Swemmer & Levin

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A recent rare sighting of a submarine in the False Bay area made news headlines. Some onlookers were very interested in why it was there and a few even speculated on whether it was a foreign vessel. This article gives a quick overview of the South African maritime law and governing of vessels in South African waters.

South African maritime law encompasses a complex body of legislation and case law governing the operation of vessels in South African waters. The country’s rich history, diverse coastline, and strategic position at the southern tip of Africa have all contributed to the development of a comprehensive legal framework for maritime activities.

The first point to note is that South African maritime law applies to all vessels within South African waters, regardless of their nationality or registration. This means that foreign vessels must comply with South African laws and regulations when operating in South African waters. The primary legislation governing foreign vessels is the Merchant Shipping Act of 1951[1] (hereinafter referred to as The Act). The Act provides for the registration and inspection of ships, certification of seafarers, and the regulation of maritime commerce. Foreign vessels must obtain a permit to enter South African waters. This permit is issued by the South African Maritime Safety Authority (SAMSA) and is subject to certain conditions. A foreign vessel must comply with South African environmental regulations and pay applicable fees.

The National Environmental Management Act of 1998[2] provides protection for the marine environment and the Marine Living Resources Act of 1998[3] regulates fishing activities, which require foreign fishing vessels to obtain a permit.

What constitutes South African waters?

Maritime zones are areas of the ocean that are subject to different levels of jurisdiction and control. The United Nations Convention on the Law of the Sea (UNCLOS) sets out the legal framework for maritime zones and provides for the regulation of the international zone.

The first Maritime zone is the territorial sea, which extends up to 12 nautical miles from a coastal state’s baseline. Within the territorial sea, the coastal state has full sovereignty over the air, water, and seabed. Foreign vessels have a right to innocent passage through these waters, subject to certain conditions.

The second maritime zone is the contiguous zone, which extends from the outer limit of the territorial seas to 24 nautical miles from the baseline. Within this zone, the coastal state has limited control over certain activities such as customs, immigration, and environmental protection.

The third maritime zone is the exclusive economic zone (EEZ) which extends from the outer limit of the territorial sea to a distance of 200 nautical miles. Within the EEZ, the coastal state has exclusive rights to explore, exploit, and manage natural resources of the waters and seabed. Foreign vessels have a right to freedom of navigation and overflight.

The fourth maritime zone is the continental shelf, which is an underwater extension of a coastal state’s territory and extends beyond the EEZ. The coastal state has the exclusive rights to explore and exploit the natural resources of the continental shelf.

The international zone, also known as the high seas, is an area beyond the limits of the previous zones. The high seas are open to all states and subject to principles of international law, including the freedom to navigate, overflight, and the freedom to lay submarine cables and pipelines.

The regulation of the international zone is primarily governed by UNCLOS and other international agreements, for example, the International Convention on the Prevention of Pollution from Ships (MARPOL). MARPOL requires ships to comply with strict environmental regulations in terms of the discharge of oil and other hazardous substances.

One of the most significant cases involving foreign vessels in South African waters is the MV Treasure case.[4] In 2000, a Panamanian-flagged vessel, MV Treasure, ran aground off the coast of South Africa spilling 1300 tons of heavy fuel oil into the ocean, causing extensive damage and harm to marine life. The South African government took legal action against the vessel’s owner and the matter was settled for approximately R300 million.

In conclusion, South Africa has a rich history of maritime law and a comprehensive legal framework that governs all vessels operating in South African waters. Maritime zones are areas of the ocean that are subject to different levels of jurisdiction and control. The international zone or high seas is governed by international law and conventions. The regulations are crucial for the protection of the marine environment and the sustainable use of ocean resources.

WRITTEN BY HESRI ELOFF
Hesri Eloff is the candidate attorney at Miller Bosman Le Roux Attorneys.

 

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

[1] Merchant Shipping Act 57 of 1951 http://www.samsa.org.za/legislation
[2] National Environmental Management Act 107 of 1998.
[3] Marine Living Resources Act 18 of 1998
[4] Republic of South Africa. Minister of Environmental Affairs and Tourism v MV Treasure, 2005 (6) SA 237 (SCA).

Jan Fourie

Director |  Attorney, Notary & Conveyancer | BA. LLB

Jan graduated in 1974 with a five-year BA LLB degree from the University of Stellenbosch, whereafter he was admitted as an advocate and prosecuted as such in the Cape Town and Wynberg Courts. In 1974, he joined Swemmer & Levin as the Candidate Attorney of Mr Levin (founding member) and was admitted as an attorney on 7 April 1976, as a conveyancer on 11 January 1978, and as a Notary on 19 December 1984. Since 1974, he has served in various committees, including the West Coast Chamber of Commerce, the Vredenburg School Committee, and the Malgas Lions Club. 

Furthermore, Jan was the author of the first bilingual law book, The New Debt Collecting Procedures (Die Nuwe Skuldinvorderingsprosedures), which was used by all the Magistrate Courts throughout South Africa. With the founding of the Small Claims Court in Vredenburg, Jan served as one of the first Commissioners. He is currently based at Swemmer & Levin’s Vredenburg office and has been with our firm for more than 47 years.

Pieter Smit

Director | Attorney & Conveyancer | BA. LLB

Pieter obtained his BA Law degree from Stellenbosch University in 1995 and his LLB degree from the North-West University in Potchefstroom in 1998. He served his articles at Marais Muller Attorneys from 1998 to 1999 and was admitted as an attorney in 2000 and as a conveyancer in 2002. Pieter is the founder of PP Smit Attorneys, which opened its doors in 2004. He also became a director of Swemmer & Levin in 2006. Pieter loves the outdoors and participating in all forms of sport, including tennis, golf, fishing, spearfishing, scuba diving, and hiking. 

Johann Maree

Director | Attorney | BA. LLB

Johann matriculated at Oudtshoorn High School and attended Stellenbosch University, where he obtained his BA Law and LLB degrees. Following his studies, he worked for three years as State Prosecutor at the Magistrate’s Court in Cape Town. Johann completed his legal training with the State Attorney in Pretoria and then moved to his hometown, Oudtshoorn, where he worked as a lawyer for a year. In 1983, he finally moved to Vredenburg and joined Swemmer & Levin, where he is still practising as a director. When he is not in the office, Johann enjoys cycling and in his earlier days, he used to be a long-distance junkie.

Richard Phillips

Director | Attorney | Bcom & BProc

After matriculating at Paarl Boys’ High School, Richard completed his BCom and BProc degrees at the University of Port Elizabeth. He served his articles with Van Wyk Fouchee in Paarl and quickly developed an affinity for litigation. Richard has always had a deep love for the ocean and when he was presented with an opportunity to join Swemmer & Levin on the West Coast, he agreed without hesitation and has been with our firm since 1997. Richard specialises in general litigation and divorces. When he is not in the office or with his family, he tries to spend as much time as possible in or on the water.

Jandré Smith

Director | Attorney | LLB

Jandré grew up and matriculated in the small Klein Karoo town of Oudtshoorn. He furthered his studies at the North-West University in Potchefstroom, obtaining his LLB degree during 2015. He completed his articles at Swemmer & Levin in 2017 and was subsequently appointed as a professional assistant. In 2020, Jandré was promoted to the position of director at the firm, where he practises in the Litigation department at our Langebaan office. When not practising law, Jandré is an avid sports fan. He has a passion for nature and enjoys camping, trail running, and mountain biking with his family.

Andre van der Walt

Director | Attorney | LLB

Andre graduated in 2015 with an LLB degree from the University of Pretoria. He later went on to obtain his NQF 7 Certificate in the Administration of Deceased Estates from the University of South Africa, which allowed him to further his career in deceased estates and the drafting of wills and trusts. Andre served his articles at Barnard & Patel Attorneys under the supervision of Mr YAS Patel. After being admitted as an attorney in 2016, he continued working at Barnard & Patel Attorneys as a professional assistant in the deceased estates department.

Andre joined Van Rensburg Attorneys in 2019 and was head of the deceased estates department until 2021. He then received the opportunity to move to the West Coast, where he joined Swemmer & Levin Attorneys. Andre loves travelling and enjoys the beauty that our country has to offer with his friends, family, and loved ones.

Harmann Potgieter

Attorney | LLB

Harmann graduated in 2018 with an LLB degree from the North-West University’s Potchefstroom Campus. He went on to study and grow in various fields, including doing a course on the Consumer Protection Act and a course at the University of South Africa where he obtained his NQF 7 Certificate in the Administration of Deceased Estates.

Harmann completed his articles of clerkship at Swemmer & Levin under the supervision of Mr Richard Phillips. After being admitted as an attorney in 2020, Harmann continued with Swemmer & Levin as a professional assistant in the deceased estates department as well as the litigation department. He loves to study, possesses a deep curiosity about the world, and is dedicated to giving back to the community.

Carla Cloete

Attorney, Conveyancer & Notary | LLB

Carla obtained her LLB at the North West University, Potchefstroom Campus in 2015. She completed her articles in 2017 with Brits Dreyer Inc in Bellville. She is an admitted Attorney, Notary and Conveyancer. After her articles she relocated to Kimberley where she worked as a professional assistant in the Conveyancing department of Van de Wall Inc. Coming back to her Western Cape roots, she now joins the Swemmer & Levin team as a professional assistant.