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EXCLUSIVE: Civil Aviation Authority slammed for being biased and unreasonable for grounding CemAir

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By Johan Pretorius

CemAir CEO Miles van der Molen has expressed his disgust at the treatment his airline has received from the South African Civil Aviation Authority (SACAA). This is in response to CemAir’s landslide victory in their appeal against the actions taken by the SACAA in Dec and Jan 2019. He told eHowzit the Civil Aviation Appeal Committee (CAAC) judgement, issued on 29 April 2019 demonstrated there was no justification for the grounding of CemAir in December and again in January. The SACAA made an uninformed decision, was biased and have a predetermined goal to stop the airline from operating.   “The SACAA regards itself as a law unto its own and failed to follow the aviation regulations and administrative procedure.” He further stated that “South Africa needs a strong authority to regulate and promote aviation and to serve the interests of the flying public.  Its actions caused significant job losses for CemAir staff, and tens of thousands of travellers have been inconvenienced. The authority was unreasonable and the only avenue available to CemAir was a legal challenge through the CAAC.” The judgement makes it clear that no safety concern exists so the motive behind the grounding must lie elsewhere but he would not speculate.

Mr. Van der Molen mentioned the recent report of the Civil Aviation Appeal Committee which completely exonerated CemAir, severely criticised the SACAA’s handling of the matter, and set aside all the grounding and suspension notices.  When he contacted SACAA Director Poppy Khoza after the release of the report to inquire about the implementation of the order, she was extremely aggressive and eventually slammed down the phone in his ear.

Although the CAAC had found overwhelmingly in favour of CemAir on all safety issues the airline could not fly immediately as the operating certificate for commercial flying had expired during the lengthy appeal process. Van der Molen said “the SACAA now intends for the exact same inspectors who were castigated by the CAAC and whose decisions were overturned to return to CemAir and reopen the inspection.” He continued, “we would have expected the inspectors and officials to be suspended and a full internal investigation launched.  For them to simply continue with their duties like nothing happened is outrageous and for them to be assigned to return to CemAir is unthinkable.”

Mr. Van der Molen referred to the CAA’s statement after the report, which glossed over the findings of the appeal committee, and which is quoted as saying:  “The implications of the Tribunal’s decision is that CemAir is still not permitted to operate as an airline or utilise any of its aircraft commercially, pending the renewal audit process being finalised, and the operator being issued with the relevant operating certificates or approvals. The actions expected to be undertaken by (me), as well as by both the SACAA and CemAir, as outlined in the ruling, are unambiguous, and as a result, I have already delegated my functions in terms of legislation to the SACAA’s Aviation Safety Operations to immediately implement the recommendations of the [Appeals Committee]. The pace of finalising the matter was in the hands of the airline.  The regulator will rely on CemAir’s cooperation in relation to the submission of the relevant documents and records, as well as any other evidence that will contribute to the speedy completion of the inspection.  To this end, I have written to CemAir to inform the operator of my decision to continue the renewal audit and inspection process for purposes of completing this task.”

As far as the ‘renewal audit and inspection’ process was concerned, Mr. Van der Molen said he had called on the Acting Director General of the Department of Transport to review the conduct of the SACAA and its inspectors in terms of it fulfilling their mandate. Aviation safety is the ultimate goal and can only be applied objectively.

The good news was, he said, that CemAir would be flying again as soon as the current process had been completed, and that the service to and from Margate would be resumed.  Because of the current circumstances, it was not possible to give an exact date.

On a well-known aviation website, the following comment on the CemAir grounding was posted:  “It’s time to drain the swamp at the CAA. This has gone on too long.  You have the aviation community behind you. Poppy Khoza has no aviation credentials, she is a political appointee because her cousin is Malusi Gigaba and Mr Gigaba needs no introduction. The aviation industry has taken endless pain under the tenure of the current management of the CAA.  The judgement levels no blame at CemAir. Read it, the CAA failed here as it has failed in so many ways over the last few years.”

eHowzit decided to do just that and obtained a copy of the 82 page report for the benefit of our readers who are interested in the findings. The Chairperson of the Civil Aviation Appeal Committee was Ms. Marumo Lekoto, and the other members were Adv. Derick Block and Mr. Christos Christodolou.

  • 97, page 29: Appellant [CemAir] suggested that the extreme haste with which the December grounding notice of the entire fleet in terms of Section 15 was given, evidently illustrates the unfair, substantive and procedural administrative action on the part of the Respondent [CAA] which falls to be set aside as it reinforces the lack of objectivity.
  • 201, page 61: The entire approach by the SACAA to suspend the appellant’s AOC in respect of the CRJ aircraft was legally and factually wrong as the regulations in relation to part 121.06.3 (3) and 135.06.3 (3) provide as follows: “Where, in the opinion of the Director, an applicant has failed to provide satisfactory evidence of qualification for the document being sought, the applicant would be informed by the Director as to the deficiencies after which time the Director shall grant or refuse the application concerned”. Further, the second press statement was issued on 12 December 2018 whereas it was dated 13 December.  Was this a pre-conceived outcome? This remains to be wondered.
  • 203 page 62:  The court order declares the suspension notice of 13 December 2018 temporarily inoperative.  Not a word is mentioned in the court order about the RPFO issue being rectified. This brings into serious doubt about the bona fides of the respondent [CAA] when they contended the issue of the RPFO posed an imminent and serious safety hazard. It is strongly suggestive of a closed mind and thus actual bias, but at the very least, instills a reasonable suspicion of bias in the mind of a lay litigant, which is the test.
  • 206 page 62:  Notwithstanding the undertaking of corrective action plan submitted by the appellant [CemAir], on 26 December 2018 , Salela grounded all eight CRJ 200 aircraft. The essence of complaint was that there was no evidence of a bridging from HUMP to LUMP.  This was not a Level 1 concern because, as is apparent from the 25 December 2018 CAP the Part 43 AMP was compiled in accordance with the LUMP, which was applicable.
  • 208 page 62: In addition, as far as other aspects are concerned, Bombardier in their letter confirms that CemAir has implemented all their maintenance revisions.
  • 209 page 63:  Appellant alleged that an updated aircraft maintenance programme (AMP) including the latest revisions by Bombardier has been submitted to Respondent on January 2019 and is fully compliant with all of Bombardier’s recommendations.  Respondent [CAA] has allegedly not replied to it, yet again creating a reasonable perception of bias.
  • 212 page 64: It is for the aforementioned apparent reason that the CRJ aircraft ought not to have been grounded on 26 December because:  i. Those CRJ 200 aircraft were airworthy since they passed a rigorous airworthiness review as late as September 2018; ii. The maintenance protocol was duly complied with, in accordance with the AMP which at all material times hereto remained signed off and approved by the Director of the CAA; iii. Appellant [CemAir] was perfectly entitled to, both in terms of its airworthy certificates and terms of the regulations, to operate those aircraft unless non-airworthiness was shown by the CAA.
  • 213 on page 65:  The inference that the grounding of the eight CRJ 200’s showed a systemic maintenance inadequacy on CemAir’s CRJ 200’s, which ultimately resulted in the suspension of the AOC’s on 11 January 2019, is factually incorrect and falls to be set aside.  In fact, neither Salela or Segwabe could point to any scheduled maintenance obligation that was due in terms of the then current and approved AMP which Appellant had defaulted upon.
  • 215 on page 65:  There is a requirement before any aircraft is grounded, to have a reasonable basis for believing that such an aircraft will be unsafe to fly.  The emphasis is on an affected aircraft, as in the present case, the maintenance regime was more frequent than what is required, there is no reasonable basis to believe that an aircraft will constitute and imminent danger of being unsafe.  No facts are given in any of the decisions nor any reasons  offered as to why the flight would be unsafe.
  • 217 on page 66:  The Respondents themselves were unable to make an independent assessment of airworthiness. In their founding papers they could go no further than to adduce evidence of the CAA’s ‘reasonable belief’  to that effect and that the order was issued “in the interests of aviation safety”.
    • 218 on page 66:  The grounding is also overboard in that it grounds the entire Bombardier fleet indiscriminately as opposed to a single or specifically affected aircraft.  Surely, if an administrator has a reason to ground an entire fleet, he must justify that.  Even if one accepts that a single aircraft may have a maintenance issue which warranted immediate attention or even grounding, one would have expected, on the test of reasonableness, for that particular aircraft to be grounded and not the entire fleet.  Indeed, in its CAP, and as a sign of good faith, CemAir removed ZS -CMH from its service pending confirmation that all maintenance tasks were completed. To ground the entire Bombardier type aircraft is, with respect, unjustifiable and unreasonable as contemplated in PAJA.
    • 225 on page 68:  As to how Segwabe and Salela made a decision that the entire fleet of aircraft were not airworthy, without inspecting the aircraft, is not understood.  Despite the fact that all these aircraft had been through a rigorous airworthiness test, some as late as October 2018.
    • 246 on page 74:  Therefore, there was no reasonable basis at all to ground the entire fleet in terms of Section 115.  There was accordingly no basis to suspend the AOC and the entire fleet on 11 January 20129, particularly where there was no factual basis for concluding that there was a systemic failure on the part of CemAir, and that this amounts to grossly unfair administrative conduct both procedurally and falls to be set aside. More importantly, the grounding on 11 January 2019 must be viewed in the context of the 13 December and 26 December 2018 grounding and suspension. It demonstrates that there was a closed mind.
    • 263 on page 80: in the CAAC’s view the material errors in the December and January decision renders it irrational, arbitrary, unreasonable and procedurally unfair. The Respondent’s failure to afford the Appellant a fair procedure prior to making its decision is unfair.  The regulations expressly provide for an extremely detailed and robust procedure prior to the Respondent making a decision.
    • 264 on page 80:  The decision of the DCA of the 25th January 2015 is overruled and the two notices issued on 11 January 2019 are set aside.

 

 

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