The classification of a ‘maritime claim’ in South Africa under the Admiralty Jurisdiction Regulation Act

• Citation: (2023) 140 SALJ 194
• DOI: https://doi.org/10.47348/SALJ/v140/i1a8
• Published date: 17 February 2023
• Pages: 194-219
• Author: Gevers, A.H.
• Date: 17 February 2023

194

https://doi.org/10.47348/SALJ/v140/i1a8

THE CLASSIFICATION OF A ‘MARITIME

CLAIM’ IN SOUTH AFRICA UNDER

THE ADMIRALTY JURISDICTION

REG UL AT IO N ACT*

AMY HA RPUR GEVERS

Legal Practition er of the High Court of South Af rica

VISHAL SURBUN

Senior Lectu rer in Law, University of KwaZulu -Natal

The denit ion of ‘maritime cla im’ in s 1 of the Admiralty Jurisdic tion Regulation

Act 105 of 1983 is the gatekeeper to the e xercise of admiralty jur isdiction. It is

accordingly cr itical that the process of clas sifying a claim as a maritime cla im is certain

and predictabl e. However, the elastic ity of the wording in the de nition can create

confusion for cla imants in borderline c ases. In Kuehne & Nag el (Pty) Ltd v

Moncada Energ y Group SRL 2016 JDR 0312 (GJ) the court formul ated the

‘legally relevant c onnection’ test to a ssist it in classifying a c laim to enforce a dema nd

guarantee. The t est was subsequently relied on in Twende Afric a Group (Pty) Ltd

v MFV Qavak 2018 JDR 0238 (ECP) in cla ssifying a damages claim for u nlawful

contractual int erference. T his article exa mines the ‘legally re levant connectio n’ test

in the context of both c ases to assess whet her it is consistent w ith the denition

of ‘maritime cl aim’. We show that the reasoning followed in Kueh ne & Nagel

is awed in seve ral respects, reveal ing certain fund amental weakne sses of the test.

However, the deci sion in Twe nd e demonstrates tha t the test is capable of y ielding

results that align w ith the policy justication for t he exercise of admiralty jurisdict ion.

Admir alty jur isdiction – m ariti me claim – cla ssicat ion – legally r elevant

connection – Kueh ne & Nagel case

I INTRODUCTION

South Af rican cour ts1 are empowered in the exercise of their adm iralt y

jurisdiction to provide ‘far-reaching and even revolutionar y methods

* This a rticle was ad apted from A G H Gever s Gone Over broad? Critically

Examining the C lassication o f Maritime Claim s by South Africa n Courts (LL M

disser tation, U KZN, 2020), which w as completed under t he supervi sion of the

second author. The r st author also d iscloses th at she acted as one of t he legal

practit ioners in the Kuenhe & Nagel c ase. The authors are g rateful to Dr Du sty-Lee

Donnelly, Unit for Ma ritime Law and Ma ritime Stud ies, University of KwaZu lu-

Natal, Du rban, and the anonymou s peer reviewers for their u seful comments and

suggest ions on earlier draf ts of this article.

1 The exerc ise of admi ralty ju risdict ion is lim ited to superior cour ts, with

the result t hat magi strates’ cour ts can neither e xercise adm iralt y jurisdic tion,

nor hear a ‘mar itime clai m’ if the issue of jur isdict ion is raised ; see the majorit y

judgment in World Ne t Logistics (P ty) Ltd v Donsantel 133 CC & another 2 020 (3)

SA 542 (KZP), in p articu lar para 28 a nd the dissen ting judg ment in para 31,

on which see Ma lcolm Wallis ‘ Where do we belong? The pl ight of plai ntis

with sma ll mar itime clai ms’ (2022) 139 SALJ 205. However, not every super ior

(2023) 140 SALJ 194

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THE CLA SSIFICATION OF A ‘MAR ITIME CLAI M’ IN SOUTH AFRICA 195

https://doi.org/10.47348/SALJ/v140/i1a8

to prevent recalcitrant debtors from evading their legal debts’.2

These ‘revolutionar y’ remedies are not res erved for South Afr ican claim ants

alone, but are potentially avai lable to the ‘wander ing maritime litig ants

of the world’.3 One such remedy is to empower a cour t ‘to arrest, at the

instance of a foreigner, a ship, owned by a foreigner, as securit y for a claim

pending in s ome foreign country wh ich is based on a foreign cause of a ction

and is subject to a foreig n law’:4 a feat impossible for a court exercising its

‘ordinar y’ jurisdiction. The catch, as it were, i s that only cer tain types

of claims qualif y to benet from this special ised jurisd ictional reg ime.5

To qualify, a claim mu st fall w ithin the de nition of ‘maritime claim’ in

s 1(1) of the Admir alty Jurisdic tion Regulation Act 105 of 1983 (‘the Act’).

If a claim does not so qualify, it cannot be heard in admira lty jurisdiction,

and must be heard by a cou rt exercising its ord inary juri sdiction6 (provided

that juri sdiction can be e stablished i n that court).7

In terms of the denition provided in the Act, a clai m is a ‘maritime

claim’ if it is ‘ for, arising out of or relating to’ at least one of a list of

‘mar iti me topics’8 set out in pa ras (a) to ( ) of the denition.9 This list

court can e xercise adm iralt y jurisdic tion in respec t of every mar itime cla im. As

Gys Hofmeyr Ad miralty Jurisdictio n Law and Practi ce in South Afric a 2 ed (2012) 23

explai ns, in term s of s 3(3) of the Admir alty Jur isdiction Re gulation Ac t 105 of

1983, the ‘in per sonam juri sdiction of a d ivision of the Hi gh Court not adja cent

to the terr itorial wa ters of the Republic , is more limit ed than the jur isdict ion

which exis ts in the div isions adjacent to t he territor ial waters’.

2 D B Friedman ‘Ma ritime law i n the courts a fter 1 November 1983’

(1986) 103 SALJ 678 at 679.

3 Ibid at 681. This notion was u sed in a pejorative s ense in Katagum Wholesale

Commodities Co L td v The MV Paz 1984 (3) SA 261 (N) at 2 63H.

4 Katagum ibid at 263D–E .

5 See M Wagener ‘South Afr ican admi ralty a nd its Engl ish origi ns — Will it

jump or must it be pus hed?’ (2005) 36 Jou rnal of Maritime L aw & Commerce 61 at

65–6 for a l ist of some of the ‘procedura l advantages of cla ssication as a ma ritime

cl ai m’.

6 In terms of s 7(2)(b) of the Ad miralty Jur isdiction Regula tion Act.

7 S ee for insta nce the claim i n Minesa Energy ( Pty) Ltd v Stinnes Inte rnational

AG 1988 (3) SA 903 (D), which could not be br ought in the cour t’s ordinar y

jurisd iction.

8 The term ‘mar itime topic’ is used in Per os v Rose 1990 (1) S A 420 (N) at 425,

and is used i n this ar ticle to refer to the l ist of topics desc ribed in par as (a) to ()

of the den ition of ‘marit ime claim’ in s 1(1) of the Act.

9 F or cases where the de nition of ‘ma ritime cla im’ has been con sidered in

detail , see Peros v Rose ibid at 424A–B; Minesa Energy supra note 7; The M ineral

Ordaz: T he Mineral Ordaz v Ostral S hipping Co Ltd SCOSA D41 ( D) D47A; Repo

Wild CC v Oceanl and Cargo Terminal (Pt y) Ltd 2013 JDR 2644 (GNP); MF V El

Shaddai: Oxace lay & another v MFV El Shaddai & othe rs 2015 (3) SA 55 (KZD); MV

Madiba 1: Van Niekerk v MV Madiba 1 2019 (6) SA 551 (WCC); and, impo rtantly,

Kuehne & Nagel (P ty) Ltd v Moncada Ene rgy Group SRL 2 016 JDR 0312 (GJ) and

Twende Africa Grou p (Pty) Ltd v MFV Qavak 2 018 JDR 0238 (ECP).

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