Sakeliga brings BEE case against Air Services Licensing Council
15 November 2024
Sakeliga has filed litigation to protect air services providers and customers from harmful and unlawful BEE conditions in air services.
In papers served this week, Sakeliga asks the court to set aside the Air Services Licensing Council’s (ASLC) harmful, unlawful, and unconstitutional licensing requirements regarding BEE and transformation.
The ASLC is a statutory body responsible for the licensing of domestic air services providers, including passenger services, medical services, cargo services, fire-fighting services, and more.
Since at least December 2023, the ASLC has been denying and/or frustrating domestic air services providers’ licences by arbitrarily insisting on B-BBEE certification and transformation undertakings. Our lawyers warned the council to halt this conduct and limit itself to the regulatory duties it is lawfully authorised to carry out, but the council persisted and refused to admit any wrongdoing.
Denying licences based on BEE is contrary to the ASLC’s statutory mandate in the Air Services Licensing Act (115 of 1990).
The Act prescribes that the ASLC must issue licences whenever an applicant complies with requirements on safety, residency, and control and registration of aircraft, and precludes the ASLC from adding additional requirements. There is no basis in law for making race, transformation, or B-BBEE a prerequisite for air services licences.
By introducing licensing criteria that have nothing to do with operational standards and accountability, these licensing practices are compromising commercial freedom and the availability and safety of local aviation services.
As part of our investigation, Sakeliga discovered an additional concerning practice by the ASLC. Unlawfully so, the ASLC expressly prohibits applicants from recording their licensing application hearings and even bringing any electronic equipment into such hearings. This, despite the fact that the Act stipulates that the hearings should be public.
During these hearings, applicants have found themselves confronted with arbitrary and verbal demands regarding BEE and transformation, which conveniently appeared nowhere on paper.
If the panel wasn't satisfied with undertakings or explanations, applicants would be instructed to reapply after they had complied with outstanding BEE requirements.
Following the ASLC’s refusal to cease its harmful and unlawful conduct, Sakeliga is now requesting the court to:
1. Set aside the ASLC’s decision to include BEE criteria in its licensing process and declare the inclusion of race-based criteria in such licensing unlawful.
2. Declare unlawful the ASLC’s prohibition on the use of electronic devices during hearings and on the recording of meetings and other interactions with ASLC staff.
Sakeliga’s founding affidavit and supporting documents may be found here.
International Air Services Also Affected
Since initiating our investigation into the harmful and unlawful conduct of the ASLC regarding domestic air services licences, we have uncovered and been made aware of similar unlawful conduct regarding international air services in South Africa.
It appears that the ASLC’s counterpart for licensing of international air services, the International Air Services Council (IASC), has been making demands of major international airlines to comply with arbitrary BEE and transformation requirements.
Sakeliga is in the process of obtaining further information through PAIA requests and industry relations and will consider litigation against the IASC should it prove necessary.
Issued by Tian Alberts, Legal and Liaison Officer: Sakeliga, 15 November 2024
