The Air Services Licensing Council of South Africa has concluded that FlySafair is not adhering to the Air Services Licensing Act. This ruling may have significant repercussions for the aviation sector.

The decision follows a complaint lodged by Lift, claiming that FlySafair does not meet the 75% South African residency requirement for voting rights as mandated by the act.

This ruling aligns with an earlier judgment from the International Air Services Licensing Council in October 2024, which suggested imposing swift penalties without the usual legal justifications. FlySafair successfully contested that judgment through a court interdict.

The crux of the issue centers on how residency requirements are interpreted, with the council insisting they should apply only to “natural persons,” thus excluding trusts and corporations. FlySafair, primarily owned by South African trusts and corporations, argues that this interpretation misrepresents both the law and established legal principles.

A potential threat to the sector

Kirby Gordon, chief marketing officer at FlySafair, warns that the council’s interpretation not only endangers FlySafair but also poses a risk to most South African airlines, including prominent carriers like Airlink and South African Airways (SAA).

“If this interpretation stands, the majority of the domestic aviation industry, which constitutes 87% of seat capacity, would be deemed non-compliant,” he cautions.

Read: FlySafair says its ‘non-compliance’ affects nearly all South African airlines

Gordon further points out that this interpretation contradicts the 2014 Comair court ruling, which clarified that councils should not “look through” ownership layers.

Wider context

The nationality requirements have long been a contentious issue within South African aviation. FlySafair is in the process of seeking judicial clarity through a declaratory order. This application, which has the backing of Minister of Transport Barbara Creecy, faces opposition from Lift, Airlink, and other councils.

The Minister has already expressed support for a more modern interpretation of the law through a proposed new Air Services Bill, which aligns with FlySafair’s stance.

“This reasoning raises serious concerns,” says Gordon. “If councils continue to make decisions without fully understanding the law, the consequences will be dire.”

Industry ramifications

FlySafair argues that the councils’ stance serves only Lift’s interests, putting the broader aviation industry, the economy, and consumers at risk.

It highlights that such restrictive laws are rare globally, with other regions adopting more inclusive approaches to ownership structures.

Looking ahead

FlySafair is committed to complying with regulations and participating constructively.

“We are hopeful that the courts and the Minister of Transport will guide this process back onto a rational path,” adds Gordon.

As legal proceedings unfold, the South African aviation sector is bracing for clarity on a ruling that could significantly reshape the regulatory landscape and affect the future of domestic air travel.

Provided by FlySafair.