Flight delays are a frequent source of frustration and financial loss for passengers. South Africa is certainly no stranger to the spectre of flight delays and cancellations on a mass scale - most recently when, on 12 March 2022, the South African Civil Aviation Authority (SACAA) announced the immediate grounding of Comair by suspending their Air Operators Certificate (AOC). Comair is the operator of both the Kulula and British Airways brands in South Africa, which account for a significant proportion of the domestic market. 

The suspension was put in place for a period of 24 hours, later extended indefinitely, following “…the recent spate of safety incidents at the Operator.” – with the CAA citing various landing gear malfunctions, engine failures and engine malfunctions. Following a CAA review, Comair’s AOC was reinstated and the operator resumed flights from 17 March 2022. 

Over that period, many passengers were left stranded and frustrated. Frustrations were compounded when Kulula offered its passengers a seemingly less favourable refund protocol than that offered to British Airways passengers - despite both being operated in South Africa by Comair. In brief, British Airways passengers were given the option to refund their ticket, whereas Kulula passengers were offered a credit for their ticket value, valid for six months. 

In recent days Kulula has reversed its positon, and is now offering passengers a refund on the same terms as the refund offered to British Airways passengers. 

It should be remembered that, as at the date of publication, Comair remains under business rescue, and those opting for refunds will likely look for assurances from the business rescue practitioners that they will not find themselves as unsecured creditors.

In today’s digital world, it is easy to lose sight of the fact that an airline passenger concludes a contract of carriage with the airline. The terms of that agreement are set out in the conditions of carriage, which, in the case of Kulula, are available on their website.  In terms of Articles 9 and 10 thereof, Kulula do offer refunds under certain conditions. Any passenger on any airline would be well served by familiarising themselves with the conditions of carriage of the carrier, before they fly. 

These events, unfortunate as they are, serve as a timely reminder that while South Africa is generally a consumer-friendly jurisdiction, it is lagging behind on protection of passenger rights for delayed and cancelled claims. Although passengers are afforded some protections under the Consumer Protection Act, 2009, these rights are often difficult to enforce. For the most part, a claim for a refund, compensation, hotels or meals are based on the conditions of carriage, or the standard terms and conditions of each airline. 

For travel into or out of South Africa, passengers may have a right to claim compensation under the Montreal Convention, which provides for compensation of financial loss arising from travel disruptions, whether they are flight delays, cancellations or denied boarding. However, the passenger must prove financial loss as a result of the disruption, the disruption itself not giving rise to an automatic claim. The Montreal Convention does not apply to domestic carriage within South Africa. 

The situation is very different in other jurisdictions. For example, in the European Union, a passenger may have a right to claim simply as a result of a delay, even if no financial loss arose (subject to various defences that are available to the airlines in “extraordinary circumstances”, such as adverse weather, airport closures and so on). In the EU (and some non-EU countries such as Norway, Iceland and Switzerland), passengers have the right to claim compensation if they arrive at their final destination more than three hours after their scheduled arrival time. The right to compensation also includes delayed connecting flights in the EU with a final destination outside of the EU. The amount that the passenger may claim varies on the distance of the flight, but is typically between R4 000 to R10 000.

It is to be hoped that, with South Africa’s domestic airline industry becoming increasingly competitive and sophisticated, the South African legislation will keep pace with international best practice.

Written by Peter Rogers, senior associate and Michael Homveld, candidate attorney at Norton Rose Fulbright, South Africa