With the news that the Air Services Licensing Council is to proceed with the case of non-compliance against local airlines against FlySafair, South African travelers are potentially looking at a catastrophe for domestic air travel.
If the council’s interpretation of the act is upheld by a court, this interpretation would ground FlySafair's fleet of 34 aircraft due to being non-compliant and will impact around a large percentage of South Africa’s domestic seat capacity.
Kirby Gordon, Chief Marketing Officer of FlySafair says: “The implications of this are huge, because, with the exception of the complainants (LIFT Airlines) and the state-owned South African Airlines (SAA), no other airline meets those criteria. SAA is owned by the state”.
Airlink recently announced that Qatar has purchased 25% of their airline.
Gordon says “If FlySafair operations are to be interrupted on this basis then the same rule must apply to the others too. When combining Airlink, SAA and FlySafair together that equates to about 87% of the seats on the domestic market.
“There are about 350 000 seats operated a week in SA, so that would mean about 304 000 seats would fall away. The result would be catastrophic”.
The initial complaint put to the council by LIFT airlines, was that FlySafair was not compliant with what are called the “Nationality provisions” of the act.
The Act says that 75% of the voting rights of an airline must be held by SA residents.
This is true for FlySafair, however 50% of the voting rights are held by SA residents who are the trustees of a Trust that owns half the airline.
The council is now saying that FlySafair is non-compliant not because of foreign ownership or voting rights, but because too much of the airline is owned by companies and trusts, rather than by “natural persons”.
The nationality provisions have been a source of repeated legal contention in South African aviation.
“There’s no reason that the rest of the industry, the economy, or the flying public should be harmed through drastic and brash decision-making," says Gordon.
Legislation is irregular in global aviation
This interpretation would also be highly unique and irregular in the context of global aviation with almost no examples of similar legislation existing in other countries around the world.
The Council’s findings not only ignore established legal precedent — such as the 2014 Comair Court ruling, which clarified that councils should not “look through” layers of ownership - but also displays a lack of understanding of the structures they are tasked with regulating.
The Air Services Licensing Council decision mirrors a similar decision by the International Air Services Licensing Council on 31 October 2024, which also notes FlySafair’s non-compliance with similar nationality provisions pertaining to its license for international operations.
The International Council’s attempt to impose sanctions was successfully halted by FlySafair through a court interdict process, forcing the International Council to first engage further with FlySafair and provide reasons before proceeding with punitive actions.
IOL Travel