South Africa is one of the few countries in the world that have passed laws regulating the operation of drones in the civil aviation airspace. The Civil Aviation Authority (CAA) of South Africa now regulates the use of commercial drones within the film production, quantity surveying, private security, agricultural, farming, sports and recreation industries. Over the next 10 years drones will become part of our everyday lives. In this article, we discuss important facts to consider when operating, importing, distributing and supplying commercial drones (also known as “remotely piloted aircraft”) in South Africa.

1. The importance of commercial drone regulation

Imagine the chaos that would ensue if there were no traffic regulations in place for motor vehicles, no driving licence requirements and no registration or number plates for vehicles. The same applies for aircraft in the sky.

To prevent accidental collisions or incidents that could damage private property, the CAA requires commercial drone operators and their drones to be fully licensed and to comply with Part 101 of the Civil Aviation Regulations (CARs). However, drones used for private or personal use are not required to be registered or operated in terms of the CARs.

In terms of the CARs, a drone may not:fly near manned aircraft;

• fly 10km or closer to an aerodrome (airport, helipad or airfield);
• weigh more than 7kg;
• use a public road for take-off or landing;
• transport cargo or make deliveries;
• fly within 50m above, or close to, a person without consent of such person or, in the case of a group of persons, without their consent under the control of the drone operator. The Director of the CAA may approve any flight higher than 50m from the ground;
• fly in controlled airspace (prisons, police departments, nuclear plants); or
• fly in restricted or prohibited airspace.
• When operating with a drone, the drone must:
• be operated in a safe manner at all times;
• remain within visual line of sight at all times;
• be operated in daylight and clear weather conditions; and
• be inspected before each flight.
2. The use of commercial drones in industries

The following industries in South Africa have or will be introducing the use of commercial drones:

• agriculture – scanning for plant diseases and spraying of insecticides;
• anti-poaching and wildlife surveillance – scouting for poachers and location of the Big Five for tourist purposes;
• architecture and construction surveillance – scanning the structure and appearance of the building;
• disaster relief and tracking – determining the location and direction of a hurricane;
• filming and productions – flexible angles for filming a scene;
• journalism – capturing historic moments in time without risking the life of the reporter;
• law enforcement – prevention of violent strikes;
• leisure activities – recreational and entertainment uses;
• military and national intelligence – reconnaissance missions without risking the lives of soldiers;
• search and rescue – discovering a missing person before time runs out;
• sports and entertainment – better angles to capture and track an athlete on site during competitions; and
• 3D mapping for GPS purposes – updating maps and recording incidents and traffic through real-time filming.

Drone start-up companies have begun using drones in mining, agriculture, water and forestry industries. By providing “aerial data solutions”, which include 3D volumetric image processing, the use of drones promotes safe, affordable and prompt aerial data collection for multinational mining companies.

3. Projected income revenue of commercial drone sales in South Africa

In 2016, global commercial drone sales had increased by an estimated 84 per cent compared with previous years, with a dominant increase in sales due to growing agricultural drone usage.

Juniper, a financial firm, completed a research assignment in 2016 titled “Juniper Research”, and found that the annual revenue from commercial drone sales would reach R8 million by the final quarter of 2016, which is a massive rise compared with sales in 2015. The research covered consumer and commercial applications, regulations and opportunities for drones from 2015 to 2020.

The strongest growth will result from the agricultural sector, which is estimated to account for 48 per cent of all commercial drone sales, as well as the film and productions sector.

4. Seller’s obligations to inform

A person selling a drone has an obligation to inform the buyer of the regulatory requirements applicable to drone use in South Africa.

The seller can comply with the obligation to inform the buyer through:

• packaging labels; or
• written notification in the case of a resale.

At present, proof of licence to operate a drone is not a prerequisite for the purchase of a drone.

5. Vulnerability of drones to malware hacking

A drone is essentially a flying computer and its security systems are capable of being “hacked” or breached, as any other laptop or desktop device. Every electronic device is a potential target to hacking.

Hackers have developed malware designed to infiltrate and overtake small drones that might be hovering around a local park or dropping off goods on the doorstep of someone’s home. The malware program that is used to locate any drone within a certain radius severs the drone’s wireless connection from its user or controller. Drone hacking technology can either access the data that the machines have collected or take physical control over it.

One commonly known malware program is “Skyjack”, which is capable of targeting drones in a certain area to sever the internet connection and turn the machine into an unresponsive “zombie drone”.

However, there is little that one can do to prevent hacking in drones other than updating the security protocols of the machine and installing anti-malware and anti-virus protection software.

6. Infringement of privacy vs damage to private property

When dealing with private law, privacy issues or nuisance in terms of Neighbour Law, a person must not take the law into their own hands or exert what they would consider to be protecting their personal rights. Any damage dealt to the drone of another could be considered to be malicious damage to their property. Members of the public should refrain from damaging or grabbing a drone, whether while it is flying or stationary on the ground, even though it might be causing a disturbance or nuisance to them. While a person’s rights to privacy is protected under the Bill of Rights, property rights are also protected. Rather, speak to the operator of the drone directly and resolve the issue amicably or, if diplomacy fails, file a formal complaint against them with the CAA or the police. Alternatively, obtain legal advice.

7. Infringement of the right to privacy

Crossing your neighbour’s property on foot without his/her permission could mean you will be guilty of trespassing on private property. However, if you are flying a helicopter a few hundred metres above your neighbour’s property, then you will not be trespassing on their property. So, the question would be: what about the airspace in between?

When we look back to before the Wright Brothers created Kitty Hawk – the first flying machine – we find an old Latin principle of property law, “ad coelum et ad inferos”, which directly translates to mean your property rights include “to the heavens and hell”. At present, a person can only claim the rights to the airspace directly above them and the subsurface rights beneath.

If someone were to fly their drone over a neighbour’s fence, technically it would not be trespassing as a physical person would not be stepping on to the property of another; however they could still potentially disrupt the neighbour’s use and enjoyment over the property. In such a case, the complainant would have to prove actual damages that had resulted from such infringement. Good fences make good neighbours. But you cannot build fences in the air.