Transport Minister Barbara Creecy has called airline FlySafair's request for an urgent Ministerial exemption from a disputed legal provision of the Air Service Licensing Act "premature".

She has, however, instructed her department to seek legal advice from its senior counsel on the airline’s application for Ministerial exemptions within the context of the processes that are unfolding.

“It must be noted that it is not a foregone conclusion that the Air Services Licensing Council will simply just cancel FlySafair’s licence. The council has a legal requirement to notify the company of its final decision.

“Section 24 of the Act also provides that any person who feels aggrieved by a decision of the council may appeal the decision to the High Court,” Creecy points out.

She urges that due processes should be followed and concluded and that the council will eventually pronounce its final determination, after which FlySafair can exercise its right to appeal should it need to.

FlySafair asked the Department of Transport to intervene in regulatory proceedings that have found the airline on the wrong side of South Africa’s foreign ownership restrictions and in possible breach of its operating licence.

The company argues that civil aviation regulators’ interpretation of the regulations is flawed and, if applied, will render nearly every airline in the country as non-compliant and result in widespread suspensions.

FlySafair faces two challenges to its ownership structure following complaints from competitors Global Aviation Operations, which operates Lift Airlines, and Airlink South Africa, respectively.

The International Air Services Licencing Council also found FlySafair to be noncompliant; however, FlySafair succeeded in a court interdict application that requires the regulator to meet with the company before imposing punitive action.

Similarly, FlySafair and Global Aviation had to appear before the Air Services Licensing Council in South Africa to argue for mitigation or aggravation, which is a procedure that is required before any sanctions may be issued against the airline. The council confirmed at the meeting that FlySafair does not meet nationality provisions.

According to the council’s interpretation of the law, 75% of voting rights must be held by South African citizens who are residents of the country, meaning natural persons, not a juristic entity.

The council concluded that the ultimate control of FlySafair is held by its parent companies in Ireland, as well as ASL Aviation Holdings, in Belgium.

FlySafair then requested a Ministerial exemption from the disputed legal provision while the company seeks legal recourse, asking Creecy to have the council suspend any further action against FlySafair until the South African High Court provides clarity on the interpretation of the law.

The company also asked Creecy to facilitate a mediated solution.