SAHPA AGM – Objection to nomination of Mias de Klerk

From: Piet Van Niekerk
Sent: Saturday, October 28, 2023 6:15 PM
To: ‘office@sahpa.co.za‘
Subject: SAPHA ANNUAL GENERAL MEETING: ELECTION OF CHAIRMAN

Dear Mrs Liversage

I have received an e-mail with a link to the ballot in respect of the election of a chairman for SAHPA at the AGM on 31 October 2023.

I note that Mr Mias de Klerk (“De Klerk”) has been nominated as a candidate for election as chairman o SAHPA.

I place the following on record:

1. De Klerk is presently the subject of an investigation by SACAA enforcement, which investigation is conducted by Mr J Mtsweni and Me  H Oosthuizen.

2. The investigation relates to alleged serious irregularities in respect of compliance issues insofar as the conducting of a commercial operation by De Klerk is concerned, including an allegation that De Klerk trained students without complying with the relevant Civil Aviation Regulations (“CAR”), allowed students to fly without holding an applicable licence, and made misleading statements during the conduct of the investigation by SACAA. I do not elaborate further on the issues, as it is subject to the SACAA investigation.

De Klerk is not eligible to be elected as chairman of SAPHA, inter alia for the following reasons:

i.       In terms of the Code of conduct of SAPHA officials as published on the SAPHA website, any SAPHA official must act in the best interest of SAHPA while avoiding actions or decisions that could either bring the sport into disrepute or be unethical, illegal or contrary to the public interest. The ongoing investigation by SACAA relates to actions of De Klerk which, if it found to have occurred, falls squarely into the category of actions referred to supra. Therefore, until such time as De Klerk is cleared by SACAA from any transgressions of the Civil Aviation Act (‘the Act”) and/or CAR, he is not a member in good standing with SAPHA.

ii.       It is a  principle of law (the principle of legality) that any person placed in an executive position and/or who is tasked with making decisions, must avoid any possible conflict of interest. SAPHA is an ARO in terms of the Act and CAR. SAHPA is therefore a statutory body, tasked primarily to oversee and co-ordinate compliance by its members with the Act and CAR under delegation of specific powers from SACAA and performs administrative action and takes executive decisions. Should De Klerk be elected as Chairman of SAPHA, it will have the absurd result that he will be playing a pivotal role as  executive decision maker in the  statutory body enjoined to take action, collate information, and enforce compliance of the CAR and Act in respect of the actions presently under investigation which he allegedly committed. This clearly illustrate a conflict of interest.

I further record that I have not noticed any reference on the ballot or the notice of the AGM to the fact that De Klerk is presently subject to a SACAA enforcement investigation. This is a material fact which should have been disclosed to all potential voters. I therefore request that this e-mail be distributed to all potential voters.

I further record that I will not tolerate any situation which may potentially prejudice the interests of SAHPA members, or diminish the reputation of SAHPA. It is becoming increasingly difficult to enjoy the sport of free flying, and the good standing of SAHPA with the general public and SACAA is vital for the existence of our right to fly free under reduced limitations. Should it become a fact in the general domain and/or known to SACAA that SAPHA elects as its chairman a person under investigation for transgressions of the fundamental principles of licencing, SAPHA and its members  will be brought into disrepute.

In the premises, you are hereby requested to take the necessary action to withdraw the acceptance of the nomination of De Klerk for the position of chairman, and you are notified that, in the event of De Klerk being elected as chairman, I will approach the High Court for an order against SAPHA, to review and set aside such election and seek an order for costs against SAPHA.

Yours Faithfully

Adv P A van Niekerk SC