Lloyd's Maritime and Commercial Law Quarterly
THE IMPLEMENTATION OF THE ADMIRALTY JURISDICTION REGULATION ACT IN SOUTH AFRICA
Hilton Staniland*
1. Introduction
The aim of this article is to examine the implementation of the new Admiralty Jurisdiction Regulation Act 105 of 1983 (“the Act”) which came into operation in South Africa on 1 November 1983. The Act was passed for many compelling and varied reasons which have been discussed elsewhere1 and need not be repeated. But what may be mentioned by way of introduction is that interest was, and continues to be, aroused by the new legislation, not only locally, but also abroad. There are several reasons for this.
First, because South Africa was once a British possession it shares a common history with some other countries in respect of maritime law. The Admiralty jurisdiction of the Republic, prior to the passing of the new Act, had been derived from the English Colonial Courts of Admiralty Act 18902. This had also been the position in Singapore, Bermuda, Malaysia, New Zealand and Canada until the replacement of the Colonial Courts of Admiralty Act 1890 in those countries3. In Australia, however, this old English Act still prevails, but not, it appears, for much longer. Reform is under way and to this end the Australian Law Reform Commission has recently conducted extensive and excellent research into the matter4.
* University of Natal, Durban.
1 For an excellent account of these reasons see Gys Hofmeyer “Admiralty Jurisdiction in South Africa” 1982 Acta Juridica 30; and also Christopher Forsyth “The Conflict between Modern Roman-Dutch Law and the Law of Admiralty as Administered by South African Courts (1982) 99 SALJ 255; H. Booysen “Admiraliteishowe in die Suid-Afrikaanse Reg” (1973) 36 THRHR 241; Clare Dillon and J. P. van Niekerk South African Maritime Law and Marine Insurance: Selected Topics (1983) 22–27; B. R. Bamford The Law of Shipping and Carriage in South Africa 3rd edn. (1983) 177–197; J. L. Sher “The Effect of an Arrest In Rem on Assets in Insolvency” (1984) 8 SACLJ 55–56; Hilton Staniland “Developments in South African Admiralty Jurisdiction and Maritime Law” 1984 Acta Juridica 271, 272–274.
2 Section 2 of the Colonial Courts of Admiralty Act 1890 (53 and 54 Viet. 27) which came into operation on 1 July 1891 provided that every court in a British possession with unlimited civil jurisdiction shall be a Court of Admiralty. The four British colonies in South Africa were, of course, British possessions, as was the Union of South Africa. The several divisions of the Supreme Court of the Union of South Africa were Colonial Courts of Admiralty because of their unlimited civil jurisdiction. The Republic of South Africa Constitution Act 32 of 1961 did not change the status quo because s. 107 provided that: “Subject to the provisions of this Act, all laws which were in force in any part of the Union of South Africa, or in any territory in respect of which Parliament is competent to legislate, immediately prior to the commencement of this Act, shall continue in force until repealed or amended by the competent authority”: Trivett & Co. (Pty.) Ltd. v. Wm. Brandt’s Sons & Co. Ltd. 1975 (3) SA 423 (A).
3 The Acts which have replaced the Colonial Courts of Admiralty Act 1890 are: High Court (Admiralty Jurisdiction) Act 1961 (Singapore); Supreme Court (Admiralty Jurisdiction) Act 1962 (Bermuda); Courts of Judicature Act 1964 (Malaysia); Admiralty Act 1973 (New Zealand), and Federal Court Act 1970 (Canada).
4 Australian Law Reform Commission Reference on Admiralty Jurisdiction Research Paper No. 1 An Australian Admiralty Act The Ambit of Admiralty Jurisdiction November 1984. See generally: R. N. Chesterman “Arrest of Ships” (1979) 5 Qld Lawyer 61; J. Crawford “Admiralty Jurisdiction in Australia: The Australian Law Reform Commission’s Reference” (1983) 1 (2) MLAANZ Journal 4–14; B. J. McGrath “Admiralty Jurisdiction and the Statute of Westminster” (1932) 6 ALJ 160; B. H. McPherson “Admiralty Jurisdiction and the Federal Court” (1981) 55 ALJ 71; C. W. O’Hare “Admiralty Jurisdiction” (1979) 6 Monash ULR 91; N. H. Pratt “Queensland Admiralty Jurisdiction: How much do we have?” (1975) 4 Qld Lawyer 127; F. L. Stow “Maritime Law and Jurisdiction in Australia” (1904) 2 Cth Law Review 157; H. Zelling “Of Admiralty and Maritime Jurisdiction” (1982) 56 ALJ 101, and H. Zelling “Constitutional Problems of Admiralty Jurisdiction” (1984) 58 ALJ 8.
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