Gone overbroad? Critically examining the classification of maritime claims by South African courts.
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Date
2021
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Abstract
South African courts are empowered, in the exercise of their admiralty jurisdiction, to provide
‘far-reaching and even revolutionary methods to prevent recalcitrant debtors from evading their
legal debts’. These ‘revolutionary’ remedies are not reserved for South African claimants alone,
but are potentially available to the ‘wandering maritime litigants of the world’. The catch, as it
were, is that only certain types of claims qualify to benefit from this specialised jurisdictional
regime. To qualify, a claim must fall within the definition of ‘maritime claim’ in s 1(1) of the
Admiralty Jurisdiction Regulation Act 105 of 1983.
Through a critical analysis of the reasoning followed in Peros v Rose, The Mineral Ordaz and
Kuehne & Nagel, this study will highlight the challenges and pitfalls of classifying a maritime
claim under the Act, such as taking into account a future defence to a claim in the process of
classifying a claim; conflating the process of classifying a maritime claim with the process of
categorizing a ‘marine or maritime matter’ in terms of s 1(1)(ee) of the Act; conflating the
contents of an underlying ‘maritime agreement’ with the provisions of a ‘maritime topic’ set out
in s 1(1) of the Act, and confusing the policy considerations that justify the exercise of admiralty
jurisdiction.
Having done so, this study will then propose the adoption of a three-stage approach to the
maritime-claim enquiry; namely, (a) the clear identification of the claim, (b) the articulation of
the relevant maritime topic and (c) the establishment of a maritime connection between the two.
In particular, as to (b), this study will explore the factors that may be relevant to the
categorisation of a settlement agreement as a ‘marine or maritime matter’ in terms of s 1(1)(ee) of
the Act. In addition, as to (c), a test for establishing a direct maritime connection will be
formulated for borderline cases, and a modified version of the ‘legally relevant connection’ test
developed in Kuehne & Nagel will be proposed as a tool to establish an indirect maritime
connection, where appropriate.
Description
Masters Degree. University of KwaZulu-Natal, Durban.