On Sunday 29th October 2023, the SAHPA Committee received an email from Adv PA van Niekerk, a SAHPA member who expressed his objection to the nomination of Mr Mias de Klerk for the role of SAHPA Chairman.
Timeline of events
- The SAHPA Committee met on Sunday 29 October 2023 to discuss the contents of this email with independent legal council. Mr Louis Stanford recused himself from this meeting.
- The SAHPA Committee met again on Monday 30 October 2023 to discuss the contents of this email with independent legal council. Mr Louis Stanford again recused himself from this meeting.
- On Monday 30th October, the SAHPA committee sent a letter to Mr Mias de Klerk, informing him of the objection and giving him an opportunity to recuse himself from the election.
- On 31 October 2023, Mias de Klerk responded to the SAHPA committee, however he did not recuse himself.
- Both emails were read into the minutes of the AGM, and are published below.
Email from Adv PA van Niekerk
From: Piet Van Niekerk
Sent: Saturday, October 28, 2023 6:15 PM
Subject: SAPHA ANNUAL GENERAL MEETING: ELECTION OF CHAIRMAN
Dear Mrs Liversage
I note that Mr Mias de Klerk (“De Klerk”) has been nominated as a candidate for election as chairman o SAHPA.
I place the following on record:
- De Klerk is presently the subject of an investigation by SACAA enforcement, which investigation is conducted by Mr J Mtsweni and Me H Oosthuizen.
- The investigation relates to alleged serious irregularities in respect of compliance issues insofar as the conducting of a commercial operation by De Klerk is concerned, including an allegation that De Klerk trained students without complying with the relevant Civil Aviation Regulations (“CAR”), allowed students to fly without holding an applicable licence, and made misleading statements during the conduct of the investigation by SACAA. I do not elaborate further on the issues, as it is subject to the SACAA investigation.
De Klerk is not eligible to be elected as chairman of SAPHA, inter alia for the following reasons:
i. In terms of the Code of conduct of SAPHA officials as published on the SAPHA website, any SAPHA official must act in the best interest of SAHPA while avoiding actions or decisions that could either bring the sport into disrepute or be unethical, illegal or contrary to the public interest. The ongoing investigation by SACAA relates to actions of De Klerk which, if it found to have occurred, falls squarely into the category of actions referred to supra. Therefore, until such time as De Klerk is cleared by SACAA from any transgressions of the Civil Aviation Act (‘the Act”) and/or CAR, he is not a member in good standing with SAPHA.
ii. It is a principle of law (the principle of legality) that any person placed in an executive position and/or who is tasked with making decisions, must avoid any possible conflict of interest. SAPHA is an ARO in terms of the Act and CAR. SAHPA is therefore a statutory body, tasked primarily to oversee and co-ordinate compliance by its members with the Act and CAR under delegation of specific powers from SACAA and performs administrative action and takes executive decisions. Should De Klerk be elected as Chairman of SAPHA, it will have the absurd result that he will be playing a pivotal role as executive decision maker in the statutory body enjoined to take action, collate information, and enforce compliance of the CAR and Act in respect of the actions presently under investigation which he allegedly committed. This clearly illustrate a conflict of interest.
I further record that I have not noticed any reference on the ballot or the notice of the AGM to the fact that De Klerk is presently subject to a SACAA enforcement investigation. This is a material fact which should have been disclosed to all potential voters. I therefore request that this e-mail be distributed to all potential voters.
I further record that I will not tolerate any situation which may potentially prejudice the interests of SAHPA members, or diminish the reputation of SAHPA. It is becoming increasingly difficult to enjoy the sport of free flying, and the good standing of SAHPA with the general public and SACAA is vital for the existence of our right to fly free under reduced limitations. Should it become a fact in the general domain and/or known to SACAA that SAPHA elects as its chairman a person under investigation for transgressions of the fundamental principles of licencing, SAPHA and its members will be brought into disrepute.
In the premises, you are hereby requested to take the necessary action to withdraw the acceptance of the nomination of De Klerk for the position of chairman, and you are notified that, in the event of De Klerk being elected as chairman, I will approach the High Court for an order against SAPHA, to review and set aside such election and seek an order for costs against SAPHA.
Adv P A van Niekerk SC
Email response from Mias de Klerk
From: Mias de Klerk
Sent: Tuesday, 31 Oct 2023, 16:29
To: Grant Naude, Louis Stanford, Pete Wallenda, Steve Burd, Kev Storie, Lennox Olivier, Basjan van Heerden
Subject: Re: Request for Recusal from SAHPA Chairman Election
I acknowledge receipt of your letter of yesterday’s date calling upon me to recuse myself from the election being held this evening. I am frankly shocked at the content and also at what is said in the letter from Advocate Van Niekerk, a person I do not know. Quite why he should feel so strongly about a possible outcome of a voting process by his fellow members I cannot imagine.
While it is true that I have had allegations made against me by SACAA, the fact is that there is no truth in those allegations. In fact I have not breached the Regulations at all, nor would I ever knowingly do so. I have taken legal advice on them. My attorneys made representations to SACAA which debunk the allegations and I expect to hear from SACAA to the effect that there will be no further action.I think you will agree that it is unreasonable for anyone to expect a person falsely accused to behave as if he were in fact guilty.
In the circumstances, there is no legal, ethical or moral basis for the committee to call upon to withdraw my candidacy. I remain, I believe, a perfectly suitable candidate and it is for the members to decide by their votes who the majority of them would like to represent them.
It follows that I will abide the result of the democratic process which is key to SAHPA. If the members choose to elect me, I shall serve.
Mias de Klerk