Monday, December 6, 2021

Pilot of Sasa Klaas chopper may not be prosecuted even if he was in the wrong

By an international standard expressed in Annex 13 of the Standards and Recommended Practices (SARPs) for Aircraft Accident and Incident Investigation that were developed by the International Civil Aviation Organization (ICAO), “it is not the purpose of an investigation to apportion blame or liability.”  ICAO is a UN body and its member states (like Botswana) are, in principle, obliged to enact its standards through their own regulatory and legal systems.

In terms of this standard, the pilot of a helicopter that claimed the life of a female artist, Sarona “Sasa Klaas” Motlhagodi, may not be prosecuted even if evidence points to recklessness. The “may” caveat is important because there are instances when pilots have been held criminally liable for aviation accidents that they caused.  However, even then, that standard has been invoked in their defence.

On March 7, 2007, an Indonesian plane overshot the runway, crossed a road, struck an embankment and burst into flames in a rice paddy. A total of 21 people – 16 Indonesians and five Australians – were killed. An investigation followed and the report blamed pilot error for the disaster. Authorities declined to prosecute the pilot, explaining that according to international regulations on aviation, it was impermissible to use information from the cockpit voice recorder and flight data recorder for liability purposes. However, pressure from the Australian government became so intense that the pilot was ultimately arrested and charged with manslaughter. In response, the London-based International Federation of Air Line Pilots Associations (IFALPA) issued a press release condemning the pilot’s arrest, saying that criminal proceedings could prevent an accurate version of events from ever being known. The Indonesian Pilot’s Association also said that criminal prosecution was deeply mistaken.

The view that aviation professionals (in pilots, air traffic controllers, and maintenance technicians) should not be prosecuted for aviation accidents, incidents and safety hazards is shared by other parties like the European Union, Flight Safety Foundation, the Royal Aeronautical Society, the Academie Nationale de l’Air et de l’Espace, EUROCONTROL and the International Federation of Air Traffic Controllers Association. The reasoning is that the criminalisation of error in aviation and admitting investigation results into evidence will have a detrimental effect on aviation safety. Such criminalization, the argument goes, destroys the willingness of people to voluntarily to tell the truth because of fear of criminal repercussions and ultimately undermines aviation safety. This group also argues that punishment has not been shown to be an effective means of improving the aviation industry’s safety.

On the opposing end is a public that still insists that aviation practitioners (especially pilots) should be criminally punished for aviation accidents. Politicians, who have the final say in this matter, often find themselves under tremendous pressure from members of the public – who wield the power of the vote at the next election. It was precisely because of pressure from members of the public that Australia insisted on the prosecution of the Indonesian pilot. Resultantly, there has been a rising trend in the criminalization of error in aviation but IFALPA and like-minded parties continue to fight back.

From the information we have been able to gather, Botswana has, in adherence to this ICAO, never prosecuted any practitioner for aviation error. Had he lived, Chris Phatshwe, an Air Botswana pilot who intentionally crashed into the national carrier’s fleet on October 11, 1999, would probably have been the country’s test case. Some 22 years later, there has been an aviation accident that has drawn a lot of public interest. Part of what attracts such interest are the salacious details around this case – as the celebrity of the deceased. In the event investigations, which are still ongoing, establish culpability on the part of the pilot, this accident will become Botswana’s test case for holding practitioners criminally liable for an aviation accident. The explanation for the plural is as follows: as Sunday Standard reported last week, a device called emergency locator transmitter should have automatically sent a distress signal to the ICAO regional monitoring centre in Cape Town. That this didn’t happen and also didn’t happened in the case of two other incidents in the past, suggests culpability on the part of some Civil Aviation Authority of Botswana officials.

It has been established is that the pilot, Leonard Matenje, took off from Matsieng Airstrip in Rasesa, which is not too far off from the A1, the country’s major highway. He was flying a Robinson R44 helicopter and for now at least, the story is that Sasa Klaas was the only passenger. “For now” because there is a version that says there were two other people in the chopper. The journey to his farm at the edge of the Kgalagadi Desert should have taken between 50 and 55 minutes but disaster struck just as he was about to land. He came out with minor injuries but Sasa Klaas didn’t make it. She is actually supposed to have uttered words to that effect as she was rushed to a nearby medical clinic that wasn’t near enough for her.

From what Sunday Standard learns, the pilot had recently acquired a license from South Africa and the chopper itself was registered in that country. Even as investigators continue, a lot of questions have been asked by ordinary people and aviation practitioners alike. Hopefully, the investigation will answer those questions but if the pilot decides to withhold information that technology cannot reveal, the investigators will be helpless because no else can provide that information.

In terms of ICAO rules, greater responsibility for investigating this accident falls to South Africa. The influential Airline Pilots’ Association South Africa, which is an IFALPA member, advocates for strict adherence to ICAO’s Annexure 13. According to its website, the Association monitors aviation developments in order to identify cases where pilots have been judged criminally liable following an accident, assesses investigations into accidents, serious incidents and incidents for completeness including compliance with ICAO Annex 13 and the implementation of preventative safety recommendations and contributes to the development, implementation and proper use of non-punitive safety programmes.

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