12 SA Flyer Magazine

OLLOWING on from

June’s CAA Dossier

where I outlined some of

the destructive battles

between the CAA and

its Designated Flight

Examiners (DFEs), the

CAA has once again been on the receiving

end of a ‘snot-klap’ from the Civil Aviation

Appeals Committee (CAAC), a surprisingly

effective

committee

put in

place to

control the

misguided

‘frolics’

(their

word)

of the

CAA.

An SAA Senior Captain and DFE, who

was one of the cases reviewed in the June

article, appealed to the CAAC against the

Director of the CAA refusing to renew his

DFE status. Accusations ew thick and

fast: that the DFE had forged VOR let

down plates for Pietermaritzburg and that

the Testing Standards Ofcer – a CAA

employee – had a conict of interest in that

his CPL renewal had been done while he

was testing the DFE. The CAA employed

an expensive advocate to ght its case,

while the DFE represented himself.

In June, after that WUCAA article had

gone to print, the DFE was vindicated

when the CAAC issued a comprehensively

argued judgement against the CAA.

The

reassuring

thing for us as CAA clients is that the CAAC

took the matter seriously, and it produced

a well-argued judgement, replete with

appropriate case law.

This is the second time the CAA has

lost this year to this specic DFE – the

previous time they folded on the steps of

the court and had to pay R94,000 worth of

legal fees.

At the same time the saga of the

E-bury Airport has given the CAA yet

another embarrassing bloody nose. E-

bury Airport was started by a pilot who

decided to develop a residential airport in

the VFR corridor north east of Lanseria.

Although E-bury is beyond Lanseria’s CTR,

Lanseria Airport nonetheless opposed the

development as they argued that it would

adversely impact their future airspace

requirements. It is perhaps interesting to

note that Lanseria argued that they needed

more airspace as they were going to create

GNSS-AR approaches to their new Runway

25. At the time, their airspace specialist told

me he was particularly concerned about

the amount of space required by an airliner

taking off from Lanseria’s Runway 07,

should it have an engine failure and need to

return to land. However, at the time of the

E-bury application, Lanseria Airport was not

able to get Air Trafc Navigation Services

(ATNS) to support their demand for more

airspace.

The CAA insisted that E-bury aireld

not only be ‘registered’ but also licensed,

arguing that it would be for public use in

our most densely populated province. The

developers did not argue this point and their

detailed proposal was thoroughly debated

at the National Airspace Committee

THE CAA DOSSIER GUY LEITCH

PROJECT WUCAA -

WAKE UP CAA!

The Civil Aviation Authority (CAA) has shown

itself to be an aggressive litigant – yet too

often loses court battles – at great cost to

itself and thus to us, its clients, who must pay

fees.

THE CAA’S

LEGAL FROLICS

The high Court handed down its

judgement in early July – and the

CAA lost yet again.

13 SA Flyer Magazine

(NASCom), who recommended to the

Director of CAA that the E-bury licence

be granted. Then, ying in the face of the

NASCom recommendation, the E-bury

license was nonetheless refused by the

Director of the CAA; “without any cogent

reasons being given,” according to AOPA,

who had supported the E-bury application.

With AOPA’s support, E-bury vigorously

opposed this seemingly capricious CAA

action by providing support to the E-bury

developers. The decision of the CAA

Director was appealed to the CAAC. After

three days of evidence and opinion being

heard under oath from CAA personnel

(including the Director personally), ATNS,

Lanseria and other interested parties, the

CAAC ruled that the development could

go ahead, and the Director was ordered to

issue an aerodrome license.

AOPA believed it had won a great

victory in terms of its ongoing battle against

the CAA’s attempts to force licensing or

‘registration’ of all small airelds – partly

because AOPA suspects the CAA will

then use the registration process to

refuse applications for such licences from

applicants such as Ebury.

But the CAA was not about to give up

easily. It announced that it would appeal

the decision of its own Appeals committee

– and then it apparently forgot to le the

appeal. The rules allow them just 60 days

to le an appeal, but almost ve years

passed until the CAA woke up and decided

once again to campaign against E-bury

Airport.

The rst thing the CAA had to do was

go cap in hand to the High Court and

beg forgiveness (condonation) for having

failed to le an appeal against the CAAC’s

judgment, given on 3 June 2013. The CAA’s

condonation application was nally heard

by the High Court earlier this year.

Ebury and AOPA were in full combat

mode and instructed its counsel to not

only oppose, but to also pursue a costs

award against CAA, and to push for an

order for CAA ofcial Gawie Bestbier to

be charged with, of all things, perjury.

AOPA claimed that Bestbier, in his sworn

afdavit, had claimed, as his excuse for

the CAA’s extreme lateness in lodging an

appeal, that the CAA did not know about

CAAC judgment. Yet both Bestbier (and

CAA Director Poppy Khoza) had signed the

attendance register for the handing down of

the judgment.

The high Court handed down its

judgement in early July – and the CAA lost

yet again. The judge awarded a costs order

against the CAA – although it stopped short

of sanctioning Bestbier (or Poppy Khoza)

for perjury as requested by AOPA. But the

judgement was hard hitting and considered

that the CAA Director and Bestbier were on

‘their own frolic’ and that they be personally

responsible for the substantial court costs.

However, Judge Elizabeth Kubushi instead

broadly found their actions to be ‘frivolous

and vexatious’ and awarded a punitive

attorney and client costs award against

the CAA itself. AOPA says that they are

“ecstatic about this award, because an

attorney and client cost award is very

important as it is really the only way

in which a judge can express extreme

disapproval.”

It seems evident

that the High Court

judgment of Judge

Kubushi took a

great deal of care

to prevent her

judgment being

vulnerable to any

further appeal. The

three weeks’ period

in which CAA could

lodge its further

appeal has now

expired and the bill

of costs has been

led with the High

Court. Once signed

off, CAA will be

required to pay, by

way of execution

by the sheriff if

necessary.

It’s remarkable that the CAA seems

oblivious to the sanction of its own

controlling body, the Civil Aviation Appeals

Committee. These are a small part of the

legal disasters the CAA visits upon itself.

It is still pursuing many other battles –

most noticeably under the punitive Part

185 regulations – which are notorious

for giving the CAA the ability to impose

R10,000 nes for ‘offences’ committed in

terms of the Air Navigation Regulations.

But it needs be noted that the CAA has

demonstrated almost zero ability to impose

these draconian nes if the accused does

not admit guilt.

The CAA’s problem is that if someone

is to be ned for an ‘offence’, he must

be found guilty in a court of law. The

CAA (in the form of its enforcer Hannelie

PART 7

BELOW: Pursuing errant pilots through

the courts costs the regulator – and thus

us, its clients, a lot.

14 SA Flyer Magazine

THE CAA DOSSIER

Oosthuizen) has therefore taken to trying

to trap potential victims by getting them to

admit guilt by asking them nicely to explain

what happened. It is all too easy for the

‘culprit’ to admit that he or she blundered

and thus give the CAA the ‘admission of

guilt’ it needs to extract the ne. People

accused by the CAA should remember that,

as in the TV dramas, “anything they say

can and will be used against them.” And

pursuing errant pilots through the courts

costs the regulator – and thus us, its clients,

a lot.

Perhaps the root of the problem is the

innate arrogance of government institutions

– not just in South Africa, but around the

world. An old aphorism holds that; “You

can’t ght city hall.” This is because the

government usually has unlimited funds and

time on its side to bulldoze a private people

who must pay their own legal costs. Where

the state or government is paying for legal

costs out of essentially unlimited funds,

there is enormous scope for abuse of the

legal system. Thus, former President Jacob

Zuma perfected what has come to be called

the Stalingrad Option – where you wear

your opponent down and delay as much as

possible – as the Russians did against the

German siege of Stalingrad in World War 2.

The CAA has its own teams of

lawyers and has no hesitation in calling on

expensive lawyers from Werksmans who

cost thousands of Rands an hour. Yet, as we

have seen, despite these almost unlimited

resources, they continue to lose many of the

legal wrangles their sometimes inexplicable

decisions bring down on them. AOPA

comments that a possible reason the CAA

litigates so much is not because it hopes to

win, but simply because it is being vindictive

or ghting a partisan battle for special

interest groups – such as Lanseria in the

E-bury application? Hopefully the withering

high court judgement of Judge Elizabeth

Kubushi will rein-in their urge to undertake

legal frolics or adopt Stalingrad tactics.

The costs of this litigation and the

cost awards against it, goes some way

to explaining why the CAA’s budget has

swollen so much – and why they are pushing

for a large increase in their fee income for

this year. This is yet more reason as to why

the general aviation industry needs to be

protected from its own regulator. As I have

called for several times already, we need an

aviation ombudsman, but can be thankful for

the job the CAAC is doing in reining in some

of the CAA’s more misguided ‘frolics’.

Extrapolating to the big picture, AOPA

says, “In this era, when public tolerance

for dishonesty in government is reaching

an all-time low and has resulted in the

early departure of President Zuma from

ofce, we should heed the words of former

Public Protector Thuli Madonsela and

Minister Pravin Gordhan. We must mobilise

ourselves to rid this nation of individuals

who abuse the courts and their authority by

using hostile and continual delaying tactics

to the detriment of the industry they are

supposed to promote and serve. AOPA ends

by saying that they would like thank all those

who did indeed ‘mobilise’ by contributing to

the successful resolution of this problem.

EASY ACCESS &

HUGE CABIN AREA

AEROPRAKT FOXBAT A22-LS

Specifications:

-Engine Type: Rotax 912 ULS (100HP)

-Fuel Burn: 17 litres/hour

-Tank Capacity: 114 litres

-Range: 450 – 500 Nm

-Cruise Endurance: 5.5Hrs

Performance:

- VNE: 120 KTS

- Stall Speed: 25 KTS

- Take Off Roll: Under 100m

The A22-LS combines a good cruising speed as well as a very

low stall speed and perfectly suited to operations including

surveying, air photography, anti-poaching patrols and wildlife

monitoring.

FROM ONLY!! R 750000 excl VAT

(Demo flights on request)

Contact: Clinton Bukes @ 082336 6890

Email: wildlife@bassair.co.za

SA Flyer 2018|03