Keyser v South African Civil Aviation Authority and Another (A336/2015) [2015] ZAGPPHC 949 (3 December 2015)

REPUBLIC OF SOUTH

AFRICA

IN THE HIGH COURT OF

SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: A336/2015

DATE: 3 DECEMBER 2015

In the matter between:

S B KEYSER.................................................................................….................................APPELLANT

And

SOUTH AFRICAN CIVIL AVIATION AUTHORITY...................................FIRST

RESPONDENT

THE CIVIL AVIATION APPEAL COMMITTEE....................................SECOND

RESPONDENT

JUDGMENT

KUBUSHI, J

[1] This is an opposed appeal against the whole of the judgment and order made by the Civil Aviation Appeal Committee on 30 March 2015 refusing to grant the appellant condonation for the late noting of his appeal. This appeal emanates from the appeal that was noted by the appellant to the Civil Aviation Appeal Committee, the second respondent herein, wherein the appellant was appealing a decision taken by the Director of Civil Aviation in her capacity as an official of the South African Civil Aviation Authority (“SACAA”), the first respondent herein.

[2] Before us the appellant is represented by Mr A. R. Van der Merwe and both respondents are represented by Mr K. D. Ramolefe.

[3] The factual matrix to the appeal revolves around the suspension of the appellant’s Grade 1 Instructors Rating by the Director of Civil Aviation. What led to such suspension is that the first respondent received a report that an aircraft bearing registration number ZS-FBB belonging to Fatini Air Flight Training School was involved in an accident. As a result of the said accident the aircraft sustained serious structural damages to its left-hand wing. It was further reported that after such accident the said aircraft was temporarily repaired by an unlicensed person which resulted in an incorrect size and uncertified pop rivets used to repair the damaged wing structure, duct tape was used to repair the damaged areas of fabric on the wing and the engine of the aircraft had to be shock loaded and gears in the engine replaced. Upon investigation, it was revealed that student pilots were trained with this aircraft which was alleged not airworthy due to the damages. The report further stated that twelve days after the accident, the appellant, an instructor and trainer pilot at the Fatini Air Flight Training School, continued to train a student using the same aircraft in its temporary repaired state and that other students flew this aircraft with the same substandard repairs.

[4] As a result of this report, the Director of Civil Aviation issued an order suspending the appellant’s Grade 1 Instructors Rating with immediate effect and directed that the appellant’s Grade 1 Rating was to remain suspended until the appellant has written and passed an initial Grade 1 Flight Instructors skills test with an appropriately rated Designated Flight Examiner nominated by the first respondent.

[5] The appellant noted an appeal against this order. It became apparent at the initial hearing of that appeal that the appellant had noted the appeal out of time. In terms of the Civil Aviation Act, No. 13 of 2009, the appeal should have been lodged within a period of thirty days from the date of receipt of the reasons for the decision of the Director of Civil Aviation. It appears that the reasons for the order were granted on 2 December 2013 and the appellant lodged his appeal on 11 September 2014, eight months out of time. The appellant was granted a postponement to amend his notice of appeal. In the amended notice of appeal the appellant applied for condonation for submitting his appeal outside the stipulated time period. At a further hearing of the appeal and after considering the issues raised by the appellant in his condonation application, the second respondent refused to condone the late submission of the appellant’s appeal and his application for condonation was dismissed. It is this order which the appellant seeks to appeal before us.

[6] It transpired at the hearing of the application for condonation that the appellant had already undergone a Grade 1 initial skills test conducted by a SACAA appointed DFE and had consequently passed the test and his Grade 1 Instructors Rating had already been reinstated.

[7] One of the grounds upon which the second respondent refused to grant the condonation is because there were no prospects of success on the appeal since the relief sought by the appellant had become academic, that is, there was no longer any lis between the parties. The contention by the respondents’ counsel is that on this ground alone the appeal should be dismissed.

[8] I intent to deal first with this point raised by the respondents’ counsel since it may be dispositive of the matter before us.

[9] In terms of s 16 (2) (a) of the Superior Courts Act 10 of 2013, a court of appeal will not entertain an appeal where the disputes between the parties have been settled and the order sought will have no practical effect or result.

[10] It is common cause that at the time of hearing of the condonation application the appellant had since been retested and his Grade 1 Instructors Rating reinstated. In argument before us the appellant’s counsel contended that the appellant does no longer seek the reinstatement of his Grade 1 Instructors Rating but seeks an order to expunge the record of the proceedings wherein the order suspending the rating was taken. The main reason proffered by the appellant why it is important that the record be expunged, is that with the record in place he will not have prospects of his Designated Flight Examiner (“DFE”) status reinstated by the first respondent. The appellant’s counsel contended that this was the lis before court and has always been the lis.

[11] There was a lot of argument by both counsel as to whether or not the record will be a barrier for the appellant’s prospects of his DFE status. To me this is not the issue before us nor was it the issue before the second respondent. Whether or not the appellant will be granted a DFE status is of no moment for purposes of this appeal. What is at issue, as far as I am concerned, is whether, the appellant’s Grade 1 Instructors Rating having already been reinstated, is there still a lis between the parties.

[12] My view is that there is no longer any lis between the parties. The appellant must bear in mind that he was appealing the order of the Director of Civil Aviation which order suspended his Grade 1 Instructors Rating. The Rating having been reinstated there is no issue subsisting between the parties which require determination.

[13] The appeal noted by the appellant reads as follows:

“BE PLEASED TO TAKE NOTICE THAT the Appellant herewith files its notice of appeal against the decision of Ms Hannelie Oosthuizen (Enforcement Specialist) to suspend the Appellant’s Grade 1 Instructor rating:” (my emphasis)

The amended notice of appeal reads the same.

[14] As is evident, the notice makes no mention of expunging the record. The notice is very clear - the appeal is against the order to suspend the appellant’s Grade 1 Instructors Rating and nothing else. The Director of Civil Aviation cannot be ordered to, put crudely, “unsuspend” the licence in the circumstances where the licence is not suspended.

[15] The fact that the appellant had in his amended notice of appeal stated that

“In the Amended Notice of Appeal to the Director the Appellant recorded that he will undergo a Grade 1 initial skills test to be conducted by a SACAA appointed DFE and such action should not be perceived as a waiver of any of the Appellant's rights in terms of the Notice of Appeal against the decision of the SACAA to suspend the Appellant’s Grade 1 Instructors Rating”,

does not assist him to reinstate the issues between him and the first respondent. Once, the Rating was reinstated it brought finality to the issues between the parties. The order of the Director of Civil Aviation was even specific to state that the

suspension will remain in place until it is reinstated. The amended notice of appeal cannot in any way be said to have revived the issue that has been settled.

[16] The appellant’s further contention is that, despite the reinstatement of the Rating, there is still lis between the parties in that his appeal against the order of the Director of Civil Aviation is based on her failure to follow proper procedures which resulted in the appellant not being allowed to state his case or defend himself fully. However, on further questioning by the bench, the appellant conceded that the procedure which was followed by the first respondent in respect of the appellant’s case is a procedure which is ordinarily followed by the first respondent in all the cases that come before it. The appellant’s counsel conceded also that the appeal heard by the second respondent does not operate normally like other appeal tribunals but the process is started de novo. In this sense, and as conceded by the appellant’s counsel, it means that the appellant will have been afforded an opportunity to state his case and to answer to all the other issues which according to his counsel were only raised at the appeal stage of the process. The further argument by the appellant’s counsel that the processes and procedures followed by the respondents are flawed and contrary to the Constitution, does not take this appeal any further. I have to reiterate that this is not the issue before us and it cannot be said to be the lis between the parties.

[17] I as a result have to conclude that the order sought by the appellant in this appeal will have no practical effect or result. The appeal falls to be dismissed.

[18] Costs are normally in the discretion of the court. The appellant’s counsel submitted that since the appellant had not asked for costs should the appeal be in his favour similarly a cost order should not be granted even where the appeal is decided in favour of the respondents. I am of the view that costs should follow the successful party.

[19] The appeal is dismissed with costs.

E.M. KUBUSHI

JUDGE OF THE HIGH COURT

I concur

S.S. Madiba

ACTING JUDGE OF THE HIGH COURT

Instructed by: ZOUTENDYK ATTORNEYS

C/O LIESL VAN RENSBURG ATTORNEYS 3rd Floor, Hatfield Mall

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On behalf of the respondent: Adv. K. D. RAMOLEFE

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