Around two years ago I ran a series of 12 articles I called ‘The CAA Dossier’ which articulated the frustrations of the aviation community at the manifold failures of the SACAA. However, I became increasingly uncomfortable with that series as it was too often one-sided. The nature of publishing deadlines meant that the CAA could claim that it did not have a fair opportunity to reply to the accusations.  

The problem is; the CAA just doesn’t learn from its mistakes. It is deeply worrying that the old patterns persist, despite the CAA having been roundly slapped down by the Department of Transport’s Civil Aviation Appeal Committee (CAAC).

The only explanation for this failure by the CAA to learn and progress would seem to be that this is the symptom of an endemic or structural dysfunctionality within the CAA.  

The latest manifestation of this dysfunctionality is yet another inexplicable episode of what can only be described as stupid rule interpretation and ill-advised legal adventurism.  

CAA bureaucrats committed to racial transformation at any cost.

About a year ago the CAA emerged with mud on its face when one of its esteemed bureaucrats decreed that the 600 kg maximum weight limit for light sport aircraft meant that the aircraft had to actually weigh 600 kg. Thus, an aircraft that weighed anything less than exactly 600 kg was not acceptable. The regulator persisted in this dogged absurdity, despite increasingly clamorous demands from the frustrated aircraft owner and perplexed appeals from the recreational aviation administrators. 

The CAA implacably closed ranks until a number of aviation bodies patiently managed to convince them of the idiocy of this bureaucrat’s decree. Then there was much face-saving obfuscation to justify the indefensible in a weak attempt to rescue the tarnished image of the CAA as a reasonable regulator. 

This publication let that unfortunate and embarrassing incident go largely unremarked upon because, like many, we simply shrugged our shoulders and, in a sense, said that this is Africa. Now however an incident of equal absurdity has come to the fore and unfortunately the regulator chose to drag it all the way through the appeals process before the Civil Aviation Appeals Committee (CAAC). 

The well thought out and eloquent judgment of the CAAC in this matter has recently been released. The attitude and antics of the Regulator make appalling reading. It is hard not to conclude that the CAA is incapable of learning from its past foolishness. 

The regulator decided that a flight simulator instructor had to have a valid medical. 

The current case arose when an extremely senior and highly respected pilot, and retired former Chief Training Captain at SAA, temporarily lost his medical. CAA officialdom used this as a pretext to stop him from training on flight simulators. The Training Captain, with some forty years of dedicated instructional experience, was thus unable to earn a living and the small airline where he was working became deprived of the wealth of knowledge and expertise offered by its Chief Training Captain.  

I cannot imagine what the regulator was thinking when it decided that a flight simulator instructor had to have a valid medical. Did the Director of the CAA,

Ms Poppy Khoza, whose responsibility it was to sign off the application, genuinely think that the DFE instructor would endanger people’s lives by crashing a simulator because of an underlying medical condition?  

The judgment makes it clear that the Director was badly informed by her subordinates in that she managed to leap to the unjustifiable conclusion that one may not instruct in a flight simulator in the absence of holding a valid licence and medical. The Director’s decision is all the more inexplicable in that it flies in the face of the clear provisions of the CARs and worldwide practice where pilots who have lost their medicals have been able to continue to contribute to aviation development by instructing and testing in simulators. 

The CAAC was uncharacteristically blunt in its comment about the CAA’s decision making process. The judgement says, “It is not open for the Respondent [the CAA] to read and apply regulations interchangeable to suite a particular outcome. Each regulation in the CARs exists to provide for certain processes, eventualities, etc. and therefore should be applied for the purpose it is intended.” 

The judgment specifically found that the CAA had failed to consider the application in terms of the provisions of the CARS. The judgment was again direct in that it stated that “one can therefore safely infer that the Appellant [the training Captain] met the requirements and complied with Regulation[s] which prohibit a licence holder from the exercise of any of the privileges linked to the licence where they do not hold a valid medical certificate was thus misdirected, and an error of law by inferring that it was the intention of the Regulator that said prohibition existed to ensure safety in aviation.” 

This is the core of the problem. The CAA seems unable to apply basic standards of common sense to the Regulations and instead persists in doltishly applying the letter of the rules as they choose to interpret them, often causing grave damage to the already delicate fabric of the aviation industry.  

This was the case in particular with the vindictive ‘lawfare campaign’ the Regulator waged against CemAir as described in the earlier series. This attack on a Designated Flight Examiner (DFE) once again raises the question as to whether the CAA is hell-bent on attacking DFEs – who are the key custodians of aviation standards and safety. It has been suggested that the overwhelming white male composition of the DFE body – with no non-whites at all – has made the DFE group a target for CAA bureaucrats committed to racial transformation at any cost. And the cost in this case would be the loss of the standard keepers in the industry – so that we would descend into ‘Banana Republic’ status as an aviation country.  

In a particularly scathing comment, the CAAC judgment referred to an earlier judgment which said; “…the doctrine of legality requires that the power conferred on a functionary to make decisions in the public interest should be exercised properly i.e. on the basis of the true facts.” This use of the words ‘true facts’ must suggest that the CAA was manufacturing its own version of the truth. 

It is noteworthy that the CAAC went on to effectively lecture the CAA Director by reminding us of the basics of a constitutional democracy, where; “the furnishing of adequate reasons for a decision forms the cornerstone of a person’s constitutional right to fair administration action.”  

This is of great comfort to all South African aviation users. Many of us often feel that we have been the victim of either absurd or unjustified regulatory action by the regulator.  

The judgment quoted from Australian case law which states that it is required, “for a decision maker to explain his decision in a way which will enable a person aggrieved to say in effect; “Even though I may not agree with that, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact or an error of law which is worth challenging.”  

The CAAC judgment concluded that; “It is incumbent on the respondent as the regulator to provide guidance to the industry on compliance matters and as such the respondent should have advised the appellant to provide information/documents which were acquired in terms of the CARs for it to make a decision on the application.” 

The order was therefore granted that the appeal be upheld and to further censure the regulator possibly against further legal frolics, the appeal fee was returned to the appellant.  

It is a tribute to the solidarity of the aviation industry that the victim’s former colleague, Captain John Campbell, who also happens to be an attorney, was willing to take up the case and fight for justice. He has been a determined litigator against the unreasonable and heavy-handed actions of the CAA, both against its own employees and against pilots generally. 

This publication also notes with relief the quality of the judicial process provided by the CAAC in terms of its ability, impartiality and diligence to rein-in the more ill-advised (and quite frankly stupid) legal frolics of the CAA. 

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