The overhaul of South Africa’s shipping legislation is making slow progress with the long overdue redraft of the Merchant Shipping Act that’s still before Parliament.
One of the most contentious proposals involves the issue of cabotage and while it’s nothing new, the prospect of introducing it as law in South Africa has raised questions. Effectively it restricts the carriage of coastal cargo to SA-registered vessels – which, practically speaking, is a non-starter.
The Bill was submitted in March this year and it’s unclear when the newly drafted Bill will reach promulgation stage. Earlier last month the Portfolio Committee on Transport referred the Bill to the National Assembly without amendment for consideration. According to Malcolm Hartwell, a master mariner and director at Norton Rose Fulbright, while the redraft of the Bill happened relatively quickly, at least 25 sets of regulations to support the Bill are still outstanding.
“There is no indication when these regulations will be available and, until they are, this Bill simply cannot be promulgated,” he said. But with more than 50 outstanding Bills currently before Parliament, many of which are of far more pressing concern than shipping at present, it’s anyone’s guess when the redrafted Merchant Shipping Act will move forward. Hartwell told FTW that the redraft was also long overdue.
“The current shipping Act has been on the statute books since 1951 and is woefully out of date. For the past 25 years there has been talk of overhauling it, so this redraft is a move in the right direction to align our maritime legislation with modern practices and with the laws of the country’s major trading partners,” he said.
According to Hartwell no radical changes were made to the content of the Bill during the redraft, but necessary structural changes have been welcomed by industry. “The current Merchant Shipping Act is a really cumbersome piece of legislation that’s very complex. The new Bill has removed many of these technicalities, making it much easier to read and understand. Technical aspects will be incorporated into the regulations, but these are still outstanding.”
He said from a practical point of view this was important as any future changes would be dealt with in the regulations rather than in the legislation. “It’s much easier to amend and change regulations than legislation,” he said.
Industry, however, would need to see the regulations and be given an opportunity to comment before the Bill can be promulgated. As is the case with the long-awaited customs legislation, industry can only ascertain the impact and challenges of the Bill when it sees the accompanying regulations, since they contain all the finer details of the new law.
Commenting on the changes in the new legislation, Hartwell said it now included ship registration and the control of the movement of ships, issues that were previously dealt with in their own pieces of legislation. It also aligns the right of ship owners to limit their liability to an international standard developed in 2015.
“The redrafted Bill has brought the country in line with international protocols and will see the adoption of several conventions in our domestic legislation,” said Hartwell.
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The current shipping Act has been on the statute books since 1951 and is woefully out of date. – Malcolm Hartwell
