South Africa: To Land Or Not To Land

Last Updated: 1 October 2007
Article by Pierre Naude

Owners of licensed airfields have an onerous obligation to ensure that services provided to pilots are adequate, safe and reliable. There is little room for error. There is a general statutory and common law duty to maintain an airfield in a proper manner and to warn pilots of problems that may endanger safe operation to and from the airfield. It is trite that obstructions on runways and taxi ways should be properly marked. The owner of an airfield may discharge such duty in a number of ways. He may arrange for an entry in the AIP and, in addition thereto, request the CAA to issue a notam warning pilots of potential problems. Additionally, the owner of the airfield may be compelled to mark runways and taxi ways as unserviceable. The well known St. Andrew’s Cross would be familiar to many pilots. Failure to warn of potential hazardous and dangerous conditions may lead to legal liability on the part of the owner of the airfield.

Our Courts have pronounced on the nature and extent of the owners’ duties on a number of occasions in the past. Meercats, rodents and other animals and construction work at an airfield often give rise to problems that may result in damage. In similar vein, obstructions in the line of flight onto the approach of a runway may create similar difficulties.

In the matter of Van der Merwe v Nelspruit Town Council Curlewis J had to pronounce on the liability of the Nelspruit Municipality pursuant to a landing accident. The owner’s aircraft was damaged when its undercarriage collided with electrical cables that ran parallel to the tar runway. These were in the process of being installed to upgrade the night landing facilities at the airfield. The Court said:

"It is abundantly clear from the evidence as also from the regulations that have been placed before me, that a high degree of care is expected of airport authorities. Pilots, because of this, do not expect to find furrows or obstructions in the runway. They do expect to find warnings when there is an obstruction or danger … It amounts to this in fact that in the absence of a warning, a pilot coming into a licensed public airport is virtually entitled to assume that there are no hazards which are controllable by the airport authorities in the way of landing."

The High Court in Grahamstown was recently called upon to decide on a claim made against 43 Air School that operated the Port Alfred Airport in consequence of a landing accident that happened at the school in 2003.

Briefly, the facts were that the Plaintiff, having departed from East London in a Cessna 340 around midday, made radio contact with the tower at 43 Air School and requested permission to land at an airport he knew well. The facility operated by 43 Air School was one that provided air flight information services ("AFIS") from its tower. The pilot was advised by the tower to call "finals" on runway 28. It was during this stage that things went wrong.

The airfield had only one runway 28 operative at the time. Towards the end of 2002, the airfield operator decided to construct another new runway running parallel and to the south of the existing runway 28. A strip of land parallel to the existing runway 28 was cleared but, because it was thought to be too close to the existing runway 28, work on it was abandoned. A furrow was ploughed in the centre of this strip along some distance of its length which left a mound of sand or ground along the middle of the cleared strip. The cleared strip was not marked as being not in use and unserviceable. Work thereafter commenced on the construction of the new parallel runway further to the south.

At the time of the accident on the 14 March 2003, there were thus three cleared parallel strips of land at the aerodrome. Viewed from the air on approach, the centre strip was the abandoned runway, the runway on the right the only serviceable runway at the time, and the one on the extreme left was the new runway under construction (closed at the time of the accident). The pilot initially lined up for the left strip, alledgedly having been so advised by the tower, and manoeuvred the aircraft to his right and touched down on the centre strip where the aircraft collided with the mound of sand referred to above. There was clearly miscommunication between the pilot and the tower. The Court accepted the Defendant’s version and found that there was no failure to provide adequate "AFIS".

It was submitted by the plaintiff/owner of the aircraft that 43 Air School was negligent in a number of ways. In addition, it was submitted that the airfield owner was negligent in not marking the runway on which the pilot landed as closed and not in use, and that the airfield owner failed to issue a notam timeously in order to warn pilots of this fact.

The essence of the defence raised by 43 Air School was that the pilot, in theory and reality, did not land on a runway and, had he kept a proper lookout, he ought to have realised that the strip upon which he put the aircraft down was not fit and safe for such purpose.

Evidence (expert and otherwise) was lead on behalf of all parties and the Court ultimately concluded that the Defendant had indeed been negligent in that it failed to mark the runway in such a way likely to prevent landings on the left hand strip. In addition the Court found 43 Air School negligent for its failure to publish a notam warning pilots of the existence of the abandoned and new cleared areas running parallel to runway 28.

The Court considered the conduct of the pilot and concluded that there had been contributory negligence in that the pilot failed to keep a proper lookout, should have seen certain markings or absence of markings , the mound of sand or soil at an earlier point from the air, and should have taken evasive action. The Court found that the pilot failed to see a number of markings and features visible to any pilot from the air and had failed to check with the airport. He also failed to make visual checks to ensure that he would land on an active marked runway at any of three possible stages.

The Court acknowledged that "the operation of an aerodrome is conduct that calls for expertise". As mentioned earlier, the Defendant/aerodrome operator argued that the strip on which the pilot landed was in fact not a runway. In this regard the Court said:

"It seems to me that for the purposes of determining the reasonable foreseeability of harm, a good way to start, as an initial rule of thumb, is to accept that any cleared area of land that might look like a runway, in a non-technical sense, to a pilot from the air, carries the risk of landing and potential harm associated with such a landing. In my view it has been shown that the two contentious strips to the left of the licensed runway 28 conform to that basic requirement."

Dealing with the manner in which unserviceable runways are to be marked as prescribed by the Civil Air Regulations, the Court said:

"Thus even if on a strict and proper reading of the regulations the unmarked strips were not "runways" (an issue that I do not consider necessary to decide for purposes of this case) the ICAO standards are nevertheless helpful because the requirements are geared to the same purpose, namely to warn pilots of the dangers of landing on strips that are not serviceable landing strips. … In my judgment a reasonable airport operator would have marked the left hand strip and the centre strip on which the pilot landed with crosses at its start and end as well as along its length, in particular where the mound of sand or ground ran. This would have been reasonable steps to prevent landings on the strip. The airport operator failed to do that and was negligent in that failure."

In dealing with the issues pertaining to the negligence of the aerodrome as well as of the pilot, the Court referred to an article in the 1979 South African Law Journal headed "The liability of aerodrome licensees" by L Weyers. It is appropriate and convenient to quote therefrom:

"The Courts in South Africa would appear to adopt a rigorous attitude towards aerodrome licensees who are in breach of their statutory duty; they receive scant sympathy from the bench … In my respectful view this approach is the correct one; flying is an exact art and one with possible serious consequences if an accident should occur, and a pilot should be entitled to assume (while maintaining his own standards of care) that the aerodrome will not confuse, mislead or trap … [aerodrome/licensing] duty further includes taking such care as in the circumstances is reasonable to ensure that (its) aerodrome will be safe for aircraft movements."

Because of these considerations the Court found that it was just and equitable to apportion blame equally between pilot and airport operator. The judgment serves as a good reminder of the onerous obligations resting on aerodrome operators. It is often smaller municipal airfields that may overlook what the law prescribes and expects. All should however take heed … precaution is always a better option.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.