Helibase (Pty) Ltd v Commissioner for Civil Aviation and Others (5185/06) [2009] ZAWCHC 136 (13 February 2009)

REPORTABLE IN

THE HIGH COURT OF SOUTH AFRICA

[CAPE OF GOOD HOPE PROVINCIAL DIVISION]

Case No: 5185/06

In the matter between:

HELIBASE (PTY) LIMITED Appellant

and

THE COMMISSIONER FOR CIVIL AVIATION

(S MACHOBANE) First Respondent

THE SOUTH AFRICAN CIVIL AVIATION

AUTHORITY Second Respondent

MINISTER OF TRANSPORT Third Respondent

CHRISTOPHER PURNELL Fourth Respondent

ANDY MAMBA Filth Respondent

JUDGMENT DELIVERED; 13 FEBRUARY 2009

FOURIE, J:

[1] This is an appeal against the dismissal by Zondi, AJ (as he then was) of an application by appellant for the review of a decision by first respondent not to register an imported helicopter ("the helicopter") in South Africa. The appeal is with the leave of the court a quo. The first, second, fourth and fifth respondents (collectively referred to as "respondents") oppose the appeal, while third respondent abides the decision of the court.

[2] Appellant relies essentially on the substantive review ground that first respondent's refusal of its application to register the helicopter in South Africa, was not rationally connected to the information before him and the reasons given for the refusal. In addition, appellant raises a number of procedural review grounds. Appellant accordingly contends that the decision of first respondent is reviewable and should be set aside in terms of the provisions of The Promotion of Administrative Justice Act, No. 3 of 2000 ("PAJA").

[3] Civil aviation in South Africa is governed by the Aviation Act No. 74 of 1962 ("the Act") and the Civil Aviation Regulations

("the CAR's") promulgated in terms of the Act. The registration of aircraft is governed by Part 47 of the CAR's. The

dispute as to the registration of the helicopter concerns Part 47.00.5 (2) (a) (iii) of the CAR's, which, respondents contend,

appellant was required to, but failed to comply with.

[4] Part 47.00.5 (2) (a) (iii) provides as follows:

"An application [for the registration of an aircraft] shall be accompanied by-

(iii) if the first of a type of aircraft is imported into the Republic and is to be registered on the register, the type acceptance certificate issued by the Commissioner. "

[5] Respondents maintain that the helicopter is the first of a type of aircraft imported into South Africa and to enable it to be

registered, the production of a type acceptance certificate issued by first respondent, is a prerequisite. Appellant contends that the helicopter is not the first of a type of aircraft and should have been registered by first respondent, there being no need for the production of a type acceptance certificate. It is common cause that first respondent's decision not to register the helicopter,

constitutes "administrative action" as envisaged in PAJA.

[6] The right to just administrative action is derived from section 33 of the Constitution and, as envisaged in section 33 (3), the different review grounds have been codified in PAJA. As emphasised by Harms JA in Foodcorp (Pty) Ltd v Deputy Director-General, Department of Environmental Affairs and Tourism, 2006 (2) SA 191 (SCA) at para. 12, the distinction between appeals and reviews must be maintained, since in a review a court is not entitled to reconsider the matter and impose its view on the administrative functionary. The court has to treat administrative decisions with

"deference", but this does not imply "judicial timidity or an unreadiness to perform the judicial function".

[7] The main contention of appellant is that the decision taken by first respondent, is reviewable under subsection 6 (2) (f) (ii) (cc) and (dd) of PAJA, which provides as follows:

"6.

(2) A court or tribunal has the power to judicially review an

administrative action if

(f) the action itself

(ii) is not rationally connected to-

(cc) the information before the administrator, or

(dd) the reasons given for it by the administrator. "

[8] This subsection has introduced the element of rationality, which, as explained by Cora Hoexter, Administrative Law in South Africa, page 307, in essence means that a decision must be supported by the evidence and information before the administrative functionary as well as the reasons given for it. In the present context it means that first respondent's refusal to register the helicopter, has to be rationally connected to the information before him and the reason given by him (ie the need for a type acceptance certificate).

[9] In considering the requirement of rationality introduced by PAJA, the Constitutional Court has emphasised that the test for rationality is a relatively low one and that the standard of reasonableness "is a higher standard than rationality."

(See: Khosa, Mahlaule and Others v Minister of Social Development and Others [2004] ZACC 11; 2004 (6) SA 505 (CC), at para. 67).

[10] In Nieuwoudt v Chairman, Amnesty Subcommittee, TRC 2002 (3) SA 143 (C), Davis J, writing for the Full Bench, articulated the application of the rationality test for review, as follows at 164G-H:

"As set out above, the test for review is one of rationality and justification rather than the substitution of the court's opinion for that (of) the tribunal on the basis that it finds the decision to be substantively incorrect. So long as there is a rationale for the decision which is based on the evidence placed before the committee, a court should be loath to substitute its own opinion for that of the Committee. In essence the test is a common- sense one. "

[11] The issue to be determined in this appeal is whether first respondent's decision not to register the helicopter, is to be set

aside on one or more of the review grounds relied upon by appellant, and if so, whether this court itself should register the aircraft or remit the matter to first respondent for purposes of registration.

[12] The court a quo approached the matter on the basis that it was faced with an insurmountable dispute of fact, entailing "two mutually destructive versions concerning the status of this aircraft" and concluded that, in view thereof, the application for review had to fail.

[13] In deciding whether first respondent's refusal to register the helicopter is rationally connected to the information before him and the reason given by him, namely the need for type certification, it is necessary, firstly, to determine the facts on which first respondent based his decision. In this regard, I should mention that no less than seven sets of affidavits, containing repetitive and (often) irrelevant matter, were filed by the parties. However, if one remains mindful of the central inquiry -did first respondent act reviewably in refusing the application on the basis that the helicopter was the first of a type in South Africa - the relevant

information before first respondent appears to have been the following:

(a) The helicopter was assembled by South West Florida Aviation ("SWFA") from a compilation of spare and surplus parts, some of which may have emanated from a helicopter formerly in service.

(b) The United States Federal Aviation Authority ("the FAA") granted the helicopter a standard airworthiness certificate on 30 October 2000, certifying that at the date of issuance thereof the helicopter had "been inspected and found to conform to the type certificate thereof. The airworthiness certificate, however, does not identify the relevant type certificate, but identifies the model and manufacturer of the helicopter as "250 A-l. Bell/SWF A". On 4 May 2006, the FAA confirmed in writing that the said airworthiness certificate had been issued "after assurance of conformity to the Bell type certificate (H1SW)". The FAA further recorded that "this was the one-and-only helicopter made by SWFA from a compilation of spare and surplus parts (associated with the Bell H1SW type certificate/design) which we have ever certificated".

(c) In an e-mail of 4 May 2006, addressed to fourth respondent, the FAA added that:

"The helicopter, as we unfortunately know, never received a US Export Certificate of Airworthiness formally attesting to conformity of its applicable type design and condition for safe operation on its departure from the United States and import into South Africa ".

(d) There is no manufacturer in the USA (or elsewhere) known as Bell/SWFA. Bell is an aircraft manufacturer with type certificate

H1SW. SWFA is not an aircraft manufacturer, but a rebuilder of aircraft for specified purposes in terms of its type certificate

H6S0. According to SWFA it did, in some instances with the assistance of Bell's personnel, identify the parts used to rebuild the

helicopter, as original Bell spare parts or other parts which conform to Bell's type certificate.

(e) This was the second application for the registration of the helicopter in South Africa. The first was made by Executive Helicopter (Pty) Limited ("Executive") in April 2006. After an investigation by an Aircraft Review Board appointed by first respondent,

Executive's application was refused on 18 May 2006. The Review Board recommended that the helicopter "should be registered as a non type certificated aircraft only". It is significant to note that the Review Board had apparently contacted Bell in regard to the application for registration of the helicopter in South Africa, and was advised as follows:

"The manufacturer Bell Textron would not accept this aircraft type as associated with their type certificate".

I should add that in the review application this attitude of Bell was confirmed in an affidavit deposed to by its Chief: Civil Certification and Regulatory Requirements, Wayne Joseph Barbini, He attests that the helicopter was manufactured by SWFA, not Bell; that the airframe is not Bell-built; that the helicopter was not checked by Bell to assure conformity to the type design and that the helicopter "is not a Bell aircraft",

(f) Appellant's application was lodged two days after the refusal of Executive's application for the registration of the helicopter and did not include any new material, other than the details of the new applicant (Appellant).

[14] It was submitted on behalf of appellant that where, as in the instant case, SWFA assembles a 250 A-l model aircraft, it is done under the Bell H1SW type certificate and remains a Bell type certified aircraft. As it is common cause that aircraft manufactured under Bell type certificate H1SW, are not the first of a type in South Africa, appellant contended that type certification is not required for the registration of the helicopter. It is, however, not common cause that the helicopter is, in fact, a model 250 A-l manufactured under Bell's type certificate. It does not appear to be in issue that the helicopter is an aircraft assembled by SWFA (and not Bell) from a compilation of spare and surplus parts. It appears to me, that in such event it would be necessary for the regulating authority in South Africa to be satisfied that the end product is an aircraft which conforms to Bell's type certificate H1SW.

[16] If one now asks whether, on the information before him, there was a rationale for first respondent's refusal of the application on the basis that the helicopter was the first of a type in South Africa, the following considerations are, in my view, material:

(a) The helicopter was not manufactured and assembled by the manufacturer on whose type certificate appellant relies. In fact, the helicopter is the product of an assembly by a third party of spare and surplus parts, some of which may have been acquired from a helicopter formerly in service.

(b) This was the one-and-only helicopter assembled by SWFA from spare and surplus parts, which the FAA has ever certificated.

(c) The crucial document upon which appellant relies for purposes of registration in South Africa, is the certificate of airworthiness

issued by the FAA nearly six years earlier. It states that it had been issued after assurance of conformity to type certificate H1SW, which "assurance" was evidently obtained after steps had been taken by SWFA to identify the spare parts used to assemble the helicopter. However, it has to be borne in mind that, although SFWA maintains that the spare parts conform to type H1SW, Bell does not accept the helicopter as an aircraft type associated with their type certificate.

(d) The helicopter has not received a US Export Certificate of Airworthiness formally attesting to conformity of its applicable type design.

(e) The Aircraft Review Board which considered a similar application for the registration of the helicopter, concluded that on the strength of the information before it, the helicopter "should be registered as a non-type certificated aircraft only".

(f) In Part 1.00.1 of the CAR's a "type of aircraft" is defined as "all aircraft of the same basic design including all modifications thereto except those modifications which result in a change in handling or flight characteristics". First respondent was required to determine whether the helicopter is the first of a type of aircraft imported into the Republic of South Africa or whether it is a type of aircraft which had previously been registered in South Africa. This was not a case of the importation of a Bell model 250 A-l helicopter which had been manufactured by Bell, but the importation of a helicopter assembled by SWFA from spare and surplus parts, which are alleged to be Bell type certificated parts. Even in the United States the helicopter was unique and did not, prior to its exportation to South Africa, receive a formal attesting to conformity of its applicable type design.

[17] First Respondent is the appointed aviation regulator in South Africa who has, in an application of this nature, to assess whether a particular aircraft is the first of a type within the purview of part 47.00.5 (2) (a) (iii) of the CAR's . There can be no doubt that in performing his function with regard to the registration of aircraft, first respondent has to strive to promote civil aviation safety and security. Bearing this in mind, I am of the view that notwithstanding the production of the certificate of airworthiness issued by the FAA, first respondent was rightly concerned as to whether the helicopter had been shown to be a type which had already been registered in South Africa. Put differently, the refusal of first respondent to register the helicopter in the absence of type certification, was, in my opinion, rationally connected to the information which had been placed before him. In particular, it appears to me that on the available information first respondent was justifiably concerned that the helicopter was a kind of hybrid, the conformity of which with the Bell type certificate H1SW was not satisfactorily established. In fact, such conformity was expressly denied by Bell.

[18] In view of the aforegoing, I conclude that the decision taken by first respondent is not reviewable under subsection 6 (2) (f) (ii) (cc) and (dd) ofPAJA.

[19] As mentioned before, appellant also raised a number of procedural grounds for review. In raising these grounds, appellant has adopted what was termed "a blunderbuss approach" by Heher J (as he then was) in National Director of Public Prosecutions v Phillips 2002 (4) SA 60 (W) at 105 H-I, without making it clear what its case in regard thereto is. This can best be illustrated by referring to paragraph 35 of appellant's counsel's heads of argument, which requires the inference to be drawn that first respondent's failure to register the helicopter, can only be explained as having been taken "for an ulterior purpose or motive and/or in bad faith and/or arbitrarily or capriciously".

[20] I am in agreement with the submission on behalf of respondents, that appellant's reliance on inference to establish review grounds, is itself a telling concession: Appellant clearly finds itself unable to point to pertinent facts as supporting particular procedural review grounds. Not only do the allegations in appellant's papers not justify the inference which it seeks to draw, but in view of my finding that, on the evidence before first respondent, there was a rational basis for his decision, there is no room for the inference which appellant seeks to draw.

[21] I accordingly conclude that the court a quo correctly dismissed the application for review. In the premises, the issue whether this court should register the helicopter or remit the matter to first respondent for purposes of registration, does not arise.

[22] In the result, I propose that the appeal be dismissed with costs, which are to include the costs of two counsel.

PB FOURIE, J

I agree.

D V Dlodlo, J

I agree and it is ordered accordingly.

D Van Reenen, J