Author: Gary Moore

Date: 19 December 2016

The Air Services Licensing Act, 1990[1] says no person may operate an air service except under a licence issued to that person[2] after application to the Air Service Licensing Council.[3] The application must be granted if the applicant satisfies the Council that inter alia the applicant (if a natural person) is a South African citizen ordinarily resident in the Republic; or (if not a natural person) is incorporated in the Republic and has at least 75% of voting rights in it held by South African citizens ordinarily resident in the Republic.[4] And a licence application must be granted if the applicant satisfies the Council that the aircraft is registered in the Republic.[5]

But the Act says the Council “must” exempt an applicant from this resident-citizen requirement if the Minister of Transport, after considering an application for exemption (on the form prescribed by regulations made by the Minister),[6] “directs the Council to exempt” the applicant (on conditions determined by the Minister).[7] (The prescribed exemption-application form does not lay down criteria for the applicant to meet but merely requires the applicant to provide its corporate particulars and its reasons for applying for exemption.[8]) And the Council “may in its discretion exempt” an applicant from this requirement and issue the licence subject to “conditions the council deems fit” regarding operation and maintenance of the aircraft.[9]

These provisions, contemplating exemptions from the citizenship-residency and aircraft-registration requirements, undermine the Rule of Law concern that laws should apply generally and not target or benefit select individuals.[10] The provisions authorise political interference (in the case of residency) and discretionary exemptions (in the case of aircraft registration) and unjustifiably limit the fundamental right to equal protection and benefit of the law,[11] a Rule of Law principle. The provisions confer broad discretionary powers that could be arbitrarily exercised, violating the Rule of Law right not to be subject to arbitrary discretionary powers.

(The factors relevant to exercise of the discretionary power are not so numerous or varied that they can’t be identified in advance, and are not clear and obvious.[12] While arguably the Minister may be well-placed to exercise discretion for exemption from the residency rule and the Council may have expertise relevant to when an applicant may be exempt from the aircraft-registration rule, the relevant factors should as far as possible be stated in the Act or regulations.)

[1] Air Services Licensing Act 115 of 1990.

[2] Air Services Licensing Act s 12(1).

[3] Air Services Licensing Act s 14(1) read with s 1(1) “council”.

[4] Air Services Licensing Act s 16(4)(c)(i) and (ii) read with s 1(1) “resident of the Republic”.

[5] Air Services Licensing Act s 16(4)(e) read with s 1(1) “South African aircraft”, referring to (since-repealed) Aviation Act 74 of 1962 s 1 “South African aircraft”, must now be read as referring to Civil Aviation Act 13 of 2009 s 1(1) “South African aircraft” (Interpretation Act 33 of 1957 s 12(1)).

[6] Air Services Licensing Act s 1(1) “Minister”, “prescribed”, “regulation”.

[7] Air Services Licensing Act s 16(5).

[8] Govt Notice R2180 of 30 August 1991. Domestic Air Services Regs 1991, regs 6(1)(c) and (2), annexure B: form TV2/272: Exemption application: part 1 (particulars regarding the applicant) paras 1.7–1.10, part 2 (reasons for application for exemption).

[9] Air Services Licensing Act s 16(6).

[10] President of the Republic of South Africa and Another vs. Hugo, 1997 (6) BCLR 708 (CC) para [102].

[11] Constitution, Ch 2 (Bill of Rights), s 9 (Equality): s 9(1).

[12] Affordable Medicines Trust vs. Min. of Health of RSA 2005 (6) BCLR 529 (CC) pars [33]–[34].

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Gary Moore

Gary Moore BA LL.B. (Witwatersrand) LL.M. (UC London) is a South African lawyer and Senior Researcher at the Free Market Foundation.

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