SINCE THE 1970s, there have been various instances where the helicopter industry and the South African Air Force (SAAF) came into conflict over the right of the SAAF to compete against the private sector for contract work. These disputes have generally centred on the SAAF taking up charter, cargo sling, air mercy service or off shore replenishment operations where this work could ordinarily be performed by the civil industry – but at higher cost.
The private sector helicopter industry argued that it was manifestly unfair for State Entities funded by the tax payers to take work away from the very private sector that contributed towards the tax base of the country. In the past, the SAAF appreciated the strength of this argument and together with the other Government entities operating State aircraft, negotiated a “Standing Agreement” with the Helicopter Association of SA (HASA) to fairly address the issue. This Standing Agreement provided that where any State Entity (including the SAAF) was requested to provide a service utilising State aircraft and where the service could be provided by the private sector, that this request should first be referred to HASA for circulation to those operators capable of providing the service in a safe and reliable manner at normal commercial rates.
The gist of the Standing Agreement is that private sector operators must first be allowed to tender for work, prior to it being taken up by a Government Entity using State aircraft. The SAAF and HASA on various occasions over the years have re-affirmed the veracity of the Standing Agreement. And the SAAF’s policy on this issue should not have been reversed, because, as recently as post-1994, the Government implemented tougher measures to reduce abuse, restrictive practices and improve competiveness throughout the country’s economy. In light of this history, the helicopter industry was infuriated to read in the media about a dispute between Titan Helicopters and Petro-SA over the latter’s alleged failure to renew an off-shore replenishment contract and the alleged “replacing” of Titan with the SAAF.
Around the same time, allegations were doing the rounds that the SAAF had also assumed responsibility for an Air Mercy Service in the Kimberley area that had previously been operated by a private sector operator. In light of the media reports and circulating rumours, HASA felt it necessary to address a strongly worded letter to the Chief of the Air Force to remind him of the terms of the Standing Agreement with HASA and enquire why the SAAF was not complying with the agreement. The HASA letter initiated the following response from the SAAF: “Your concern relating to the Petro-SA operations is duly noted. Rest assured that the SAAF values its good relations with the wider South African aviation community.
“As you have indicated, it is not appropriate to discuss the detail of the operation. It does, however, need to be recognised that the SAAF has an obligation to respond to instructions and there will be times when it is not always possible to abide by the indicated procedure…”. Although it is comforting to note that the SAAF values good relations with the wider South African aviation community, the latter part of the reply does raise a few concerns with respect to what might have occurred in the Titan matter, as well as what might transpire in the future. Two immediate questions come to mind, namely: Who can give “instructions” for the SAAF to take over an operation and, secondly, for what purpose does the law allow the SAAF to be employed?
With respect to who can instruct/authorise the employment of the SAAF, the Defence Act provides that the President or Minister of Defence may authorise the employment of the Defence Force for service inside the Republic. However, the question regarding for which purposes the SAAF can be employed, is more complex. This issue is also dealt within the Defence Act which ostensibly sets parameters that allow the SAAF to perform any AMS or off-shore replenishment operations or act in support of any department of State. The Defence Act is, however, silent on whether the SAAF is allowed to operate for reward or compete with private sector operators for this type of work.
But this is not where the issue ends. The applicable provisions of the Defence Act are sub-ordinate to the requirements of the Constitution, 1996. One of the purposes of the Constitution is to provide a framework for limiting the State’s power which includes protecting against any abuse by the Defence Force. The relevant constitutional provisions clearly limit the role of the Defence Force to primarily defensive and protective purposes. The Constitution also requires the Defence Force to pursue all its matters in compliance with the law, including international law. This would mean that when the SAAF involves itself in an area where legislation such as the Air Services Licensing Act or even the Competition Act, 1998, are applicable, then this legislation will apply to the SAAF.
As we know, the Air Services Licensing Act requires each air service operator to be in possession of a valid air service licence and valid operating certificate – documentation which the SAAF does not possess. On the international side, it is fact that the Chicago Convention 1944, which forms the basis for aviation laws throughout the world, clearly excludes aircraft operated by military forces from the commercial civil aviation regime. So, leaving aside the issue of the HASA Standing Agreement, it is clear that our Constitution restricts the role of the Defence Force in such a manner that the SAAF is prevented from taking over work that should rightly be performed by private sector operators. It is, therefore, incumbent on the Ministry of Defence to refrain from any future involvement in the commercial aviation environment and thereby show more respect for the rights and interests of those helicopter operators that contribute some of the taxes that fund our military forces.
