Civil Aviation Act, 2016

Act 6 of 2016

This is the latest version of this Act.
Citation
Act 6 of 2016
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Act
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Civil Aviation Act, 2016

Act 6 of 2016

  1. [Amended by Abolition of Payment by Cheque Act, 2022 (Act 16 of 2022) on 15 March 2023]
ACTTo consolidate the laws relating to civil aviation and civil aviation offences; to provide for the powers and functions of the Minister in relation to civil aviation; to establish the Namibia Civil Aviation Authority and to provide for its powers and functions; to establish the Air Navigation Services in the Authority; to provide for a civil aviation regulatory and control framework for maintaining, enhancing and promoting the safety and security of civil aviation for ensuring the implementation of international aviation agreements; to establish the Directorate of Aircraft Accident and Incident Investigations and to provide for its powers and functions; to provide for the establishment of Namibia Register of Aircraft and the Civil Aviation Registry; to repeal the laws relating to civil aviation and civil aviation offences; and to provide for incidental matters.BE IT ENACTED as passed by the Parliament, and assented to by the President, of the Republic of Namibia as follows:

Part 1 – INTRODUCTORY PROVISIONS

1. Definitions

In this Act, unless the context otherwise indicates -“accident” means an occurrence that is associated with the operation of an aircraft and takes place between the time any person boards the aircraft with the intention of flight and such time as all such persons have disembarked and the engine or any propellers or rotors come to rest, being an occurrence in which -(a)a person is fatally or seriously injured as a result of -(i)being in the aircraft;(ii)direct contact with any part of the aircraft, including any part that has become detached from the aircraft; or(iii)direct exposure to jet blast -except when the injuries are self-inflicted or inflicted by other persons, or when the injuries are to stowaways hiding outside the areas normally available to passengers and crew;(b)the aircraft sustains damage or structural failure that -(i)adversely affects the structural strength, performance, or flight characteristics of the aircraft; and(ii)would normally require major repair or replacement of the affected component,'except engine failure or damage that is limited to the engine, its cowlings, or accessories, or damage limited to propellers, wing tips, antennas, tyres, brakes, fairings, small dents, or puncture holes in the aircraft skin; or(c)the aircraft is missing or is completely inaccessible;“act of violence” means an act which, if committed in Namibia, would constitute -(a)an assault constituting the crime, whether common law or statutory, of -(i)aggravated assault;(ii)assault with intent to injure;(iii)assault on a child or by a male on a female;(iv)common assault;(v)assault with a weapon;(b)any of the following crimes whether common law or statutory -(i)wounding with intent;(ii)injuring with intent;(iii)injuring by unlawful act;(iv)aggravated wounding or injury;(v)disabling;(vi)discharging a firearm or doing a dangerous act with intent;(vii)using any firearm against a law enforcement officer;(viii)commission of a crime with a firearm;(ix)acid throwing;(x)poisoning with intent;(xi)setting traps;(xii)endangering transport; or(xiii)kidnapping;“aerodrome” means any defined area of land or water intended or designed to be used either wholly or partly for the landing, departure, and surface movement of aircraft, and includes any buildings, installations, and equipment on or adjacent to any such area used in connection with the aerodrome or its administration;“aerodrome control service” means an air traffic control service provided for the control of aerodrome traffic;“aerodrome flight information service” means a service provided for the purpose of giving advice and information useful for the safe and efficient conduct of flights in the vicinity of an aerodrome;“aerodrome traffic” means all -(a)traffic in the manoeuvring area of an aerodrome; and(b)aircraft flying in the vicinity of an aerodrome;“aerodrome traffic circuit” means the pattern flown by aircraft operating in the vicinity of an aerodrome;“aeronautical product” means anything that comprises or is intended to comprise any part of an aircraft or that is or is intended to be installed in or fitted or supplied to an aircraft, and includes fuel and other similar consumable items necessary for the operation of the aircraft;“aircraft” means any machine that can derive support in the atmosphere from the reactions of the air otherwise than by the reactions of the air against the surface of the earth;“aircraft flying in the vicinity of an aerodrome” means any aircraft that is in, entering, or leaving an aerodrome traffic circuit;“air navigation facility” means premises used for the handling of cargo, baggage or mail, an aircraft hangar, a fuel storage area, an on board services preparation facility and any other premises, building, structure or place to which the public has no right of access and in which a service is rendered for the operation of an airport or aircraft or for the public at an airport or on board an aircraft, whether or not such premises, building, structure or place are situated within the boundaries of a designated airport;“air navigation services” means services provided to air traffic during all phases of operations to ensure their safe and efficient movement, and includes -(a)air traffic control services, including air traffic control services for arriving and departing controlled flights, for controlled flights in controlled areas or for traffic within any manoeuvring area and other aerodrome traffic;(b)air traffic advisory services provided within advisory airspace to ensure separation, insofar as is practical, between aircraft which are operating on flight plans in accordance with Instrument Flight Rules;(c)flight information services;(d)alerting services provided to notify appropriate organisations regarding aircraft in need of search and rescue aid, and to assist such organisations as may be required;(e)communications, navigation and surveillance services;(f)meteorological services for air navigation;(g)search and rescue alerting coordination services; and(h)aeronautical information services for the provision of aeronautical information and data necessary for the safety, regularity and efficiency of air navigation;“airport” means any defined area of land or water intended or designed to be used either wholly or partly for the landing, departure, movement, or servicing of aircraft, and includes -(a)any other area declared by the Minister to be part of the airport; and(b)any buildings, installations, and equipment on or adjacent to any such area used in connection with the airport or its administration;“air service” means an air transport service or an aerial work service, whether regular or casual;“air traffic” means all aircraft in flight or operating on any manoeuvring area of an aerodrome;“air traffic control service” means a service provided for the purposes of -(a)preventing collisions -(i)between aircraft; and(ii)between aircraft and obstructions on any manoeuvring area; and(b)expediting and maintaining a safe and efficient flow of air traffic;“air traffic service”, includes -(a)any aerodrome control service;(b)any area control service;(c)any approach control service;(d)any flight information service;(e)any aerodrome flight information service;(f)any alerting service; and(g)any other air traffic service considered by the Executive Director to be necessary or desirable for the safe and efficient operation of the civil aviation system;“alerting service” means an air traffic service provided to notify appropriate organisations regarding aircraft in need of search and rescue aid, and to assist such organisations as required;“approach control service” means an air traffic control service for arriving or departing controlled flights;“approved organisation” means -(a)an aeronautical authority of a contracting state of ICAO; or(b)an organization or body declared to be an approved organisation under section 4(1)(b);“area control service” means an air traffic control service provided for controlled flights in controlled airspace;“Arms and Ammunition Act” means the Arms and Ammunition Act, 1996 (Act No. 7 of 1996);“auditor” means a person registered in terms of the Public Accounts’ and Auditors’ Act, 1951 (Act No. 51 of 1951);"authorised person" means -(a)any member of the Namibian Police Force as defined in section 1 of the Police Act, 1990 (Act No.19 of 1990);(b)any person appointed in writing by the management of a security designated airport, with the approval of the Minister;(c)any member of the Namibian Defence Force as defined in the Defence Act, 2002 (Act No.1 of 2002);(d)any person designated in writing by the Executive Director as an authorised person in terms of section 37(1); or(e)any other person appointed in writing by the Minister as an authorised person for the purposes of this Act;“Authority” means the Namibia Civil Aviation Authority established by section 8;“aviation document” means any licence, permit, certificate, or other document issued under this Act to or in respect of any person, aircraft, aerodrome, aeronautical procedure, aeronautical product, or aviation related service;“aviation related facility” means any installation, equipment, facility or service, including any aerodrome operated in support of or in conjunction with the civil aviation system;“aviation related service” means any equipment, facility or service, including any air traffic service operated in support of or in conjunction with the civil aviation system, and includes the provision of aeronautical products;“aviation security officer” means a person employed as such by an aviation security service organization pursuant to this Act;“aviation security services” means services provided in accordance with this Act which are related to the provision and promotion of aviation security in Namibia;“aviation security services provider” means a provider of aviation security services in Namibia certificated under this Act;“baggage”, in relation to any contract of carriage, means checked baggage or baggage, personal effects, or other articles, not being checked baggage, in the possession of the passenger, or in the possession of another person, being a person accompanying the passenger or a servant or agent of the carrier, whether the contract of carriage is for international carriage or domestic carriage;“Board” means the Board of directors of the Authority established by section 11;“cargo”, in relation to any contract of carriage, means all kinds of movable property, including animals, but excludes baggage and mails or postal articles whether the contract of carriage is for international carriage or domestic carriage;“carrier”, in relation to any contract of carriage, includes a contracting carrier and an actual carrier whether the contract of carriage is for international carriage or domestic carriage;“Chicago Convention” means the Convention on International Civil Aviation signed in Chicago on 7 December 1944, and adopted by section 1 of the Aviation Amendment Act, 1947 (Act No. 42 of 1947), and contained in Schedule 1, and includes -(a)any amendment to the Convention that has entered into force under Article 94(a) of the Convention and has been ratified by Namibia; and(b)any Annex or amendment to any Annex accepted under Article 90 of the Convention, to the extent ratified by Namibia; and(c)the international standards and procedures adopted and amended by the International Civil Aviation Organisation under Article 37 of the Convention, but subject to any notification of differences by Namibia pursuant to Article 38 of the Convention;“Civil Aviation Registry” means the Civil Aviation Registry established under section 52;“commander”, in relation to an aircraft, or “commander of an aircraft” means the pilot for the time being in lawful command of the aircraft;“commercial air transport operation” means an aircraft operation involving the transport of passengers, cargo or mail or aerial work for remuneration or hire;“contract”, in relation to any contract of carriage, includes an arrangement made without consideration whether the contract of carriage is for international carriage or domestic carriage;“controlled airspace” means an airspace of defined dimensions within which an air traffic control service is provided to controlled flights;“controlled flight” means any flight that is provided with or required by this Act to make use of an air traffic control service;“crew member” means a person assigned by an operator to perform such functions onboard an aircraft during a flight;“customs officer” means an “officer” as defined in section 1 of the Customs and Excise Act,1998 (Act No. 20 of 1998);“dangerous goods” means articles or substances that are capable of posing risk to health, safety, property or the environment, and -(a)are listed in, or classified in accordance with the ICAO’s Technical Instructions for the Safe Transportation of Dangerous Goods by Air; or(b)while not so listed or classified as referred to in paragraph (a), nevertheless have features or properties that in the opinion of the Executive Director might reasonably qualify them for listing or classification as dangerous goods under the ICAO’s Technical Instructions for the Safe Transportation o Dangerous Goods by Air;“Directorate” means the Directorate of Aircraft Accident and Incident Investigations established by section 73(1);“Director of Investigations” means the person designated under section 73(2) as Executive Director of Aircraft Accident and Incident Investigations;“Executive Director” means the person appointed under section 34 as the chief executive officer of the Authority and known as Executive Director of Civil Aviation;“Extradition Act” means the Extradition Act, 1996 (Act No.11 of 1996);“flight information service” means an air traffic service provided for the purpose of giving advice and information intended for the safe and efficient conduct of flights;“foreign in-flight security officer” means an enforcement officer or person with authorisation from a country other than Namibia who is -(a)authorised to act on an aircraft that is in flight by the State that has issued the air operating certificate, or its equivalent, under which the air operation is conducted; and(b)subject to an in-flight security officer arrangement or agreement between Namibia and the State that has issued the air operating certificate, or its equivalent, under which the air operation is conducted;“foreign licence” or “foreign medical assessment” or “foreign medical certificate” means a licence, medical assessment or medical certificate issued by the appropriate authority of an ICAO member state other than Namibia;“Government entity” means a ministry, office or agency of Government, Public enterprise or other institution or body wholly owned or controlled by the Government and operated within the national sphere of government;“Hague Convention” means the Convention for the Suppression of Unlawful Seizure of Aircraft, done at Hague on 16 December 1970, contained in Schedule 3;[This Convention is sometimes referred to in brief as the “Hague Hijacking Convention”.]“holder”, in relation to any aviation document, includes any person entitled to exercise privileges in respect of the document;“ICAO” means the International Civil Aviation Organisation established under the Chicago Convention, and includes any successor to the Organisation;“incident” means any occurrence, other than an accident, that is associated with the operation of an aircraft and affects or could affect the safety of operation;“in flight”, in relation to an aircraft, means from the time when all its external doors are closed after embarkation until the time when any external door is opened for disembarkation, but in the case of a forced landing, an aircraft is in flight -(a)until the time when the competent authorities of the country in which the forced landing takes place; or(b)in the case where the forced landing takes place in a place that is not within the territorial limits of any country, until the time when the competent authorities of any country,assume responsibility for the aircraft and for persons and property on board the aircraft;“in-flight security officer” means a member of the Namibian Police authorised by the Inspector-General pursuant to section 159 to be an in-flight security officer;“Inquests Act” means the Inquests Act, 1993 (Act No. 6 of 1993);“in service”, in relation to an aircraft, means from the time when pre-flight preparation of the aircraft by ground personnel or by the aircraft crew begins for a specific flight until -(a)the flight is cancelled;(b)24 hours after the aircraft, having commenced the flight, lands;(c)the aircraft, having commenced the flight, makes a forced landing and any competent authorities assume responsibility for the aircraft and for persons and property on board the aircraft; or(d)the aircraft, having commenced the flight, ceases to be in flight without having landed.“international airport” means any airport designated as an airport of entry and departure for international air traffic where the formalities incident to customs, immigration, public health, animal and plant quarantine, and similar procedures are carried out;“international flight”, for the purposes of section 4(1), means flight, whether conducted for private or commercial purposes, which arrives from a place outside Namibia or which departs for a destination outside Namibia;“life imprisonment” means imprisonment for the rest of the natural life of a convicted person without parole;“manoeuvring area” means that part of an aerodrome to be used for the take-off and landing of aircraft and for the surface movement of aircraft associated with take-off and landing, but excludes areas set aside for loading, unloading, or maintenance of aircraft;“military conveyance” means the transportation of goods or persons by means of an aircraft that is operated by or on behalf of the Ministry responsible for defence or a visiting force;“Minister” means the Minister responsible for transport;“Ministry” means the Ministry responsible for the administration of transport affairs;“Montreal Convention” means the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation done at Montreal on 23 September 1971, contained in Schedule 5;[This Convention is generally referred to internationally as the “Sabotage Convention”, whereas the “Montreal Convention” usually refers to the “Convention for the Unification of Certain Rules relating to International Carriage by Air (Montreal Convention), 1999”.]“Montreal Protocol” means the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation done at Montreal on 24 February 1988, contained in Schedule 6;[This Protocol does not seem to have a short name in common use at the international level, but “Sabotage Protocol” would probably be a more appropriate short name than “Montreal Protocol”.]“Namibia” means the Republic of Namibia as defined in Article 1(4) of the Namibian Constitution, and includes the territorial sea, contiguous zone and the exclusive economic zone of Namibia as defined in sections 2, 3A and 4 of the Territorial Sea and Exclusive Economic Zone of Namibia Act, 1990 (Act No. 3 of 1990);“Namibia Register of Aircraft” means the Namibia Register of Aircraft established under section 50;“Namibian aircraft” means an aircraft duly registered in Namibia in terms of section 70;“navigation installation” -(a)means any building, facility, work, apparatus, equipment, or place, whether or not part of an aerodrome, that is intended to assist in the control of air traffic or as an aid to air navigation; and(b)includes any land adjacent to any such building, facility, work, apparatus, equipment, or place, and used in connection therewith;“NCASP” means the National Civil Aviation Security Program developed in terms of section 118;“operate”, in relation to an aircraft, means to fly or use the aircraft, or to cause or permit the aircraft to fly, be used, or be in any place, whether or not the person is present with the aircraft;“owner”, in relation to any aircraft, includes a person entitled to the possession of the aircraft for 28 days or longer;“participant” means a person who performs any function or activity, or who occupies any position, or offers or undertakes the provision of any service or product, or does any other thing, for which an aviation document is required;“passenger”, in relation to any contract of carriage, means a person carried pursuant to a contract of carriage of such person whether the contract of carriage is for international carriage or domestic carriage, and includes a person who has reported to an employee or agent of the carrier for the purpose of going on board an aircraft pursuant to a contract to carry him as a passenger;“Permanent Secretary” means the Permanent Secretary of the Ministry;“pilot-in-command”, in relation to an aircraft, means the pilot for the time being in lawful command of the aircraft;“police officer” means a member of the Namibian Police Force as defined in section 1 of the Police Act, 1990 (Act No. 19 of 1990);“prescribed” means prescribed by regulation;“Prevention and Combating of Terrorist and Proliferation Activities Act” means the Prevention and Combating of Terrorist and Proliferation Activities Act, 2014 (Act No. 4 of 2014);“Public Enterprises Governance Act” means the Public Enterprises Governance Act, 2006 (Act No. 2 of 2006);“Public Service Act” means the Public Service Act, 1995 (Act No. 13 of 1995);“regulation” means a regulation made under this Act;"security designated aerodrome" means any aerodrome or company airport as defined in the Airports Company Act, 1998, (Act No. 25 of 1998), and includes any airport, helistop or heliport designated as a security designated aerodrome under section 130;“security designated navigation installation” means a navigation installation designated as a security navigation installation under section 130;“security restricted area” means an area that the Executive Director has declared to be a security restricted area under section 131;“State” means the Republic of Namibia;“sterile area” means the area at an aerodrome between the passenger inspection and screening station and the aircraft into which access is strictly controlled;“this Act”, includes the regulations;“Tokyo Convention” means the Convention on Offences and Certain Other Acts Committed on Board Aircraft done at Tokyo on 14 September 1963, contained in Schedule 3; and“Transit Agreement” means the International Air Services Transit Agreement drawn up at Chicago on 7 December, 1944, and adopted by section 2 of the Aviation Amendment Act, 1946 (Act 41 of 1946), contained in Schedule 2, and includes any amendments thereof and additions thereto binding upon Namibia.

2. Application of Act

(1)Subject to subsection (2) -
(a)this Act; and
(b)the Chicago Convention and the Transit Agreement, except to the extent that they are inconsistent with or are expressly excluded by this Act,
apply to -
(i)a person, an aircraft, aerodrome, aeronautical product, air service, and aviation related service, in Namibia;
(ii)a Namibian aircraft whether within or outside Namibia;
(iii)a holder of an aviation document while inside or outside Namibia and exercising or purporting to exercise privileges accorded by the document; and
(iv)a foreign registered aircraft operating in Namibia.
(2)Despite subsection (1), the Minister, acting on the recommendation of the Executive Director, may, by agreement with the appropriate foreign aeronautical authority -
(a)transfer to the aeronautical authority in the country of a foreign operator all or part of the responsibilities for a Namibian aircraft operated by that foreign operator that the Minister or the Executive Director has under this Act;
(b)accept for the Minister or the Executive Director all or part of the responsibilities for foreign registered aircraft operated by a Namibian operator that arise under this Act.
(3)A Namibian aircraft, while being operated over the high seas, must be operated in a manner that complies with the Rules of the Air contained in Annex 2 of the Chicago Convention.
(4)Except where an act is required in order to comply with the laws of such foreign state, a holder of an aviation document who, while outside Namibia and exercising or purporting to exercise the privileges accorded by the document commits an act or omission that would constitute an offence if it were committed in Namibia is deemed to have committed an offence as if the act or omission had occurred in Namibia.
(5)Nothing in this section may be interpreted as requiring a person or aircraft to contravene or be operated in contravention of a law of a foreign state that applies to or in respect of the person or aircraft.
(6)Nothing in this Act may be interpreted as limiting the privileges or immunities of -
(a)any foreign military aircraft; or
(b)the officers and crew of any foreign military aircraft.
(7)This Act does not apply -
(a)to aircraft or aerodromes belonging to the Ministry of Defence or for the time being leased, commandeered or sequestered or otherwise used exclusively by the Namibia Defence Force; and
(b)to any person employed on or in connection with the aircraft or aerodrome referred to in paragraph (a), irrespective of whether such person is so employed in a military or civil capacity.
(8)The Minister, after consultation with the Minister of Defence, may by notice in the Gazette, make any provision of this Act applicable to any aircraft, aerodrome or person referred to in subsection (7) with or without modification.

3. Application of international aviation agreements

(1)The Minister, in accordance with section 54, may issue such regulations as appear to him or her necessary for giving effect to any of the provisions of the Chicago Convention or the Transit Agreement.
(2)If -
(a)the Chicago Convention or the Transit Agreement is amended;
(b)Namibia enters into or becomes party to an international aviation agreement; or
(c)an international aviation agreement is amended,
the Minister may in accordance with section 54 issue such regulations as appear to him or her necessary for carrying out and for giving effect to any of the provisions of the agreement or amendment.

Part 2 – POWERS AND FUNCTIONS OF MINISTER

4. Powers and functions of Minister

(1)In ensuring the achievement of an integrated, safe, secure, responsive and sustainable transport system, and the implementation of the obligations of Namibia under international civil aviation agreements on civil aviation, the Minister may -
(a)subject to the Public Service Act, establish an aviation policy unit;
(b)declare an organization or body to be an approved organization;
(c)enter into technical or operational arrangements, or both, with civil aviation authorities of other countries;
(d)by notice in the Gazette, designate certain aerodromes within Namibia equipped with customs, immigration and other border control facilities as airports to be used for the arrival or departure of aircraft performing international flights.
(2)The functions of the Minister are -
(a)to promote safety and security in civil aviation;
(b)to administer the participation of Namibia in the Chicago Convention and any other international aviation convention, agreement, or understanding to which Namibia is a party;
(c)to ensure that aviation security services are provided at all security designated aerodromes and security designated navigation installations;
(d)to provide to the Executive Director or the Directorate such information, advice, services and resource as may be required and which may assist in the implementation of this Act;
(e)to promote and assist other Government entities as appropriate in the effective use of other legislation affecting the safety and security of civil aviation in Namibia; and
(f)to perform other functions imposed on the Minister by or under this Act or any other law.

5. Facilitation of aircraft navigation and clearance of aircraft, crews, passengers and cargoes

The Minister, in accordance with the Chicago Convention, must adopt all practicable measures -
(a)to facilitate and expedite navigation by aircraft between Namibia and the territories of other States; and
(b)to prevent unnecessary delays in the clearance of aircraft, crews, passengers and cargo, especially in the administration of the laws relating to immigration, quarantine and customs.

6. Removal of dangerous obstructions

(1)The Minister may, by issuing a directive, require the removal of any building structure, tree or other object whatsoever on any land or water which, in the opinion of the Minister on the advice of the Executive Director, may constitute a danger to aircraft flying in accordance with normal aviation practice.
(2)The Minister may, by issuing a directive, authorise such person or persons as he or she may think appropriate to remove or alter to such an extent as may be specified in the directive, such building, structure, tree or other object which is in contravention of a directive made under subsection (1).
(3)A copy of every directive made under subsection (1) or (2) is served upon the owners or occupiers of all land affected by such directive.
(4)In considering the making of any directive under this section the Minister must have due regard for the status of any building, structure, tree or any other object which may be granted protection or special status or be entitled to protection or the grant of special status in terms of any other law.
(5)A person suffering loss or damage as a consequence of a directive issued under subsection (1) may claim compensation therefore and, in default of an agreement on the amount of compensation, such amount is fixed by a court of competent jurisdiction.
(6)Where a directive is issued -
(a)in relation to an airport owned by the State the compensation is paid by the State; or
(b)in relation to any other airport the compensation is paid by the owner of the airport.
(7)Despite subsection (5), no compensation is payable for any loss or damage suffered as a consequence of the directive made under subsection (1), if the building, structure, tree or object has been erected or planted in contravention of any law.

7. Prohibitions and restrictions on use of land and airspace

(1)For the purpose of ensuring the safety of aircraft flying in accordance with normal aviation practice, the Minister may prescribe prohibitions and restrictions for the use of land, airspace or water in the vicinity of airports, relating to -
(a)the erection of buildings, structures or other things in any area specified;
(b)the planting of, or the limitation of the height of, any trees in any area specified;
(c)the sowing or growing of any plant or crop in any area specified;
(d)the bringing of vessels or vehicles into any area specified, or the anchoring or mooring of any vessel or vehicle therein.
(2)An owner or occupier of land who suffers loss or damage as a consequence of any prohibition or restriction prescribed under subsection (1) is eligible for compensation if he or she submits a claim within a prescribed period -
(a)to the Minister in respect of an airport owned by the State; or
(b)to the owner in the case of any other airport.
(3)The loss or damage referred to in subsection (2) is assessed taking into account the circumstances in existence at the time the prohibition or restriction becomes applicable.
(4)The maximum amount of compensation payable under subsection (2) may not exceed the amount by which the market value of such land is reduced as a result of such prohibition or restriction.
(5)In the event of disagreement as to the amount of compensation which is payable in respect of a claim for compensation under subsection (2), the amount is fixed by a court of competent jurisdiction.

Part 3 – NAMIBIA CIVIL AVIATION AUTHORITY

8. Establishment of Namibia Civil Aviation Authority

(1)There is established a juristic person to be known as the Namibia Civil Aviation Authority for which the abbreviation “NCAA” may be used.
(2)The Authority -
(a)has jurisdiction throughout Namibia; and
(b)must act independently and impartially.

9. Objects of Authority

The objects of the Authority are to -
(a)control and regulate and promote civil aviation safety and security;
(b)oversee the implementation of, and compliance with, the national aviation security program;
(c)oversee the functioning and development of the civil aviation industry in an efficient and economical manner with due regard given to the maintenance of standards in the civil aviation industry;
(d)monitor and ensure compliance with this Act and the Chicago Convention and other international civil aviation agreements applicable to Namibia; and
(e)perform its functions in the most efficient and effective manner to ensure the preservation of safety and security of civil aviation in a way that contributes to the aim of achieving an integrated, safe, responsive, and sustainable transportation system.

10. Functions and powers of Authority

(1)The functions of the Authority are to conduct oversight of the safety and security of civil aviation in Namibia by -
(a)developing and promoting appropriate, clear and concise regulatory requirements, and technical aviation safety and security standards;
(b)developing effective enforcement strategies to ensure compliance with aviation safety and security standards;
(c)issuing aviation documents in terms this Act;
(d)conducting comprehensive aviation industry surveillance, including assessment of safety and security related decisions taken by industry management at all levels for their impact on aviation safety and security;
(e)overseeing and regulating the provision and operation of navigational aids to aviation;
(f)conducting regular reviews of the systems of civil aviation safety and security to -
(i)monitor the safety performance of the aviation industry;
(ii)identify safety and security related trends and risk factors; and
(iii)promote the development and improvement of such systems;
(g)conducting regular and timely assessment of international safety and security developments;
(h)implementing, monitoring and enforcing the NCASP;
(i)reviewing and ensuring the adequacy of security programs and associated documentation produced by airports, air service operators and cargo operations, and monitoring their implementation to ensure continuing effectiveness and incorporation of amendments as required;
(j)enhancing aviation security through development and dissemination of progressive administrative and technical practices, and promoting their use by security services, airport administrations and air service operators;
(k)formulating and implementing a national aviation disaster management plan;
(l)encouraging a greater acceptance by the aviation industry of its obligation to maintain high standards of aviation safety and security, through -
(i)comprehensive safety and security education and training programs;
(ii)accurate and timely aviation safety and security advice; and
(iii)fostering an awareness in industry management, and generally within the community, of the importance of aviation safety and security and compliance with relevant legislation; and
(m)promoting communication with all interested parties on aviation safety and security.
(2)In addition to the functions referred to in subsection (1) the other functions of the Authority are -
(a)to advise the Minister on matters associated with any action or condition which -
(i)is capable of causing any actual or potential threat of harm or damage to persons or property;
(ii)the Minister refers to the Authority or requires from it; and
(iii)the Authority considers necessary in the furtherance of its objects;
(b)to act as the national competent authority in connection with matters related to the aviation transportation system;
(c)to recommend to the Minister -
(i)the preparation of new legislation or the amendment of existing legislation for the regulation of civil aviation safety and security;
(ii)in respect of the conclusion of any international agreement with other states, governments or international organisations;
(d)to establish and continue a service to be called the Air Navigation Service;
(e)to perform any other functions conferred on it by or under any other law;
(f)to implement any agreements and conventions to which Namibia is a party;
(g)to perform any other functions as prescribed;
(h)to promote the development of civil aviation safety and security capabilities, skills and services for the benefit of the Namibian people;
(i)to provide consultancy and management services relating to civil aviation oversight activities, within or outside Namibia;
(j)to maintain and preserve records and documents relating to activities within the civil aviation system, and in particular to maintain the Namibia Register of Aircraft and the Civil Aviation Registry;
(k)to provide to the Minister such information and advice as the Minister may from time to time require;
(l)to provide information and advice with respect to civil aviation, and to foster appropriate information and education programmes with respect to civil aviation that promote its objects;
(m)to perform any functions incidental to any of the functions specified in this section.
(3)The Authority may perform its functions outside Namibia when it is necessary in order to achieve its objects under this Act.
(4)The Authority must perform its functions in a manner consistent with -
(a)the objects set out in section 9; and
(b)the obligations of Namibia under any international aviation agreement and regional agreements affecting civil aviation.
(5)Unless authorised by or under this Act or any other law, the Authority may not make any distinction against or among various -
(a)participants or categories of participants in civil aviation; or
(b)users or categories of users of any air navigation facilities, air traffic service or air navigation service.
(6)To enable it to perform its functions, the Authority may -
(a)with the written consent of the Minister and the Minister responsible for finance, borrow moneys and secure the payment of moneys so borrowed in any manner including the mortgaging and pledging of property and in particular by means of the issue of any kind of promissory note or negotiable instrument or the like, with or without security;
(b)acquire, hire and improve property required for the performance of the functions of the Authority and dispose of any such property, but the Authority may not acquire or dispose of immovable property without the prior written consent of the Minister, subject to such conditions as the Minister may impose;
(c)subject to the prior written consent of the Minister, form a company or any organisation or promote the formation of, or acquire a financial interest in a company or any organisation, or lend money to or enter into a guarantee for the benefit of, a company or any organisation;
(d)enter into any contract or otherwise arrange for the services of private persons, and private, public, or governmental organisations whether inside or outside Namibia;
(e)make or receive donations;
(f)collect, publish, and provide charts and aeronautical information, and enter into arrangements with any other person or organisation to collect, publish, and distribute such charts and information;
(g)co-operate with, or provide advice and assistance to, any government agency or regional or local government agency when requested to do so by the Minister, but only if the Minister and the Authority are satisfied that the performance of the functions of the Authority are not compromised; or
(h)enter into technical or operational arrangements, or both, with civil aviation authorities of other countries.
(7)In the exercise and performance of its powers and functions under this Act, the Authority must -
(a)have regard to any Government policy of general application relating to civil aviation; and
(b)comply with any directive given to it in writing by the Minister relating to any policy contemplated in paragraph (a).
(8)The Minister may not give any directive under subsection (7) which requires the Authority in the performance of its functions in terms of this Act -
(a)to do, or refrain from doing, a particular act; or
(b)to bring about a particular result,
in respect of any particular person or persons.
(9)Subject to this Act, the Authority, in the course of exercising and performing its powers and functions, must consider whether it could most efficiently and effectively exercise or perform certain powers or functions by means of -
(a)its own operations; or
(b)delegation or contracting out its operations to appropriate persons selected after an appropriate competitive process.

11. Board of directors

For the purposes of developing and controlling the affairs of the Authority there is established a Board of directors of the Authority.

12. Constitution of Board

(1)Subject to sections 14 and 15 of the Public Enterprises Governance Act, the Board consists of the following five members -
(a)the Executive Director who is a member by virtue of his or her office; and
(b)four members appointed by the Minister as follows -
(i)two persons who hold recognised qualifications relevant to the operation, management, security or regulation of civil aviation together with associated experience of not less than seven years in each case; and
(ii)two persons who hold recognised legal or financial management qualifications with associated experience of not less than seven years in each case.
(2)The Minister must appoint two of the members of the Board as chairperson and deputy chairperson of the Board, respectively.
(3)Subject to subsection (1), the Minister must, for each member of the Board, appoint a person as alternate member.
(4)In the absence of a member from any meeting of the Board, the alternate member for such member attends the meeting in the place of such member.
(5)The Minister, by notice in the Gazette, must announce the appointment of any member or alternate member of the Board, specifying the full name, date and period of appointment.

13. Term of office of members of Board

(1)Unless a different determination has been made in terms of section 14(1)(d) of the Public Enterprises Governance Act and subject to section 15, a member holds office for a term of four years, except for the chairperson whose term of office is five years.
(2)A member of the Board, including the chairperson, may be reappointed after the expiry of the term of his or her office, but a member may not be appointed for more than three consecutive terms of office.

14. Disqualification for appointment as members or alternate members of Board

A person is not qualified for appointment as member or alternate member of the Board, if such person -
(a)is not a Namibian citizen or a permanent resident in Namibia;
(b)is not resident in Namibia;
(c)is a member of Parliament, a regional or local authority council;
(d)has been convicted of an offence, other than a political offence committed before the date of Independence of Namibia, in any country and sentenced to a term of imprisonment without the option of a fine;
(e)has been removed from an office of trust on account of being dishonest;
(f)has been declared as mentally ill under any law relating to mental health; or
(g)is an unrehabilitated insolvent.

15. Vacation of office and filling of vacancies

(1)An appointed member of the Board vacates his or her office, if the member -
(a)becomes disqualified in terms of section 14;
(b)resigns his or her office by giving the Minister a written 30 days’ notice of his or her intention to resign;
(c)has been absent from three consecutive meetings of the Board without leave of the Board; or
(d)is removed from office by the Minister under subsection (2).
(2)Subject to section 14(1)(f) of the Public Enterprises Governance Act, the Minister, by notice in writing, may remove a member of the Board from office if the Minister, after giving the member a reasonable opportunity to be heard, is satisfied that the member -
(a)has failed to comply with section 19;
(b)is guilty of neglect of duty, demonstrable incompetence or misconduct;
(c)is incapable of performing the functions of his or her office, by reason of physical or mental illness;
(d)without authorisation of the Board discloses any confidential information to a person not lawfully entitled to receive such information; or
(e)improperly acts on or uses information obtained as a result of his or her membership of the Board.
(3)If the office of a member of the Board becomes vacant, the Minister must appoint a person as member of the Board for the unexpired portion of the term of office of the member who ceased to hold office.

16. Remuneration and allowances for members of Board and committees

A member or an alternate member of the Board, or member of a committee who is not in the full-time employment of the State or Authority is paid such remuneration or allowances or other benefits as the Minister, with the concurrence of the Minister responsible for finance, subject to section 22(1) of the Public Enterprises Governance Act, may determine.

17. Meetings of Board

(1)The first meeting of the Board must be held at such time and place as the Minister may determine, and subsequent meetings of the Board may be held at such time and place as the Board or the chairperson may determine, but the Board must sit at least once in two months.
(2)The chairperson -
(a)may at any time;
(b)must, at the written request of the Minister, or of the majority of the members,
convene a special meeting of the Board.
(3)The majority of the members constitute a quorum at a meeting of the Board.
(4)The chairperson must cause to be given to each member a notice of not less than 14 days for any ordinary meeting of the Board.
(5)A decision of a majority of the members present and voting at a meeting of the Board constitutes a decision of the Board, and in the event of an equality of votes the person presiding at such meeting has a casting vote in addition to his or her deliberative vote.
(6)A decision of the Board or an act performed under the authority of the Board is not invalid only by reason of -
(a)a vacancy on the Board; or
(b)the fact that a person not entitled to sit as a member of the Board was in attendance when the decision was taken or act authorised,
if the decision was taken or act authorised by a majority of the members who were present and entitled to vote at such meeting.
(7)Subject to this Act, the Board may regulate the procedures to be followed at meetings of the Board and committees of the Board.
(8)Subject to subsection (9), a meeting of the Board where a person -
(a)makes representations to the Board; or
(b)presents arguments on a question of law or fact to the Board as well as to any hearing before any organ of the Authority,
is open to the public, but in the case of a meeting or part of a meeting where the members of the Board only deliberate among themselves may be open or closed to the public as the Board may decide.
(9)The Board may decide to close the whole or part of any meeting or hearing that in terms of subsection (8) is open to the public, on the grounds that such meeting or part of a meeting relates to or discloses -
(a)matters that must be kept confidential in the interest of national security;
(b)matters relating to the internal personnel rules and practices of the Authority;
(c)trade secrets or commercial or financial information that is privileged or confidential; or
(d)information of a personal nature the disclosure of which would constitute an unwarranted invasion of privacy.
(10)In determining whether to close a meeting to the public, the Board may require a person requesting such action to demonstrate the reasons why such meeting must be closed to the public at a meeting of the Board that is closed to the public.
(11)The grounds for closing a meeting to the public must be recorded and such recording must state the provision of this section authorising such closing.
(12)Despite subsection (5), a written resolution not passed at a meeting of the Board but signed by all the members of the Board at that time present in Namibia and sufficient to constitute a quorum -
(a)is as valid and effectual as if it had been passed at a meeting of the Board duly convened and constituted; and
(b)must be recorded in the minutes of the next ensuing meeting of the Board.

18. Minutes of meetings of Board

(1)The Board must keep minutes of its meetings and submit copies of the minutes to its members within 14 days of the adoption of the minutes.
(2)The minutes of any meeting of the Board, when signed by a person who presided at the particular meeting, are, in the absence of proof of error therein -
(a)regarded as a true and correct record of the proceedings; and
(b)a proof of those proceedings before a court of law, any tribunal or a commission of inquiry.

19. Conduct of members and disclosure of interests

(1)A member of the Board may not -
(a)engage in an activity that undermines or has the potential of undermining the integrity of the Authority;
(b)participate in any investigation or decision concerning a matter in respect of which the member has a financial or other personal interest; or
(c)use any confidential information obtained in the performance of his or her functions as a member to obtain, directly or indirectly, a financial or other advantage for himself or herself or any other person.
(2)A member, as soon as practical after his or her appointment, must in writing disclose to the Minister and the Board any direct or indirect financial or other personal interest which the member has in any business carried on in Namibia or elsewhere.
(3)A member or member of committee who has a direct or indirect interest in any matter -
(a)pending before the Board or committee; or
(b)which is likely to conflict with any matter that is regulated by the Authority,
must, as soon as practicable, after the relevant facts have come to his or her knowledge, in writing, disclose to the Board or committee the nature of his or her interest at a meeting of the Board or committee.
(4)The member or member of committee who has the interest to which the disclosure contemplated in subsection (3) relates -
(a)may not be present during the deliberations or decision on such matter by the Board or committee, or take part in the deliberations or decision on such matter by the Board or committee;
(b)must withdraw from any further deliberations or decision on such matter by the Board or committee, if he or she was present at a meeting;
(c)may, despite paragraph (a) and (b), remain in the meeting and participate in the deliberations on the subject matter in respect of which the declaration of interest was made, when the majority of the Board or committee, after assessing the interests so declared, determines that the member need not withdraw from the meeting.

20. Committees of Board

(1)The Board may establish one or more committees to -
(a)advise the Board in the exercise of its powers and performance of its functions; or
(b)exercise or perform any power or function that the Board may delegate or assign to such committee.
(2)A committee established under subsection (1) -
(a)must consist of at least one member and such other person or persons as the Board may determine;
(b)may, with the approval of the Board, co-opt persons of special expertise to advise it in the performance of its functions, but such co-opted person is not entitled to vote at any such meeting.
(3)For each committee, the Board must designate a member of the Board as chairperson of the committee.

21. Corporate governance

(1)For the purpose of ensuring good corporate governance and proper management and control of the affairs of the Authority, the Board must -
(a)formulate policies and strategies to enable the Authority to exercise and perform its powers and functions in a proper, efficient and effective manner;
(b)ensure that the Authority complies with and gives effect to the approved performance standards;
(c)ensure that the Authority has adequate systems of internal controls, both operational and financial, and that it follows sound financial policies and procedures;
(d)formulate good and workable policies on human resources and labour relations, including the approval of remuneration and other conditions of services for all employees of the Authority; and
(e)diligently exercise and perform its powers and functions conferred and imposed upon the Board by or under this Act or any other law.
(2)The Board must report to the Minister in accordance with this Act and in the manner agreed upon between the Minister and the Board.

22. Funds of Authority

(1)The funds of the Authority consist of -
(a)money appropriated by Parliament for the purposes of the Authority;
(b)fees, levies, charges and administrative fines paid to the Authority in terms of this Act or any other law;
(c)interest derived from the investment of the funds of the Authority;
(d)money received as loans or grants with the prior approval of the Minister with the condurrence of the Minister responsible for finance;[The word “concurrence” is misspelt in the Government Gazette, as reproduced above.]
(e)money received as donations for the benefit of the Authority;
(f)revenue derived from commercial activities and other services of the Authority; and
(g)money from any other source of funds as may be approved by the Minister with the concurrence of the Minister responsible for finance.
(2)All moneys, including moneys derived from administrative fines received under this Act for the benefit of the Authority are paid into the bank accounts contemplated in section 26.
(3)Subject to the control and oversight of the Board, the Executive Director is the accounting officer of the Authority and is responsible for -
(a)all income and expenditure of the Authority; and
(b)all assets and the discharging of all liabilities of the Authority.

23. Transfer of assets, rights, liabilities and obligations to Authority

(1)The Minister, as soon as possible after the commencement of this Act, must by notice in the Gazette, identify and vest in the Authority all assets, rights, liabilities and obligations that relate to the powers and functions that are exercised and performed by the Authority in terms of this Act or any other law.
(2)After the publication of the notice referred to in subsection (1) -
(a)the Registrar of Deeds; or
(b)any person in charge of any other office where a register or a record is being kept of the ownership of or entitlement to an asset or right published in that notice,
must make such entries in or on any relevant register, title deed or other document in his or her office or submitted to him or her as may be necessary to effect the transfer thereof to the Authority.

24. Utilisation of funds of Authority

(1)The Authority must utilise the funds available to it -
(a)in general, to defray the expenses of the Authority which are incurred in the exercise and performance of its powers and functions in terms of this Act or any other law; and
(b)to defray the administrative expenditure of the Authority.
(2)Any moneys accruing to the Authority by virtue of -
(a)an appropriation by Parliament; or
(b)a grant or donation which has been made for a specific purpose,
must be utilized only for that purpose and in accordance with such conditions as may attach to the appropriation or grant.
(3)The Authority may not expend any moneys except in accordance with an approved financial plan prepared in accordance with section 30.

25. Charges

(1)For the purposes of this section the word “charge” means any fee, charge or levy prescribed under section 62.
(2)The Authority, by notice in the Gazette published at least 90 days before the commencement date, may impose charges, and specify the persons by and to whom, and the times when, such charges are payable.
(3)A charge imposed under subsection (2) may not be amended for more than twice in any financial year.

26. Bank accounts of Authority

(1)The Authority must open and maintain such bank accounts at one or more banking institutions in Namibia, registered in terms of the Banking Institutions Act, 1998 (Act No. 2 of 1998) as are necessary for the performance of the functions of the Authority.
(2)The Board must ensure that -
(a)all money received by or on behalf of Authority is deposited into the appropriate bank account of the Authority as soon as practicable after being received;
(b)any payment by or on behalf of the Authority is made from the appropriate bank account of the Authority; and
(c)no money is withdrawn, paid or transferred from any bank account of the Authority without the authority of -
(i)the Executive Director; or
(ii)in the case of the Air Navigation Services, the head of the Services.
(3)Payment instruments payable from or drawn on a bank account of the Authority, or any other form or document to be completed for the withdrawal, payment or transfer of money from any of the bank accounts of the Authority are, if required, signed by two persons authorised for that purpose by the Board.[subsection (3) substituted by section 5 of Act 16 of 2022]

27. Investment of money

The Board, with the concurrence of the Minister responsible for finance, and subject to section 27 of the Public Enterprises Governance Act, may invest any money that is not immediately required for expenditure by the Authority -
(a)at a banking institution authorised to conduct banking business under the Banking Institutions Act, 1998 (Act No. 2 of 1998); or
(b)at the Post Office Savings Bank controlled and managed by the Namibia Post Limited established by section 2(1)(a) of the Posts and Telecommunications Companies Establishment Act, 1992 (Act No. 17 of 1992).

28. Financial year and accounts and audit

(1)The financial year of the Authority ends on 31 March in each year.
(2)The Board must cause such records of account to be kept in accordance with generally accepted accounting practices, principles and procedures as are necessary -
(a)to represent fairly the state of affairs and business of the Authority; and
(b)to explain the transactions and financial position of the Authority.
(3)Not later than three months after the end of each financial year of the Authority, the Executive Director must prepare and submit to the Board for approval, financial statements, comprising -
(a)a statement, with suitable and sufficient particulars, reflecting the income and expenditure of the Authority during the financial year; and
(b)a balance sheet showing the state of the assets, liabilities and financial position of the Authority as at the end of the financial year.
(4)The accounting records and the financial statements of the Authority must be audited annually by independent auditors approved by the Board with the concurrence of the Auditor-General.

29. Annual report

(1)No later than four months after the end of a financial year, the Executive Director must produce an annual report of the Authority for such financial year.
(2)The annual report must contain -
(a)a full description of the actions taken by the Authority in such financial year in the exercise and performance of its powers and functions to achieve its objects;
(b)a balance sheet, an income statement and a cash-flow statement which is a true and correct reflection of the state of affairs of the Authority as at the end of such financial year; and
(c)a report by the auditor who audited the accounts of the Authority stating -
(i)whether the audited financial statements fairly represent the financial position, state of affairs and activities of the Authority and the results thereof; and
(ii)whether generally accepted accounting practice were followed.
(3)The annual report must be submitted to the Board which may make such amendments to the report as it thinks fit.
(4)The Board must approve the annual report within six months from the end of the financial year to which the report relates.
(5)After the Board has approved the annual report, the Board must within 30 days submit it to the Minister.
(6)The Minister must table the annual report within 14 days from the receipt thereof in the National Assembly, if it is then in ordinary session, or within 14 days from the commencement of the next ordinary session, if the Assembly is not in ordinary session.

30. Business and financial plan

(1)At least three months before the commencement of a financial year, the Board must prepare and submit to the Minister a business and financial plan in accordance with this section.
(2)The business and financial plan must encompass all the businesses and activities, including investments, of the Authority and its wholly-owned subsidiaries, if any, and must cover the ensuing financial year and each of the four financial years following thereafter.
(3)The business and financial plan must set out how the Authority intends to give effect to the performance statement and contain particulars and, where appropriate, include an analysis, regarding -
(a)the estimated income accruing to the Authority;
(b)the estimated administrative and other expenditures of the Authority;
(c)any factors which may affect the implementation of the plan concerned and the measures to be taken to counter the effects of such factors; and
(d)such other matters as the Minister may require.
(4)The business and financial plan must include -
(a)a statement of -
(i)the objects for which the Authority is established;
(ii)the objectives of the Authority for the next five years and for each year in that period and the strategy the Authority intends to employ to achieve them; and
(iii)the expected performance of the Authority for the next financial year as compared to its projected objectives for such year as set out in its preceding business and financial plan;
(b)the operating budget and the capital budget of the Authority for the next financial year, with a description of the nature and scope of the activities to be undertaken, including commercial strategies, pricing of services and personnel requirements;
(c)a statement with particulars of any expenditure included in the budget for any project to be funded from any subsidy or grant awarded to the Authority from whatever source for that purpose, the conditions attaching to the subsidy or grant and the control measures to be applied for monitoring such expenditure and the application of the funds received in respect of the subsidy or grant;
(d)a general indication of borrowing plans and strategies of the Authority to pay the debt, if the Authority intends to borrow money in the next financial year;
(e)a statement of the kind of information to be furnished to the Minister and the Board in respect of the Authority during the course of a financial year, including the information to be included in each annual report; and
(f)any other matters as the Minister and the Board may agree upon.
(5)Subsequent to the finalization of a business and financial plan or any amendment thereof by the Board, the Board must submit such financial plan or amendment to the Minister to be dealt with in terms of section 19 of the Public Enterprises Governance Act.
(6)The particulars which are included in an approved business and financial plan in respect of the ensuing financial year in accordance with subsection (3)(a) and (b) constitute the approved budget of the Authority for such financial year.
(7)The Authority may during the course of a financial year amend its approved business and financial plan in order to accommodate a change in circumstances or any new considerations.
(8)The Minister must provide a copy of an annual business and financial plan received in terms of subsection (1) to the Minister responsible for Public Enterprises for information, and comment, if any.
(9)The Authority must act in accordance with its business and financial plan, unless it has first obtained the written approval of the Minister to do otherwise.
(10)Nothing done by the Authority is void or unenforceable merely because it has failed to comply with subsection (9).
(11)A person may not publish or disclose any information contained in a business and financial plan of the Authority, except -
(a)with the approval of the Board or of the Minister given after consultation with the Board;
(b)for the purpose of performing a function under this Act or any other law; or
(c)by order of a court of law or any other body in the proper administration of justice.
(12)A person who contravenes subsection (11) commits an offence and is liable to a fine not exceeding N$20 000 or to imprisonment for a period not exceeding two years, or to both such fine and such imprisonment.

31. Performance statement

(1)Within two months after the commencement of this Act or such longer period as the Minister may determine, the Board, after consultation with such parties as the Minister may direct, must prepare and submit to the Minister a draft performance statement containing the following particulars -
(a)the nature and scope of functions to be performed by the Authority;
(b)the strategies which the Authority intends to employ in order to achieve its objectives;
(c)the performance targets and other measures by which the performance of the Authority relative to its objectives may be judged;
(d)a statement of accounting policies;
(e)for purposes of transparency, a plan on the consultation processes to be followed by the Authority;
(f)the principles to be followed by the Authority relating to the funding of the Authority, including -
(i)principles to be followed at the end of each financial year in respect of any surplus funds in the accounts of the Authority;
(ii)the parties to be consulted on the manner in which charges referred to in section 25 are to be imposed;
(iii)the measures to be implemented to protect the financial soundness of the Authority;
(iv)the principles to be applied by the Authority in relation to its policies regarding appointment and promotion of employees of the Authority;
(g)any activities for which compensation is sought from the Government;
(h)any other matter relating to the functions of the Authority that may be required by the Minister.
(2)The Minister, as soon as practicable after the receipt of a performance statement from the Board, may approve the performance statement without amendments or with such amendments as may be effected with the consent of the Board.
(3)The Board -
(a)may amend the approved performance statement from time to time, subject to the approval of the Minister; and
(b)must, at least once in three years, review the approved performance statement and submit it to the Minister for his or her approval.
(4)The Authority must act only in accordance with its performance statement, unless it has first obtained the written approval of the Minister to do otherwise.
(5)Failure by the Authority to comply with any provision of the performance statement does not affect the validity or enforceability of any agreement entered into, or any right, obligation or liability, acquired or incurred by the Authority.
(6)A person may not publish or disclose any information contained in a performance statement of the Authority, except -
(a)with the approval of the Board or of the Minister given after consultation with the Board;
(b)for the purpose of performing a function under this Act or any other law; or
(c)by order of a court of law or any other body in the proper administration of justice.
(7)A person who contravenes subsection (6) commits an offence and is liable to a fine not exceeding N$20 000 or to imprisonment for a period not exceeding two years, or to both such fine and such imprisonment.

Part 4 – DELEGATION

32. Delegation and assignment of powers and functions by Minister and Board

(1)The Minister may, either generally or particularly, in writing delegate or assign to the Board any power or function conferred or imposed on the Minister by or under this Act, except the power -
(a)to appoint any person;
(b)to make regulations; and
(c)to delegate and assign powers and functions, under this Act.
(2)The Board, in writing and subject to such conditions as the Board may determine, may delegate or assign any of its powers or functions to the Executive Director, a committee of the Board, or any other competent person or body.
(3)The Board may not delegate -
(a)a power to appoint the Executive Director or to appoint a person in an acting capacity of Executive Director for any period exceeding 30 days;
(b)a power delegated to it by the Minister without the written approval of the Minister;
(c)a power in relation to business and financial plan and expenditure of the Authority;‑or
(d)a power to make rules, under this Act.
(4)A delegation or assignment made under subsection (1) or (2) -
(a)does not divest Minister or the Board of the power or function so delegated or assigned;
(b)does not prevent the exercise of the power or the performance of the function by the Minister himself or herself or the Board itself; and
(c)may at any time be revoked in writing by the Minister or the Board,
and the Minister or Board may, without prejudice of any right, amend or set aside any decision made under such delegation.

33. Delegation and assignment of powers and functions by Executive Director

(1)The Executive Director, in writing and subject to such conditions as the Executive Director may determine, may delegate or assign in writing any power or function conferred or imposed on him or her by or under this Act to any employee of the Authority or any other person, including the powers and functions delegated and assigned to the Executive Director under this Act.
(2)The Executive Director may not delegate -
(a)any power delegated to the Executive Director by the Board without the written approval of the Board;
(b)the power to make emergency regulations;
(c)the power to suspend or to revoke an aviation document under section 43 or 64; or
(d)the power to appoint or discharge employees of the Authority.
(3)A delegation under this section may be made to -
(a)a specified employee or other person;
(b)the employees or other persons of a specified class; or
(c)a holder or holders of a specified office or specified class of office.
(4)An employee of the Authority or other person purporting to act pursuant to any delegation under this section -
(a)is, in the absence of proof to the contrary, presumed to be acting in accordance with the terms of the delegation;
(b)must, when reasonably requested to do so, produce proof of his or her authority to so act.
(5)A delegation or assignment made under this section -
(a)does not divest the Executive Director of the power or function so delegated or assigned;
(b)does not prevent the exercise of the power or the performance of the function by the Executive Director himself or herself;
(c)may at any time be revoked in writing by the Executive Director,
and the Executive Director may, without prejudice of any right, amend or set aside any decision made under such delegation.
(6)A delegation under this section, until it is revoked or expires -
(a)continues in force according to its tenor, despite the fact that the Executive Director by whom it was made ceases to hold office;
(b)continues to have effect as if it was made by the Executive Director for the time being holding that office.

Part 5 – EXECUTIVE DIRECTOR AND STAFF OF AUTHORITY

34. Executive Director of Civil Aviation

(1)The Board, with the concurrence of the Minister, must, in accordance with the eligibility requirements of section 14 and subject to section 21 of the Public Enterprises Governance Act, appoint a suitable person -
(a)who has qualifications, knowledge and expertise directly relevant to the administration and functions of the Authority; and
(b)to be the Executive Director of Civil Aviation who is the chief executive officer of the Authority.
(2)The Executive Director is appointed -
(a)for a term of five years, and is eligible for reappointment at the expiry of that term; and
(b)on such terms and conditions as the Board -
(i)with due regard to any directives laid down by the Council under section 4 of the Public Enterprises Governance Act; and
(ii)with the concurrence of the Minister,
may determine.
(3)Where the Executive Director is absent from office or when a vacancy for the post of the Executive Director occurs, the powers and functions of the Executive Director may be exercised and performed by -
(a)any suitable employee of the Authority other than the head of Air Navigation Services; or
(b)any other suitable person,
appointed by the Board, and it does not matter whether the appointment has been made before or after the absence or vacancy occurred.
(4)The Executive Director is in the full-time employment of the Authority and may not engage in any other occupation or employment, whether for remuneration or not, without the prior written approval of the Board.

35. Accountability of Executive Director

(1)The Executive Director is the head of the administration and accounting officer of the Authority and manages the Authority.
(2)In the exercise and performance of the powers and functions of the Authority under this Act, unless otherwise specified in this Act, the Executive Director is accountable solely and directly to the Board in respect of issues relating to -
(a)civil aviation safety and security oversight;
(b)the implementation of the governance policies as directed by the Board;
(c)the implementation of the decisions of the Board;
(d)the accounting of moneys received and payments made by the Authority;
(e)the administration and management of the Authority; and
(f)the performance of the functions of the Authority.
(3)The Executive Director must for every quarter in each year submit to the Board a quarterly report on his or her performance -
(a)in the execution of the functions of the Authority; and
(b)in the implementation of the decisions and governance policies of the Board,
representing fairly the financial state of affairs and business of the Authority.

36. Administrative powers and functions of Executive Director

Apart from the powers and functions contained in other provisions of this Part, the Executive Director, subject to the directions of the Board, has administrative powers and functions -
(a)to appoint and dismiss the staff of the Authority;
(b)to organise, control and maintain staff discipline;
(c)to form and develop an efficient and effective system of administration;
(d)to establish and maintain a register of inspectors, authorised officers and authorised persons;
(e)to effectively deploy and utilise staff to achieve maximum operational results;
(f)to sign contracts with the approval of the Board; and
(g)to submit to the Board for its approval, at least six months before the start of a financial year or another period agreed to between the Board and the Executive Director, the estimated revenue and expenditure for such financial year.

37. Designation of inspectors and authorised officers and persons

(1)Without prejudice to his or her general powers of appointment and delegation in terms of this Act, the Executive Director may designate one or more -
(a)persons in the service of the Authority as inspectors or authorised officers;
(b)persons who are not in the service of the Authority as authorised persons.
(2)The Executive Director must sign and issue to each authorised officer, inspector and authorised person designated by him or her, a document which must state the full name and contain a photograph of such authorised officer, inspector or authorised person and contain a statement indicating that -
(a)such authorised officer, inspector or authorised person has been designated in terms of subsection (1); and
(b)such authorised officer, inspector or authorised person is empowered to exercise the powers entrusted to him or her in terms of this Act directly or entrusted to him or her in the exercise and performance of powers and functions of the Executive Director under delegation.
(3)The Executive Director may, when necessary, limit the powers of authorised officers, inspectors or authorised persons when designating such authorised officer, inspector or authorised person in terms of subsection (1)(a).
(4)The qualifications, requirements and remunerations for persons designated in terms of subsection (1) are as prescribed.

38. Powers and functions of Executive Director

(1)The Executive Director generally -
(a)has powers conferred on the Executive Director by or under this Act, including powers delegated to the Executive Director under this Act;
(b)performs the functions imposed on or assigned to the Executive Director by or under this Act.
(2)Without limiting subsection (1), the Executive Director must -
(a)exercise control over entry into the civil aviation system through -
(i)the granting of aviation documents, including the validation of foreign aviation documents;
(ii)the issue of medical certificates; or
(iii)the granting of recognition to foreign medical certificates;
(b)take such actions as may be appropriate in the public interest -
(i)to enforce this Act, including the carrying out of inspections and monitoring; and
(ii)to assist in the enforcement of other legislation that are directly related to aviation safety and security and where written approval or instruction for proposed action has been given by the Minister;
(c)monitor adherence, within the civil aviation system, to any regulatory requirements relating to -
(i)safety and security, including personal security;
(ii)access and mobility;
(iii)public health;
(iv)environmental sustainability;
(v)any other matter;
(d)ensure regular reviews of the civil aviation system to promote the improvement and development of its safety and security.
(3)Without limiting subsection (1), where the Executive Director believes on reasonable grounds -
(a)that an unsafe condition exists in any aircraft or aeronautical product; and
(b)that a condition is likely to exist or develop in any other aircraft or aeronautical products of the same design,
the Executive Director, by notice in writing, may issue to the affected parties an airworthiness directive in respect of aircraft or aeronautical products of that design.
(4)An airworthiness directive issued under subsection (3) comes into force on the date specified in the directive, which may be a date earlier than the date of publication of the directive in the Gazette under subsection (5), if the Executive Director -
(a)considers that urgent action is required; and
(b)notifies the affected parties before the directive comes into force.
(5)The Executive Director must publish in the Gazette the airworthiness directive issued under subsection (3) not later than 28 days after the directive comes into force.
(6)Without limiting subsection (1), the Executive Director may issue an aviation directive comprised of a permission, approval or procedure, or the imposition of a condition, restriction or prohibition which the Executive Director believes on reasonable grounds to be -
(a)consistent with the objectives of applicable regulatory requirements, procedures or documents; and
(b)necessary and expedient to better achieve the objects of this Act.
(7)In exercising or performing any powers or functions in relation to -
(a)the granting of aviation documents;
(b)the suspension of aviation documents;
(c)the revocation of aviation documents;
(d)the issue, suspension, or revocation of medical certificates;
(e)the issue of a validation permit for a foreign license;
(f)the granting of recognition of a foreign medical assessment or certificate;
(g)the granting of exemptions; or
(h)the enforcement of this Act or any other law relating to aviation safety and security,
the Executive Director acts independently and is not subject to any influence or directive from any person or authority.

39. Examinations and tests for granting of aviation documents

For the purposes of granting or renewing aviation documents under this Act, the Executive Director may -
(a)set, conduct, and administer examinations and tests;
(b)conduct flight testing;
(c)carry out other functions in relation to such examinations, tests, and flight testing under this section as may be necessary.

40. Safety and security inspections and monitoring

(1)The Executive Director may in writing require any person who -
(a)holds an aviation document; or
(b)operates, maintains, or services, or does any other act in respect of any aircraft, aeronautical product, aviation related service, air traffic service, or aeronautical procedure,
to -
(i)undergo such inspections and such monitoring; or
(ii)carry out such inspections and such monitoring,
as the Executive Director considers necessary in the interests of civil aviation safety and security.
(2)The Executive Director may, in respect of any person described in subsection (1)(a) or (b), carry out such inspections and monitoring as the Executive Director considers necessary in the interests of civil aviation safety and security.
(3)For purposes of any inspection or monitoring carried out in respect of any person under subsection (2), the Executive Director may in writing require from such person such information as the Executive Director considers relevant to the inspection or the monitoring.

41. Investigation of holder of aviation document

(1)The Executive Director, in writing, may require a holder of an aviation document to undergo an investigation conducted by the Executive Director if he or she believes, on reasonable grounds, that it is necessary in the interests of civil aviation safety or security, and if the Executive Director has reasonable grounds to believe -
(a)that the holder has failed to comply with any conditions of an aviation document or with the requirements of section 66; or
(b)that the privileges or duties for which the document has been granted are being utilised or carried out in a careless or incompetent manner.
(2)If the Executive Director decided to investigate a holder of an aviation document, the Executive Director must -
(a)conclude the investigation as soon as practicable; and
(b)inform the holder, in writing, of -
(i)the date on which the investigation begins; and
(ii)the results of the investigation, including any recommendations arising out of the investigation and the grounds for those recommendations.

42. Suspension of aviation documents and imposition of conditions

(1)Subject to section 44, the Executive Director may suspend the whole or a part of an aviation document issued under this Act or impose conditions in respect of any such document, if he or she considers such action necessary in the interests of safety and security and to ensure compliance with this Act, and on reasonable grounds believes -
(a)that the holder has failed to comply with any conditions of the aviation document or with the requirements of section 66;
(b)that the holder contravenes or fails to comply with section 167; or
(c)that the privileges or duties for which the document has been granted are being utilised or carried out in a careless or incompetent manner.
(2)A holder whose aviation document has been suspended or made subject to conditions under subsection (1) must forthwith produce such document to the Executive Director for appropriate endorsement.
(3)A person in respect of whom a decision is taken under this section may appeal against the decision to the High Court under section 225.

43. Revocation of aviation documents and imposition of conditions

(1)Subject to section 44, if after an inspection, monitoring, or investigation carried out under this Act, the Executive Director considers it necessary in the interests of aviation safety or security, he or she may -
(a)revoke the whole or any part of an aviation document; or
(b)impose permanent conditions on an aviation document.
(2)A person whose aviation document is revoked or made subject to permanent conditions under this section must -
(a)if the document is made subject to permanent conditions or revoked in part, immediately produce the document to the Executive Director for appropriate endorsement; or
(b)if the whole document is revoked, immediately surrender the document to the Executive Director.
(3)A person in respect of whom a decision is taken under this section may appeal against the decision to the High Court under section 225.

44. Criteria for suspension or revocation of or imposition of conditions on aviation documents

(1)Before the Executive Director determines whether an aviation document should be suspended or made subject to conditions under section 42 or revoked or made subject to conditions under section 43, the Executive Director must consider the criteria set out in this section.
(2)Where the question of suspension or revocation of or imposition of conditions on an aviation document of a person arises, the Executive Director may have regard to, and give such weight as the Executive Director considers appropriate to, the following matters -
(a)the history of compliance of such person with transport safety regulatory requirements;
(b)any conviction for any transport safety offence, whether or not -
(i)the conviction was in a Namibian court; or
(ii)the offence was committed before the commencement of this Act; or
(c)any evidence that the person has committed a transport safety offence or has contravened or failed to comply with any regulation made under this Act.
(3)The Executive Director is not confined to consideration of the matters specified in subsection (2) and may take into account such other matters and evidence as he or she considers relevant.
(4)The Executive Director may -
(a)seek and receive such information as the Executive Director thinks fit; or
(b)consider information obtained from any source.
(5)If the Executive Director proposes to take into account any information that is or may be prejudicial to a person, the Executive Director must, subject to subsection (6) -
(a)in the case of revocation of an aviation document, as soon as practicable; or
(b)in the case of the suspension of an aviation document or the imposition of conditions under section 42, no later than five working days after suspending the aviation document or imposing conditions,
disclose the information to the person and give the person a reasonable opportunity to refute or comment on the information.
(6)Nothing in subsection (5) requires the Executive Director to disclose -
(a)any information, the disclosure of which would endanger the safety of any person; or
(b)any information or the fact of non-disclosure of the information, before suspending an aviation document or imposing conditions in respect of an aviation document under section 42.

45. Amendment or revocation of aviation documents by request

(1)The Executive Director may, if so requested in writing by the holder of any aviation document, amend the document in the manner requested or revoke the document.
(2)Subject to subsection (3), the Executive Director, after having received and considered a request submitted under subsection (1), may do any of the following -
(a)amend an aviation document to reflect the fact that any privilege or duty for which the document has been granted is no longer being enjoyed or carried out, or is no longer able to be enjoyed or carried out, by the holder;
(b)revoke any aviation document if none of the privileges or duties for which the document has been granted are being enjoyed or carried out, or are able to be enjoyed or carried out, by the holder; or
(c)amend any aviation document to correct any clerical error or obvious mistake on the face of the document.
(3)Before taking any action under subsection (2), the Executive Director must -
(a)notify the holder in writing of the proposed action; and
(b)give the holder a reasonable opportunity to comment or make submissions on the proposed action.
(4)The power to amend an aviation document under this section, includes -
(a)the power to revoke the document and issue a new document in its place; and
(b)the power to impose reasonable conditions.
(5)When the holder of an aviation document is notified that specified action is proposed under this section, the holder must forthwith produce the document to the Executive Director.

46. Exemption from certain requirements under certain regulations

(1)The Executive Director, if he or she considers it appropriate and upon such conditions as he or she considers appropriate, may exempt any person, aircraft, aeronautical product, aerodrome, or aviation related service from any specified requirement in any regulation made under section 54, 56, 57 or 58.
(2)Before granting an exemption under subsection (1), the Executive Director must be satisfied in the circumstances of each case that -
(a)the requirement has been substantially complied with and that further compliance is unnecessary;
(b)the action taken or provision made in respect of the matter to which the requirement relates is as effective or more effective than actual compliance with the requirement;
(c)the prescribed requirements are clearly unreasonable or inappropriate in the particular case; or
(d)events have occurred that make the prescribed requirements unnecessary or inappropriate in the particular case,
and that the risk to safety is not likely to be significantly increased by the granting of the exemption.
(3)The Executive Director must, as soon as practicable by notice in the Gazette, announce the exemption granted under subsection (1).
(4)Nothing in this section applies in any case where a regulation made under the sections referred to in subsection (1) specifically prohibits the granting of an exemption.

47. Detention of aircraft, imposition of prohibitions and conditions and seizure of aeronautical products and dangerous goods

(1)Where the Executive Director believes on reasonable grounds that the operation or use of any aircraft or aeronautical product or any class of aircraft or aeronautical products or any aerodrome may endanger persons or property and that prompt action is necessary to prevent the danger, the Executive Director may -
(a)detain the aircraft or any aircraft of that class in order to prevent their operation or use;
(b)seize a particular aeronautical product or any aeronautical products of that class where necessary in order to prevent their operation or use;
(c)prohibit or impose conditions on the operation of the aircraft or aircraft of that class or the use of any aeronautical product or any aeronautical products of that class; or
(d)prohibit or impose conditions on the operation of the aerodrome.
(2)Any detention or seizure under subsection (1) is maintained for only such time as is necessary in the interest of safety, but, if an aircraft, aeronautical products, or parts thereof are required for the purpose of evidence in any prosecution under this Act such aircraft, products, or parts thereof may be retained by the Executive Director for such period as the Executive Director considers necessary for that purpose.
(3)The Executive Director, if requested by the owner or the person for the time being of an aircraft detained or an aeronautical product seized under subsection (1), must provide in writing to the owner or such person the reasons for the detention or seizure.
(4)The Executive Director may seize and detain any dangerous goods where he or she believes on reasonable grounds that they may not be lawfully carried in an aircraft but which are offered for carriage by air for the purpose of -
(a)preventing the carriage by air of such dangerous goods;
(b)use as evidence in any prosecution under this Act or any other law; or
(c)the safe disposal of such dangerous goods, if authorised by this Act or any other law.
(5)Any seizure or detention under subsection (4) may be maintained only for such time as is necessary to achieve the relevant purpose or purposes in subsection (4).
(6)A person in respect of whom a decision is taken under this section may appeal against the decision to the High Court under section 225.

48. Right of access to aircrafts, aerodromes, buildings and places

For the purposes of exercising and performing his or her powers and functions under this Act, a person duly authorised by the Executive Director has access at any time to -
(a)any aircraft, aerodrome, building, or place;
(b)any document or record concerning any aircraft, aeronautical product, or aviation related service; and
(c)any other place, document or thing as may be prescribed.

Part 6 – AIR NAVIGATION SERVICES

49. Establishment of Air Navigation Services

(1)There is established in the Authority a unit to be known as Air Navigation Services.
(2)The Board must appoint a suitable person as head of Air Navigation Services for such period and on such conditions of service as determined by the Board.
(3)Where the office of the head is vacant or the head is for any reason absent from office, the Board may appoint any staff member of the Authority, other than the Executive Director, to act as head during the vacancy or the absence of the head from office.
(4)The head referred to in subsection (2) must report to -
(a)the Board on the provision of air navigation services; and
(b)the Executive Director on matters relating to regulatory compliance.
(5)The Authority performs its functions in respect of the air navigation services separately from its other functions and for this purpose must -
(a)develop, implement and maintain separate bank accounts, records, and reports;
(b)establish rules of procedures for the regulation and provision of services;
(c)establish efficient and effective lines of management and operational authority to enable the application of policies and procedures;
(d)ensure control and set-up funding mechanisms;
(e)appoint the auditor for the annual auditing of the finances for Air Navigation Services; and
(f)ensure other reporting lines, financial structures and accountability mechanisms,
with the objective of maximising the functional separation of the provision of air navigation services from the other functions of the Authority.
(6)The rules, procedures and mechanisms adopted under subsection (5) must be in accordance with internationally accepted accounting practice.

Part 7 – REGISTRIES, RECORDATION OF INTERESTS AND INFORMATION SERVICES

50. Namibia Register of Aircraft

(1)The Executive Director must establish a register to be known as the Namibia Register of Aircraft.
(2)The Executive Director must enter in the Namibia Register of Aircraft such particulars, as may be prescribed, of every aircraft registered under section 70(1).

51. Recordation of interests in aircraft

(1)The Executive Director must establish a national system for recording documents which affect the title to or any interest in -
(a)any civil aircraft registered in Namibia; and
(b)any aircraft engine, propeller, appliance, or spare part intended for use on any aircraft registered in Namibia.
(2)Upon the Executive Director establishing a recording system, no document affecting title to or any interest in such registered aircraft, aircraft engines, propellers, appliances, or spare parts is valid, except between the parties thereto, unless it is recorded in that system.
(3)The validity of any document so recorded, unless otherwise specified by the parties thereto, is determined under the laws of Namibia.
(4)The requirements for documents to be recorded and the manner of recordation are prescribed by the Executive Director.

52. Civil Aviation Registry

(1)The Executive Director must establish a registry to be known as the Civil Aviation Registry.
(2)Copies or appropriate proof of the following documents and information are recorded and maintained at the Civil Aviation Registry -
(a)all aviation documents;
(b)the Namibia Register of Aircraft;
(c)all regulations and all notices published in the Gazette under this Act and for the time being in force;
(d)any material incorporated into a regulation by reference under section 61;
(e)all accidents and incidents notification given under section 90;
(f)all airworthiness directives issued by the Executive Director under section 38(3);
(g)all aviation directives issued by the Executive Director under section 38(6);
(h)all delegations, authorisations, and exemptions made or granted in writing under this Act;
(i)the address for service of every current applicant for an aviation document and of every current aviation document holder;
(j)all information published under section 53; and
(k)all document of recordation of title or interest pursuant to section 51.
(3)The Executive Director must take such measures as are necessary to ensure that the public has access to documents described in subsection (2) and kept at the Civil Aviation Registry.
(4)The Executive Director must make the documents and information described in subsection (2) available during the business hours of the Authority -
(a)for inspection by the public free of charge; and
(b)for copying upon payment of such fee as the Authority may determine.
(5)The Executive Director may exclude any information relating to documents kept at the Civil Aviation Registry, if the disclosure of such information may -
(a)prejudice the safety and security of civil aviation; or
(b)risk the national interest of Namibia.

53. Information services

The Authority must ensure that -
(a)an information service is provided comprising the collection and dissemination of aeronautical information and instructions relating to the safety, security, regularity, and efficiency of air navigation; and
(b)such information and instructions referred to in paragraph (a) are readily available to any person upon payment of a fee determined by the Authority.

Part 8 – REGULATIONS

54. General regulations

(1)The Minister, after consultation with the Board, may make regulations relating to -
(a)the implementation of the obligations of Namibia under the Chicago Convention and the Transit Agreement;
(b)the provision of aviation meteorological services, civil aviation security programs and services and the coordination of aviation search and rescue services;
(c)the fees, levies and charges payable under this Act;
(d)the protection and promotion of public health;
(e)the environmental sustainability;
(f)any matter related or reasonably incidental to any of the following -
(i)the functions of the Minister in terms of sections 4 and 125;
(ii)the objects of the Authority under section 9;
(iii)the functions of the Authority in terms of section 10; or
(iv)the functions of the Executive Director under sections 36 and 38; and
(g)any matter required or permitted by this Act to be prescribed or necessary or expedient to be prescribed to give effect to this Act.
(2)A regulation made under subsection (1) may -
(a)apply generally or with respect to different classes of persons, aircraft, aerodromes, aeronautical products, aeronautical procedures, or aviation related services, or with respect to the same class of person, aircraft, aerodrome, aeronautical product, aeronautical procedure, or aviation related service in different circumstances;
(b)apply generally throughout Namibia or within any specified part or parts of Namibia; or
(c)prescribe -
(i)administrative fines in respect of a contravention of or a failure to comply with any provision thereof; or
(ii)penalties in respect of a contravention of or a failure to comply with any provision thereof not exceeding a fine of N$20 000 or imprisonment for a period not exceeding two years, or to both such fine and such imprisonment.

55. Regulations relating to safety and security

Without limiting the power conferred by section 54, in the interests of safety or security within the civil aviation system, the Minister, after consultation with the Board, may make regulations relating to -
(a)the use of aerodromes and other aviation related facilities, including -
(i)the identification procedures for persons, aircraft, and any other aviation related things;
(ii)the prevention of interference with aerodromes and other aviation related facilities;
(iii)the ongoing review, update and implementation of security measures for the protection of all users of aircraft and aerodromes;
(iv)the functions, powers, and duties of aviation security services providers;
(v)the screening and searching of passengers, baggage and cargo and the seizure of items and substances;
(b)general operation, air traffic and flight, including -
(i)the conditions under which aircraft may be used or operated, or conditions under which any act may be performed in or from an aircraft;
(ii)the prevention of aircraft from endangering persons or property;
(c)the control of things likely to be hazardous to aviation safety and security, including -
(i)the safe carriage of firearms and other dangerous or hazardous goods or substances by air;
(ii)the construction, use, or operation of anything likely to be hazardous to aviation safety; and
(iii)the misconduct of passengers on board aircraft.

56. Regulations relating to airspace

Without limiting the power conferred by section 54 -
(a)in the interests of safety or security within the civil aviation system;
(b)in the interests of national security; or
(c)for any other reason in the public interest,
the Minister, after consultation with the Board, may make regulations providing for the classification, designation, special use, prohibition, and the restriction of airspace and things affecting navigable airspace.

57. Regulations for noise abatement and emission control purposes

Without limiting the power conferred by section 54, the Minister, after consultation with the Board, may make regulations relating to -
(a)flight rules, flight paths, altitude restrictions, and operating procedures for the purposes of noise abatement in the vicinity of aerodromes;
(b)limitation of engine emissions consequential upon the operation of aircraft.

58. Regulations relating to general matters

Without limiting the power conferred by section 54, the Minister, after consultation with the Board, may make regulations relating to -
(a)the designation, classification, and certification of -
(i)aircraft;
(ii)aircraft pilots;
(iii)flight crew members;
(iv)air traffic service personnel;
(v)aviation security service personnel;
(vi)aircraft maintenance personnel;
(vii)air services;
(viii)air traffic services;
(ix)aerodromes and aerodrome operators;
(x)regulated cargo agents;
(xi)navigation installation providers;
(xii)aviation training organisations;
(xii)aircraft design, manufacture, and maintenance organisations;
(xiv)aeronautical procedures;
(xv)aviation security services;
(xvi)aviation meteorological services;
(xvii)aviation communications services;
(xviii)aviation search and rescue services;
(xix)any other person who provides services in the civil aviation system, and any aircraft, aeronautical products, aviation related services, facilities, and equipment operated in support of the civil aviation system, or classes of such persons, aircraft, aeronautical products, aviation related services, facilities, and equipment operated in support of the civil aviation system;
(b)the standards, specifications, restrictions, and licensing requirements for all or any of those persons or things specified in paragraph (a), including -
(i)the privileges, limitations, and ratings associated with licences or other forms of approval;
(ii)the standards for training systems and techniques, including recurrent training requirements;
(iii)the medical standards for personnel;
(iv)the requirement for proof of access to appropriate weather services;
(v)the standards of design, construction, manufacture, maintenance, processing, testing, supply, approval, and identification of aircraft and aeronautical products;
(vi)the requirements for notification of insurance coverage for air services;
(vii)the format of aviation documents, forms, and applications, including the specification of information required on all application forms for aviation documents;
(viii)the provision of information to the Executive Director by applicants for or holders of aviation documents;
(c)the conditions of operation of foreign aircraft and international flights to, from, or within Namibia;
(d)the definitions, abbreviations, and units of measurement to apply within the civil aviation system; and
(e)the design and colours of the Civil Air Ensign of Namibia, and where and by whom it may be flown.

59. Emergency regulations

(1)Subject to subsection (2), the Executive Director may make such emergency regulations in accordance with section 60 as may be necessary to alleviate or minimise -
(a)any risk of death of or a serious injury to any person; or
(b)any risk of damage to any property.
(2)The emergency regulations under subsection (1) are made when -
(a)there is no regulation in place dealing with the particular situation; and
(b)it is impracticable in the circumstances of the particular case for the Minister to make regulations to effectively alleviate or minimise the risk concerned.
(3)The Executive Director may revoke any emergency regulation made under subsection (1), and the revocation is notified in the same manner as emergency regulation.

60. Procedure for making emergency regulations

(1)Before making an emergency regulation under section 59, the Executive Director must consult with such persons, representative groups within the aviation industry or elsewhere, Government entities, and others as the Executive Director in each case considers appropriate.
(2)Where for reasons of safety or security it is impracticable or inappropriate to notify an emergency regulation in the Gazette, the Executive Director must notify such persons as he or she considers appropriate or necessary in the circumstances by e-mail, facsimile, telephone, or such other manner as the Executive Director considers appropriate or necessary in the circumstances.
(3)An emergency regulation may be in force for a period not exceeding 90 days, and the Executive Director may renew such regulation once for a further period not exceeding 90 days.
(4)The Board may, at any time while an emergency regulation made by the Executive Director is in force in accordance with subsection (3), by notice in the Gazette, extend the regulation in accordance with subsection (5) for a further period not exceeding 180 days from the date of its publication in the Gazette.
(5)Before extending an emergency regulation under subsection (4), the Board must consult with such persons, representative groups within the aviation industry or elsewhere, Government entities, and others as the Board thinks appropriate.
(6)So far as any emergency regulation is inconsistent or repugnant to any regulation made under this Act, the emergency regulation prevails.

61. Incorporation into regulations by reference

(1)The -
(a)Minister, after consultation with the Board; or
(b)Executive Director,
may, respectively, incorporate by reference into a regulation made by the Minister, or into emergency regulation made by the Executive Director, any -
(i)standards, requirements, or recommended practices of international aviation organisations;
(ii)standards, requirements, or regulations prescribed by any other Contracting State of ICAO;
(iii)standards, requirements, or regulations of any aviation sport or aviation recreational organisation; or
(iv)any other written material or document that, in the opinion of the Minister or Executive Director, is too large or impractical to be printed as part of the regulation.
(2)A material incorporated in a regulation by reference under subsection (1) -
(a)is deemed for all purposes to form part of the regulation or emergency regulation; and
(b)unless otherwise provided in the regulation or emergency regulation, every amendment to any material so incorporated by reference that is made by the person or organisation from whom the material originated, the amendment, subject to subsections (3) and (4), is deemed to be part of the regulation or emergency regulation.
(3)The Minister or Executive Director, by notice in the Gazette, must specify the date on which any amendment to material incorporated by reference under subsection (1) takes effect.
(4)The Civil Aviation Registry must make all the materials incorporated by reference under subsection (1) or (2) available for inspection by the public in accordance with sections 52(4) and (5).
(5)Where any material specified in subsection (1) is incorporated by reference into a regulation or emergency regulation pursuant to this section the regulation or emergency regulation must -
(a)include a statement to the effect that the material has been incorporated pursuant to this section;
(b)clearly identify the material so incorporated; and
(c)advise that the incorporated material is available for inspection in accordance with subsection (4).

Part 9 – FEES, CHARGES AND LEVIES

62. Fees, charges and levies

(1)The Minister, on the recommendation of the Board, and with the concurrence of the Minister responsible for finance, may make regulations relating to -
(a)the fees, charges and levies payable under this Act;
(b)the matters in respect of which fees, charges or levies are to be payable under this Act, the amount of the fees, charges or levies, and the persons liable to pay them;
(c)the dates by which fees, charges or levies are payable;
(d)discounts for early payment of fees, charges or levies or a penalty for late payment, or both, on an equal basis to persons liable to pay the fee, charge or levy;
(e)the refund or waiver of any fee, charge or levy payable under this section in whole or in part, in any specified case or class of cases;
(f)such other matters as are contemplated by this Act or necessary for giving full effect to this Act and for its due administration.
(2)Different rates of fees, charges and levies may be prescribed in respect of different classes of persons, aerodromes, aircraft, aeronautical products, aviation related services, air traffic services, or aeronautical procedures, or on the basis of different times of use, or on any other differential basis.
(3)A regulation made under this section may -
(a)specify the persons by whom and to whom any fees, charges or levies are payable;
(b)prescribe additional fees, allowances, charges or rates for work or services carried out outside normal working hours or at weekends or on statutory holidays;
(c)prescribe rates for reimbursement of traveling time, accommodation, and other daily expenses;
(d)require returns to be made by persons by whom any fees or charges are payable, and prescribe conditions relating to the making of such returns; or
(e)provide for the refund or waiver of any fee or charge in whole or in part, in any specified case or class of cases.
(4)The Minister may after consultation with the Namibian Airports Company prescribe fees, charges and levies in respect of the use of any aerodrome or airport operated or managed by such airport company.

63. Rebates

(1)Subject to subsection (2), a Government institution, an organisation or a person to whom any fees, charges or levies are payable under any regulation may grant a rebate of such fees, charges or levies to any person who is liable to pay such fees, charges or levies.
(2)A rebate of fees, charges or levies granted under subsection (1) is -
(a)based on the quantity of services used by the person liable to pay the fees, charges or levies;
(b)offered on an equal percentage basis to every person using a similar quantity of such services; and
(c)granted in accordance with the prescribed requirements.

64. Payment of fees, charges and levies

(1)Unless otherwise provided in a regulation, every application made under this Act must be accompanied by the payment of all relevant prescribed fees, charges or levies.
(2)Where a fee, charge or levy payable under this Act is not paid by the date prescribed for payment of such fee, charge or levy, the Executive Director may suspend the aviation document to which the unpaid fee, charge or levy relates.
(3)Where any fee, charge or levy payable under this Act is not paid 60 days after the date prescribed for payment of such fee, charge or levy, the Executive Director may revoke the aviation document to which the fee, charge or levy relates.
(4)Before suspending an aviation document under subsection (2), or revoking an aviation document under subsection (3), the Executive Director must notify the holder of the document of -
(a)his or her intention to suspend or revoke the document; and
(b)the right of appeal available to the holder of the document in the event of the document being suspended or revoked.
(5)Where a fee, charge or levy is payable in respect of an application or the provision of a service under this Act, the Executive Director or other person asked to process the application or provide the service, may, unless the safety of any person would be put at risk, decline to process the application or provide the service until -
(a)the appropriate fee, charge or levy has been paid; or
(b)arrangements for payment of the fee, charge or levy acceptable to the Executive Director or such other person have been made.
(6)A holder of an aviation document that is suspended under subsection (2) or revoked under subsection (3) may appeal against the decision of the Executive Director to the High Court under section 225.

65. Recovery of fees, charges, levies and administrative fines

(1)Without limiting the powers contained in subsections (2), (3) and (5) of section 64, the Executive Director may recover any fee, charge, levy or administrative fine that is not paid to the Authority by the due date as a debt due to the Authority.
(2)Subject to subsection (3), where a fee, charge, levy or administrative fine is payable under this Act in respect of any aircraft, the person whose name appears on the register of aircraft in respect of such aircraft is deemed to be liable to pay such fee, charge, levy or fine.
(3)Any person who would otherwise be liable to pay a fee, charge, levy or administrative fine in relation to any aircraft in terms of subsection (2) is not so liable if the person -
(a)proves that during any relevant period of use of the aircraft the person was not entitled, whether alone or together with some other person, to possession of the aircraft or that another person was unlawfully in possession of it; and
(b)has taken all reasonable steps to provide the Executive Director with such information as would identify the actual user.

Part 10 – NAMIBIA CIVIL AVIATION SYSTEM

66. General requirements for participants in Namibia civil aviation system

(1)A person who -
(a)performs any function or activity;
(b)occupies any position or office;
(c)provides any service or product; or
(d)does any other anything,
for which an aviation document is required (in this section called a “participant”) must ensure that he or she holds the appropriate aviation documents and all the necessary qualifications and other required documents.
(2)A participant must -
(a)comply with this Act and the conditions attached to the relevant aviation documents; and
(b)ensure that the activities or functions for which the aviation document has been granted are carried out safely and in accordance with the relevant prescribed safety standards and practices.
(3)A participant who holds an aviation document that authorises the provision of a service within the civil aviation system must -
(a)if so required by or under this Act, establish and follow a management system that ensures compliance with the relevant prescribed safety standards and the conditions attached to the document;
(b)provide training and supervision to all employees of the participant who are engaged in doing anything to which the document relates, so as to maintain compliance with the relevant prescribed safety standards and the conditions attached to the document and to promote safety; and
(c)provide sufficient resources to ensure compliance with the relevant prescribed safety standards and the conditions attached to the document.

67. Requirement for aviation document

(1)A regulation made under this Act may require that an aviation document is required by or in respect of -
(a)a Namibian aircraft;
(b)aircraft pilots;
(c)flight crew members;
(d)air traffic service personnel;
(e)aviation security service personnel;
(f)aircraft maintenance personnel;
(g)air services;
(h)air traffic services;
(i)aerodromes and aerodrome operators;
(j)navigation installation providers;
(k)aviation training organisations;
(l)aircraft design, manufacture, and maintenance organisations;
(m)aeronautical procedures;
(n)aviation security services;
(o)aviation meteorological services;
(p)aviation communications services;
(q)any persons, services, or things within any of the classes specified in paragraphs (a) to (p);
(r)such other persons, aircraft, aeronautical products, aviation related services, facilities, and equipment operated in support of the civil aviation system, or classes of such persons, aircraft, aeronautical products, aviation related services, facilities, and equipment operated in support of the civil aviation system, as may, in the interests of safety or security, be prescribed; or
(s)any person who is an aviation examiner or medical examiner.
(2)The requirements, standards, forms and application procedure for an aviation document, the maximum period for which an aviation document may be issued and the procedures to be followed where there is an adverse decision to an application for the granting or renewal of an aviation document are as prescribed.
(3)Subject to this Act, Executive Director may issue an aviation document for such specified period and subject to such conditions as the Executive Director considers appropriate in each particular case.

68. Application for and grant of aviation document

(1)An application for the grant or renewal of an aviation document is made to the Executive Director in the prescribed form.
(2)After considering an application for the grant or renewal of an aviation document, the Executive Director must, as soon as is practicable, grant the application if he or she is satisfied that -
(a)all things in respect of which the document is sought meet the relevant prescribed requirements; and
(b)the applicant or any person who is to have or is likely to have control over the exercise of the privileges under the document -
(i)either holds the relevant prescribed qualifications and experience or holds such foreign qualifications as are acceptable to the Executive Director under subsection (3);
(ii)is a fit and proper person to have such control or hold the document; and
(iii)meets all other relevant prescribed requirements; and
(c)it is not contrary to the interests of aviation safety for the document to be granted or renewed.
(3)For the purpose of granting or renewing an aviation document, the Executive Director may, subject to the rules, accept such foreign qualifications or recognise such foreign certifications as he or she considers appropriate in each case.
(4)It is a condition of every aviation document that the holder or any person who has or is likely to have control over the exercise of the privileges under the document continues to satisfy the fit and proper person test specified in subsection (2) (b)(ii).
(5)Where the Executive Director declines to grant an application for the grant or renewal of an aviation document under this section, the applicant may appeal against the decision to the High Court under section 225.

69. Criteria for fit and proper person test

(1)For the purpose of determining whether or not a person is a fit and proper person for any purpose under this Act, the Executive Director, having regard to the degree and nature of the proposed involvement of the person in the Namibia civil aviation system, must have regard and give such weight as the Executive Director considers appropriate to -
(a)the compliance history of the person with transport safety regulatory requirements;
(b)the related experience, if any, of the person within the transport industry;
(c)the knowledge of the person in the applicable civil aviation system regulatory requirements;
(d)any history of any physical or mental health problem, disability or incapacity or of any serious behavioural problem of the person;
(e)any conviction of the person for any transport safety offence, whether or not -
(i)the conviction was in a court in Namibia; or
(ii)the offence was committed before the commencement of this Act; and
(f)any evidence that the person has committed a transport safety offence or has contravened or failed to comply with any transport safety regulation.
(2)The Executive Director is not confined to consideration of the matters specified in subsection (1) and may take into account such other matters and evidence as may be relevant.
(3)For the purpose of determining whether or not a person is a fit and proper person for any purpose under this Act, the Executive Director may -
(a)seek and receive such information, including medical reports, as the Executive Director thinks fit;
(b)consider information obtained from any source; or
(c)have regard to, and give such weight as the Executive Director thinks appropriate to, any advice and recommendations provided by approved organizations contracted under section 4(1)(c).
(4)Subsection (1) applies to a juristic person with the following modifications -
(a)paragraphs (a), (b), (c), (e), and (f) of that subsection are read as if they refer to the juristic person and its officers; and
(b)paragraph (d) of that subsection is read as if it refers only to the officers of the juristic person.
(5)If the Executive Director proposes to take into account any information that is or may be prejudicial to a person, the Executive Director, subject to subsection (6), must disclose that information to the person and give the person a reasonable opportunity to refute or comment on it.
(6)Nothing in subsection (5) may require the Executive Director to disclose any information the disclosure of which would be likely to endanger the safety of any person.
(7)If the Executive Director proposes to make a determination that any holder of or applicant for an aviation document is not a fit and proper person, the Executive Director, subject to subsection (6), must -
(a)disclose the grounds for the proposed determination to the holder or applicant; and
(b)give the holder or applicant a reasonable opportunity to make submissions on the proposed decision before proceeding to make a final determination.
(8)If the Executive Director makes a final determination that the holder of or applicant for an aviation document is not a fit and proper person for the purposes of this Act, the Executive Director must -
(a)inform the holder or applicant of the decision; and
(b)notify the holder or applicant of a right of appeal against the decision to the High Court under section 225.

70. Registration of aircraft

(1)Unless as otherwise provided in this Act, an owner of an aircraft which flies to, from, within, or over Namibian territory must register the aircraft and hold a valid certificate of registration for the aircraft issued by -
(a)the Executive Director;
(b)the appropriate aeronautical authorities of a contracting State of ICAO; or
(c)the appropriate aeronautical authorities of another State that is party to an agreement with the Government of Namibia which provides for the acceptance of registration of aircrafts of each other.
(2)An aircraft may not be registered in or remain registered in Namibia if it is registered in any other country.
(3)The Executive Director may decline to register an aircraft if it does not meet the requirements prescribed by or under this Act.
(4)Any person in respect of whom a decision is taken under this section may appeal against the decision to the High Court under section 225.

71. Powers and functions of pilot-in-command and operator

(1)A pilot-in-command of an aircraft -
(a)must ensure the safe operation of the aircraft in flight, the safety and wellbeing of all passengers and crew, and the safety of cargo carried;
(b)has final authority to control the aircraft while in command and for the maintenance of discipline in respect of all persons on board; and
(c)subject to subsections (2) to (7), must comply with all relevant requirements of this Act.
(2)Subject to subsections (3) and (7), in an emergency that arises in flight, the pilot-in-command may act contrary to the provisions of this Act.
(3)For the purposes of subsection (2), any act contrary to any prescribed requirement is permitted only if the pilot-in-command is satisfied that -
(a)the emergency involves a danger to life or property;
(b)the extent of any act contrary to the prescribed requirement goes only as far as is necessary to deal with the emergency;
(c)there is no other reasonable means of alleviating, avoiding, or assisting with the emergency; and
(d)the degree of danger involved in complying with the prescribed requirement is clearly greater than the degree of danger involved in deviating from it.
(4)Subject to subsections (5) to (7), where an emergency, not being an emergency that arises in flight, necessitates the urgent transportation of persons or medical or other supplies for the protection of life or property, the pilot-in-command of the aircraft or the operator of the aircraft may act contrary to this Act.
(5)For the purposes of subsection (4), any act contrary to any prescribed requirement is permitted only if -
(a)the emergency involves a danger to life or property;
(b)the extent of the act contrary to the prescribed requirement goes only as far as is necessary to deal with the emergency;
(c)there is no other reasonable means of alleviating, avoiding, or assisting with the emergency; and
(d)the degree of danger involved in deviating from the prescribed requirement is clearly less than the degree of risk in failing to attend to the emergency.
(6)Nothing in subsection (4) permits -
(a)the operation of an aircraft that is not registered in Namibia or elsewhere;
(b)the breach of any prescribed requirement as to the airworthiness of an aircraft; or
(c)the operation of an aircraft by a person who is not lawfully entitled to operate such aircraft.
(7)Where, in any emergency described in this section, a pilot-in-command or an operator who, under this section, has acted contrary to any prescribed requirement of this Act, the pilot-in-command or the operator must -
(a)immediately, after the emergency has abated, notify the relevant air traffic control service of the action; and
(b)as soon as practicable, and at the latest within three days of the action, notify the Executive Director of the action and the circumstances that necessitated it, and, if requested by the Executive Director, provide the Executive Director with a written report in respect of the action.

Part 11 – AIRCRAFT ACCIDENT AND INCIDENT INVESTIGATIONS

72. Application of this Part to accidents and incidents

(1)This Part applies in respect of accidents and incidents in or over -
(a)Namibia;
(b)any place that is under Namibia air traffic control; and
(c)any other place, if -
(i)Namibia is requested to investigate the accident or incident by an appropriate authority in terms of the Chicago Convention; or
(ii)the accident or incident involves an aircraft in respect of which, or that is operated by a person to whom, a Namibian aviation document has been issued.
(2)The application of this Part in respect of accident or incident referred to in section 76(4) is subject to such restrictions in the interests of national security as are provided in the Defence Act, 2002 (Act No. 1 of 2002) or as prescribed under this Act.
(3)In this Part ‘‘Government entity’’ means any ministry, office or agency, regional council or local authority, a Public enterprise or similar institution wholly or partially owned or controlled by the Government and operated within the local, regional or national sphere of Government.

73. Establishment of Directorate of Aircraft Accident and Incident Investigations

(1)Subject to the Public Service Act, there is established in the Ministry a directorate to be known as the Directorate of Aircraft Accident and Incident Investigations.
(2)The Minister, subject to such terms and conditions as he or she may think appropriate, must designate from the Public Service -
(a)staff members to the Directorate; and
(b)a suitably qualified and experienced staff member as Director of Investigations,
to perform the functions of -
(i)investigations of accidents and incidents within the scope of section 72;
(ii)reducing the risk of accidents and incidents;
(iii)advising the Minister on any matter relating to the reduction of risk of accidents or incidents; and
(iv)any other nature as provided for by or under this Act.
(3)The persons designated in terms of this section are answerable and report directly to the Minister.
(4)The Director of Investigations may designate persons as investigators and provide them with certificates of designation as investigators, who, subject to his or her control, must investigate accidents and incidents.
(5)Except where the Director of Investigations personally acts as investigator in charge he or she must appoint one of the investigators designated under subsection (4) to be the investigator-in-charge.

74. Powers of Directorate

(1)The Directorate may do all that is necessary or expedient to perform its functions effectively which includes the power to -
(a)obtain, by agreement, the services of any person, including any organ of State, for the performance of any specific act or function;
(b)make rules for the internal procedure for the investigation of accidents and incidents by the Directorate;
(c)delegate the investigation of any accident and incident to any other Contracting State, in accordance with Annex 13 to the Chicago Convention;
(d)collect and disseminate relevant information;
(e)reopen any investigation in compliance with Annex 13 to the Chicago Convention;
(f)establish an accident and incident reporting system in compliance with Annex 13 to the Chicago Convention to facilitate the collection of information on actual or potential safety deficiencies;
(g)upon request conduct investigations on behalf of other contracting States;
(h)perform legal acts, including acts in association with or on behalf of any other person or organ of State;
(i)institute or defend any legal action; and
(j)do anything that is incidental to the exercise of any of its powers.
(2)If the accident occurred within Namibia, the Directorate may -
(a)summon and examine witnesses under oath and call for the production of books, logs, certificates, licences, medical records and other documents, and inspect them; and
(b)summon any person to give evidence before it, or to produce any official document or such other information or object as may be necessary for the performance of the functions of the Directorate.

75. Functions of Directorate

(1)In advancing the aviation transportation safety, the Directorate has the functions to -
(a)develop, either generally or in relation to specific classes of accidents and incidents, policies to be followed in the conduct of investigations, and to make available to the public any policies so developed;
(b)conduct independent investigations, including, when necessary, public inquiries into selected accidents and incidents in order to make findings as to their causes and contributing factors;
(c)identify safety deficiencies as evidenced by accidents and incidents;
(d)make recommendations designed to eliminate or reduce any safety deficiencies;
(e)report on its investigations and on the findings in relation thereto;
(f)promote compliance with the provisions and procedures of Annex 13 to the Chicago Convention;
(g)investigate accidents and incidents in compliance with the provisions and procedures of Annex 13 to the Chicago Convention;
(h)advise any authority or Contracting State, State of Registry, State of the Operator, State of Design and State of Manufacture with regard to any safety recommendation or safety matter prior to the completion of any investigation;
(i)oversee and exercise general control over the performance of the functions and of the activities of the persons appointed or designated by it to perform the work of the Directorate;
(j)submit to the Minister within 90 days after completion of an investigation a final report on its findings;
(k)submit a final report to all recipient States in compliance with Chapter 6 of Annex 13 to the Chicago Convention concerning any accident or incident investigated by the Directorate;
(l)monitor the implementation of safety recommendations as issued by Contracting States;
(m)make such other recommendations as it considers appropriate; and
(n)perform other functions and discharge all obligations in compliance with the provisions and procedures of Annex 13 to the Chicago Convention.
(2)The objective of accident and incident investigations conducted by the Directorate is -
(a)accident prevention by making its findings as to the causes and contributing factors of accidents and incidents; and
(b)not to assign fault or determine civil or criminal liability, but the Directorate may not refrain from fully reporting on the causes and contributing factors merely because fault or liability might be inferred from the findings of the Directorate.
(3)No finding of the Directorate may be construed as assigning fault or determining civil or criminal liability.
(4)The findings of or the evidence before the Directorate -
(a)are not binding on the parties to any legal, disciplinary or any other proceedings; and
(b)may not be used in any civil, criminal or disciplinary proceedings against persons giving such evidence.
(5)Where the causes and contributing factors of any accident or incident is known to the Directorate it may limit its investigation of such accident or incident accordingly.

76. Jurisdiction of Directorate

(1)Despite any other law to the contrary, the Directorate must investigate any accident and incident in compliance with Annex 13 to the Chicago Convention.
(2)Despite any other law to the contrary, the Directorate may commence an investigation into an accident or incident relating to civil aircraft for the purpose of making findings as to its causes and contributing factors.
(3)The Directorate, with the concurrence of the Minister responsible for defence, may investigate an accident or incident that involves -
(a)a military conveyance and a civil aircraft;
(b)a military conveyance and a civil aviation facility; or
(c)a military aviation facility and a civil aircraft.
(4)The Directorate, with the concurrence of the Minister responsible for safety and security, may investigate an accident or incident relating to aircraft or facility operated by the Namibian Police Force or Namibia Central Intelligence Service.

77. Coordination of investigations and remedial actions

(1)Where, at any time during an investigation into an accident or incident under this Act, a Government entity -
(a)investigates such accident or incident; or
(b)undertakes remedial measures with respect to such accident or incident,
the Directorate and the Government entity concerned must take all reasonable measures to ensure that their activities with respect to such accident or incident are coordinated.
(2)Where conflicting interests arise between the Directorate and a Government entity in coordinating their activities pursuant to subsection (1), the requirements and interests of the Directorate, subject to subsection (3) and any agreement entered into under section 81, take precedence and are paramount to the extent of the conflict.
(3)Nothing in subsection (2) gives the requirements and interests of the Directorate precedence over those of the Namibian Police Force, or prevents a Government entity from taking emergency remedial measures under any other law.
(4)Where an accident or incident referred to in subsection (1) is being investigated by the Directorate and -
(a)the Namibian Defence Force;
(b)the Namibian Police Force;
(c)Namibia Central Intelligence Service; or
(d)a visiting force,
the Directorate and the Minister responsible for the Government entity concerned must take all reasonable measures to ensure that the investigations are coordinated.

78. Compatible procedures and practices of investigations

(1)The Directorate must take all reasonable measures including, where appropriate, entering into agreements to ensure that the investigation procedures and practices that it follows in relation to accidents and incidents are compatible with -
(a)any international agreements or conventions to which Namibia is a party; and
(b)investigation procedures and practices followed by judicial inquests in terms of the Inquests Act, 1993 (Act No. 6 of 1993).
(2)Despite subsection (1), but subject to section 88, the internal proceedings and the investigation of accidents and incidents conducted by the Directorate are not open to the public.

79. Confidentiality and disclosure of interests

(1)A person employed by the Directorate must preserve confidentiality with regard to any confidential information that may come to his or her knowledge in the exercise or performance of his or her powers or functions, and may not directly or indirectly disclose such information to another person, except -
(a)for the purpose of the exercise or performance of his or her powers or functions in terms of this Act; or
(b)when required to do so by a court of law or by or under any law.
(2)An employee of the Directorate may not, directly or indirectly, engage in any aviation undertaking or business as owner, shareholder, director, officer, agent or partner, unless the interest is disclosed in writing to the Minister and approval is granted in writing.
(3)An employee of the Directorate or accredited representative, expert or adviser of the Directorate -
(a)must disclose his or her direct or indirect financial interest in any civil aviation activity or industry and that of his or her spouse, parent, child, sibling or business associate;
(b)may not hold such interest referred to in paragraph (a) without prior written approval of the Minister, which approval is open to inspection by the public at the office of the Directorate during business hours.
(4)During the term of employment an employee of the Directorate -
(a)may not carry on any activity inconsistent with the performance of his or her functions under this Act; and
(b)must recuse himself or herself from participation in any investigation where there may reasonably be, or appear to be, a conflict of interest having the potential to compromise either the investigation itself or public confidence in the Directorate.

80. Retention of specialized expertise

The Directorate, in the exercise of its powers and the performance of its functions in terms of this Act or any other law, may enter into contracts for the purpose of obtaining the services of persons having technical or specialised knowledge in civil aviation or any other related field.

81. Agreements between Directorate and Authority

(1)The Directorate and the Authority may enter into agreements with regard to the secondment of staff of the Authority to the Directorate for the purpose of rendering -
(a)any assistance during any investigation of any accident and incident; and
(b)any other matter relating or incidental to the investigation of accidents and incidents.
(2)When entering into the agreements contemplated in subsection (1) the parties must avoid a conflict of interest.
(3)The Directorate must make all efforts to enter into agreements with Ministers responsible for Government entities -
(a)providing for the coordination of activities between the Directorate and Government entities with respect to accidents and incidents, including investigation procedures and practices and requirements for reporting accidents and incidents; and
(b)providing for procedures to be followed in the event that conflicting interests arise between the Directorate and a Government entity during their activities with regard to accidents and incidents.

82. Independence and impartiality of Directorate

(1)The staff and accredited representatives, experts and advisers of the Directorate must serve impartially and independently and exercise and perform their powers and functions in good faith and without fear, favour or prejudice, subject to this Act, the Chicago Convention and any other law.
(2)A staff member, accredited representatives, experts and advisers of the Directorate may not conduct an investigation in terms of this Act or render assistance with regard to a matter in which he or she has any pecuniary or other interest which might preclude him or her from exercising or performing his or her powers or functions in a fair, unbiased and proper manner.
(3)If the Directorate becomes aware of a failure to disclose an interest contemplated in subsection (2) by any staff member, accredited representative, expert or adviser of the Directorate, the Directorate may take such steps as it considers necessary to ensure a fair, unbiased and proper investigation.

83. Powers of Director of Investigations regarding investigations

Subject to this Act and the policies developed under section 75(1)(a), the Director of Investigations has exclusive authority to direct the conduct of investigations on behalf of the Directorate under this Act in relation to accidents and incidents.

84. Designation and powers and functions of investigators

(1)The Director of Investigations may designate an investigator in charge and any number of investigators to investigate any accident and incident in Namibia and provide reports.
(2)An investigator designated in terms of subsection (1) has unrestricted access to and control over -
(a)an aircraft which has been involved in an accident and incident, the wreck or wreckage, the place where the aircraft, the wreck or wreckage is located and the places where marks resulting from the accident and incident which may be of assistance in an investigation, are located;
(b)all documents, including relevant medical records, books, notes, photographs, recordings and transcripts which the investigator in- charge may consider necessary for the investigation and which must be produced without delay by the possessor thereof when so requested; and
(c)all relevant evidence, including flight recorders and air traffic service recordings.
(3)An investigator designated in terms of subsection (1) may -
(a)preserve an aircraft which has been involved in an accident or incident or the wreck or wreckage, any remains and any marks resulting from the accident or incident which may be of assistance in the investigation, by any means available, including photographic means;
(b)examine an aircraft involved in an accident or incident, the wreck or wreckage, any part or component thereof or any item transported therein or any marks resulting from the accident or incident which may be of assistance in the investigation, or remove any such aircraft, wreck or wreckage, or any part or component thereof or any item transported therein for the purpose of the investigation;
(c)obtain information and take statements, from any person, which may be necessary for the investigation;
(d)summon and examine witnesses under oath and call for the production, and grant inspection, of books, logs, certificates, licences and other documents, including medical information and records;
(e)summon any person to give evidence before him or her, or to produce any official document or such other information or object as may be necessary for the performance of the functions of the Directorate; or
(f)regulate, prohibit and control any access to the accident scene or the accident scene of any accident or incident.
(4)An investigator who is investigating an accident or incident may, where the investigator believes on reasonable grounds that -
(a)a person is in possession of information relevant to the investigation -
(i)by notice in writing signed by the investigator, require the person to provide information to the investigator or to attend before the investigator and give a statement under oath or solemn affirmation if required by the investigator; and
(ii)make such copies of or take such extracts from the information provided under subparagraph (i) as the investigator considers necessary for the purposes of the investigation;
(b)the medical examination of a person who is directly or indirectly involved in the operation of an aircraft is or may be relevant to the investigation, by notice in writing signed by the investigator, require the person to submit to a medical examination;
(c)a physician or other health practitioner has information concerning a patient that is relevant to the investigation, by notice in writing signed by the investigator, require the physician or practitioner, if so authorised by the patient of such physician or practitioner, to provide such information to the investigator; or
(d)the performance of an autopsy on the body of a deceased person, or the carrying out of other medical examinations of human remains, is or may be relevant to the conduct of the investigation -
(i)cause such an autopsy or medical examination to be performed; and
(ii)by notice in writing signed by the investigator, require the person having custody of the body of the deceased person or other human remains to permit the performance of that autopsy or that medical examination.
(5)The requirement under subsection (4) that a person submit to a medical examination may not be construed as a requirement that the person submit to any procedure involving surgery, perforation of the skin or any external tissue or the entry into the body of any drug or foreign substance.
(6)Where an investigator has required a person to do something under subsection (4)(a), (b), (c) or (d) and the person refuses to do so, the investigator may make an application to a court of competent jurisdiction, setting out the facts, and the court may inquire into the matter and, after giving the person an opportunity to comply with the requirement -
(a)take such steps for the punishment of the person as if the person has been guilty of contempt of court; or
(b)may make such other order as it finds appropriate.
(7)A person may not refuse or fail -
(a)to produce information to an investigator;
(b)to attend before an investigator and give a statement in accordance with subsection (4)(a);
(c)to provide information in accordance with subsection (4)(c); or
(d)to make the body of a deceased person or other human remains available for the performance of an autopsy or medical examination in accordance with subsection (4)(d).
(8)A person may not refuse or fail to submit to a medical examination in accordance with subsection (4)(b), but information obtained pursuant to such an examination is privileged subject to the power of the Directorate to make use of it as it considers necessary in the interests of aviation safety.
(9)Except for proceedings before and investigations by a judicial inquest, an investigator is not competent or compellable to appear as a witness in any proceedings, unless the court or other person or body before whom the proceedings are conducted so orders for special cause.

85. Search and seizure by investigators

(1)In the exercises and performance of his or her powers and functions referred to in section 84, an investigator may without a warrant search any premises or property and seize any property or item, including medical records, recorders and air traffic service recordings of an accident or incident -
(a)if the person concerned consents to the search for and the seizure of the property or item, including medical records, recorders and air traffic service recordings of an accident or incident in question;
(b)if the person who may consent to the search of the premises consents to such search and the seizure of the property or item, including medical records, recorders and air traffic service recordings of an accident articles in question; or
(c)if the investigator on reasonable grounds believes that -
(i)a search warrant will be issued to him or her if he or she applies for such warrant; and
(ii)the delay in obtaining a search warrant would defeat the object of the search.
(2)An investigator may use the powers under this section only to serve the purposes of this Act and matters incidental thereto, and must take the necessary steps to secure the safekeeping of the property or items seized.

86. Power to test items seized

(1)Where any item is seized by an investigator under section 85, the investigator -
(a)may, subject to paragraph (b), cause such tests, including tests to destroy, to be conducted on the item as are necessary for the purposes of the investigation in respect of which the item was seized;
(b)must, to the extent that it is practical and safe to do so and does not unreasonably impede the progress of the investigation, take all reasonable measures to invite the owner of the item, and any person who appears on reasonable grounds to be entitled to it, to be present at any tests referred to in paragraph (a); and
(c)subject to the need to conduct such tests, must cause the item to be preserved pending its return in accordance with section 88.
(2)Nothing in this section is taken -
(a)to imply that an item seized pursuant to subsection (1) may not be an aircraft or any part thereof; or
(b)to authorise the exercise of a power by an investigator in circumstances where the exercise of that power would be inconsistent with the objective of the investigation.

87. Certificate to be produced

Before acting under sections 85 or 86 an investigator must, on request, produce his or her certificate of designation as investigator issued in terms of section 73(4) to any person in relation to whom the investigation is being conducted.

88. Return of seized item or property

(1)Any item or property seized pursuant to section 85, except on- board recordings as defined in section 99, must, unless -
(a)the owner thereof or a person who appears on reasonable grounds to be entitled to it consents in writing; or
(b)a court of competent jurisdiction orders otherwise,
be returned to the owner, person, or the person from whom it was seized, as soon as possible after it has served the purpose for which it was seized.
(2)A person from whom any item, except on-board recordings as defined in section 99, was seized pursuant to section 85, or the owner or any other person who appears on reasonable grounds to be entitled thereto, may apply to a court of competent jurisdiction for an order that the seized item be returned to the person making the application.
(3)Where, on an application under subsection (2), the court is satisfied that the seized item -
(a)has served the purpose for which it was seized;
(b)should be returned to the applicant in the interests of justice,
the court may grant the application and order the seized item to be returned to the applicant, subject to any terms or conditions that appear necessary or desirable to ensure that the item is safeguarded and preserved for any purpose for which it may subsequently be required by the Directorate under this Act.
(4)This section does not apply in respect of any item seized and tested to destruction in accordance with section 86.

89. Public inquiry

(1)Where, in the course of an investigation of an accident or incident, the Directorate considers it necessary that a public inquiry into the accident or incident be conducted, the Director of Investigations may designate a person or persons, who may be, or may include, the Director of Investigations -
(a)to conduct a public inquiry into the accident or incident; and
(b)to report to the Directorate thereon.
(2)A person designated to conduct a public inquiry under this section may exercise the powers of a person designated as investigator under section 84, subject to any restrictions specified in the designation.

90. Notification of all accidents and incidents

(1)A pilot-in-command of an aircraft that is involved in an accident or incident must notify the Directorate as soon as possible thereof.
(2)The Directorate must submit any notification received under subsection (1) forthwith to the Executive Director and the Namibian Police Force.
(3)A person who operates, maintains, or services, or does any other act in respect of an aircraft, aeronautical product, or aviation related service and the aircraft is involved in an accident or incident must notify the accident or incident to the Directorate in the prescribed manner.
(4)A co-ordinator of any search and rescue operation for any aircraft must notify the Director of Investigations of the operation as soon as practicable.
(5)The Director of Investigations, on being notified under any of subsections (1) to (4), may request such additional information, in such form as is considered appropriate in each specific case, and the pilot-in-command, operator, or other person to whom the request is made must provide the additional information forthwith.
(6)The Director of Investigations must as soon as possible provide the Minister with particulars of every notification received under this section relating to -
(a)an accident; or
(b)a serious incident.

91. Notification by Government entity of accident or incident and plans to conduct investigation or take remedial measures

(1)Where a Government entity is notified of an accident or incident in which it has a direct interest and which the Directorate has the power to investigate under this Act, the entity must forthwith -
(a)provide the Director of Investigations with particulars of the accident or incident;
(b)after complying with paragraph (a), advise the Director of Investigations of any internal investigation that the entity plans to conduct and of any remedial measures that the entity plans to take;
(c)on completion of the internal investigation, supply a copy of its report to the Director of Investigations.
(2)An investigator authorised by the Director Investigations may attend as an observer at an investigation conducted by an entity referred to in subsection (1) or during the taking of remedial measures by the department or body following an accident or incident.
(3)Subject to any other law, a Government entity referred to in subsection (1) must provide the Director of Investigations with an interim and final reports prepared in respect of an investigation conducted in terms of subsection (1)(b), and the Director of Investigations may review and comment on such reports.

92. Notification of persons and bodies with direct interest in accidents or incidents

Where the Director of Investigations is notified of an accident or incident, he or she must forthwith -
(a)provide particulars of the accident or incident to the Executive Director and where appropriate to a Minister responsible for a Government entity having a direct interest in the accident or incident; and
(b)after complying with paragraph (a), advise the Minister referred to in paragraph (a) of any investigation that the Directorate plans to conduct and the scope of the investigation.

93. Attendance and removal of observers at aircraft accident and aircraft incident investigations

(1)Subject to any conditions that the Director of Investigations may impose, a person may attend as an observer at an investigation of an accident or incident conducted by the Directorate, if the person -
(a)is designated as an observer by the Minister responsible for a Government entity having a direct interest in the subject matter of the investigation;
(b)has an observer status or is an accredited representative or adviser to the representative, pursuant to an international agreement or convention relating to transportation to which Namibia is a party; or
(c)is invited by the Director of Investigations to attend as an observer because, in the opinion of the Director of Investigations, the person has a direct interest in the subject matter of the investigation and may contribute to achieving the objects of the Directorate.
(2)The Director of Investigations may remove an observer from an investigation if -
(a)the observer contravenes any condition imposed by the Director of Investigations on the presence of the observer; or
(b)in the opinion of the Director Investigations, the observer has a conflict of interest that impedes the conduct of the investigation.

94. Rights of affected parties, making representations and publication of report

(1)On completion of any investigation, the Directorate must prepare and make available to the public a report on its findings, including -
(a)the safety deficiencies that it has identified; and
(b)the recommendations that it considers appropriate in the interests of aviation safety.
(2)Before making public a report under subsection (1), the Directorate must -
(a)send a copy of the draft report on its findings and any safety deficiencies that it has identified to each Government entity and any other person who, in the opinion of the Director of Investigations, has a direct interest in the findings of the Directorate; and
(b)give the Government entity or interested person contemplated in paragraph (a) a reasonable opportunity to make representations to the Directorate with regard to the draft report before the final report is prepared.
(3)The period for submission of any representations may not be less than 60 days.
(4)A person may not communicate or use the draft report or permit its communication or use for any purpose, other than for the taking of remedial measures or for the purpose of facilitating the study and the preparation of representations concerning the draft report.
(5)The Directorate must provide an interim report on the progress and findings of an investigation -
(a)on written request made in respect of the investigation, to any Minister responsible for a Government entity having a direct interest in the subject matter of the investigation; and
(b)to any magistrate conducting an inquest into the accident or incident, where the accident or incident involved a fatality and significant progress has been made in the investigation by the Directorate.
(6)A person, other than a Minister of a Government entity, who is provided with an interim report under subsection (5) may not use the report or permit its use for any purpose not strictly necessary to the examination of the report.
(7)The Directorate must reconsider its findings and recommendations pursuant to an investigation that it has conducted under this Act where, in its opinion, new material facts appear.

95. Manner of dealing with representations

(1)The Directorate must -
(a)receive representations made to it pursuant to section 94 in the prescribed manner.
(b)keep record of those representations;
(c)consider those representations before preparing its final report; and
(d)notify in writing each of the persons who made those representations, indicating how the Directorate has disposed of the representations of such persons.
(2)A representation is privileged, except where -
(a)it is a representation made by a Minister responsible for a Government entity having a direct interest in the findings of the Directorate; or
(b)there is a written authorisation from the author of the representation.
(3)A person may not knowingly communicate any privileged representation or permit it to be communicated to any other person, except for the purposes of this Act.
(4)The Directorate may make use of or act upon any representation to the extent that it considers such use or action necessary in the interests of aviation safety.
(5)Where a judicial inquest instituted in terms of the Inquests Act to inquire into any circumstances in respect of which representations have been made to the Directorate, the Directorate of Investigations, if requested to do so by a magistrate under the Inquests Act must make such representations available to such inquest.
(6)A person may not use any representations made to the Directorate under this section in any criminal, civil, disciplinary or other proceedings, except for the purposes of an investigation by a judicial inquest in terms of the Inquests Act.

96. Notification of findings and recommendations

The Directorate must forthwith -
(a)during its investigation of an accident or incident, notify in writing the Minister or any person who in its opinion has a direct interest in its findings and recommendations, whether interim or final, of any matter that in its opinion requires urgent action;
(b)on completion of its investigation of an