High Court overrules ‘Huey’ grounding

The High Court has set aside a decision of the Directorate of Civil Aviation to ground a privately owned Bell UH-1 helicopter because its American military markings from the Vietnam War era was regarded as offensive. Tsumeb businessman Rainier Arangies, the owner of the helicopter, and its operator, Expedite Aviation, had challenged the DCA’s decision of February 16, 2012. The Minister of Works and Transport and the Director of Civil Aviation were the respondents. The helicopter was imported from the United States and carried the markings of the United States Army. President Hifikepunye Pohamba saw the aircraft at the Tsumeb airport on February 5, 2012 and was “perturbed” by its military markings. The Directorate of Civil Aviation (DCA) then decided to ground the helicopter on February 6, 2012. When the owner removed the offending markings from the helicopter, the DCA again decided on February 16, 2012 to ground it - this time on the grounds that the helicopter exhibited certain further offending markings. This led to the court case where the applicants contended that neither the Aviation Act nor the Namibian Civil Aviation Regulations present any statutory basis upon which the helicopter could be grounded. They argued that the DCA had grounded the helicopter based upon the misconception that it derived the right to do so from the provisions of the Aviation Act, read with the Civil Aviation Regulations. The applicants argued that neither the Act nor the Regulations provide for any penalties relating to markings of nationality or registration markings of an aircraft. According to them the only legal grounds for grounding an aircraft is if an inspector finds such aircraft to “unsafe, not duly registered or not airworthy”. The applicants submitted that their helicopter cannot be said to be either unsafe, unregistered or not airworthy. “The detention of the helicopter by DCA was clearly not intended to facilitate an investigation of the circumstances relating to the purported specific flight or to facilitate an inspection of the helicopter,” the applicants argued.