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[2015] ZAGPPHC 521
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Keyser v South African Civil Aviation Authority and Another (A407/2014) [2015] ZAGPPHC 521 (11 June 2015)
IN
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION.
PRETORIA
CASE NUMBER: A407/2014
In
the matter between
SB
KEYSER
APPELLANT
and
SOUTH AFRICAN CIVIL
AVIATION AUTHORITY
1s1 RESPONDENT
THE CIVIL AVIATION APPEAL
COMMITIEE
2N RESPONDENT
DE
VRIES AJ
1.
This is an appeal brought against the decision of the 2
nd
Respondent by virtue of the provisions of
Section 127
of the
Civil Aviation Act 13 of 2009
.
2.
The order appealed against reads:
"The decision
of
the
Respondent
is
confirmed
and
the
appeal
is
dismissed.
The penalty
notice
is
confirmed
and
the
appeal
fee
is
forfeited."
3.
This order was handed down by the 2nd Respondent on the 91h of May
2014. The following grounds of appeal were relied upon in
the notice
of appeal:
"
1.1
In finding
that the Appellant
was
the CEO of
Fantini Air
when the Appellant
conducted
Language
Proficiency
Tests
on
the
29th of January
201 1 when
the
Manual
of
Procedure
was
alrea
d
y
changed
and
approved
on
the
5th
of
January 20 1 1 where
the Appellant
was
not registered
as the CEO of
Fantini Air;
and
1.2
In finding
that
Esmeralde
M
elnick
did not
orally
authorise
Fantini
Air
to
continue
with its operations
after
the
approval
of
the
amended
manual
of
procedure on
the 5th of
January
201 1; and
1.3
In
not finding
that
as
at the 29th of
January 201 1
Fantini Air
had a valid
(sic}
valid Aviation
Training
Organisation Approval;
and
1.4
In
not finding that
the
operations
of Fantini
Air
was
(sic) only suspended
by Esmeralda
M
elnick via email on 28 February
201 1;
and
1.5
In not finding
that Esmeralda
M
elnick
who was
o
SACAA
employee
and
flight
operations
inspector
at
the
time who
approved the MOP
on
5
January 201 1
gave verbal approval
for
Fantini
Air FTS
to continue training until
she could
arrange
o dole on
which she
waslo conduct on
inspection
as she
was not able
to
conduct
the inspection
immediately;
and
1.6
In
not
finding
that
the
obligation to
maintain
aviation
training
records rests upon the
Aviation
Training
Organisation. Fantini Air
and
not
on
the Appellant.
4.
Before dealing with the Appeal, the following appears to have taken
place:
4.1
On the 12th of February 2013 a document headed "Penalty
Notice
following Notice of Intended Enforcement Action" was to be
served on the Appellant in terms of Regulation 185.00.3(
12) of the
Civil Aviation Regulation 201 1 (CAR ) that on the 20th of January
201 1 near Delmas Mr SB Keyser, (0270133275), the
Appellant,
unlawfully and wrongfully committed an offence in terms of Regulation
185.00.1 ( 1) (F) of the CAR which reads as follows:
"Any
person
who
-
does or
causes,
or
permits
to
be
done
or
caused,
any act
contrary
to,
or
fails
to
comply
with, any provision
of
these
regulations, or
a
direction given or
a
prohibition
made or
o
condition
imposed in terms thereof; shall be guilty of
an
offence."
4.2
The aforesaid document further reads:
"it
was
found that
you, under the
auspices
of Fantini
Air
FTS
conducted
language proficiency
tests
on
three
pilots
[
M
r Robertson, Mr Joubert and Mr
Hartwanger]
without Fatini Air FTS having
a
valid
Aviation Organisation Approval.
It
was
further found that
on
your
instruction,
M
r
Aucamp were
(sic) requested
to destroy
the
record
s
/recordings
for
these
pilots,
as
the tests
were invalid.
We
have in our possession the following:
•
E-mail
correspondence from
Mr Aucamp.
•
Language
proficiency test.
This
will be used in the
investigation"
4.3
The various regulations and technical standards contravened
are
further set out in the notice.
4.4
The Appellant was called upon to pay a sum of R 10 000.00 and was
admonished to take notice that:
"
(
I
)
You
have a
right to
appeal
this Penalty
Notice
to the
DCA.
(2)
Should you not pay
the
amount
stated on the
Penalty Notice within the period
of 30 (
thirty)
days and should
you
fail
to
deliver
an
appeal
with
evidence
to
the
DCA
within the period
o f
1
4
(fourteen}
days
-
(a)
you will be held
to have admitted
to
the offence;
(b)
the
DCA
may approach the courts; and
(c)
you
may
thereafter be
summonsed to
appear
before the
courts in
terms of the Criminal Procedure
Act.
(3)
Should
you pay in terms of the Penalty Notice,
A
Notice of
No
Further Action
will be issued
to you.
(4)
Should you have lodged an appeal in compliance with
the
conditions
specified herein in
respect
of the
Penal
t
y
Notice -
(a)
You
will,
within 14
days
of
receipt
of
such
appeal
receive confirmation
thereof; and
(b)
the
DCA
shall adjudicate on the matter and make
a
Final
Decision
either
by
a
confirmation,
an
amendment,
or
the
withdrawal
of the
Penalty
Notice."
4.5
After issue of the notice, representations were made by attorneys
acting on behalf of the Appellant and it was submitted that on the
29th of January 201 1 Fantini Air FTS was in possession
of a
valid Aviation Training Organisation Approval.
4.6
This submission was made on the basis that approval for the
renewal
of the ATO was submitted in terms of Regulation Part 141 .02.13
accompanied by the prescribed fee and a training and procedure
manual
together with proof of accreditation in terms of Regulation 141
.02.6.
4.7
It is further alleged that the Civil Aviation Regulations
contain no
provision that approval of the ATO is automatically suspended or
cancelled if the Civil Aviation Authority does not
timeously perform
inspections. This fact, it is further said, does not affect the
validity of the approval of the ATO or the renewal.
4.8
It further goes on to say that the relevant aviation training
organisation approval was only suspended by the CAA on the 28th of
February 2011 in terms of an e-mail notice received from Esmeralda
Melnick pending an inspection to be performed by the CAA.
4.9
As regards the second charge, it was said that the Appellant
had
requested Aucamp to destroy the records as he had been incorrectly
informed by Mr. Neil Thomas, the CAA Managaer of Part 141
that the
tests were invalid as Fantini was not in possession of a valid
aviation raining organisation approval at the relevant
time.
4. 10
It is further said that the Appellant did not intend to defeat
the
purposes of Part 141 .02.1 4 as the Appellant had been acting on the
instructions and advice of the CAA.
4.1 1
The representations made by the Appellant were replied to
by way of
a memo sent by Ms Hannelie Oosthuizen, presumably the same person who
had issued the penalty notice.
4. 12 Following upon his
further representations, a final decision was taken by the Acting
Director of Civil Aviation in terms of
which the Penalty Notice was
confirmed.
4.13
This in turn led to the Civil Aviation Authority and his application
for re-designation as a flight examiner was declined. The reasons for
the confirmation of the penalty notice were supplied by the
Acting
Director of Civil Aviation on the 19'h of July 201 3.
4.14
4 This was in turn followed by a Notice of Appeal to the Appeal
Board.
4.1 5
A point was raised in
/imine
regarding the fact that the
person who furnished the reasons was not the same person who had
confirmed the sanction.
4.1 6
Apart from this new point the notice of appeal contained
the same
points as raised in the Appellant's submissions made previously.
4.1 7
This in turn elicited a response by the SACAA during September
of
201 3 and was signed by the Acting Director of Civil Aviation, Poppy
Khoza.
4.18
The Appeal took place on the 4th of April 2014 and the decision
of
the appeal court was handed down on the 9th of April 2014.
5.
The procedure adopted by the board was that the Appellant only gave
evidence under oath.
6.
The 1st Respondent indicated that no evidence would be led before the
appeals board.
7.
The salient features of the evidence given by the Appellant was as
follows:
7.1
That a new manual of procedure had been approved
on the 5th of
January, 24 days before the alleged offence;
7.2
The fees for renewal had been paid during August
of 2010,
and
7.3
That he had received verbal approval from Mrs Esmeralda
Melnick to
proceed with the operations.
8.
He further adduced evidence that at the time when the language tests
were conducted he was not involved as the owner of the ATO
or
anything to that effect.
9.
The legal representative of the Appellant objected to questions put
to the Appellant that his version was not true on the basis
that they
had indicated that they would not call any witnesses and that
by virtue thereof they were
not
entitled to cross-examine the Appellant
regarding the authority which he had
alleged he had
received from Esmeralda Melnick.
10.
With regard to the destruction of records of the language testing, he
said that he had to protect the school. He had mentioned
to the owner
that the feeling of the SAA was that the school was not accredited,
that he disagreed with this but rather than to
involve the school in
problems, to ask the people to cancel or throw away the forms and to
go to another flight school for their
tests so that a problem would
not be created in this regard.
1
1. He denied that this was done with any intention to interfere with
the investigation and his explanation in this regard is borne
out by
the fact that there was never any attempt to deny that the tests
complained of had been conducted.
12.
The appeal boards rejected the submission that the incorrect
procedure had been followed in as much the reasons supplied for
the
decision was supplied by a different person than the person who had
made the decision.
13.
The committee based its finding on the fact that
"the
officials
involved were acting in terms of the Act''.
14.
The appeal committee then went on to make a finding that the proper
procedures had not been followed for renewal of the ATO
Approval but
did not deal with the substance of the Appellant's defence being that
verbal authority had been given.
15.
The only evidence regarding Esmeralda Melnick's involvement was an
e-mail dated the 21th of February 201 1 and directed
by her to
Mr Neil Thomas. The body of the e-mail prvides as follows:
"I approved
the
ATO
Manual
for
Fantini
Air.
I
wanted
to
go
to do
the inspection
to
activate
the
school
again
since it was
dormant
but
unfortunately
the SNT budget came
into
ploy
and
I
advised Fanie that
I
would
be
unable
to do the
audit. I
have
no
record
of
telling
the
school to continue training in the meantime
until we
would
go
do the quit."
16.
Against the background of the submissions made by the South African
Civil Aviation Authority that the approval had lapsed one
would have
expected Melnick, if she were of a similar view at the time, to have
said that no approval could be given since it had
lapsed, and that
she would and could not have given verbal approval against that
background.
17.
The content of that e-mail does not provide an answer to the
assertion under oath that she had given such authority.
18.
The CAA, well aware of the defence failed to call a witness at the
appeal hearing to enable the committee to evaluate the Appellant's
evidence.
19.
His evidence was further to the effect that he received an e-mail on
the l5th of February that the school should cease operations.
20.
Against this background whether the test applicable is one of
balance of probabilities or beyond reasonable doubt
the
appeals board could not and should not have confirmed the decision of
the Director of Civil Aviation and the decision
falls to be set
aside.
21.
As regards costs, although the Act prescribes for the matter to be
heard as a Civil Appeal it does not derogate from the fact
that the
proceedings are of a criminal nature, we enquired from counsel
whether there was any guidance to be found in regard
to costs
appertaining to the appeal procedures in the relevant regulations and
they were unable to do so.
22.
The 1
st
Respondent's acts in the public interest and
although mistaken in their approach to this particular matter there
can be no finding
in regard lo mala
fides
or an ulterior
motive and we would decline to make any order for costs in this
matter.
23.
I would propose that the following is made:
23.1
The appeal succeeds;
23.2
The Penalty Notice is set aside.
_____________
DE VRIES AJ
I
concur
the order
as proposed is made.
_____________
TUCHTEN
NB