Cemair grounded - wins Appeal yet again!

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Re: Cemair grounded - and WINS Appeal again!

Unread post by Jack Welles » Thu May 02, 2019 10:41 am

rodmur wrote:
Thu May 02, 2019 9:57 am
THEY HAVE WON THE COURT CASE AND I HOPE THEY SUE CAA TO HELL AND GONE
Just for your information it wasn't actually a court case, but anyway good luck with sueing CAA, given the legal defences a defendant has when a plaintiff institutes a claim for damages. Incidentally writing in caps doesn't make the claim any stronger :lol:
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Re: Cemair grounded - and WINS Appeal again!

Unread post by Richard Smit » Fri May 03, 2019 6:37 am

GL wrote:
Thu May 02, 2019 8:37 am
Believe it or not there are unlikely to be any grounds to complain to ICAO. the CAA was doing its job enforcing safety. the only complaint is that it was doing it badly.

So, wouldn’t that be a bit like a traffic cop issuing speeding fines to drivers that are driving within (or at) the speed limit? That’s way more than doing his job badly.

While reporting them to ICAO may not achieve anything, it seems appropriate that there should be some kind of “corrective action” enforced upon the CAA, and it’s officers.

Unchecked authority doesn’t sit well with me.
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Re: Cemair grounded - and WINS Appeal again!

Unread post by GL » Fri May 03, 2019 7:32 am

Richard Smit wrote:
Fri May 03, 2019 6:37 am
GL wrote:
Thu May 02, 2019 8:37 am
Believe it or not there are unlikely to be any grounds to complain to ICAO. the CAA was doing its job enforcing safety. the only complaint is that it was doing it badly.

So, wouldn’t that be a bit like a traffic cop issuing speeding fines to drivers that are driving within (or at) the speed limit? That’s way more than doing his job badly.

While reporting them to ICAO may not achieve anything, it seems appropriate that there should be some kind of “corrective action” enforced upon the CAA, and it’s officers.

Unchecked authority doesn’t sit well with me.
I agree with your last statement 100%, and am really angry that unchecked authority was allowed to kill CemAir. However as we well know its not quite as binary as saying CemAir were not breaking the speed limit. As I have said before, if a regulator looks hard enough at any airline they will find areas where it has 'broken the speed limit.' The question is how best to deal with it. Its the lack of a check and balance against the CAAs unchecked authority that has caused this travesty.
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Re: Cemair grounded - and WINS Appeal again!

Unread post by GL » Fri May 03, 2019 6:11 pm

The CAA Responds:
MEDIA STATEMENT FOR IMMEDIATE RELEASE 03 MAY 2019

SA Civil Aviation Authority to continue with CemAir AOC renewal audit

[Johannesburg] The South African Civil Aviation Authority (SACAA) has reviewed the judgement handed down by the Civil Aviation Appeal Committee (CAAC) following an appeal brought against the SACAA by CemAir. The airline’s appeal related to four (4) notices issued by the SACAA, which resulted in the suspension of the airlines Part 121 and 135 Air Operator Certificates (AOCs) as well as the resultant grounding of the airline’s fleet during the course of the CemAir AOC renewal audit in December 2018 and January 2019.

The decision of the CAAC, which was delivered by the Tribunal on 29 April 2019 set aside the two grounding notices issued by the SACAA against CemAir, and referred the matter back to the SACAA to continue with its audit and consider the evidence provided by CemAir subsequent to the issuing of the grounding notices.

The SACAA has noted the following key rulings by the Tribunal as outlined in paragraph 266 to 268 of the judgement, which must be implemented by the Regulator.

“Whilst Section 8 (1) (c)(ii) of PAJA permits a court or tribunal to substitute its findings for that of the decision-maker, this may only be done in exceptional cases. The wide discretion afforded to the CAAC must be balanced against the interests of the Applicant and the responsibility of the Regulator in overseeing aviation safety and that of the public inter alia in accordance with Sections 71 and 72 of the Civil Aviation Act.”

“Whilst the CAAC considered the arguments put forward by both Parties, the sentiments set out in paragraph [266] above deal with the matter and find that it is not necessary to pronounce any further thereon.”

“In light of the above, the CAAC finds that it cannot rule that the annual renewal audit for the year ending January 2019 was duly finalised and concluded favourably and that the Respondent is entitled to its renewal of the Part 121 and Part 135 AOC’s for the period ending January 2020, however the CAAC does make an order to refer the consideration of the application for the renewal of the AOC back to the DCA for immediate and proper reconsideration of inter alia the documentation presented or made available by the Appellant to the Respondent and its inspectors and authorised officers in terms of Section 88 of the Act, and in accordance with the true intent and meaning of Part 121 and Part 135 of the Regulations.”

The above extract from the ruling outlines the way forward, as well as the respective responsibilities of both the Appellant (CemAir) and the Respondent (SACAA).

The implications of the Tribunal’s decision is that CemAir is still not permitted to operate as an airline or utilise any of its aircraft commercially, pending the renewal audit process being finalised, and the operator being issued with the relevant operating certificates or approvals.

“The actions expected to be undertaken by the Director of Civil Aviation, as well as by both the SACAA and CemAir, as outlined in the ruling, are unambiguous, and as a result, I have already delegated my functions in terms of legislation to the SACAA's Aviation Safety Operations to immediately implement the recommendations of the CAAC as summarised above,” said Ms Poppy Khoza, who is the Director of Civil Aviation.

“It is also in the interest of aviation development and safety to have this matter resolved as quickly as possible. However, in practical terms, the pace of finalising this matter is in the hands of the airline. The Regulator will rely on CemAir’s cooperation in relation to the submission of the relevant documents and records, as well as any other evidence that will contribute to the speedy completion of the inspection. To this end, I have written to CemAir to inform the operator of my decision to continue the renewal audit and inspection process for purposes of completing this task. The expectation is that the operator will submit all the documents and records to the SACAA inspectorate for purposes of the audit,” Khoza explained.

The SACAA’s Aviation Safety Operations division has also sent communication to the airline detailing the SACAA's preliminary requirements for the renewal audit, which will entail the AOC renewal audit and inspections pertaining to the certification of airworthiness of the CemAir fleet.

The SACAA is very keen to see the airline back in the air and as soon as practically possible, and hence the necessary arrangements have been made to ensure that its inspectorate can instantly start auditing the airline.

“The primary role of the SACAA is to preserve lives by ensuring high standards of aviation safety and security. No regulator in the world or any other industry can achieve this if they do not discharge their mandate in a fair but firm manner, and most importantly, without any form of favouritism or fear,” Khoza concluded.
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Re: Cemair grounded - and WINS Appeal again!

Unread post by Jack Welles » Fri May 03, 2019 7:12 pm

That puts an awful lot into perspective ...
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Re: Cemair grounded - and WINS Appeal again!

Unread post by HJK 414 » Fri May 03, 2019 7:19 pm

Jack Welles wrote:
Fri May 03, 2019 7:12 pm
That puts an awful lot into perspective ...

Eddie,

What happens if Cemair decline..?
The reputation must be shattered by now..

The grounding was "unnecessary"... Yet the consequences are real...

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Re: Cemair grounded - and WINS Appeal again!

Unread post by Jack Welles » Fri May 03, 2019 7:22 pm

HJK 414 wrote:
Fri May 03, 2019 7:19 pm
Jack Welles wrote:
Fri May 03, 2019 7:12 pm
That puts an awful lot into perspective ...
Eddie, What happens if Cemair decline..? The reputation must be shattered by now.. The grounding was "unnecessary"... Yet the consequences are real... JK
This is getting well above my pay grade (because getting into speculation as opposed to interpretation) but I would think that it depends on whether they want that clearance to operate or not. If not, I'm pretty sure they can say: "Thank you, but no thank you." and the whole matter will end there.
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Re: Cemair grounded - and WINS Appeal again!

Unread post by HJK 414 » Fri May 03, 2019 7:36 pm

Jack Welles wrote:
Fri May 03, 2019 7:22 pm
HJK 414 wrote:
Fri May 03, 2019 7:19 pm
Jack Welles wrote:
Fri May 03, 2019 7:12 pm
That puts an awful lot into perspective ...
Eddie, What happens if Cemair decline..? The reputation must be shattered by now.. The grounding was "unnecessary"... Yet the consequences are real... JK
This is getting well above my pay grade (because getting into speculation as opposed to interpretation) but I would think that it depends on whether they want that clearance to operate or not. If not, I'm pretty sure they can say: "Thank you, but no thank you." and the whole matter will end there.


Thx,

I am almost afraid to ask....
Consequential damages ,...??

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Re: Cemair grounded - and WINS Appeal again!

Unread post by GL » Sat May 04, 2019 7:46 am

I have to admit that I don't see what it puts into perspective.
All I am seeing (apart from the criticism of the CAA's procedures) is that after grounding the airline for 4 months the CAA has been instructed to continue with the AOC renewal. So its like winding the clock back 6 months and the Same old Shart will just start over.
I reckon MvdM will feel he's been invited to continue hammering his head against a brick wall.
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Re: Cemair grounded - and WINS Appeal again!

Unread post by Falafel » Sat May 04, 2019 9:53 am

GL wrote:
Sat May 04, 2019 7:46 am
I have to admit that I don't see what it puts into perspective.
All I am seeing (apart from the criticism of the CAA's procedures) is that after grounding the airline for 4 months the CAA has been instructed to continue with the AOC renewal. So its like winding the clock back 6 months and the Same old Shart will just start over.
I reckon MvdM will feel he's been invited to continue hammering his head against a brick wall.
Would imagine that the CAA would tread very carefully right now and would be a very different approach. However up to Cemair to decide if enough damage has been done to make it unworkable or if they can salvage things...

All the best to Cemair... certainly looks like at this point you have been really done in... dont know how it will all end but this brings a new sense of disolusion to some who perhaps wanted to give the structures of the regulator the benefit of the doubt
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Re: Cemair grounded - and WINS Appeal again!

Unread post by Jack Welles » Sat May 04, 2019 10:46 am

GL wrote:
Sat May 04, 2019 7:46 am
I have to admit that I don't see what it puts into perspective.
Maybe I was a little obscure. In effect I was putting all the posts in re "huge win for Cemair" and "major loss for CAA" into perspective.

To continue with that thought, for all practical purposes, nothing has changed. As I stated earlier I never did see all the howling after CAA blood etc. What I saw was a rebuke for not carefully separating certain functions so as to avoid the possibility of the perception of bias as well as a rebuke for a heavy-handed approach. In other words, as previously stated, it was about the process and not the substance of the matter.(despite what is allegedly a Senior Counsel's opinion :lol: )(that's how lawyers earn fees, by disagreeing :twisted: )

Why do I say that? Three reasons:

1) Because the CAAC did not order the reinstatement of the licences, but really just said don't be so aggressive.

2) The CAAC did not even see fit to give standard party-and-party costs order when the appellant asked for two counsel.

3) So as far as the substance of the matter is concerned the status remains quo. In order to get their operating licences back Cemair will still have to jump through the paperwork hoops to the satisfaction of the CAA. IOW, nothing has changed.

So, I say again, to apply a flying trope (ie, aviate before communicate) to this situation: negotiate before you litigate.

I still have a feeling that from day one when CAA was believed to be behaving badly (Cemair's opinion) they should have jumped through all the hoops with a: "Yes sir, no sir, three bags full, sir" and then when firmly back in harness, approach the courts for a declaratory order saying that CAA's approach was pretty crappy. That way that would still have had their business but also the satisfaction of putting CAA in its place (if they won the case, of course). To throw all your eggs into one basket by immediately not cooperating but going the legal route was always going to be a tough row to hoe.
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Re: Cemair grounded - and WINS Appeal again!

Unread post by Jack Welles » Sat May 04, 2019 10:51 am

HJK 414 wrote:
Fri May 03, 2019 7:36 pm
[I am almost afraid to ask....
Consequential damages ,...?? JK
As previously stated that's a tough call given the defences that any defendant has against a claim for damages (the Law of Delict).

To give a definitive answer as to the chances of success the court case would have to drill down into "who said what and how was it said" etc etc and there's no way any of us here can have that detailed a knowledge of the internals of both sides of whatever arguments there were. It comes done to stuff like "intention" etc which is a subjective quality which has to be judged objectively from the available evidence. It's complicated 8-[
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Re: Cemair grounded - and WINS Appeal again!

Unread post by Caravan Driver » Sat May 04, 2019 12:33 pm

Out of interest, how many Cemair pilots were released to the market?

That alone would be a mission to get back to operating status. Recurrent training etc.
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Re: Cemair grounded - and WINS Appeal again!

Unread post by rare bird » Sat May 04, 2019 2:47 pm

unfortunately, the bottom line is that it is unlikely that consumers will be rushing to book seats again. Clearly there is still some stubbornness going on and a complete lack of faith / goodwill / trust. The oversight body is fickle and DoT have an unclear agenda, so, as others have stated, it is going nowhere imo. Documents that are missing can't just magically appear - and the system does not really allow for an honest fix (eg if you lose your id book, you can make an affidavit and go and apply for a new one. - with a/c parts records that are missing from the original owner of an aircraft, there is not much one can do - possibly replace the part with one that does have all its paperwork, but it seems that this will still not plug the gap - ie the audit findings are impossible to close out.) still, I wish Miles & team well, and hope that their other operations can prosper.
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Re: Cemair grounded - and WINS Appeal again!

Unread post by GL » Sat May 04, 2019 6:09 pm

CemAir in no hurry to return to the sky:
CemAir.... won't be flying just yet - https://www.timeslive.co.za/news/south- ... -just-yet/
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