Johannesburg, South Africa: FlySafair was recently in the news following an unruly passenger incident aboard its Boeing 737 aircraft routing Durban to Cape Town on 26 December 2024. In a video widely circulated online, a woman named Nobuntu Mkhize could be seen arguing with cabin crew, assaulting both passengers and cabin crew and uttering racial expletives in the process. It is reported that part of her displeasure had to do with being denied wine by the airline staff. The passenger was restrained and handed over to the police upon arrival in Cape Town.
This incident has raised pertinent questions around the issue of unruly passengers and what the position of the law is around this topic in South Africa. It has further provoked an inquiry into the likely consequences and penalties for this type of behaviour. Most importantly, the question that has lingered on is whether passengers do have a right to fly?
The aviation sector is a significant economic driver in any economy, including South Africa’s where it accounts for significant percentage of the Gross Domestic Product (GDP). Incidents of unruly passenger behaviour place the industry at risk, since such incidents might diminish the public confidence in aviation as a mode of travel and conveyance. Hence the rules for clamping down on such behaviour were designed to contain such disruptive situations promptly, ensuring safety and security – thereby restoring public confidence in this mode of transport.
What does the law say?
Section 135 of the Civil Aviation Act 2009 makes it an offence for a passenger to disrupt the operations of an aircraft. The section defines an unruly passenger as:
Any person on board an aircraft who, (1) commits any nuisance, disorderly conduct or indecent act; (2) is in a state of intoxication; (3) behaves violently towards any person including a crew member which is likely to endanger the safety or security of the aircraft or any person on board such an aircraft.
Turning to the issue of punishment for such violations, the Act lists three possible sentencing regimes: (1) a fine, (2) imprisonment not exceeding six months, and (3) or both a fine and imprisonment.
But who decides if a passenger has crossed the threshold? In cases of disruptive behaviour that occurs in the terminal, that is prior to boarding, the airport authority enjoys the discretion to determine this. However, once the passenger is on the airside, post the boarding phase, it becomes the Pilot-in-Command’s (PIC) discretion. Both are empowered to take necessary measures (including restraint) to contain any unruly passenger incident on board an aircraft or a at the terminal.
Note, however, that section 135 of the Civil Aviation Act only limits itself to offences taking place on board the aircraft, and not in the terminal building.
What is prohibited and why?
From the foregoing it is clear that unruly passenger behaviour is regarded as an offence. The term unruly passenger is synonymous with ‘disruptive passenger’. Both imply that such a person is not easy to manage or control. In essence, this is a passenger who fails and / or refuses to respect the rules of conduct at an airport or on board an aircraft.
Governments are mandated by their international obligations as members of the International Civil Aviation Organisation (ICAO) to enact and implement laws aimed at dealing with unruly passenger incidents. This is mainly because unruly passengers threaten the safety and security of aviation infrastructure and persons. Further, not only do such passengers cause mental harm to other passengers and crew, but their behaviour also disrupts flight operations – causing inconvenience to other passengers. Additionally, this behaviour has financial implications for air carriers.
Can passengers rely on the so-called ‘right to fly’?
Quite often, when a passenger is declared unruly, and they are ultimately restrained and removed from a flight, there is ambivalence in the public opinion on this issue. Some consider this as unjust and a breach of the supposed ‘right to fly’. Proponents for the right to fly often predicate this supposed right on human rights or contract – flowing from the understanding that once a ticket is purchased, the airline has an obligation to carry that passenger. While a contract of carriage may exist, it does not necessarily give birth to a right to fly; and no instrument in both domestic and international law embraces such a right. The only nuance could be to infer this right from other rights, such as freedom of movement – but this too would be a long stretch. The fact that rights are not absolute and can be limited would also mean that as soon as a passenger becomes unruly – thereby threatening safety and security of the aircraft – the PIC has the right to limit that passenger’s right by restraining them and removing them from the aircraft.
The airline, FlySafair has since placed Nobuntu Mkhize on a no-fly list, to ensure that she does not fly with the airline in the future. Owing to the racist utterances she allegedly made during the incident, some political parties have already indicated that they will lodge a complaint against her with the Human Rights Commission. The irony in all this, is that in spite of the unruly passenger’s name – Nobuntu – there was no semblance of Ubuntu in her actions.
