Major Blue Air suffers double tragedy
Major Blue Air Pty Ltd whose Air Operator certificate (AOC) was recently suspended by the Regulator suffered a double tragedy this week when Lobatse High Court Judge Reiner Busang dismissed their urgent application for reinstatement with costs.
The dismissal with costs means the airline remains closed with the only remedy being to work very closely with the Regulator, Civil Aviation Authority Botswana (CAAB) and meet the requirements as per the law. The airline claims to be losing millions since their certificate was suspended.
In his founding affidavit of an urgent application seeking the court to revise the Authority decision to suspend his Airline Operation Certificate one of MBA Directors, Arjinder Pal Singh stated that the cost of MBA’s operation is approximately P1.5 million.
“I am not convinced by the submission which in essence denotes that a party in the position on MBA has rights protected by the law, but, enjoy no remedy for the violation of the same rights. MBA’s pleadings and submissions with respect to the balance of convenience is premised on commercial considerations and nothing more. CAAB suspended the OAC because human life had been lost due to the accident.
“I cannot think of a case where the scales for justice would tilt in favour of commerce as opposed to loss of life which is inviolable,” Judge Busang ruled. The airline’s business operations generate between P1.7 to P1.8 million monthly and more in the months of June- September which are peak season months in Botswana. The income is generated from the medical and tourism flights by the company to the flying customers.
Should the suspension of its AOC remain in place MBA face financial ruin in that it would be unable to sustain its operations without any income. This is more so that MBA had received payments for flights that were scheduled to take place each day of the month in the months of June and August.
The damage to MBA reputation if the suspension remains in place pending the review application, remains unimaginable. Firstly, the fact of the suspension itself requires the MBA to issue notification to its customers that their flights have been cancelled necessitates that the reasons for cancellation of its flights be known to its customers.
This has and will continue to damage the reputation of the MBA in the eyes of the customers who have known it to be reliable safe and compliant operator.
On 29 June 2023, a fatal accident occurred at Ghanzi, Oakdene airstrip resulted in three (3) fatalities, two (2) of which are American citizens and the other being a citizen of Botswana. CAAB conducted a preliminary investigation into the cause of the accident and identified serious contravention of the Civil Aviation Regulations including training of pilots and competence of the pilots. The investigation also revealed that pilot error led to the accident. This necessitated a precautionary suspension of operations to enable CAAB to conduct a further investigation.
On 13 July 2023, CAAB suspended the Oak of Major Blue Air Pty. 19 July 2023; Major Blue Air Proprietary Limited has instituted urgent proceedings before the High Court of Botswana against the Civil Aviation Authority of Botswana (CAAB). In his affidavit, Chief Executive Officer of CAAB, Dr. Bao Mosinyi stated that during the inspection, the Authority CAAB requested for the training files of pilots involved in the accident. Upon discovery that the two pilots had failed the recommended regular safety trainings, the MBA’s trainings files for all the pilots were requisitioned. Upon assessment of the files, the Authority discovered that all the pilots had performed below CAAB’s safety performance standard.
Subsequent to examination of training results, CAAB’s representatives sought the MBA’s training manual. Upon its assessment it was found out that the manual had missing pages, particularly the 2020 amendments to the manual. MBA’s Operations Manager was requested to provide the missing pages of the manual on site - where it was required to be. The Operations Manager stated that they do not have access to the amendments. ”This is a clear contravention of Regulation 16 which requires that MBA keep the complete manual records available to staff all the time for purposes of ensuring the pilot’s compliance to the expected aviation standards.,
He said CAAB communicated to MBA to work closely with them in order to normalise the situation. However, MBA opted to seek redress with the courts
MBA challenged the decision seeking the Court to grant an Order interdicting and, or suspending CAAB’s decision to suspend Major Blue Air Pty Ltd’s AOC pending the outcome of the application by Major Blue Air; interdict and restrain CAAB and its officials from taking steps to implement its CAAB’s decision to suspend MBA’s AOC as well as award costs against CAAB on an attorney and own client scale including the costs of counsel and further and/or alternative relief.
Further Major Blue Air alleged that they were never given a hearing to plead its case thus alleging that CAAB has contravened the audi alteram partem rule. Dismissing MBA’s application with costs Justice Busang stated the point is whether MBA has established a well-grounded apprehension on an irreparable harm. MBA‘s position is that it has no cause of action for damages in the event the application is dismissed.
The submission was made notwithstanding the fact that the cause of action is illegality and irrational conduct on the part of CAAB, in other words, MBA in terms of the pleadings enjoys the protection of the law against an illegal act, but commission of the same illegal is devoid of any consequential relief and redress. No authority was cited for the submission.
Major Blue Air Pty Ltd is a company duly registered under the Companies Act of Botswana which offers air charter services, scenic tours, and emergency medical evacuation flights. Secondly Major Blue has a registered Approved Training Organisation (ATO) and a registered Approved Maintenance Organization (AMO). The three are all licenced separately and independent of each other. Major Blue Air Pty Ltd has thirteen (13) aircraft registered in the aircraft register.