By Lloyd Christie, Executive in the Natural Resources and Environment department at ENSafrica and Edwin Berman, Senior Associate in ENSafrica’s Natural Resources and Environment department
Companies the world over have their sights set not on the skies but beyond them. Commercial activities in space are on the rise, ranging from spacecraft launching activities to space mining and space tourism.
South Africa’s Space Affairs Act, 1993 (the “SSA”) regulates the responsibilities and liabilities arising from its national activities in space, which include the launching activities of the State and South African private entities and other space activities that involve the participation of South African private parties and implicate the national interest of the State’s obligations under international space law.
A licence must be issued by the South African Council of Space Affairs (“Space Council”) in terms of section 11 of the SSA before any person may:
- conduct launching activities, being the placing or attempted placing of any spacecraft from the territory of South Africa into a suborbital trajectory or into outer space, or the testing of a launch vehicle or spacecraft in which it is foreseen that the launch vehicle will lift from the earth’s surface. Launching activities include the launching from or operating of a launch facility in the territory of South Africa and launching from the territory of another state by or on behalf of a South African incorporated or registered juristic person or the operation of a launch facility;
- participate in activities directly contributing to the launching of spacecraft and the operation of such craft in outer space entailing South Africa’s international law obligations. These are activities that fall short of launching but are closely enough related thereto for a licence to be required; and
- conduct any other space or space-related activities prescribed by the Minister of Trade and Industry.
There are no prescribed requirements (technical, financial, commercial and spectrum or otherwise) to be met before the Space Council may issue a licence in terms of section 11 of the SSA, save to mention that section 11(2) contemplates that a licence shall be issued subject to such conditions as the Space Council may determine for that particular licence taking into account the minimum safety standards to be determined by the Space Council, the national interests of the Republic and the international obligations and responsibilities of the Republic.
The South African Space Affairs Act also does not place limitations on international operators when compared with domestic operators.
Holders of licences for launching and operating a telecommunication satellite in terms of section 11 of the SSA must also obtain a satellite infrastructure licence (or Electronic Communications Network Services licence) in terms of section 5 of the Electronic Communications Act, 2005 and a radio frequency spectrum licence in terms of section 31.
In order to provide the robust legal framework required for the promotion of South Africa’s burgeoning space ambitions, the Department of Trade and Industry and the Space Council launched a review of South Africa’s space-related law and policy in 2013. Some of the factors motivating the review have been the increasing involvement of domestic and foreign, public and private sector entities in space activities in South Africa, the growth of the commercial space sector locally and internationally since the enactment of the South African Space Act, the need to ensure compliance with international legal trends in outer space and to align the South African regulatory framework with international space treaties and with domestic policies and strategies.
The draft South African Outer Space Regulatory Bill will define new terms and redefine terms used in the South African Space Act such as dual purpose technologies, launching, licence, outer space, space activities, spacecraft, space industry, space-related technologies, suborbital trajectory and weapons of mass destruction. The new statute will cover new applications such as, inter alia, the regulation of the operation of a space facility, the manufacture of space objects, the launch of space objects into outer space, the operation and control of space objects in orbit, the re-entry of space objects and space applications, through proposed regulations, for the attainment of the objects of the newly proposed statute.
