Drone laws under the spotlight at Africa Drones Conference 2020


According to Businesswire, the global unmanned aerial vehicle, or drone, market will grow from $14 billion in 2018 to over $43 billion in 2024 at a compound annual growth rate of 20.5%. South Africa is the largest drone market in Africa, with drones being employed in mining, energy, security, agriculture and medicine.

“In South Africa, many users are operating drones illegally because of the cost and complexity in compliance,” said Kiasha Nagiah, senior associate at Norton Rose Fulbright South Africa. There is currently no single legislation or regulation of drones in place, resulting in confusion on whether drones are regulated and to what extent. Furthermore, authorities do not have the means to enforce compliance against all but the most serious offences. Nagiah expects regulatory changes to be made in the next few years, catering to the lack of specific drone laws and potentially make licensing for commercial operations simpler and more cost-effective.

These were the key findings by Nagiah at the Africa Drones Conference, held virtually between 27 and 28 August.

“A drone is defined in terms of the laws, as an unmanned aircraft which is piloted from a remote pilot station,” stated Nagiah. A drone purchased off-the-shelf for recreational and personal use would likely fall under the definition of a model or toy aircraft but nevertheless a drone is still considered an aircraft for South African and international legislation.

The three main South African regulations pertaining to drones are the Civil Aviation Act, part 101 of the Civil Aviation Regulations and part 1 of the Civil Aviation Technical Standards (CATS).

The Civil Aviation Act is the backbone of flying activities in South Africa, applying to all aircraft in the country. Part 101 of the Civil Aviation Regulations regulates the use of drones except for model or toy aircraft. Nagiah added that failure to comply with the Civil Aviation Act and Civil Aviation Regulations carries a maximum sentence of a fine and up to ten years imprisonment.

Drones are classified by their dimensions, power and height at which they can fly. Class one and two are those that weigh less than 20 kg and cannot be operated at a height of more than 400 metres above ground. Civil Aviation Regulations apply to the operation of class one and two drones only. “Currently, only the Weapons Act applies to drones which weigh over 20 kilos [kgs] but we expect that once new regulations are put in place, it will address these types of drones as well.”

In terms of the Civil Aviation Regulations, there are different categories of drones which will affect the requirements of drones operated. The categories are commercial operations, private operations and non-profit operations. A commercial air transport operation is an air service that is operated for reward. A non-profit operation is not defined but Nagiah stated, “In a plain, laymen’s reading, it is an air service that is provided by an aircraft that is not aimed at generating an income.”

Commercial and non-profit operations are a lot more heavily regulated than private operations. For commercial drone operation purposes, one needs to apply to the South African Civil Aviation Authority (SACAA) for a letter of approval, a certificate of registration, a remotely piloted aircraft systems (RPAS) pilots license (RPL), and remote pilot operators’ certificate (ROC).

The remote pilot is the person who manages the flight, commanding instructions to a drone during flight and is the person who needs to apply for the RPAS license. The ROC applies to the company or organization that intends to operate the drone and not the pilot specifically.

There are a number of training centres in Gauteng and one in the Western Cape. In order to apply for an RPL, the applicant must be over 18, hold current medical assessment (similar to a normal pilot’s license) and have the approved training. South Africa does recognize foreign training but it must be approved and validated. There must be a practical and theoretical assessment and one must also be proficient in English. The RPL is valid for two years – upon expiry the holder must submit for a revalidation check. An application to operate a drone for commercial or non-profit purposes must be submitted to the director of the SACAA to issue the letter of approval and certificate of registration along with an RPL, ROC, air services license, operations manual, insurance and identification as specific in CATS.

The regulations for private operations are far more relaxed, “The drones are not registered and there is no licensing or pilot requirements either,” said Nagiah. The drone has to be operated in the pilot’s visual line of sight and must be a class One A or B drone. It cannot fly above 120 metres from the surface the pilot is operating it from, cannot fly 50 metres from a person or building, at night, in a storm or fog, in controlled airspace, take off or land on a public road and cannot release or dispense substances.

“There is talk in the aviation industry that South Africa is going to adopt a more permissive and flexible regulatory approach to drones and these changes will take a few years to develop and implement and we expect that we will first see how other countries are changing and adopt similarly,” Nagiah said.

When it comes to drone accidents in commercial operations, the person who claims damages from the drone operator does not need to prove the operator was negligent. Nagiah stated it is on the same basis of how the 11 September attacks were settled by the insurers of the owners of the aircraft involved in the attacks due to the aircraft colliding with immovable properties and not with another aircraft, which would require an investigation to determine who was at fault.

In private operations, the third-party claiming damages from a drone accident must prove the pilot was negligent.

The Protection of Personal Information Act, enacted on 1 July, protects the public from drone operators recording or releasing footage or images of them or their property. Drone operators can face fines and imprisonment if they record or release footage or images of a person or their property without the person’s consent.

In terms of cyber risk, Nagiah stated that South African is the most often hacked country in Africa with an estimated cost of R2.2 billion. “It is estimated that there is currently between 30 000 to 50 000 drones being operated in South Africa, so that increases the risk of cyber-attacks.” Nagiah added that unfortunately South Africa lags behind advanced economies with its cyber legislation, government coordination and engagement with businesses and citizens.

The use of drones in terrorist attacks against critical infrastructure is a growing concern across the world as the availability of drones becomes more accessible. Assailants can also use drones to monitor targets and gain information on their target that would be otherwise unavailable to them. This highlights why drones need tight regulations.

By the end of 2019, only 60% of African countries had adopted regulations specifically for drones while other countries such as Mali refer to drones in their aviation regulations. “It is illegal to [privately] operate a drone in Egypt, Libya, Algeria, Ivory Coast, Kenya, Madagascar, Morocco and Senegal,” said Nagiah, adding that South Africa is the only country with credited training centres for drone pilots.

Nagiah concluded in saying that there is a great need for cohesive drone regulations across African countries. “We anticipate the discussion around global drone regulations will take place in the next few years, especially with more and more countries needing to adopt less restrictive legislation of their own.”