A FlySafair aircraft at Cape Town International Airport. Picture: Henk Kruger/Independent Newspapers
THE complaint by commercial airlines Airlink and Global Airways Operations to aviation authorities to level the playing field with their competitor Safair Operations over the latter’s suspected majority foreign ownership of 74% could possibly be withdrawn if parties reach an agreement.
Airlink and Global – the co-owners of the domestic airline Lift – have lodged a formal complaint to the International Air Services Council and the Air Services Licence Council, saying that foreign investors and shareholders predominantly owned Safair, the owner of FlySafair, thus breaching the Air Services Licensing Act and the International Air Services Act.
Safair’s lead advocate, Thembeka Ngqukaitobi, told the International Air Services Licensing Council yesterday that they were requesting a postponement of the hearing, which had been set for yesterday at the headquarters of the South African Civil Aviation Authority (Sacaa).
Ngqukaitobi said the parties were working on as yet undisclosed remedial measures which may or may not result in a settlement.
He said the postponement by a month at least would explore this option as well as determine the process of the hearing if it came to it, whether by opposed motion or in trial form.
Ngcukaitobi also submitted, as did Global’s advocate Ian Green, that all parties had not come to the hearing prepared for arguments on the core complaint, but needed to establish the parameters of the hearing and set up confidentiality clauses as a lot of the information to be submitted was commercial.
“We cannot give details at this stage on the remedial measures we have suggested,” he said.
“The plan is to consolidate a set of proposals and furnish the documents to the complainants and the council. We can do this in a month, maybe 30 days would suffice.”
Also in contention were the parameters of the hearing as options presented included either an opposed motion or in trial form with witnesses being presenting evidence, being cross-examined or subpoenaed if necessary, with Global insisting on confidentiality of information submitted to the council and the competitors.
Council chair Nomveliso Ntanjana ruled that the hearing be postponed to early May with all counsel expected to submit their proposals by the 19th of this month to the council for consideration prior to the next hearing.
She ruled out Green's suggestion of ring-fencing the entire complaint documents and amendments into confidential status, thus ruling out the possibility of a public debate on the complaint and counter-arguments.
After an adjournment to determine how the hearing would be conducted, Ngcukaitobi said there was agreement on a postponement to explore remedial measures that could not as yet be disclosed, which could determine whether the matter went forward or not.
He said the amendments sought were not being opposed in substance and that the complaint may be withdrawn.
“We need to figure out the process of the hearing. There is no specified procedure. We could go as an opposed motion with statements and legal arguments or akin to a trial which will take time. We need to consult with Global,“ Ngcukaitobi said.
“The application of the amendments will be subject to the complainant. The parties will consult and provide a schedule of the manner of the hearing.”
He said the plan was to consolidate the set of proposals on the format of the hearing if it came to having it and to submit documents to the other parties and the council.
“We would like direct engagement with the council for full disclosures in confidence, and once that process is finalised, we can make the proposals to the other parties and to the council,” he said.
“We should be able to finish that process in a month or within a month, 30 days or so will suffice.”
Green said they were in agreement with the postponement but took exception to confidentiality aspects of the disclosures, which may be applied against Global in accessing some information relevant to its case.
However, Ntanjana allowed for the postponement to May 10.
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