By Dominique Lloyd, Senior Associate and John Mackechnie, Candidate Attorney
Introduction
Owing to the advent of drone technology and the constantly evolving technological landscape, the law has accordingly developed to regulate this rapidly expanding industry. In order to do so, the South African Civil Aviation Authority (SACAA) (as a member of the International Civil Aviation Organisation) (ICAO) has incorporated Standards and Recommended Practices (SARPS) culminating in Civil Aviation Regulations, Part 101 – Remotely Piloted Aircraft Systems (“Civil Aviation Regulations”).
It is worth noting that South Africa is a world leader in drone law, being one of the first countries to regulate the usage and enjoyment of drones. Many countries have looked to South Africa in the regulation of this area of law.
Important Definitions and Distinctions:
In order to determine whether you are complying with the Regulations, it is important to understand the ambit of the application of Civil Aviation Regulations. To do so, it is essential to look at the definition of “Remotely Piloted Aircraft System” (“RPAS”), as well as the stipulated exclusions.
“Remotely Piloted Aircraft System”, in terms of the Civil Aviation Regulations means an “unmanned aircraft which is piloted from a remote pilot station, excluding model aircraft and toy aircraft”. Drones fall within the parameters of this definition being classified as a Remotely Piloted Aircraft System (“RPAS”), which means that if you own a drone, you need to make sure that you are using it within the ambit of the law. It is important to note the exclusions which qualify the above definition, namely: “(a) autonomous unmanned aircraft, unmanned free balloons and their operations or other types of aircraft which cannot be managed on a real-time basis during flight; (b) an aircraft operated in terms of Part 94; (c) a model aircraft; and (d) toy aircraft”.
Private Operation:
Private drone operation ultimately pivots on whether there is commercial outcome, interest or gain derived from the operation of the drone. In terms of the Civil Aviation Regulations, private operators have flexibility, being able to avoid for a RPAS license. However, private drone operators must have regard to all statutory requirements relating to liability, privacy and any other laws enforceable by any other authorities.
Practically, private drone operators are constrained from operating:
- Near manned aircraft;
- Within 50 metres from people, roads and buildings;
- 10 km or closer to an aerodrome (airport, helipad, airfield);
- A drone weighing more than 7 kg;
- In controlled airspace;
- In restricted airspace; and
- In prohibited airspace.
Other Use (Commercial):
Commercial drone operation, is determined by whether commercial benefit derived from the use and enjoyment of the drone. In order to operate legally, the commercial drone operator is required to:
- Be qualified and in possession of a RPAS license;
- Obtain an RPAS letter of approval from the Director of the South African Civil Aviation Authority (valid for 12 months from the date of issue);
- Obtain a certificate of registration for each individual RPAS;
- Obtain a RPAS operating certificate; and
- Submit a maintenance programme for approval by the Director of the Civil Aviation Authority.
Applications must be submitted to the SA Civil Aviation Authority, Aircraft Registry, Ikhaya Lokundiza, Building 16, Treur Close, Waterfall Park, Bekker Street, Midrand, or mailed by registered mail to Private Bag X73, Halfway House 1685.
Am I allowed to take pictures with my drone?
Although Civil Aviation Regulations are crucial for commercial and private drone operation, the drone user must be aware of privacy law when capturing pictures in a private space, especially when one has regard to the urban nature of modern living.
South African privacy law permits a photographer to engage in photography in public spaces. This includes but is not limited to parks, streets and sporting arenas. Practically, this permits a person to take pictures of people and objects present in the public domain. A person who appears in the public arena effectively gives consent through their physical presence in such public areas.
Practically, in an urban environment, drone users are highly constrained in the use and enjoyment of their drone. The user is permitted to operate on their own property and may not operate the drone over another person’s property without permission. This severely curtails the operation of a drone in high density urban environments, such as clusters and complexes.
Dangers:
There is the danger for abuse and intrusion, such as trespassing on private property and the invasion of privacy, as well as noise pollution. This is evidenced by behaviour such as the capturing of images of residential homes (private residences), which compromises the occupier/owners right to and security.
Globally, it has been noted that drones have been used for ulterior motives, such as monitoring the number of cars on a property, as well as other such privacy intrusions. SACAA has created rules and parameters for operation and contravention of the stipulated regulations, which could result in hefty fines and/or imprisonment. A drone operator who fails to adhere to the regulations may receive a 10-year prison sentence or a fine of up to R50 000.00, or both.
Conclusion
Technology is constantly changing the way we act, think and innovate and has altered the nature of human interactions. It is important to remember that as innovative as drone technology is, it needs to be used responsibly, especially when one has regard to the fundamental pillars of the right to property and the right to privacy. These rights are of paramount importance and are captured in the Constitution of the Republic of South Africa.
