PLETTENBERG BAY NEWS - Airline operator CemAir, which has regular flights in and out of among others Plettenberg Bay, has been successful in its bid to overturn the national aviation regulator's decision to suspend its air operator certificates and ground all its flights at the start of the festive season.
CemAir in a statement on Tuesday said the airline brought an urgent high court application to overturn the decision by the SA Civil Aviation Authority (SACAA) and that it was successful. "In the coming hours, we will announce our plans to restore service as soon as possible. We thank you for your continued support and offer our sincerest apology to everyone affected by our grounding," the airline said.
It initially labelled the move by the regulator as "malicious".
'Committed to safety'
"We adamantly reject the reasons offered by the CAA for their decision. We are an airline deeply committed to safety and excellence and have offered multiple reasonable solutions to the stated concerns, all of which have been rejected, an indication of a malicious intent by the CAA to bring CemAir to its knees by grounding it unnecessarily at peak season," CemAir said in an earlier statement.
This comes after the SACAA announced last week that CemAir was no longer able to operate as an airline or air operator or fly any of its 21 aircraft. SACAA spokesperson Kabelo Ledwaba said this followed a decision by the authority to suspend two of Cemair's air operator certificates (AOC) with effect from Thursday 13 December at 15:30.
Ledwaba said one of the reasons for the decision was that audit findings showed CemAir had been operating some aircraft outside of permissible loading limits, including weight and balance. "This means that the weights of the passengers and baggage declared by the flight crew were not the same as those recorded by the service provider contracted by CemAir.
Ledwaba added that a "myriad of identified noncompliances" showed the actions and conduct of the operator posed serious and immediate threat to safety.
The aviation authority confirmed the court decision and said it is pleased CemAir would finally comply with operating certificate conditions.
"This may come as good news for the airline's clients who were left stranded for several days," Ledwaba said.
Safety 'the true winner'
He added that contrary to the airline's announcement declaring the court victory, the SACAA is of the view that aviation safety is the "true winner in this regard". "This is because the court did not exonerate the airline from complying with its licence conditions. The parties reached a settlement, which was made an order of the court. The court granted an interim order pending final determination of an appeal lodged by CemAir to the director of the regulator. Suspension of CemAir's operating certificates was temporarily lifted with conditions," Ledwaba explained.
He added that although the court order temporarily lifts the SACAA's decision, it compels the airline to comply with regulations.
Through the court order, CemAir is called upon to develop a procedure for monitoring and accounting for undeclared hand luggage and submit it to the authority for approval. The airline also has to immediately comply with the weight and balance requirements.
This is not the first time the airline had issues with its compliance. In February this year, 12 of CemAir's aircraft were grounded for three weeks when it came to light aircraft had allegedly been serviced and cleared as airworthy by personnel unqualified to do so.
Following court intervention - which saw the South African Civil Aviation Authority's decision to suspend CemAir's air operator certificates, grounding all its aircraft for several days, overturned - the airline's chief executive shed some light on what has been going on behind the scenes.
Miles van der Molen said in a statement that the primary basis upon which the suspension was issued was an alleged safety compromise of the airline. He added another reason was that the SACAA alleged that CemAir did not have a Responsible Person Flight Operations (RPFO). "The CAA stated that it was a level 1 finding which it described as a severe non-conformance that poses a very serious safety risk to the public and necessitates immediate enforcement action by the SACAA and its authorised officers. They said that our airline posed a serious and immediate threat to safety," Van der Molen said.
He added despite having requested the details of the alleged safety contraventions, none were provided. "As such we resolved to approach a high court for an interdict to lift the suspension on an urgent basis. After we filed our court papers, we received an answering affidavit, which is a matter of public record."
Van der Molen said in that affidavit, the RPFO complaint dissipated. "Evidently because the CAA realised that Captain Johann Venter was appointed with effect from 7 November 2018. His curriculum vitae post 46 years of experience, an accolade that surpasses most, if not all, present CAA officials. In fact, in the founding papers CemAir stated it is with respect without any doubt that Venter with over 46 years of experience, is not only a fit and proper person to hold the position of RPFO but one of the most highly qualified for the post in South Africa.
He is certainly suitably qualified for the position. I challenged the respondent to dispute Venter's suitability or qualification. Not surprisingly the CAA did not accept the challenge. Instead they have approved Venter's appointment."
He added that he also questioned the SACAA's move to go on a "media and publicity rampage to allege, falsely, that there was no RPFO from 7 November 2018 and that the post remained vacant is a mystery".
"The false and defamatory publication designed to unjustifiably attack CemAir’s pristine safety record is regrettable. There is a strong perception among the employees of CemAir that the company is being targeted by the CAA. The senior management certainly hope that this is not true, but only time will tell once the true basis for the CAA’s actions are unraveled."
In the court papers CemAir stated that it adopts a far more conservative approach to safety than the standard set by the CAA and went on to explain
“while it is not compulsory, in 2015 I caused the applicant to register and implement a program of enhanced safety called IOSA (IATA Operating Safety Audit) which is not a requirement of the respondent. This enhanced safety program was overseen by IATA (International Air Transport Association".
"The program involved rewriting the applicant's operations and safety manuals which include 900 operational standards, which in certain instances are more stringent than the respondent’s rules. It is the benchmark for global safety management in airlines and recognised internationally. All IATA members are registered and must remain registered in order to maintain IATA membership. This voluntary exercise cost the applicant an initial amount of R 2.5-million and carries annual fees of approximately R1-million. Regular re-certification audits are conducted. The last audit was conducted in September 2017."
Van der Molen said as far as the weight safety issue was concerned, the CAA stated that CemAir had manipulated passenger weight in order to disguise its alleged overloading.
"We then filed a replying affidavit to answer that allegation. During argument it emerged that the CAA officials had overlooked regulation CATS91.07.11, paragraph 5(b) which provides that an airline may deduct 6kg from the standard passenger mass where there is no hand luggage or where it is accounted for separately. Of the 20 000 flights which CemAir conducts annually the CAA cited two examples in its court papers in which CemAir had allegedly used a standard average mass of 86 kg per male passenger instead of the regulated standard 92kg with a similar deduction for female passengers."
He added the aircraft in question, upon which the CAA relied for its overweight allegation, was a Beechcraft 1900D.
"It became clear to CemAir that the officials who conducted the audit and who made the finding of overloading as well as the officials who issued the notice suspending our license may not have appreciated the design of the 1900D. In order to assist them, CemAir took a photograph of the internal cabin of the 1900D and attached it to its court papers. The photograph showed that the 1900D does not have an overhead stowage compartment. In fact anybody who knows the 1900D, which carries only 19 passengers, will know that there is no space for any cabin luggage."
Van der Molen said the court asked the CAA’s senior counsel about this regulation, because this demonstrated decisively that the flights in question were underweight rather than overweight and that the CAA was wrong in its judgement in finding that CemAir was overweight.
"At this point the CAA’s senior counsel immediately stopped the argument and asked the court to adjourn the matter for a short while so as to allow him to take instructions from the relevant senior CAA officials. After this adjournment, the opposition to CemAir’s interdictory relief did not resume. Instead, the CAA approached CemAir to try and resolve the matter without further litigation."
Van der Molen said it had to be emphasised that the judge, during argument, repeatedly stated that should aviation safety be in question at any level, the court would be unable to assist CemAir by interfering in the CAA’s decision to suspend the airline, unless the clearest of proof was presented to demonstrate that the CAA’s approach was clearly wrong or that it had misdirected itself.
"The fact that CemAir obtained the order, under such rigorous scrutiny from the judge, on its own, speaks for itself and is a vindication of CemAir’s safety credentials.
"We were very pleased with this outcome which has vindicated our airline as we have always held the safety of our passengers and crew above all else. As a guarantee to our loyal client base we offered the court to add some conditions that will eliminate any doubt as to our safety standards."
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