CemAir to resume ops

Discussions pertaining to Airline operations,safety and training for Flight Deck Crew. Open to anyone who would like to learn all aspects of the Airline industry from a pilots perspective.

Moderator: Moderators

User avatar
GL
10000 and still climbing
10000 and still climbing
Posts: 10336
Joined: Fri Sep 23, 2005 10:08 am
Closest Airfield: FAHT
Location: Lost for words
Has thanked: 234 times
Been thanked: 699 times

Re: CemAir to resume ops

Unread post by GL »

apmostert wrote: Thu Feb 13, 2020 9:39 am Hi Miles

Any chance the Hoedspruit route will be reactivated?

Regards
Peter
Yes - pretty please!
Credo quia absurdum
User avatar
Burner
Fife Thousand feet
Fife Thousand feet
Posts: 5228
Joined: Mon Jan 30, 2006 2:21 pm
Closest Airfield: LIMB
Location: Northern Italy
Has thanked: 82 times
Been thanked: 677 times

Re: CemAir to resume ops

Unread post by Burner »

Are the Q400s and the CRJ 9 flying again?
User avatar
AC6T
Tree Tousand
Tree Tousand
Posts: 3731
Joined: Tue Dec 07, 2004 3:46 pm
Has thanked: 120 times
Been thanked: 32 times

Re: CemAir to resume ops

Unread post by AC6T »

Burner wrote: Thu Feb 13, 2020 3:46 pm Are the Q400s and the CRJ 9 flying again?

No sure about the CRJ9, I know the Q400's are operating.

6T
If you're faced with a forced landing, fly the thing as far into the crash as possible. - Bob Hoover
Life is not a malfunction. (Johnny 5)
A.K.A Bruce Wayne
User avatar
Deanw
8000 Tousand
8000 Tousand
Posts: 8098
Joined: Wed Jan 28, 2004 1:37 pm
Closest Airfield: FACT
Has thanked: 96 times
Been thanked: 859 times

Re: CemAir to resume ops

Unread post by Deanw »

Van Der Molen v Civil Aviation Authority [2023] ZAGPJHC 988
5 September 2023

CIVIL PROCEDURE – Exception – Claims against CAA – Actions by commercial airline and director against Civil Aviation Authority – Decisions grounding entire fleet of airplanes – Claims for defamation and breach of duty of care – Argued by the CAA that no such duty of care exists under our law – Failure to give required notice to organ of State – Reliance by CAA on section of Act on lack of liability of its employees acting in good faith – Exceptions dismissed with costs – Civil Aviation Act 13 of 2009, s 99.

Facts: Cemair conducts the business of a commercial airline and Mr Van der Molen is a director. Under the Civil Aviation Act 13 of 2009 (the CA Act) the Civil Aviation Authority (CAA) has an oversight and regulatory function in relation to the conduct of such a business. Mr Salela, an Airworthiness Inspector, made certain administrative decisions in his official capacity with the CAA during December 2018 and January 2019 which had the effect of grounding Cemair’s entire fleet of airplanes. Certain statements were made by the CAA on its website relating to the grounding.

Claim: Two actions were brought, one by Mr Van der Molen for defamation and one by Cemair based on the alleged breach by the CAA of its duty of care towards the airline. It is contended that the CAA halted its business without reasonable grounds for doing so, grounding the plaintiff’s entire fleet under circumstances where the CAA’s investigation only pertained to one aircraft, and that there was a failure to comply with the procedures in the CA Act. The CAA has raised exceptions.

Notice to organ of State: The contention raised by the CAA on non-compliance with the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 and that because there has not been the requisite notice the court is entitled to find, on exception, that the actions are fatally defective. The failure to state that there has been notice in terms of the Act or that it is intended that condonation for the lack of filing of the notice will be sought does not affect the integrity of the cause of action pleaded. The lack of notice is a point external to the pleading. Such points must be raised by way of special plea. The exceptions in terms of the Act are not competently raised.

Section 99 of the CA Act: The section reads that no employee of the Civil Aviation Authority is liable in respect of anything done or omitted in good faith in the exercise of a power or the performance of a duty. Cemair alleges that the defendants took the decisions intentionally and in bad faith and in a manner that was unfair. This puts the pleaded claim outside of the limitation in section 99. The exception based on this section must also fail.

Duty of care: The legal duty on the part of the defendants for which Cemair contends in its pleadings rests on the alleged breach of the CAA’s statutory duty and duty of care at common law. It is argued on behalf of the CAA that there exists no such duty under our law and that the argument that there be an extension of the Aquilian Action to accommodate such a duty is unsustainable. A court must be satisfied that a novel claim is inconceivable under our law as potentially developed under section 39(2) of the Constitution before it can uphold an exception premised on the alleged non-disclosure of a cause of action. This exception must also fail.

Order: The exceptions are dismissed with costs.

FISHER J
http://www.saflii.org/za/cases/ZAGPJHC/2023/988.html
How come every time my ship comes in I'm at the airport?

http://www.SAairforce.co.za
User avatar
GL
10000 and still climbing
10000 and still climbing
Posts: 10336
Joined: Fri Sep 23, 2005 10:08 am
Closest Airfield: FAHT
Location: Lost for words
Has thanked: 234 times
Been thanked: 699 times

Re: CemAir to resume ops

Unread post by GL »

Can a legal brain please explain what's going on here - did the CAA ask for exemptions to it own rules which were refused with costs by the court ?
If so, what next?
Credo quia absurdum
User avatar
Eddie Haynes-Smart
Fife Thousand feet
Fife Thousand feet
Posts: 5711
Joined: Mon Dec 02, 2013 1:15 pm
Closest Airfield: FACT
Location: Muizenberg
Has thanked: 85 times
Been thanked: 300 times

Re: CemAir to resume ops

Unread post by Eddie Haynes-Smart »

GL wrote: Wed Sep 13, 2023 11:22 am Can a legal brain please explain what's going on here - did the CAA ask for exemptions to it own rules which were refused with costs by the court ?
If so, what next?
They were claiming "exceptions" not "exemptions". It's a legal construct that says (simply put) that the other side is technically wrong in what they are asking in the first place without going into the merits of the matter. Losing this doesn't mean that they have lost the underlying case when it is finally judged on the merits of the arguments.
Miura 30', Roast Beef, Simon's Town, Cape Town
User avatar
GL
10000 and still climbing
10000 and still climbing
Posts: 10336
Joined: Fri Sep 23, 2005 10:08 am
Closest Airfield: FAHT
Location: Lost for words
Has thanked: 234 times
Been thanked: 699 times

Re: CemAir to resume ops

Unread post by GL »

Thanks yes. Have spoken to Miles - and he confirms that the CAA was trying the exception tactic to get the Cemair claims chucked out, but that once again, the CAA got a bloody nose from the court.
The CAA used a very expensive legal firm so they must have spent millions on this 'lawfare' with their own and Cemair's costs - which will be added to our CAA fees.
These users thanked the author GL for the post:
Whirly
Credo quia absurdum
User avatar
Eddie Haynes-Smart
Fife Thousand feet
Fife Thousand feet
Posts: 5711
Joined: Mon Dec 02, 2013 1:15 pm
Closest Airfield: FACT
Location: Muizenberg
Has thanked: 85 times
Been thanked: 300 times

Re: CemAir to resume ops

Unread post by Eddie Haynes-Smart »

GL wrote: Wed Sep 13, 2023 2:40 pm Thanks yes. Have spoken to Miles - and he confirms that the CAA was trying the exception tactic to get the Cemair claims chucked out, but that once again, the CAA got a bloody nose from the court.
The CAA used a very expensive legal firm so they must have spent millions on this 'lawfare' with their own and Cemair's costs - which will be added to our CAA fees.
Perhaps it's understandable from a journalistic perspective (I'm not sure about this aspect) but from a legal perspective you're making more of this than it deserves. It's a perfectly normal litigation tactic when a previously untested area within the law is possibly ambiguous or open to interpretation. Then any attorney worth his salt (and after taking advice from the appropriate level of counsel) will deploy the tactic on behalf of a client.

To be fair the general public's ability to judge this sort of thing has been eroded by the Stalingrad tactics enployed by various characters who not need be named as they are well known.
Miura 30', Roast Beef, Simon's Town, Cape Town
Volo
Tree Tousand
Tree Tousand
Posts: 3112
Joined: Tue Apr 21, 2009 12:39 pm
Closest Airfield: FAOR
Location: Kempton Park
Has thanked: 836 times
Been thanked: 1269 times

Re: CemAir to resume ops

Unread post by Volo »

Never mind the legal speak - It's all Latin or even Greek to me and I think a good deal of participants on this forum are none the wiser after reading some of these posts but in essence it appears as though the real argument about SACAAs actions with regard to Cemair havnt even started yet.
I am guessing that a good many readers on this thread believe as I do that CAAs actions in suspending Cemair were politically motivated to discredit them and anyone else they could find fault with to position our National airline more favourably in the market going forward - maybe ?? - just saying .
These users thanked the author Volo for the post (total 2):
V5 - LEOMouser
User avatar
V5 - LEO
Niner Tousand
Niner Tousand
Posts: 9120
Joined: Mon Dec 05, 2011 4:18 pm
Closest Airfield: FYWH
Location: Namibia
Has thanked: 978 times
Been thanked: 805 times

Re: CemAir to resume ops

Unread post by V5 - LEO »

....⬆️⬆️ or to put them on the backfoot for the starters pistol???
In God I trust. The masses are never right, the minority are sometimes right, but the truth is always right.
“One good teacher in a lifetime may sometimes change a delinquent into a solid citizen.” — Philip Wylie

Return to “Airline Chatter”