State unlawfully trying to make BEE a prerequisite for air services licenses

18 December 2023

The Air Services Licensing Council (ASLC) is unlawfully making air services licenses conditional upon race criteria. The ASLC is threatening to withhold air services licenses from aviation business owners too white for its liking.

Sakeliga today urgently demanded that the ASLC immediately stops this process and returns to the application strictly of only the criteria for which it is lawfully empowered, namely those concerning operations, safety and accountability. The ASLC is acting ultra vires, unconstitutionally and unlawfully.

The ASLC is currently placing applicants and holders of air services licences under pressure to indicate their ‘commitment to transformation’ and ‘increasing their promise of participation in B-BBEE’, before they are to be awarded licenses. There exists no basis in legislation to make race, transformation or B-BBEE a prerequisite for air services licenses. All the relevant legislation, like the Air Services Licensing Act (115 of 1990), focus on safety and accountability.

This unlawful and unacceptable state interference harms companies and their shareholders, employees and clients, as well as the local aviation industry as a whole. Moreover, it ultimately compromises local aviation safety by elevating criteria that have nothing to do with operational standards and accountability to the level of admission criteria.

Sakeliga invites role players in the aviation industry who require more information on the legal position to contact Sakeliga. In the meantime, we recommend that aviation role-players remain firm and do not give in to unlawful demands. Compliance with such demands would not only be to their private detriment, but also to the detriment of the public. Compliance would unavoidably serve to embolden a council, apparently already willing to act beyond its powers, to expand its demands more and more in a harmful and rigged game in which it keeps shifting the goalposts. Sustained compliance in such a game is impossible.

In the letter by attorneys for Sakeliga, we demand that the ASLC:

refrain from demanding transformation commitments and B-BBEE information from applicants applying for a license or licence renewal under the Air Service Licensing Act 115 of 1990;

provides an undertaking that it will not pressure applicants applying for a license or licence renewal under the Air Service Licensing Act 115 of 1990, to increase their current B-BBEE scores, or to participate in any transformation schemes created or considered by Council;

refrain from, directly or indirectly, implying to applicants that they should comply with any of the above demands, or that compliance with such demands will be taken into account by the Council when making a decision on any application before it under the Act;

provides an undertaking that it will not penalise an applicant in the awarding of any license because of an applicant's level of participation in B-BBEE or any other transformation objectives considered by the Council or its members.

Sakeliga insists on the ASLC’s written reply by 5 January 2024 and reserves all rights.
Click here for the letter by Sakeliga’s attorneys.

Issued by Piet Le Roux, CEO, Sakeliga, 18 December 2023