Aviation Law and Regulatory Compliance in South Africa: Balancing Sovereignty with Global Interoperability in the 4IR Era

Authored By: Andile Princess Mpofu

Unisa

Abstract

I am not only passionate about aviation law but also learning to fly by the rules. In this bulletin, I will analyse the current legal structure for civil aviation in South Africa and assess how well it is incorporated with International Standards and Recommended Practices (SARPs). Although South Africa received an excellent 95.12% safety oversight result in the 2016 ICAO audit, there are significant issues in terms of the limits of drone regulation and the extent to which government agencies are able to use their discretion when issuing licenses. It is my argument that if South Africa is going to successfully transition into the 4th Industrial Revolution (4IR), then it needs to move beyond “check-the-box” or “tick-in-a-box” compliance and implement a risk-based oversight model of compliance that places the rule of law at its core. I support my argument through a review of the Sakeliga judicial precedent and the 2025 draft comprehensive policy on civil aviation; as part of the proposed institutional reforms, I recommend that South Africa establish an independent authority responsible for investigating accidents involving commercial aircraft so that South Africa can remain competitive globally and allow the aerospace sector to develop sustainably.

1. Introduction

The business of operating commercial aircraft is regulated by a broad and intertwined set of laws that dictate how the world works: treaties, statutes, and highly specific operating rules; as such, for attorneys that practice in the aviation field, it has been said to consist of two competing factors. Those factors are complete sovereignty of each individual country’s airspace and also complete operational harmony between two or more countries, so that safe, secure, and efficient travel can occur worldwide. This framework is based upon two primary needs. Enforcement of this “rule of law” to eliminate unlawful interferences while fostering an atmosphere in which 100,000 flights a day can operate without issues through multiple countries.

The foundational elements for such a systems architecture will be rooted in The Convention on International Civil Aviation (Chicago Convention), which lays the groundwork for what is known as Public Air Law. In South Africa, our legislative body responsible for aviation law was established under the Civil Aviation Act No. 13 of 2009, which houses all-encompassing legislation pertaining to aviation regulation; this includes aviation safety and security. Whilst this architecture has never been tested, as it will be going forward with the arrival of new technologies associated with the Fourth Industrial Revolution (4IR), we will be introducing Autonomous Flight Systems and Artificial Intelligence (AI) Driven Air Traffic Management Systems. The regulatory body will have to evolve to allow for these new technologies, but must keep Safety at the core of its agenda.

This bulletin posits that although South Africa has excellent safety supervision, existing administrative problems with licenses and the use of manned aircraft rules for unmanned aircraft create substantial threats to sector development.

The structure of this research paper is as follows:

Section 2: Provides a legal background.
Section 3: Discusses new judicial trends on regulatory excesses.
Section 4: Analyzes the legal implications of technological advancements.
Section 5: Reviews the policy proposals in the 2025 Draft Comprehensive Civil Aviation Policy.

2. The Legal Framework: International Standards and Domestic Statutes

The modern era of aviation law is built upon the recognition that air travel is an inherently international activity requiring uniform standards.

2.1 The Chicago Convention and ICAO SARPs

The 1944 Chicago Convention continues to serve as the world’s “constitution” of civil aviation, whereby Article 1 stipulates that each state has sovereignty over its airspace.¹ However, the exercise of that sovereignty is tempered through the International Civil Aviation Organization (ICAO), an autonomous body of the United Nations. The role of the ICAO involves ensuring the maximum level of unification in regulations by means of SARPs.²

Herein lies an important difference between the two types of legal documents because the ICAO “Standard” refers to a specification in which uniformity is deemed necessary in order to ensure safety, thus imposing the obligation on states to comply. In contrast, the ICAO “Recommended Practice” constitutes a desirable specification that states should try to comply with. By virtue of Article 38, the state party to the convention is obliged to inform the ICAO of the difference in its regulations compared to international standards.³

2.2 The Civil Aviation Act 13 of 2009

In the case of South Africa, the Civil Aviation Act 13 of 2009 is the principal statutory mechanism that creates the South African Civil Aviation Authority (SACAA), which serves as the regulator for civil aviation activities in the country.⁴ The Civil Aviation Act brought under one entity a variety of activities previously conducted in both the Department of Transport and separate entities. Additionally, the Carriage by Air Act 17 of 1946 gives legal effect to the Montreal Convention of 1999 within the country, while the Convention on International Interests in Mobile Equipment Act 4 of 2007 protects security interests in aircraft according to the Cape Town Convention.⁵

3. Case Law Analysis: Judicial Review and Regulatory Overreach

“Rule of Law” mandates that regulators operate within their statutorily defined scope of authority. Litigation in recent years has demonstrated an increasing tension between government socio-economic policy and the operational needs of the aviation industry.

3.1 The Sakeliga Precedent

Sakeliga vs International Air Services Council (IASC) (2025) is the case that signifies judicial activism in South Africa.⁶ In the matter in question, the Pretoria High Court held that ASLC and IASC were acting ultra vires in requiring B-BBEE credentials as a condition precedent to obtaining an air services licence.⁷

This decision was based on the statutory framework under which licences are supposed to be granted in accordance with the Air Services Licensing Act 115 of 1990, which states that the licence should be granted when it is shown that the licensee will ensure operational safety, have financial resources, and reside in South Africa.⁸ The judge held that since the Act does not mention racial transformation as a requirement for issuing a licence, the regulator did not have authority to attach any other conditions that may violate the statutory framework. Thus, the weaponization of licensing was curtailed to protect the safety of flight from political mandate considerations. Indeed, the IASC finally conceded in early 2026 to Sakeliga’s claims, thus allowing international airlines to be free from such racial licensing.⁹

4. Critical Evaluation: Technological Disruption and Liability Gaps

The rapid evolution of 4IR technologies, specifically drones and AI, has exposed inadequacies in the current regulatory and liability regimes.

4.1 The “Manned-Aviation” Burden on Drone Innovation

Remote Piloted Aircraft System (RPAS) regulations are under Part 101 of the Civil Aviation Regulations.¹⁰ While the country was one of the pioneers of drone regulations way back in 2015, it is currently argued that its regulatory framework is too “stringent.” Through the application of manned aircraft requirements, such as stringent Class 3 medical examinations and approved training organizations, the authority has set up prohibitive financial hurdles.¹¹ The result has been an extremely high rate of illegal operations among small-scale commercial operators such as farmers and wildlife conservationists.

4.2 AI and the Liability Shift

In ATM and predictive maintenance, there is a “black box” issue of responsibility arising from the use of AI technology.¹³ The present aviation legislation under Article 17 of the Montreal Convention presumes that an accident is triggered by some exogenous cause or pilot error. But with the advent of AI systems playing supervisory functions, it will be challenging to pinpoint human culpability.¹⁴

Legislators recommend changing the focus from pilot error to product liability in lawsuits against the manufacturer of the automated systems.¹⁵ In the case of a collision due to the autonomous choice of an AI system, one should establish whether the artificial intelligence has “personhood,” imposing strict liability on its creators, or acts as an agent, thus imposing vicarious liability on the airline.¹⁶ While recognizing the requirement for implementing AI legislation by sector, South Africa’s Draft National AI Policy (2026) fails to provide an explicit liability pathway for aerospace applications.¹⁷

4.3 Surface Damage and Strict Liability

According to Section 8 of the Civil Aviation Act 13 of 2009, South Africa maintains a strict liability regime towards any material damage that occurs to a person or property on the ground caused by the aircraft.²¹ This is based on the “Danger Theory,” according to which people engaged in dangerous activity for their benefit should be responsible for any harm caused to an innocent party.²² Significantly, this Act has done away with the “dry lease” exception of the 1962 Act, ensuring that registered owners are liable irrespective of their control of the plane.

5. Comparative Perspectives and Policy Reform

To maintain its global standing, South Africa must align its future policies with the international trend toward risk-based regulation and institutional independence.

5.1 The 2025 Draft Comprehensive Civil Aviation Policy

In May 2025, the Department of Transport issued a strategic plan for the modernization of the industry. The significant changes involve the formation of the Aviation Safety Investigation Board (ASIB) as a completely autonomous accident investigation body.²¹ Such measures are necessary to meet ICAO Annex 13 and to ensure that there will be no conflict of interest when the SACAA investigates itself.

5.2 Global Benchmarking: EASA vs. SACAA

Unlike EASA, the South African drone regulations do not have a structured risk categorization.²³ EASA enables low-risk “open category” flights without much bureaucracy. But Part 101 regulations in South Africa require high levels of regulatory attention for commercial flights. Using the EASA regulatory structure could help solve the backlog of application approvals and promote investments in 4IR technologies.²⁴

6. Conclusion

In this light, the resultant framework for civil aviation regulation in South Africa is satisfactory, incorporating an element of both local rules and those set globally as can be gauged by South Africa’s score of 95.12% for compliance with the rules during the last audit by the International Civil Aviation Organization in 2026. At this stage, it has become necessary for South Africa to move away from the current practice of merely documenting compliance or simply enforcing rules for their sake to adopt a regulatory process based on scientific risk assessments, which is in accordance with the internationally accepted best practices.

This would become necessary due to recent technological advancements involving artificial intelligence or unmanned aerial vehicles/drones. The judicial review has established that any progress in the aviation industry will remain within the framework of law, meaning that innovation in aviation regulation should not go beyond statutory limits. However, the draft policy proposed in 2025 may well mark the beginning of an era of innovation and regulatory independence in South Africa, which will promote economic modernization through innovation like aerotropoli. From the point of view of an emerging lawyer, the challenge will be to develop an innovative legal framework without compromising the stringent safety protocols provided by the Chicago Convention.

Footnote(S):

Bibliography

Legislation

Air Services Licensing Act 115 of 1990 (South Africa).
Carriage by Air Act 17 of 1946 (South Africa).
Civil Aviation Act 13 of 2009 (South Africa).
Constitution of the Republic of South Africa, 1996.
International Air Services Act 60 of 1993 (South Africa).

Legal Journals

Jojo S, ‘Drone Regulation and Application Challenges in South Africa’ (2022) 33(4) South African Journal of Industrial Engineering
Mokoena S, ‘Considering the Regulatory Framework that Governs the Operation of Drones in South Africa’ (2025) 46(3) Obiter
Tsotra A, ‘Critical Comparative Analysis of UAS Legislative Developments’ (2024) ISPRS Annals of the Photogrammetry, Remote Sensing and Spatial Information Sciences
UNISA Press, ‘Ticking the Box or Real Safety? An Analysis of South Africa’s Compliance with ICAO’ (2026) 34 South African Yearbook of International Law

Sources

Authored By: Andile Princess Mpofu

Unisa

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