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In a significant ruling for the aviation sector, the Gauteng Division of the High Court, Pretoria has declared it unlawful for the International Air Services Council (the “IASC”) to impose Broad-Based Black Economic Empowerment (“B-BBEE”) or other race-based criteria when adjudicating licence applications under the International Air Services Act, 1993 (the “Act”). The order was granted on 5 June 2026 in Sakeliga NPC v International Air Services Council, before Justice Bam J, following an unopposed application by Sakeliga NPC (“Sakeliga”).
Background
The Act governs the licensing of international air services in South Africa. The IASC serves as the regulatory body established in terms of the Act, and responsible for receiving and adjudicating licence applications submitted by airlines seeking to operate international routes to and from South Africa.
According to Sakeliga, it was informed in 2023 that the domestic regulator, the Air Services Licensing Council (the “ASLC”), was denying licence renewals by invoking provisions in the B-BBEE regulations. Shortly after launching a formal investigation, Sakeliga was alerted by foreign embassies that the IASC was imposing similar race-based requirements on international airlines. In October 2025, following the conclusion of litigation against the ASLC, Sakeliga commenced proceedings against the IASC. The application was heard unopposed on 5 June 2026, and the order sought by Sakeliga was granted.
The court order
In terms of the court order:
- The IASC’s decision to apply the criteria set out in section 10(1) of the Broad-Based Black Economic Empowerment Act, 2003 or any criteria extraneous to the Act (the “Impugned Criteria”), when adjudicating licence applications was reviewed, set aside and declared unlawful.
- The IASC’s conduct in imposing the Impugned Criteria was declared unlawful.
- The IASC’s policy and practice of including the Impugned Criteria in licence applications was declared unlawful.
- The IASC’s conduct in imposing race-based requirements extraneous to the Act and its regulations, when adjudicating licence applications was declared unlawful.
- Sakeliga was exempted from exhausting the internal appeal process contemplated in section 37 of the Act.
Implications
The court order carries significant implications:
- Licensing criteria confined to the Act: Licence applications for international air services must be adjudicated on the basis of the criteria prescribed by the Act and its regulations.
- Relief for international operators: International providers of passenger, freight and other air services may now apply for and renew licences without being required to demonstrate compliance with B-BBEE requirements.
- Signal to the international community: The court order sends a clear signal to international businesses and foreign governments that race-based demands imposed by South African regulators can be successfully challenged where they lack statutory authority.
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