Sipho Matshie
Introduction
The Supreme Court of Appeal (SCA) judgment in Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (the Oudekraal case) has had profound influence in South African administrative law. The SCA developed the so-called “Oudekraal Principle” which became a legal principle underpinning judicial review within the ambit of administrative law. This principle, said to be grounded on rule of law and good administration (Ndivhuwo Ishmel Moleya, 2018), is expounded below.
In this contribution, I discuss a rather peculiar circumstance whereby the Oudekraal principle was upheld in the spectrum of South African Aviation law, where an administrative act of an aviation regulator was a point of contention but remained undecided due to the proposition in the Oudekraal case. The aforesaid was adumbrated by the Civil Aviation Appeal Committee (CAAC) in the matter between Pearl Coral 1173 CC t/a Test Flying Academy of South Africa v Director of Civil Aviation, where the CAAC refused to entertain an appeal before it and held that a proper forum to adjudicate the matter was instead a court of law.
In putting the nub of this article into perspective, a brief discussion of the proceedings before the CAAC is apposite and are covered hereunder.
Summary of the facts before the CAAC
The appellant was granted an approval by the South African Civil Aviation Authority (SACAA) to conduct Class I Test Pilot Rating and Post Maintenance Training at two airports, namely, George and Oudtshoorn. The approval was merely temporary and after a series of media outcries, the approval was withdrawn by the respondent pursuant to its investigations conducted in relation to the activities of the appellant. The respondent found that the appellant had failed to meet the conditions that were set out in the approval letter, which included amongst others, that the appellant was to conduct Class I Test Pilot Rating in line with the European Union Aviation Safety Agency (EASA) acceptable means of compliance and guidelines material to Part- FCL; a failure to submit TPM documents in line with EASA and the fact that no pilots were issued with Class I pilot rating even after the approval was granted.
Moreover, the investigations also discovered the illegality of the temporary approval, to the effect that the EASA standards were not, and are still not, a law in South Africa because they are yet to be domesticated through the appropriate Constitutional channels. The training to conduct pilot rating was also said to be unlawful because South Africa did not have legislatively adopted technical standards. In addition to that, it was stated that due to the fact that the approval itself was temporary, the SACAA vested with the discretion to withdraw its decision in light of any circumstantial changes or amendment to the regulatory framework of pilot ratings.
Satisfied with its investigative findings, the SACAA addressed correspondence to the appellant and highlighted the fact that the approval was granted in error. Firstly, SACAA made mention that EASA or its standards have not been adopted in South Africa and no decision may be made in reliance thereof. Secondly, the respondent stated that the temporary nature of the approval entitled it with subsequent withdrawal powers. Although the appellant was given an opportunity to make representations in terms of section 11 of Civil Aviation Act 13 of 2009 (the Act) on why the approval must not be withdrawn, nonetheless, the approval was eventually withdrawn.
Aggrieved by this decision, the appellant lodged an appeal in terms of section 120 of the Act. Interestingly, the appellant invoked the Oudekraal principle as a point in limine in the appeal proceedings before CAAC, contending that the respondent had no legislative power to withdraw the decision other than a court of law. The Oudekraal principle was extensively considered by the CAAC and it held that the principle indeed applies. This meant that the decision to withdraw the temporary approval, howsoever invalid it might have been, can only be taken by a court of law and not unilaterally by the respondent. This point is elaborated below under the discussion of the Oudekraal principle.
Understanding the Oudekraal Principle
As alluded to above, the principle espoused in the Oudekraal case is one of the tenets of South African administrative law. It simply means that an administrative act, in so far as it might be unlawful or invalid, it shall apply until a court of law sets it aside (para 29 of the Oudekraal case). Thus, an administrator is not permitted to reverse his or her own decision and must instead follow proper legal procedure in order to set aside an administrative error (DM Pretorius, 2005). Therefore, unless and until such administrative act has been properly reviewed by court, it must be treated as legally effective. This, however, does not mean that an otherwise invalid administrative act becomes valid, the thinking behind this principle is to guard against taking law into one’s own hands. Morgan AJ inMmakoena Malven Phaho v Matome Given Supe (Civ App MAG [2023] ZANWHC succinctly propounded that ‘Oudekraal is no authority that a court must overlook an irregularity. What it connotes is that the decision is binding inter partes’ (at para 29) unless such an irregularity is set aside (own emphasis).
The Oudekraal rule was dipositive of the matter before the CAAC. The respondent argued that it had the necessary powers to withdraw its temporary approval granted to the appellant. However, the CAAC found that granting the temporary approval was an administrative act which only a court of law may review and that the respondent, acting under the authority of the SACAA has no power to self-correct. This finding has reaffirmed the Oudekraal principle within regulatory bodies of South African aviation, thus extending the application of administrative law across various disciplines.
The Oudekraal principle and powers of aviation regulators
The South African aviation industry is administered by the SACAA, an organ of state within the Department of Transport which has been established in terms of the Civil Aviation Act 13 of 2009. Like any other organ of state, the SACAA is subject to the [administrative] law and the Constitution of the Republic of South Africa, 1996. In this respect, the powers and functions of this entity are equally reviewable in terms of, for instance, the Promotion of Administrative Justice Act 3 of 2000 (PAJA). Where administrators acting on behalf of the entity err or otherwise conduct unlawful administrative acts, such as relying on foreign regulatory standards not adopted into domestic law as the respondent did in casu, such decisions will have legal effect until and unless they have been reviewed by a competent court.
What is clear is that the SACAA is also subject to the rules of administrative law, such as legality, procedural fairness and must equally pass the rationality test outlined in PAJA. The CAAC ruling has illustrated that other principles of administrative law such as Oudekraal have constraining effect on aviation regulators as well.
In addition, what the CAAC matter also indicated was that the aviation sector, in as much as it is guided by complex technical standards and international norms such as the International Civil Aviation Organization regulations drafted pursuant to the Chicago Convention, principles emanating from domestic law equally dictate the administration of this sector.
Conclusion
The outcome before the CAAC offers an authoritative application of the Oudekraal principle within the rare field of South African aviation law. What the matter has reaffirmed was that aviation regulators are not permitted to unilaterally undo or self-correct their decisions, irrespective of how legally flawed they might be. Instead, they should seek intervention from a court of law to, firstly review, and then secondly set aside that decision. The basis of this, is the Oudekraal principle which requires that unlawful administrative decisions ought to enjoy legal effect and may draw upon legal consequences until set aside in court.
The appellant approached the CAAC to lodge an appeal after its approval was withdrawn. While in those appeal proceedings, the appellant then raised a preliminary point which ousted the jurisdiction of the CAAC. Ostensibly, the appellant may have approached the CAAC merely to comply with the rule pertaining to exhaustion of internal remedies before a review application is made to a court of law. This conclusion is reached when one considers the fact that the approval granted to the appellant was itself patently unlawful because it was not grounded on any empowering legal provision. In my view, the granting of temporary approval to the appellant is reviewable and it remains to be seen how the appellant will approach the matter if the respondent was to institute a review in the High Court. Be that as it may, this matter has reignited the judicial reach of the Oudekraal principle, which in this case involved South African aviation industry.
About the author:
Mr Sipho Matshie holds an LLB degree, and is currently pursuing a Master of Laws at the University of South Africa, majoring in Aviation Law. He currently serves as a Candidate Legal Practitioner at the University of South Africa Law Clinic