviously, I refused to
sign any such rubbish.
When everyone had settled around the
conference table, Mamabolo announced
that the meeting would be delayed because
of a “security situation”. She approached
myself and AOPA director Bo Burger, began
plucking at our clothing and demanding that
I sign her loony letter. When her frantic
remonstrations failed to persuade me, she
called in the security guards who frisked Bo
and myself with their metal detectors. When
they failed to nd any machine guns or hand
grenades, we settled down for the meeting.
After some impassioned requests
for increases from several SACAA
executives (who each earn
over R3 million per annum),
chairperson Mamabolo
called for a vote. Despite
the meeting being
rigged with several
SACAA employees
who qualied as
members though
being appointed
as chairpersons of
subcommittees, the
vote was tied. Mamabolo
herself voted, despite the fact that the
chairperson is, in terms of the Civil
Aviation Act, neither a stakeholder
nor a CARCom member, but merely
a referee at meetings. Mamabolo
thereupon conferred upon herself a
‘casting vote’ in order to pass a regulation
that will cost the long-suffering public tens
of millions more every year.
THE CEMAIR SAGA
Regulations are now being
promulgated to somehow retroactively
correct SACAA’s own misinterpretations
when they went after CemAir with a
vengeance last year. It was painfully obvious
that SACAA was hell-bent on shutting
down CemAir, but the rst few attempts
were abortive since, somewhat hilariously,
SACAA’s clearly orchestrated and televised
attempt proved to be completely incorrect
and ignorant of their own regulations.
As regards CemAir, their failed attempt
to have the High Court set aside their
grounding as a matter of urgency also
creates some concerns about the sanity and
rationality of the application of regulations.
Judge Fiona Dippenaar found that
CemAir succeeded on every point entitling
it to an order against SACAA – except the
COLUMNS
Has CAA's Ms Poppy Khoza
got the Nurse Ratched t-shirt?
May 2019 | www.sayer.com
76
“balance of convenience.” In balancing
the scales, the judge came to the view that
effectively destroying an airline that serves
the public was in the public interest, because
she presumed that CemAir had failed to prove
that no safety risk existed. It is irrational for
anyone to be loaded with the onus of proving
the non-existence of anything.
Yet, Judge Dippenaar relied on SACAA’s
mantra that their lawyers roll out in every
court case that because they are purportedly
the custodians of aviation safety, every
paperwork issue where an ‘i ‘is not dotted
or a ‘t’ remains uncrossed is ipso facto an
unsafe circumstance. There was no unsafe
circumstance apparent in the judgement.
Just the inference that when SACAA asked
for more and more paperwork until Cemair
ran out – that that in itself endangers paying
passengers. It is perhaps telling that the
learned judge uses the terms aviation
“safety” and “security” interchangeably, when
these are drastically different. It seems that
aviation safety issues should not be argued
or adjudicated upon by unqualied ofcials or
lawyers who do not have aviation technical
qualications and expertise.
The entire premise and outcome was
unjust. Closing down a successful airline was
simply not a sensible solution to paperwork
questions that could have been solved very
differently.
There are many other examples of
behaviour emanating from SACAA’s ofces
that not only are damaging to the commercial
aviation industry and destructive to general
aviation, but are ultimately becoming a threat
to the broader aviation industry.
CUCKOO, CUCKOO
Movie buffs love to come up with
interpretations of the highly-acclaimed 1975
movie; “One Flew Over the Cuckoo’s Nest”.
Many of them understand the title to mean
that the cuckoo’s nest referred to the mental
institution which was ruled over by the cruel,
heartless and passive-aggressive tyrant,
Nurse Ratched. Is the SACAA an institution
housing a crowd of cowering loonies
ruthlessly controlled by Ms Poppy Khoza
in the guise of the evil Nurse Ratched?
Perhaps it runs a little deeper:
Cuckoos are the evil geniuses of the
animal kingdom. Instead of building a nest
of their own and investing all their time and
effort into raising their offspring, the cuckoos
palm off their chicks to other species and let
them do the hard work by laying their eggs
in the hosts’ nest. The species that take on
the task of raising the cuckoos’ chicks are
unaware that they have been duped into
sacricing their time and energy, and treat
the imposters as their own. This behaviour is
known as brood parasitism. The joke is; there
is no such thing as a cuckoo’s nest. They
simply never need to build nests.
It is notable that SACAA so often foists
its own responsibilities onto
the very people to whom
they are responsible. I
have given the example
where recreational aviation
bodies such as RAASA,
Aero Club and its afliates
were given the task of
oversight, when the law is
very specic that SACAA
has those responsibilities.
In the case of Cemair, instead of holding
and ling aircraft documentation as it did
in the past, SACAA now lays its egg in
CemAir’s nest and requires that they dig up
past documentation in order to ‘prove’ their
compliance.
There are many other examples of
SACAA laying their eggs of responsibility in
their clients’ nests. Is SACAA guilty of brood
parasitism?
AOPA BRIEFING
REPORT: CHRIS MARTINUS
destroying an
airline that serves
the public was in
the public interest
j
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