By Rui JC Lopes (Managing Director) & Michael Jenkins (Paralegal)
Earlier this year, a pilot was able to secure an urgent interdict against the Civil Aviation Authority (CAA), against a 6 month suspension of his pilot’s license.. The order was granted by the Eastern Cape High Court in Gqeberha.
The suspension was the result of the pilot making a number of passes over the Knysna runway at 1000ft and “dipping his wings”. This maneuver was done in an attempt to encourage civilians to move away from the runway and to allow him to land safely. This was however not successful and the pilot subsequently abandoned his attempts at landing and was forced to return to Plettenberg Bay and was suspended by the CAA shortly thereafter.
The pilot applied to Court on an urgent basis after the CAA took the decision to suspend his license for a breach of the civil aviation regulations, which included a breach of minimum height restriction over congested areas or assemblies of people.
In this article, we will unpack the urgency of the application and whether the decision to suspend constituted a lawful administrative action in terms of relevant South African legislation.
WHAT DID THE COURT SAY ABOUT URGENCY?
The pilot successfully argued that his application was urgent on the basis that the suspension would prejudice him, as he depends on the use of his aircraft both for business and personal travel. He was also able to successfully argue that he needed to constantly fly in order to maintain his skills, especially as he was scheduled to perform several air displays. The final argument offered by the pilot to justify the court suspending the ordinary rules of court to hear hear the matter on an urgent basis was that an appeal to the CAA would not be resolved whilst the suspension was in effect. As such, the court agreed that the matter was urgent.
WAS THE DECISION TO SUSPEND LAWFUL?
In terms of part 185.02.2 of the Civil Aviation Regulation, 2011, the CAA is required to issue a notice of investigation, which must contain the following essential elements:
the nature of the alleged offence;
the evidence being relied on; and
it must allow the alleged offender to make representations within 30 days of receiving the notice of suspension.
The CAA decided that the alleged conduct of the pilot was enough to warrant a suspension, without any prior investigation or due process, thereby disregarding the regulations above entirely.
The pilot was also only given 14 days to respond to the investigation notice, which is less than the days required by the regulations. The pilot also argued that the CAA had taken 7 months to issue a suspension notice.
The Court ordered that lawfulness is critical to the pilot’s constitutional right to fair administrative action. In terms of section 6(2)(e)(iii) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) all relevant considerations must be considered by an administrator before any decision is made. Naturally, this includes the irregularities raised by the pilot in terms of the issuing of the suspension notice.
A failure to adhere to procedures by the CAA (or any other administrative body) can lead to lengthy and in some cases unnecessary suspension of licenses. This may result in unnecessary groundings, which prevent both general and advanced pilots from growing and practicing their skills. This can be especially detrimental and risky for display pilots, who must maintain the highest skill level.