CemAir vs the 'Commission Against Aviation'

There are a number of worrying aspects to the latest grounding of CemAir. The most obvious is that the grounding was implemented at the start of a long weekend and so caused the maximum disruption to passengers and damage to the airline.

The Civil Aviation Authority (CAA) has acknowledged that it has a function to develop the aviation industry – and not as the wry joke says – be the ‘Commission Against Aviation’. The previous Civil Aviation Act (40 of 1998) made specific reference to the CAA’s responsibility to develop aviation in that one of the CAA’s objectives is to “oversee the functioning and development of the civil aviation industry”.

In the light of the CAA’s behaviour this year, I consider it significant that this requirement is no longer in the current Civil Aviation Act.

There has been an unprecedented increase in the frequency of airlines grounded by the CAA. In the twenty years to 2018, it was almost unheard of for an airline to be grounded. Only two groundings come to mind: Nationwide on 30 November 2007 and the limited grounding of Airlink’s J-41 Jetstream fleet on 23 December 2009.

In marked contrast to the two cases in the past twenty years, this year the CAA has grounded airlines three times: CemAir on 2 February, then SA Express on 24 May and then CemAir again on 12 December. Aviation consultant Linden Birns notes, “It may be purely coincidental, but 3 out of 5 groundings have coincided with the peak December holidays.” And the fourth happened on the Easter Weekend.

Either the airline industry has suddenly turned bad – or the CAA has run amok. The test came in the courts. CemAir was able to show the High Court that the CAA’s claims that the airline was unsafe were groundless. CemAir said that “the judge 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.” It is worth noting too that CemAir meets IATA’s stringent international IOSA standards of safety.

There has long been a suspicion that there is a dearth of real-world skills and experience in the regulator to understand the difference between safety management as a paperwork compliance exercise, and safety in terms of the actual airworthiness of aircraft.

(It didn’t help that the Titanic was 100% compliant with the safety regulations.)

The speculated reasons behind why the CAA persists in taking such drastic action against CemAir are flying thick and fast. Many argue that the CAA is acting either vindictively, or at the behest of a state-owned airline, probably SA Express (SAX), which is still struggling to get back on its feet after its own grounding. My view is that it is unlikely that the CAA is responding to pressure from SAX, however it may be targeting CemAir because the airline is, in CEO Miles van der Molen’s words, “snowflake central’ in terms of its lack of affirmative action transformation. But here’s the thing – good black airline skills, whether management or pilots, are mostly concentrated within the state-owned airlines.

At the March grounding, it was touch and go as to whether CemAir would survive. Thanks to its diversified charter income, it did. This time around the CAA grounded not just the airline, but the entire charter operation as well. The small privately-owned airline could not have survived more than a few days of being completely grounded.

In a move which went a considerable way to allay the fears that the regulator had been acting as an agent of the state-owned airlines to shut down a private sector competitor to SAX, just three months after the CAA had grounded CemAir, it grounded SAX itself. But this was an airline already on its knees with an abysmal on-time performance and no money to pay for maintenance. As long as the state continues to shore up and then bail out its unprofitable airlines there will always be accusations of favouritism bythe government, or by its agencies such as the CAA.

The CAA has two things on its side – firstly it is responsible for airline safety and that is almost always a non-negotiable. Secondly, it is that rare animal – a well-run government agency. But perhaps it is a victim of hubris from its own importance and success. It’s hard to escape the conclusion that its arrogance leads it to launching prejudicial, and sometimes downright bullying, legal challenges against airlines and against key people in the industry. Engaging in ‘lawfare’ with its own industry has become standard practice. A judge has accused the CAA of launching ill-advised ‘legal frolics’ – which it usually loses, in some cases with punitive cost orders against it.

In the pas,t the CAA has traditionally taken a more grown-up approach to engaging with the airline industry. If an airline was not shaping up to the CAA’s requirements it was common practice for the two parties to sit down across a table and sort things out amicably. If the problem was serious enough, the airline’s CEO would be called into the CAA Director’s office and offered the proverbial cold cup of tea without a biscuit.

The current Director leaves the work of grounding airlines to her senior managers – who rule by diktat. This may be due to the vast cultural chasm between the regulator and its subjects. This chasm is slowly but surely strangling the aviation industry in South Africa. If the CAA cannot bring itself to sit down over a cup of tea with its clients, then it needs to be subject to an aviation ombudsman who will moderate its gross excesses. CemAir has suffered enormous reputational and financial harm from these groundings. And potential new entrants to the airline industry are discouraged by the spectre of being closed down by the regulator which is supposed to develop them. DM