On 1st November 1983 a new Act came into operation in South Africa, setting admiralty law free from the time-warp in which it had found itself since the passing in 1890 of the Colonial Courts of Admiralty Act. Not only was admiralty law burdened by historical anachronism, but it had become confusing and inaccessible. The Admiralty Jurisdiction Regulation Act 105 of 1983 (hereafter “The Act”) is therefore to be welcomed.

From the time of the first British occupation of the Cape in 1806, vice-admiralty courts, administering English admiralty law, existed alongside the ordinary courts which administered Roman-Dutch law. From the start, then, there arose a situation of often conflicting concurrent jurisdiction.1

The vice-admiralty courts were abolished in 1890 when the British Parliament enacted the Colonial Courts of Admiralty Act. This Act created every court possessed of original unlimited civil jurisdiction in a British possession a court of admiralty with jurisdiction “over like places, persons, matters and things, as the admiralty jurisdiction of the High Court in England”.2 The effect of the Act was to create new Colonial Courts of Admiralty which nevertheless shared the same staff as the Supreme Court.

The result was that there were two sources of admiralty jurisdiction in South Africa: the ordinary jurisdiction of the Supreme Court which applies Roman-Dutch law and the special jurisdiction of the admiralty courts applying English law. A significant distinction between the two systems was that the admiralty courts had no territorial limitations to their jurisdiction whereas a superior court had severe limitations. More than jurisdictional differences, the rules differ between the two systems of law and the same case is capable of yielding two different decisions. For example, it has been held that a claimant having a privileged hypothec recognized by Roman-Dutch law but not by the English admiralty law could not assert his claim in admiralty proceedings and participate in the admiralty court’s fund.3 As the South African Law Commission’s report puts it: