Rights Aboard an Aircraft

On 26 December 2024, an incident occurred between a passenger and a flight attendant during a FlySafair flight from Durban to Cape Town. It has been alleged that the passenger assaulted and made racist remarks aimed at a crew member after the crew member refused to serve the passenger an alcoholic beverage.

The passenger was charged with disruptive and riotous behaviour on board an aircraft in terms of the Civil Aviation Act 13 of 2009 (Civil Aviation Act), as amended. The passenger is also set to be charged with assault and crimen injuria. It was further announced that the passenger would be placed on a no-fly list and will henceforth be barred from all FlySafair flights. This incident has sparked attention from the South African Human Rights Commission, which consequently seeks to approach the Equality Court.

Rights Aboard an Aircraft

The Civil Aviation Act regulates aviation safety and security, among other things, and is applicable to all individuals and entities involved in civil aviation activities within South Africa.
Section 135 of the Civil Aviation Act prohibits any nuisance, disorderly, or indecent act on board any aircraft and further prohibits behaviour of a violent nature directed towards any person, including a crew member, which has the potential to endanger the safety or security of the aircraft or any person on board. Any person found to commit such behaviour on board an aircraft will be guilty of an offence in terms of the Act and may, as a consequence, be fined, imprisoned, or both.
Moreover, section 137(d) of the Civil Aviation Act condemns any person who refuses to obey any lawful instruction issued with the aim of ensuring the safety of the aircraft, or any person or property on board the aircraft, or for maintaining good order and discipline on board the aircraft, given by the commander or pilot-in-command, or given on behalf of the pilot-in-command by a crew member. Such a person may be fined, imprisoned, or both.
In addition to the regulations imposed by the Civil Aviation Act, any person utilising the services of a specific airline carrier, such as FlySafair, will be subject to their Terms and Conditions. Clause 10 of FlySafair’s General Terms and Conditions of Booking and Carriage condemns conduct that endangers other passengers or crew members, any failure to comply with instructions, and any behaviour that has negative impacts on other passengers and crew members or constitutes abuse or harassment.

Accordingly, persons aboard an aircraft must, at all times, refrain from any behaviour that may constitute a nuisance, disorderly or indecent act, must not behave in any violent manner towards any person on board that could endanger the safety and security of the aircraft or any person on board the aircraft, and must obey the instructions of the pilot-in-command or crew members or others under the instruction of the pilot-in-command, to avoid liability under the Civil Aviation Act or penalties imposed by the airline carrier.

Banned from Flights

Airline carriers are entitled to refuse the carriage of any person and/or their baggage and may, as such, place a person on their no-fly list.
Clause 6.2 of FlySafair’s General Terms and Conditions of Booking and Carriage specifies that the carrier may refuse carriage to any person, at their sole discretion, who contravenes the Terms and Conditions and/or any law of the Republic of South Africa. Furthermore, FlySafair reserves the right to place any person’s name on the carrier’s no-fly list, as well as determine the term of the ban and the removal of the person’s name.
As such, any person’s failure to adhere to any particular carrier’s terms and conditions may result in that person being placed on the carrier’s no-fly list, which essentially means that the carrier is exercising its right to refuse carriage of that person and/or their baggage.

Equality Court

The Equality Court is established by Chapter 4 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act) to deal with matters involving unfair discrimination, hate speech, and harassment.
Section 16(1) of the Equality Act states that proceedings may be instituted by any person in their own interest, on behalf of someone who is unable to do so in their own name, as a member or in a group or class’s interest, for public interest, or by any association for its members’ interests. Section 16(2) further provides that the person who seeks to institute proceedings must inform the clerk that they wish to do so, whereafter, in terms of section 16(3), the clerk will inform the presiding officer, who then considers whether the Equality Court is the appropriate institution to hear the matter.
Furthermore, the Equality Act, under section 25, directs the South African Human Rights Commission to support interested parties in instituting proceedings at the Equality Court, investigating matters, and making recommendations where the Act has been repeatedly breached, or cases brought to the Equality Court involve unfair discrimination, hate speech, or harassment. When required by the Department of Justice and Constitutional Development, the Commission must account for the number, nature, and outcome of matters.
Accordingly, any person who is of the opinion that they, or anyone else, has been the recipient of unfair discrimination, hate speech, or harassment may bring their concerns to the Equality Court, which will assess the matter before deciding to prosecute.

The incident that occurred on the Day of Goodwill, 2024, is a reminder to all passengers of South African airline carriers to behave in a manner prescribed by the Civil Aviation Act and Equality Act and to obey lawful instructions issued while on board an aircraft, lest they be brought to account in terms of these Acts and face penalties imposed by South Africa’s airline carriers.

In the context of the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act) in South Africa, an application for unfair discrimination can be made based on several grounds, as outlined in the Act. To have a successful application, the complainant must establish that they have been unfairly discriminated against on one or more of the following grounds:

Grounds for Unfair Discrimination under the Equality Act:

1. Race: Discrimination based on a person’s race or ethnicity, including but not limited to, skin color, cultural practices, or racial identity.
2. Gender: Discrimination on the basis of one’s gender or sex, including any distinction or treatment based on gender identity.
3. Sexual Orientation: Discrimination against individuals based on their sexual orientation, including discrimination against lesbian, gay, bisexual, or transgender individuals.
4. Marital Status: Discrimination based on whether an individual is married, divorced, single, widowed, or in any other relationship status.
5. Pregnancy: Discrimination on the basis of pregnancy or related conditions, such as maternity leave, breastfeeding, or being a primary caregiver.
6. Age: Discrimination on the grounds of age, including being treated unfairly based on one’s age group (either being too young or too old).
7. Disability: Discrimination against individuals with physical, intellectual, or sensory disabilities, whether temporary or permanent.
8. Religion: Discrimination based on a person’s religious beliefs, practices, or lack thereof.
9. Conscience: Discrimination based on personal beliefs or conscience, particularly where it involves ethical, moral, or philosophical beliefs.
10. Language: Discrimination based on a person’s language or linguistic background, including accent or dialect.
11. HIV Status: Discrimination on the grounds of being HIV-positive or having a related health condition.
12. Social or Economic Status: Discrimination based on one’s social or economic status, including class or income level.
13. Cultural or Ethnic Group: Discrimination against individuals due to their cultural or ethnic group, such as practices, language, or traditions associated with their ethnic or cultural identity.
14. Family Responsibility: Discrimination based on family-related responsibilities, such as caregiving duties or family obligations.

Requirements for a Successful Unfair Discrimination Claim:

• Differential Treatment: The complainant must show that they were treated differently or less favorably than others in a similar situation.
• Unfairness: The complainant must demonstrate that the differential treatment was unfair. In this context, fairness is considered within the constitutional framework, including considerations of dignity, equality, and human rights.
• On a Listed Ground: The discrimination must have occurred on one or more of the listed grounds in the Equality Act (as noted above).
• Justification: If the respondent can justify the discrimination (for example, through a legitimate purpose like safety or health), the court will assess whether the justification outweighs the harm caused by the discrimination.

Test for Unfair Discrimination:

To determine whether the discrimination is “unfair,” courts typically apply a two-step process:

1. Identifying Discrimination: The first step is to establish whether the treatment was discriminatory based on one of the listed grounds.
2. Assessing Unfairness: If discrimination is established, the next step is to assess whether it was unfair, taking into account factors such as:
   • The nature of the discriminatory act.
   • The impact on the individual and others.
   • The context and circumstances surrounding the discrimination.
   • Whether the discriminatory act violates the individual’s constitutional rights.

If the discrimination is deemed unfair and unjustifiable, the court may order remedies such as compensation, an apology, or other corrective actions.