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May I operate a drone?
14 August 2019
 
“I’m an amateur photographer and have been toying with getting a drone to take aerial photos with. I’m not sure though if I need a license to use a drone and whether I’m allowed to take photos with a drone. What are the current rules about using a drone?”

Drone law in South Africa is a relatively new field of law with the flying of drones in South African airspace previously largely unregulated. About five years ago, the South African Civil Aviation Authority (“SACAA”) issued a statement explaining that the civil aviation laws in place at such time, did not provide for the registration, certification or operation of drones in South African airspace, confirming that South Africa did not have the necessary drone law in place to regulate various important issues such as safety, security and/or privacy in respect of drone operation.

It is a given that the drone industry in South Africa will likely continue to expand as the scope of use of drones increase from recreational use to filmmaking, news broadcasting, aerial surveys, photography and even agricultural observations. It is therefore vital that the regulation of drone use is clear and applied.

From the outset one must distinguish between a “toy” radio-controlled aircraft and a “drone”. Although this distinction has not yet been defined by the International Civil Aviation Organisation (“ICAO”), an organisation of which South Africa is a member, our SACAA has suggested that a radio-controlled aircraft will most likely be regarded as a “toy” if the main purpose for which it is being used is for recreational or sport purposes. If, however, the aircraft is utilised for commercial purposes or for professional or aerial work purposes, then it will most likely be classified as a drone and fall within the regulatory ambit of the SACAA.

In December 2014, SACAA published draft regulations pertaining to drones or “Remotely Piloted Aircraft Systems” (“RPAS”). These draft regulations distinguished between RPAS used for commercial, corporate or non-profit purposes and those used for an individual’s personal or private purposes. These draft regulations further required certain operators of RPAS to obtain a pilot license from a SACAA-accredited school or institution before operating RPAS in South African airspace, if these are used for commercial, corporate or non-profit purposes. Currently, RPAS are governed by the Civil Aviation Regulations, Part 101 – Remotely Piloted Aircraft Systems (the “Regulations”) which came into effect on 01 July 2015.

In terms of the Regulations, RPAS may be used by individuals for their own personal and private use, provided that there is no commercial outcome, interest or gain. For all other uses, the RPAS must be registered and may only be operated in accordance with the Regulations in South Africa.

Important restrictions to take note of and which are applicable to the operation of private drones which are mainly used as “toys” (i.e. for personal and private use) are that the RPAS in question may not be operated above 120 meters, within a 10km radius of any aerodrome, within 50m of any person, property or public road, or within any controlled, restricted or prohibited airspace. Further restrictions apply as set out in the Regulations, but if these are adhered to then such private RPAS operators are generally not required to hold a RPAS license.

However, one of the main concerns when it comes to drone law is the potential negative effect that it may have on privacy, since drones are often equipped with video or photo cameras. These drones are then able to take, record or stream video or photographic data anonymously and potentially gather personal information. SACAA will have to take into account privacy concerns, legislation and regulations when further developing drone law as drones have the potential to infringe the right to privacy. For example, the Protection of Personal Information Act (“POPIA”) has been signed into law and may influence the regulation of new technologies such as drones from a protection of privacy perspective as drones are able to collect and process personal information regardless of whether the intent is for commercial or personal purposes.

Although drone law will aim to regulate a complex range of potential safety concerns and privacy risks relating to drone use, currently the use of private drones for personal and private use where there is no commercial outcome, interest or benefit, is allowed in instances where the operator observes all statutory requirements relating to liability, privacy and other laws enforceable by South African authorities. 

It may however be that your use of a drone for photography purposes may fall within the ambit of use for commercial intent and may require you to comply with the Regulations. If you are unsure, it would be advisable to consult your attorney for advice specific to your intended use and the current requirements of the Regulations.