CIVIL AVIATION: SUBSIDIARY LEGISLATION: CIVIL AVIATION (LICENSING OF AIR SERVICES) REGULATIONS
(section 89)
(27th July, 2012)
ARRANGEMENT OF REGULATIONS
REGULATION
PART I
Preliminary
1. Citation
2. Interpretation
3. Public interest
PART II
Licensing of Air Services
4. Air service licence or permit
5. Prohibition of sale of air service
6. Application to Authority for air service licence, etc.
7. Advertisement of air service
8. Provision of aircraft or flight crew by lease
9. Approval of lease by Authority
PART III
General Provisions Relating to Licences
10. Application for licence
11. Licence fees
12. Financial fitness
13. Confidential information
14. Director's integrity
15. Issue of licence
16. Conditions of licence
17. Duration of licence
18. Variation of licence
19. Licence not transferable
20. Renewal of licence
21. Display of licence
22. Records of applications and licences
23. Suspension of licence
24. Revocation of licence
25. Reinstatement of licence
26. Surrender of licence
27. Duplicate licence
28. Notification of operational and organisational changes
29. Change of address of licensee
30. Appointment and notification of agent
31. Tariffs for air transport services
PART IV
Categories of Air Service Licences, Operating Authorities and Permits
32. Licences for air services
33. Eligibility for air transport service licence
34. Issue of air transport service licence
35. Aerial work licence
36. Aerial work permit
37. Non-scheduled domestic air transport service permit
38. Non-scheduled international air transport service permit
39. Flight training service licence
40. Eligibility for scheduled international air transport service operating authority
41. Issue of international air transport service operating authority
42. Licence conditions of international air transport service licence
43. Additional conditions for scheduled and non-scheduled international air transport service licence
44. Operation of service subject to schedule
45. Operating without air operator certificate or relevant certificate
PART V
Scheduled Air Transport Service
46. Conditions of tariff and of carriage
47. Electronic publication of tariff
48. Advertisement of terms and conditions of carriage
49. Publication of fares, rates, charges, etc
50. Conditions of compensation
51. Copy of tariff on payment of fee
52. Flight schedules
53. Electronic publication of flight schedule
54. Notice of discontinuance or reduction of services
55. Notice period
56. Shorter notice period
57. Complaints on non-compliance
58. Check-in baggage
PART VI
General Provisions Relating to Air Services
59. Returns
60. Passenger list
61. Display of terms and conditions of carriage
62. Unreasonable or discriminatory terms and conditions
63. Documents of carriage for passengers
64. Carriage of cargo
65. Copies of documents of carriage
66. Passenger rights
67. Insurance
68. Insurance of third party
69. Exclusion or waiver of insurance
70. Notification by licensee
PART VII
Miscellaneous provisions
71. Inquiry into licensing matters
72. Disclosure of information
73. Powers of air transport officer to secure compliance
74. Power of inspection
75. Appeals
76. Offences
77. Evidence
78. Savings
79. Transitional provisions
SCHEDULES
S.I. 64, 2012.
PART I
Preliminary (regs 1-3)
These Regulations may be cited as the Civil Aviation (Licensing of Air Services) Regulations.
(1) In these Regulations, unless the context otherwise requires—
"accommodation" means sleeping facilities that are provided on a commercial basis to the general public;
"advance booking charter" means a round trip passenger flight, which originates from Botswana and is operated according to the conditions of a contract entered into between an air transportation service provider and one or more charterers; and requires the charterer to charter the entire passenger seating capacity of an aircraft for resale by the charterer to the public, at a price per seat, not later than a specified number of days prior to the date of departure of the flight from Botswana;
"aerial work operator certificate" means a certificate issued under the Civil Aviation (Aerial Work) Regulations;
"air carrier" means an enterprise that engages in the provision of air transport services;
"air operator certificate" means a certificate issued under the Civil Aviation (Air Operator Certification and Administration) Regulations;
"approved training organisation certificate" means a certificate issued under the Civil Aviation (Approved Training Organisations) Regulations;
"baggage" means the personal property of passengers or crew carried on an aircraft by agreement with the operator;
"basic fare" means—
(a) a fare in the form of a tariff issued by a holder of a licence for a scheduled air transport service that has no restrictions, and is the lowest amount to be paid for a one-way air transportation by a passenger carrying reasonable baggage between two points; or
(b) where the licensee has more than one such fare between two points, dependent on the time of day or day of the week of travel, or both, the highest of those fares;
"business office", with respect to a licensee, includes any place in Botswana where the licensee receives goods for transportation or offers passenger tickets for sale, but does not include an office of a travel agent;
"city-pair market" means the air route linking two cities;
"corporation" has the same meaning assigned to it under the Companies Act (Cap. 42:01);
"domestic air transport service" means—
(a) an air transport service operated entirely within the airspace over the territory of Botswana, either between points in Botswana or from and to the same point in Botswana; or
(b) an air service that passes through the airspace over the territory of another State without providing an air service in the territory of that other State, but the route or journey started and ended within the territory of Botswana;
"inclusive tour" means a round or circle trip performed in whole or in part by an aircraft for an inclusive tour price for the period from the time of departure by the participants, from the starting point of the journey to the time of their return to that point, and that includes accommodation;
"inclusive tour charter" means a passenger flight operated according to the conditions of a contract entered into between an air carrier and one or more tour operators that requires the tour operator to charter the entire passenger seating capacity of an aircraft for resale by the tour operator to the public at an inclusive tour price per seat;
"international air transport service" means an air transport service operated between a point in the territory or airspace of one State and a point in the territory or airspace of another State;
"licence" means a licence issued by the Authority under these Regulations; and, unless the context otherwise requires, any reference to a licence includes a scheduled international air transport service operating authority;
"licensee" means the holder of a licence issued under these Regulations;
"non-scheduled air transport service" means an air transport service that is not a scheduled air transport service;
"non-scheduled domestic air transport service licence" means a licence which authorises the licensee to provide a non-scheduled domestic air transport service, issued under regulation 34;
"non-scheduled domestic air transport service" means a domestic air transport service that is a non-scheduled air transport service;
"non-scheduled international air transport service licence" means a licence which authorises the licensee to provide a non-scheduled international air transport service, issued under regulation 34;
"non-scheduled international air transport service" means an international air transport service that is a non-scheduled air transport service;
"partnership" has the same meaning assigned to it under the Companies Act;
"permit" means a permit issued by the Authority under these Regulations;
"scheduled air transport service" means a public air transport service operated on a regular basis according to a published schedule;
"scheduled domestic air transport service licence" means a licence which authorises the licensee to provide a scheduled domestic air transport service, issued under regulation 34;
"scheduled domestic air transport service" means a domestic air transport
service that is a scheduled air transport service;
"scheduled international air transport service licence" means a licence which authorises the licensee to provide a scheduled international air transport service, issued under regulation 34;
"scheduled international air transport service" means a public international air transport service operated on a regular basis according to a published schedule;
"scheduled international air transport service operating authority" means the document issued to a foreign air transport service provider, which authorises the holder to provide a scheduled international air transport service which it has been designated to, through the provisions of an international air transport service agreement to which Botswana is a party, and is issued under regulation 41;
"SDR" means a Special Drawing Right, which is the international currency unit defined by the International Monetary Fund;
"seat" means any area in an aircraft designed to be occupied by a passenger, other than the area occupied by the baggage of such passenger; and
"tariff" means a schedule of fares, rates, charges and terms and conditions of carriage applicable to the provision of an air service and other incidental services.
(2) For the purposes of these Regulations—
(a) one corporation is affiliated with another corporation if—
(i) one of them is a subsidiary of the other,
(ii) both are subsidiaries of the same corporation, or
(iii) both are controlled by the same person;
(b) if two corporations are affiliated with the same corporation at the same time, they are deemed to be affiliated with each other;
(c) a corporation is a subsidiary of another corporation if it is controlled by that other corporation or by a subsidiary of that other corporation;
(d) a corporation is controlled by a person other than the Government if securities of the corporation to which are attached more than 50 per cent of the votes that may be cast to elect directors of the corporation are held, directly or indirectly, whether through one or more subsidiaries or otherwise, otherwise than by way of security only, by or for the benefit of that person, and the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the corporation;
(e) a corporation is controlled by the Government if—
(i) the corporation is controlled by the Government in the manner described in paragraph (d), or
(ii) in the case of a corporation without share capital, a majority of the directors of the corporation, other than ex-officio directors, are appointed by the Government, or by a Minister on behalf of the Government; and
(f) a partnership is controlled by a person if the person holds an interest in the partnership that entitles the person to receive more than 50 per cent of the profits of the partnership or more than 50 per cent of the partnership's assets on dissolution.
The Minister may prohibit the provision of an air service or discontinue an air service if, in the opinion of the Minister, it is in the public interest to do so.
PART II
Licensing of Air Services (regs 4-9)
4. Air service licence or permit
(1) A person who wishes to operate an air service within, into or out of Botswana shall apply for a licence or permit in terms of regulation 6.
(2) The provisions of subregulation (1) shall not apply to a person who—
(a) operates an aircraft through the airspace of Botswana without landing, or where the aircraft lands—
(i) solely for technical purposes without taking on or discharging passengers, mail or other cargo, or
(ii) by reason of an emergency; or
(b) operates an aircraft for the carriage of passengers, mail or other cargo—
(i) where the carriage is incidental to the conduct of a commercial undertaking other than the provision of an air service, and
(ii) solely for the purpose of transporting persons who are in the employment of that person, at no cost to those persons, or goods and mail relating to the conduct of that commercial undertaking.
(3) Notwithstanding the provisions of subregulation (2), a person who does not hold a licence or permit, but intends to land an aircraft in Botswana—
(a) for technical purposes, shall, prior to landing, give notice to the Authority and obtain a permit for that purpose from the Authority; or
(b) in the case of an emergency, shall, prior to landing, seek air traffic control clearance from the Authority.
(4) A person who operates an air service without a licence or permit commits an offence and is liable to a fine not exceeding P5 000 000, or to imprisonment for a term not exceeding 10 years, or to both.
5. Prohibition of sale of air service
(1) A person shall not sell, cause to be sold or offer for sale in Botswana an air service unless that person holds a valid licence or permit in respect of that service.
(2) A person who contravenes this regulation commits an offence and is liable to a fine not exceeding P3 000 000, or to imprisonment for a term not exceeding five years, or to both.
6. Application to Authority for air service licence, etc.
(1) A person who—
(a) intends to provide an air service;
(b) intends to continue with an air service for which the licence or permit is due to expire;
(c) wishes to vary the terms or conditions specified on a current licence or permit;
(d) wishes to be exempted by the Authority from the requirement to comply with any provision of these Regulations; or
(e) intends to act on behalf of any of the persons in paragraphs (a) to (d), shall apply to the Authority.
(2) An applicant under subregulation (1) shall submit to the Authority, an application accompanied by the required information, to satisfy the Authority that the requirements for issuing the licence or permit have been met.
(3) Where the application fails to meet the requirements, the Authority may reject the application.
(4) In the review and assessment of an application, the Authority may, for purposes of arriving at a decision—
(a) rely on the information provided by the applicant;
(b) consider other information available to it from other sources, including but not limited to any information filed with the Authority by the applicant at an earlier time; or
(c) require the applicant to provide additional information to satisfy the Authority that the requirements for issuing the licence or permit have been met.
7. Advertisement of air service
(1) A person shall not advertise, cause to be advertised or participate in the advertisement of an air service unless a licence or permit has been issued.
(2) A person who fails to comply with subregulation (1) commits an offence and is liable to a fine not exceeding P10 000, or to imprisonment for a term not exceeding two years, or to both.
8. Provision of aircraft or flight crew by lease
(1) For purposes of this regulation—
(a) "dry lease" means an agreement where a leased aircraft is operated by the flight crew of the lessee; and
(b) "wet lease" means an agreement where the leased aircraft is operated by the flight crew of the lessor.
(2) An air service provider shall not enter into a lease agreement without a permit issued by the Authority.
(3) Subject to the approval of the Authority, an air service provider may have one or more aircraft at its disposal through a dry lease or wet lease agreement.
(4) Without prejudice to subregulation (3), aircraft used for a dry lease agreement by an air service provider shall be registered in Botswana.
(5) The Authority may approve a wet lease agreement to a Botswana air service provider, to use a foreign registered aircraft—
(a) for a period of six months, where the service provider justifies that the lease is on the basis of exceptional needs, and such approval may be renewed once, for a further period of six months; or
(b) where the service provider demonstrates that the lease is necessary to overcome operational difficulties and it is not possible or reasonable to lease aircraft registered within Botswana, in which case, the approval shall be of limited duration strictly necessary to overcome the difficulties.
(6) Notwithstanding subregulation (5)(a), the Authority may renew the lease where the service provider demonstrates that the lease is necessary to satisfy seasonal capacity needs, which cannot reasonably be satisfied through leasing aircraft registered in Botswana.
(7) The Authority shall not approve any lease agreement, unless safety standards equivalent to those imposed under the requirement for a valid air operator certificate are met.
(8) A person who enters into a lease agreement without the permission of the Authority commits an offence and is liable to a fine not exceeding P3 000 000, or to imprisonment for a term not exceeding five years, or to both.
(9) This regulation shall not apply to domestic air transport services.
9. Approval of lease by Authority
(1) A person shall not provide to the holder of an air service licence or permit, a flight crew to service all or part of an aircraft which is to be used to provide an air service, unless the person has obtained a permit from the Authority.
(2) A licensee or permit holder shall not provide an air service using all or part of an aircraft with a flight crew provided by another person, without a permit issued by the Authority.
(3) An application for a permit under regulation 8 and this regulation, shall be in Form A set out in Schedule 1, and shall be accompanied by such information as the Authority may determine.
(4) Where the Authority is satisfied that the applicant meets the requirements for issue of a permit, the Authority may issue a permit in Form B set out in Schedule 1, and the permit may be subject to such terms and conditions as the Authority may specify in the permit, which may include routes to be followed, points or areas to be served, size and type of aircraft to be operated, schedules, places of call, tariffs, fares, rates and charges, insurance, carriage of passengers and carriage of goods.
(5) A person who contravenes a provision of this regulation commits an offence and is liable to a fine not exceeding P3 000 000, or to imprisonment for a term not exceeding five years, or to both.
PART III
General Provisions Relating to Licences (regs 10-31)
(1) An application for a licence to provide an air service shall be in the form set out in Schedule 2, and shall be accompanied by such information as the Authority may determine.
(2) An application made under subregulation (1) shall be signed by the applicant, and if made by a corporation or partnership firm, shall be signed by a person authorised in that behalf by such corporation or by a partner of the partnership firm.
(1) An application for a licence or variation of a licence shall be accompanied by an application fee as set out in Schedule 3.
(2) On the issue of a licence, the applicant shall pay a fee as set out in Schedule 3.
(1) An applicant for an air service licence other than for a scheduled international air transport operating authority, shall satisfy the Authority that it can meet the reasonable fixed and operational costs of its business plan without relying on revenue generated by its operations, for a period of three months from the start of operation.
(2) An applicant for an air service licence other than a scheduled international air transport operating authority shall satisfy the Authority that there is adequate working capital to finance the first 12 months of operation in terms of its business plan, based on the applicant's projected costs and revenues.
(3) In the evaluation of the business plan, the Authority shall examine the experience of the principal parties and senior personnel of the applicant to assess whether such parties and personnel have the necessary skills and capacity to implement the business plan.
An applicant shall disclose information of its financial resources to the Authority, and that information shall be treated as confidential, unless otherwise specified by the applicant.
The Authority shall, before issuing an air service licence, satisfy itself that the person in control of the operations of the applicant—
(a) is of good repute;
(b) has not been adjudged or otherwise declared bankrupt and has not been discharged; and
(c) has undergone requisite security clearance.
(1) Where the Authority is satisfied that the applicant meets the requirements for the issue of a licence, and approves an application made under regulation 10, it may issue a licence in accordance with Part IV.
(2) The Authority may refuse to issue a licence where an application does not meet the requirements of these Regulations, in which case, the Authority shall inform the applicant in writing, of the reasons for such refusal.
(1) A licensee shall operate in accordance with the terms and conditions stipulated in the licence.
(2) A licensee who contravenes this regulation commits an offence and is liable to a fine not exceeding P3 000 000, or to imprisonment for a term not exceeding five years, or to both.
(1) A licence issued under these Regulations, unless previously suspended or revoked in accordance with regulations 23 and 24, shall be in force for a period of 12 months.
(2) A scheduled international air transport service operating authority shall run continuously.
(1) The Authority may vary any conditions of a licence upon application by a licensee, or on the Authority's own initiative.
(2) An application for variation of a licence shall be made to the Authority in the form set out in Schedule 2, and shall be accompanied by a fee as set out in Schedule 3.
(3) The Authority may, when the licensee meets all the requirements for variation of a licence, vary the condition of a licence.
(1) A licence for the operation of an air service is not transferable.
(2) For the purpose of this regulation, transfer of a controlling interest in business includes a transfer of the operating licence.
(1) An application for the renewal of a licence shall be made annually, to the Authority by the licensee, in the form set out in Schedule 2.
(2) An application under subregulation (1) shall be submitted to the Authority not later than four months prior to the date of expiry of a licence, and shall be accompanied by a renewal fee as set out in Schedule 3.
(3) Where an application for renewal is made after the period specified in subregulation (2), the Authority may renew the licence, subject to the payment of a fine of P2 000 for each day the licence has not been renewed, which amount shall not be calculated to exceed three months from the date ofexpiry.
(4) Where a licensee does not renew a licence within three months of its expiry, the Authority shall revoke that licence.
(5) The requirements applicable to the issue of an application for an air service licence, shall be applicable to an application for a renewal of an air service licence under this regulation.
(1) A licensee shall display at its business premises, in a conspicuous place, a licence issued under these Regulations.
(2) A licensee who fails to display the licence in accordance with subregulation (1) commits an offence and is liable to a fine not exceeding P10 000, or to imprisonment for a term not exceeding two years, or to both.
22. Records of applications and licences
(1) The Authority shall keep a record of all applications for licences which shall specify whether the licence was issued or refused.
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