1. INTRODUCTION
1.1 Purpose
This document (the “Standard Terms and Conditions”) is issued by the Air Traffic and Navigation Services SOC Limited (“ATNS”) and set out the Standard Terms and Conditions for credit in respect of the Provision of Air Traffic Services in the Republic of South Africa. These Standard Terms and Conditions are Supplementary to the air traffic service charges and Associated rules published in the Government Gazette in terms of section 5 (2)(f) of the Air Traffic Services Company Act 45 of 1993 (the “ATNS Act, 1993”).
1.2 Enquiries and Questions
1.2.1 Any Enquiries, queries and/or questions on any matter dealt with in this document or any air traffic service charge and associated rules can be addressed to
The CFO
ATNS
Private Bag X 15
KEMPTON PARK
1620
Tel: 011 607 1364
Fax: 011 607 3948
2. AIR TRAFFIC SERVICE CHARGES
2.1 Definition
2.1.1 In terms of the ATNS Act, 1993, an air traffic service charge means an amount levied by ATNS on an operator of an aircraft or an airport in connection with the use of any air navigation infrastructure by or the provision of an air traffic service to, such an operator or airport.
2.2 Authority To Levy Air Traffic Service Charges
2.2.1 The ATNS Act, 1993, provide that ATNS may only levy an air traffic service charge if it is in possession of valid written permission thereto. A permission to levy air traffic charge therefore authorised ATNS to levy air traffic charges, subject to such conditions, which the Regulating Committee may attach to such permission. Conditions may address the level of the charge and the services to the provided by ATNS.
2.2.2 A permission to levy air traffic service charges was issued to ATNS by the Regulating Committee, a copy of which was published in the Government Gazette.
2.3 Liability To Pay Air Traffic Service Charges
2.3.1.1 The operator of an aircraft is liable to pay the applicable air traffic service charge to ATNS:
2.3.1.2 In the case where such aircraft is operated in terms of an air service licence or an international air service licence;
2.3.1.3 In the case where such aircraft is operated in terms of a bilateral air service agreement, the airline which has been designated in terms of such agreement;
2.3.1.4 In all other cases, the owner of such aircraft, in which case the owner means the person in whose name such aircraft is registered in and includes any person who is or has been acting as agent in the Republic of South Africa for a foreign owner or any person by whom such aircraft is hired at the time.
2.3.2 When an operator of an aircraft activates a flight plan or executes an approach to an Airport from which the ATNS operates and provides air traffic and navigation services, it becomes liable to pay the appropriate air traffic service charge to the ATNS. The activating of a flight plan or an approach of an aircraft to an airport means that the operator of that aircraft accepts the Standard Terms and Conditions for Credit in respect of the Provisions of Air Traffic and Navigation Services set out in this document. A Airport refers to any Airport, from which ATNS operates.
2.4. Notifications of Air Traffic Service Charge
2.4.1 In terms of the ATNS Act, 1993, ATNS has to publish its air traffic service charge in the Government Gazette at least three months before such charges come into operation. The latest charges published accordingly will be applicable. Users will be advised timely of such publications.
3. Notification of Air Traffic Service Charges
3.1 Interpretation
3.1.1 An expression used in these Standard Terms and Conditions to which a meaning has been assigned in the notices referred to in Clause 2.4.1 bears the meaning so assigned.
3.2 Provision of Air Traffic and Navigation Services
3.2.1 The ATNS shall provide air traffic and navigation services only in accordance with these Standard Terms and Conditions.
3.2.2 The ATNS shall provide such services in accordance with the provisions of the Aviation Act, 1962, and the regulations made thereunder, the current standards and recommended practice promulgated under the Chicago Convention and adopted by the Government of the Republic of South Africa and any other relevant statutory enactment that may be in force.
3.2.3 The Company recognises the obligations contained and referred to in air transport service agreements to which the Government of the Republic of South Africa is a party, to the extent that such agreements relate to the provision of air traffic and navigation services.
3.2.4 No reduction of charges will be allowed by reason of the unavailability of any air navigation infrastructure used in providing an air traffic and navigation service.
3.2.5 ATNS Directors have a duty to ensure that it remains a commercially viable entity. ATNS shall use whatever remedy it may have, in law, to enforce its rights where payment remains outstanding for services which it has rendered..
3.3 Charges for Air Traffic and Navigation
3.3.1 Air traffic service charges shall be payable by the operator of an aircraft to the Company in accordance with the provisions set out in the Notices as published in the Government Gazette from time to time in terms of Sections 5 (2)(f) of the ATNS Act, 1993.
3.3.2 The activating of a flight plan, filed in terms of the Rules of the Air, Air Traffic Services, Search and Rescue and Over-flight Regulation, 1975 as amended, or an approach of an aircraft to a company airport, shall be construed as an acceptance of these Standard Terms and Conditions by the operator of such aircraft.
3.4 Method and Place of Payment
3.4.1 The Company shall issue an invoice to an operator of an aircraft. Such invoice shall include details of each flight undertaken by the operator and shall include particulars of the aircraft used and the flight undertaken, and such other particulars as may, in the opinion of the ATNS, be necessary.
3.4.2 The ATNS shall despatch a monthly statement reflecting the total debit balance of the account either to the owner or authorised user of the aircraft..
3.4.3 The operator shall be responsible for any and all debts incurred on the statement whether by himself or other authorised users.
3.4.4 All payments due to the ATNS shall be made in South Africa currency or American Dollar, either by Electronic Funds Transfer (EFT) or by such other means as may be agreed to by the ATNS and shall be received by the ATNS within 30 days of the invoice date.
3.5 Conditional Payment
3.5.1 The operator shall not be entitled to attach any conditions whatsoever to any payment made to the Company, including the condition that payment is made and tendered in full and final settlement.
3.5.2 if an operator attaches any condition referred so contemplated in Clause 3.5.1 above, the ATNS shall be entitled to accept payment and to exercise its right in terms of these Standard Terms and Conditions as if no such condition had been attached.
3.6 Conditional Payment
3.6.1 The ATNS reserves the right to charge interest on full balances on overdue accounts with effect from the date the indebtedness was incurred.
3.6.2 The rate of interest shall not exceed the current prime rate plus two percentage points.
3.6.3 Interest payable under Clause 3.6.1 shall be compounded daily and shall be payable for the period from the due date for payment until the payment is made in full and shall accrue after as well as before judgment (if the matter is referred to court), and payable on demand.
3.7 Error and Question
3.7.1 In the event of there being an error in an invoice, the operator shall identify at the time of payment of the balance of the invoice. An operator may withhold from payment the amount presented by the error but shall pay the balance of the invoice. When the ATNS and the operator have resolved the error, any outstanding amount shall be deemed to have been payable on the invoice payment date and interest shall be treated as having accrued from that date.
3.7.2 The operator shall notify the ATNS of any changes in ownership or other particulars of an aircraft, including maximum certified mass, or any changes in the particulars of such operator, including the name, address, telephone number, fax number, and such notification shall be made within 21 days after effecting such changes.
3.8 Period During Which These Standard Terms and Conditions apply
3.8.1 The ATNS may alter and vary these Standard Terms and Conditions at any time. Operators whose liability increases as a result of a variation of these Standard Terms and Conditions will be given not less than 30 days’ notice of the proposed alterations and variations.
3.9 Limitation of Liability
3.9.1 The ATNS, its directors, officers, employees and agents shall have no liability for loss, damage, or delay suffered or incurred by the operator in respect of or arising out of or in any way connected with the provision of air traffic and navigation services contemplated by these Standard Terms and Conditions.
3.10 Governing Law
3.10.1 The laws of the Republic of South Africa shall govern any dispute arising out of the application or interpretation of these Standards Terms and Conditions.
3.11 Jurisdiction
3.11.1 Any legal proceedings, the operator shall be deemed to have consented to the jurisdiction of the magistrate’s court notwithstanding that the amount of the ATNS’s claim may otherwise exceed the jurisdiction of that court.
3.12 Proof of Indebtedness
3.12.1 In any legal proceedings the ATNS shall be entitled to use, as conclusive proof of the operator’s indebtedness, microfilm or other copies of any records or documents which are relevant to such proceedings.
3.13 Costs
3.13.1 Should the operator’s account, as a result of default on its part, be handed to attorneys for collection, the operator undertakes to pay all legal costs on an attorney and client scale.
3.14 Notices
3.14.1 Every notice given pursuant to the Standard Terms and Conditions shall be sufficiently given in writing and delivered by Email or sent by prepaid post to the operator at its registered office or last known place of business.