CIVIL AVIATION BILL [B 73B - 2008]

1. CIVIL AVIATION BILL [B 73B - 2008]

2. BACKGROUND • compliance with International Civil Aviation Organisation (ICAO), • national and international importance of compliance with ICAO, • re-assessment by Federal Aviation Administration (FAA) Retain Category 1 Status, • recommendations to improve civil aviation in South Africa, • consolidation of legislation, • repeal of: • Aviation Act, 1962, • Civil Aviation Offences Act, 1972, • South African Civil Aviation Authority Act, 1998.

3. CIVIL AVIATION BILL B73B-2008(SECTION 1) • Provides Definitions

4. APPLICATION OF ACT(SECTION 2) • Act, Convention and Transit Agreement apply to: • every aircraft, aerodrome, air navigation facility, aviation facility, designated airport, operator, passenger, person boarding an aircraft or entering an aerodrome and owners of aircraft, • every person employed at or in connection with aerodrome, air navigation facility, aviation facility or designated airport, • all foreign registered aircraft and personnel of such aircraft operating in Republic or over territorial waters thereof, • all South African aircraft and personnel, in or outside Republic.

5. APPLICATION OF ACT(SECTION 2) continued • Act, Convention and Transit Agreement do not apply to: • aircraft, airports, heliports or helistops belonging to SANDF and SAPS, • aircraft or airports in use exclusively by SANDF or SAPS, • aircraft used by customs services.

6. POWER TO CARRY OUT AND APPLY CONVENTION AND TRANSIT AGREEMENT(SECTION 3) • Minister, in consultation with CAA may issue proclamations for carrying out the Convention or Transit Agreement, • do all things necessary to ratify amendments to Convention or Transit Agreement

7. FUNCTIONS OF MINISTER IN CONNECTION WITH ACT, CONVENTION AND TRANSIT AGREEMENT(SECTION 4) • Minister responsible for carrying out Act, Convention and Transit Agreement, • every person appointed under, or concerned with carrying out of the Act (excluding members of the SANDF or SAPS) must perform functions in a manner which gives effect to the Act, • Minister must designate CAA as the appropriate authority for the purposes of carrying out the functions of the Act.

8. ENACTMENT OF CONVENTION AND TRANSIT AGREEMENT(SECTION 5) • Convention and Transit Agreement have, subject to this Act, force of law in the Republic.

9. ACQUISITION OF LAND AND RIGHTS IN CONNECTION WITH LICENCED AIRPORTS(SECTION 6) • Minister may acquire land and interest in land adjoining or adjacent to any aerodrome, • Minister may acquire land and interest in land for the purpose of erection and maintenance of aids to safety in air navigation. 

10. PERMISSION TO USE LAND HELD UNDER ANY RECONNAISANCE PERMISSION, PROSPECTING OR MINING AUTHORISATION(SECTION 7) • subject to relevant legislation, Minister of Minerals and Energy may permit the use of specific land for the establishment of airports and other related functions.

11. TRESSPASS, NUISANCE, RESPONSIBILITY FOR DAMAGE OR LOSS BY REGISTERED OWNERS AND OPERATORS OF AIRCRAFT(SECTION 8) • no action lies in respect of trespass or nuisance by reason only of the flight of aircraft over any property at a height which is reasonable, in compliance with Act, Convention and Transit Agreement, • damage or loss caused by aircraft in flight, any person in such aircraft or article falling from aircraft may be recovered from the registered owner of the aircraft, • registered owner, or operator of aircraft must have insurance relating to damage or loss caused by aircraft.

12. Aviation Safety Investigation Board (ASIB)

13. APPLICATION OF CHAPTER(SECTION 9) √ • in or over the Republic and any place that is under the Republic’s air traffic control, • in or over any place if the Republic is requested to investigate the aircraft accident or incident, or, • the aircraft accident or aircraft incident involves an aircraft that is operated by a person in possession of a South African aviation authorisation or any other aviation approval document. Chapter applies to aircraft accidents and aircraft incidents:

14. ESTABLISHMENT AND OBJECTS OF AVIATION SAFETY INVESTIGATION BOARD (ASIB)(SECTIONS 10 AND 11) √ • ASIB is juristic person, • to advance aviation transportation safety by: • independent investigations, findings as to causes and contributing factors, • identifying safety deficiencies, • making recommendations to eliminate or reduce safety deficiencies, • reporting publicly on investigations and findings, • promoting compliance with, and investigate aircraft accidents and aircraft incidents in compliance with Annex 13 to the Convention, • no apportionment of blame or liability, does not determine civil or criminal liability, • sole objective is accident prevention,

15. JURISDICTION(SECTION 12) √ • ASIB may, to achieve its objectives or if requested by the Minister, investigate aircraft accidents or aircraft incidents, • no department (excluding Department of Defence) may commence an investigation if: • aircraft accident and aircraft incident is being investigated by the ASIB, • that department is informed that the aircraft accident or incident is proposed to be investigated by the ASIB, • a department may continue to investigate for purposes other than for determining causes or contributing factors, • SAPS may investigate for any purpose for which it is empowered to do so, • the ASIB must not enquire into any aircraft accident or aircraft incident where a prosecution, inquest or enquiry has been established by the Minister which was instituted or completed before commencement of this Act.

16. CO-ORDINATION OF INVESTIGATIONS(SECTION 13) √ • where a department (excluding Department of Defence) • investigates an aircraft accident or incident, the ASIB and such department must co-ordinate activities, • requirements and interests of the ASIB take precedence over that of a department in case of conflict of interest, • when aircraft accident or incident is investigated by the ASIB, Department of Defence or SAPS or a visiting force, reasonable steps must be taken to ensure co-ordination.

17. COMPATIBLE PROCEDURES AND PRACTICES(SECTION 14) √ • The ASIB must ensure that investigation procedures and practices are compatible with international agreements, conventions and judicial inquests in terms of the Inquests Act.

18. APPOINTMENT OF MEMBERS, FILLING OF VACANCIES AND TERMS OF OFFICE(SECTION 15) √ • ASIB consist of note more that 5 members, appointed by the Minister, one must be a full-time member and Chairperson. • Chairperson appointed for a term of 3 years and is eligible for reappointment for one further term only. • Member of the AISB is appointed for a term not exceeding 3 years and is eligible for reappointment. • Member must be a South African citizen, permanently resident in the Republic.

19. DISQUALIFICATION AND REMOVAL OF MEMBERS OF ASIB(SECTION 16) √ A Person may not be appointed as a member of ASIB, • Not a permanent resident • Is a public servant, or holds a position remunerated by the state • Is an office bearer or an employee of a party • Having a direct interest in the aviation industry • Has been declared mentally ill or disordered • Is an unrehabilitated insolvent • Has at any time been convicted • Has at any time been removed from office of trust on account of misconduct

20. PERFORMANCE MANAGEMENT SYSTEM(SECTION 17) The Minister must establish a performance management system (PMS) to monitor and evaluate the performance of the members of ASIB PMS must – set key performance indicators Set measurable performance targets Set a procedure to measure and review performance at least once a year √ 20

21. REMUNERATION, FEES AND EXPENSES OF ASIB(SECTION 18) Members of Aviation Safety Investigation Board, remuneration and allowances that are determined by the Minister as determined in consultation with the Minister of Finance. Members are entitled to reasonable travel and living expenses – in their course of their duties as may be prescribed from time to time. √ 21

22. DUTIES CHAIRPERSON, MEETINGS, QUORUM(SECTION 19 TO 21) Chairperson of ASIB has exclusive responsibility for managing personnel matters, financial matters, property matters and for all other aspects of the internal management of ASIB. ASIB must meet not less than 12 times a year Three members of ASIB for a quorum √ 22

23. EXPENDITURE, PFMA, CONFLICT OF INTEREST(SECTION 22 TO 24) Expenditure in connection with the execution of the ASIB must be paid out of money appropriated by Parliament for such purpose. ASIB must comply with the provisions of the Public Finance Management Act Members of ASIB may not directly or indirectly, as owner, director, officer, partner or otherwise, be engaged in an aviation undertaking or business or have an interest in an aviation undertaking or business or an interest, financial or otherwise, in the manufacture of aviation plant or equipment √ 23

24. DUTIES OF MEMBERS OF ASIB(SECTION 25) Make Rules regarding conduct of business Establish policies with regards to classes of aircraft accidents and aircraft incidents to be investigated. Review Reports submitted to them by the Director of Investigations Determine the ASIB’s findings as to the causes and contributing factors of aircraft accident or aircraft incident. Identify any safety deficiencies as evidenced by aircraft accidents or aircraft incidents Make recommendations as they consider appropriate. √ 24

25. APPOINTMENT OF STAFF - ASIB(SECTION 26) Aviation Safety Investigation Board, must at its first meeting or as soon as practical thereafter, after consultation with the Minister appoint a Director of Investigation, other investigators and such staff as are necessary for the proper conduct of the work of the ASIB The Chairperson of ASIB is responsible for the management of, and administration control over, the staff appointed. √ 25

26. AGREEMENTS BETWEEN ASIB AND THE DIRECTOR (SECTION 27) ASIB and the Director may enterinto agreements with regard to: The secondment of staff of the Director to ASIB for the purposes of rendering any assistance during any any investigation Any other matter relating or incidental to the investigation of aircraft incidents and aircraft accidents by the ASIB When entering into such agreements the parties must avoid a conflict of interest. ASIB must make all efforts to enter into agreements with Ministers responsible for departments – providing for the coordination of activities between the ASIB and the departments with respect to aircraft accidents and aircraft incidents. √ 26

27. REMUNERATION OF STAFF OF ASIB(SECTION 28) An appointed member of staff of the Aviation Safety Investigation Board receives such remuneration and allowances as may be determined by the Minister in consultation with the Minister of Finance. Different scales of remuneration, allowances, benefits or privileges may be determined under subsection (1) in respect to different members of staff of the ASIB √ 27

28. INDEPENDENCE AND IMPARTIALITY OF ASIB(SECTION 29) Members, staff, experts, advisors and accredited representatives of Aviation Safety Investigation Board must serve impartially and independently and exercise and carry out and perform their powers, duties and functions in good faith and without fear, favour, bias or prejudice, subject only to tis Act and the Convention. ASIB must function without any political or commercial interference. √ 28

29. FUNCTIONS OF AVIATION SAFETY INVESTIGATION BOARD(SECTION 30) √ • investigates aircraft accidents and aircraft incidents in compliance with Annex 13 to the Convention, • advises on safety recommendations prior to the completion of any investigation, • oversees and controls the performance of functions and activities of persons appointed by it,

30. FUNCTIONS OF AVIATION SAFETY INVESTIGATION BOARD(SECTION 30) continued √ • submits final report to the Minister within 3 months of completion of an investigation, • submits final report to all recipient States in compliance with Annex 13 to the Convention regarding aircraft accident or aircraft incident investigated by the ASIB, • monitors implementation of safety recommendations as issued by contracting States.

31. POWERS OF ASIB and INVESTIGATORS (SECTION 31, 32 and 33) √ ASIB • investigates aircraft accidents and aircraft incidents: • determines its own staff establishment having regard to available funds, • makes rules for the internal procedures for the investigation of aircraft accidents and aircraft incidents, • delegates the investigation of aircraft accidents or aircraft incidents to other contracting States (Annex 13 to the Convention), • establishes an aircraft accident and aircraft incident reporting system, • institutes or defends any legal action, • summons and examines witnesses under oath: • summons any person to give evidence,

32. POWERS OF ASIB and INVESTIGATORS(SECTIONS 31, 32 and 33) - continued √ Director of Investigations: • has exclusive authority to direct the conduct of investigations on behalf of the ASIB, Investigators: • have unrestricted access to aircraft involved in an aircraft accident or aircraft incident, as well as to all documents which may be necessary for the investigation, • compile reports in connection with the investigation, • obtain information from any person, summons and examine witnesses under oath, • have unrestricted access to and control over all relevant evidence, • require a person to submit to a medical examination, • may require a physician (if so authorised by a patient) to provide information, • may cause an autopsy to be carried out.

33. SEARCH AND SEIZURE BY INVESTIGATORS(SECTION 34) √ • Investigator may, only in execution of section 34: • search and seize any property or item, • enter and search a place for any item and secure the safekeeping of the item seized.

34. POWER TO TEST ITEMS SEIZED, RETURN THEREOF, CERTIFICATE, PUBLIC INQUIRY(SECTIONS 35, 36, 37 AND 38) √ • the investigator may cause tests, including the destruction of an item to be conducted, • owner of the item may be present at testing of item, • items seized must be returned to the owner or person from whom it was seized as soon as possible, • owner or person from whom item was seized may apply to court to have item returned, • public inquiry held when deemed necessary, • certificate of appointment may be requested.

35. NOTIFICATION OF DEPARTMENT OF OCCURRENCE OF AIRCRAFT ACCIDENT OR AIRCRAFT INCIDENT(SECTION 39) √ • when a department is notified of an aircraft accident or aircraft incident, that department must provide the ASIB with full particulars thereof, and • advise the ASIB of any investigation it plans to conduct.

36. NOTIFICATION OF A MINISTER HAVING INTEREST IN AIRCRAFT ACCIDENT OR AIRCRAFT INCIDENT(SECTION 40) √ • where the ASIB is notified of an aircraft accident or aircraft incident, it must provide particulars thereof to any Minister responsible for a department having an interest • advise the Minister of that department of any investigation it plans to conduct.

37. ATTENDANCE AND REMOVAL OF OBSERVERS(SECTION 41) √ • subject to conditions provided by the ASIB, a person may attend as an observer at an investigation, • such person may be removed as observer from an investigation if the observer has a conflict of interest that impedes the conduct of the investigation.

38. REPORT ON COMPLETION OF INVESTIGATION AND MANNER OF DEALING WITH REPRESENTATIONS (RIGHTS OF AFFECTED PARTIES) (SECTIONS 42 AND 43) √ • on completion of investigation, the ASIB must prepare and make available to the public a report on its findings, indicating safety deficiencies, • before making public such report, a copy of the draft report to be sent to each Minister and person who has a direct interest in the findings, and • must give that Minister or person an opportunity to make representations within no less than 60 days,

39. REPORT ON COMPLETION OF INVESTIGATION AND MANNER OF DEALING WITH REPRESENTATIONS (RIGHTS OF AFFECTED PARTIES) (SECTIONS 42 AND 43) continued √ • an interim report must be provided upon request by a Minister of a department having an interest in the investigation, • representations received must be considered before preparing a final report, • representations may be used by the ASIB if considered necessary in the interest of aviation safety.

40. NOTIFICATION OF FINDINGS AND MINISTER’S RIGHT TO RESPOND(SECTIONS 44 AND 45) √ • the ASIB must: • during its investigation, notify a Minister or any person having an interest in its findings, that the matter requires urgent action, and • on completion of its investigation notify a Minister or a person who has an interest in its findings of any safety deficiencies, together with recommendations • a Minister who is notified of the findings of the ASIB must within 90 days: • advise the ASIB of any proposed action to be taken in response to findings and recommendations, or • provide written reasons to the ASIB if no action will be taken.

41. DELEGATION OF POWERS(SECTION 46) √ • ASIB may delegate powers or duties, except power to make rules and recommendations

42. ON-BOARD RECORDING(SECTIONS 47 TO 53) √ • contents of on-board recording is privileged, • however, on-board recording that relates to aircraft accident or aircraft incident must be released to an investigator, • the ASIB must not communicate or permit to be communicated any portion of on-board recording that is unrelated to the cause or contributing factors, • court or judicial inquest may order evidence relating to on-board recording to be given if in public interest, or if proper administration of justice outweighs privilege attached to such recording.

43. COMMUNICATION RECORD AND STATEMENTS OBTAINED(SECTIONS 54 TO 58) √ • communication record must not be used against a person in legal or disciplinary proceedings, • statements must not be used against a person who made it in any legal or disciplinary proceedings, except in a prosecution for perjury, • courts or inquests may require evidence to be given relating to the statement if public interest or proper administration of justice outweighs the privilege attached to the statement.

44. REPORTING OF AIRCRAFT ACCIDENTS AND AIRCRAFT INCIDENTS(SECTIONS 59 TO 61) √ • the ASIB may make rules for mandatory or voluntary reporting of aircraft accidents or aircraft incidents, • identity of person who makes a report to the ASIB may be protected, • report under voluntary system may not be used against the person who made the report in any legal or disciplinary proceedings.

45. APPEARANCE AND OPINIONS OF INVESTIGATOR(SECTIONS 62 and 63) √ • investigator not competent or compellable to appear as witness, except before a judicial inquest and if ordered by court, • opinion of investigator not admissible in evidence in legal, disciplinary or other proceedings.

46. RULES(SECTION 64) √ • the ASIB may, subject to approval by Minister, make rules: • prescribing the manner in which it exercises its powers, duties and functions, • regulating the keeping of records, • regarding rules and procedures for public inquiries

47. OFFENCES AND EVIDENCE(SECTION 65 and 66) √ • any person who: • without lawful excuse resists or obstructs a member of the ASIB or investigator, or • knowingly gives false or misleading information is guilty of an offence • no person may refuse or fail to produce information to an investigator, • no person may refuse to submit to a medical examination, but such information remains privileged.

48. TRANSITIONAL ARRANGEMENTS AND LIABILITY(SECTION 67 and 68) √ • a matter that is being investigated, or has been investigated but a report has not been made by the CAA when this Act comes into force shall, when this Act comes into force, be taken up and continued by the ASIB, • member of the ASIB, appointed staff, accredited representative, expert and advisor not personally liable by virtue of any report or finding made in good faith.

49. COMMISSIONS AND BOARDS OF INQUIRY(SECTION 69 and 70) In the event of an aircraft accident or aircraft incident rising out of or in the cause of air navigation and occurring in or over the Republic or territorial waters thereof the President may appoint a Commission of Inquiry in terms of Section (84 (2) (f) of the Constitution to conduct an investigation into the accident and report to him or her thereon. The Minister may appoint a Board of Inquiry – to counter any action contemplated in Section 143. √ 49

50. CIVIL AVIATION AUTHORITY (CAA)