A comparative analysis of aspects of criminal and civil forfeitures: suggestions for South African asset forfeiture law reform
- Ndzengu, Nkululeko Christopher
- Authors: Ndzengu, Nkululeko Christopher
- Date: 2017
- Subjects: Forfeiture -- South Africa , Forfeiture -- South Africa -- Criminal provisions Reparation (Criminal justice) -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/14267 , vital:27501
- Description: In order for the proceeds of unlawful activities to be completely dislodged from the criminals’ hands, the latter should be effectively deterred from allowing their assets to be used to execute or facilitate the commission of offences. When properly exacted, in the interests of justice and within the existing constitutional framework, the legal process known as asset forfeiture should ensure that crime never pays. Asset forfeiture refers to both criminal forfeiture, which is conviction based following the United Kingdom asset forfeiture regime and civil forfeiture, which is non-conviction based following the United States of America one.2 Chapter 5 provisions of the Prevention of Organised Crime Act3 (hereafter POCA) provides for court, Basdeo M – Search, Seizure and Asset Forfeiture in the South African Criminal Justice System: Drawing a Balance between Public Utility and Constitutional Rights (2013) LLD, University of South Africa in Chapter 5 where a comprehensive comparative study of SA POCA and United States of America’s asset forfeiture and origin is undertaken. 3 Act 121 of applications for a restraint, confiscation and realisation for the recovery of proceeds of unlawful activities. The restraint is invoked when a suspect is to be charged or has been charged or prosecuted, there are reasonable grounds to believe that a conviction may follow and that a confiscation order may be made. Chapter 6 provisions of POCA provide for court applications for preservation and forfeiture order targeting both the proceeds of unlawful activities and removal from public circulation of instruments or assets used in the commission of offences where the guilt of the wrongdoer is not relevant. POCA has a Schedule with 34 items setting out examples of offences in relation to which civil forfeiture may be invoked. When the State discharges this noble professed task in the name of public safety, security and crime combating, legal challenges arise. This is more so within a constitutional democratic context where both individual and property rights are enshrined and protected. This study deals with some of these challenges. To the mind of a legal researcher, the law of asset forfeiture is, in this process, moulded and developed. South Africa (a developing country), Canada and New Zealand (developed countries in the north and southern hemispheres) have constitutional democracies. They also have asset forfeiture regimes, which attracted the attention of the researcher. The question is: can the developing country learn some best practices from the developed countries in this particular field? It would be interesting to establish this and the level of development of this field in the three countries under study. South Africa, with no federal government, has nine Provinces, single asset forfeiture legislation5 (combining both criminal forfeiture i.e. restraint, confiscation and realisation applications and civil forfeiture i.e. preservation and forfeiture applications), and a criminal statute6 applicable to all such Provinces. It also has, like Canada and New Zealand, pockets of asset forfeiture provisions embedded in various statutes. There is only one asset forfeiture office under the umbrella of the National Prosecuting Authority.7 It has branches8 in the Provinces, invoking the provisions of POCA, since 1999. It is not part of the police department. The researcher joined the South African Port Elizabeth branch in March 2003, Bloemfontein, Kimberly and Mmabatho branches from 2010 to 2011, July 2012 onwards in the Port Elizabeth and has practical experience in this regard. The Prevention of Organised Crime Act 121 of 1998. The Namibian POCA 29 of 2004 is almost a replica of the South African POCA except that the former makes express recognition of the victims of the underlying victims. The Criminal Procedure Act, 51 of 1977 (as amended). The Asset Forfeiture Unit (AFU) with its Head Office situated in Pretoria under the umbrella of the National Prosecution Authority, which Raylene Keightley in Young S Civil Forfeiture of Criminal Property Legal Measures for Targeting the Proceeds of Crime (2009) Cheltenham Edward Elgar Publishing, Inc.: Northampton, MA at 94 calls a specialist implementation agency. In Pretoria, Johannesburg, Cape Town, Port Elizabeth, East London, Durban, Bloemfontein, Kimberley, Mmabatho, Mpumalanga and Limpopo. It comprises of eleven Provinces to which the Criminal Code of Canada, the Controlled Drugs and Substances Act 1996 and a host of other statutes apply. Eight of the eleven Provinces have their own and distinct primary stand-alone asset forfeiture statutes introducing civil forfeiture10 as more fully explained in Chapter 2 of this study.
- Full Text:
- Date Issued: 2017
- Authors: Ndzengu, Nkululeko Christopher
- Date: 2017
- Subjects: Forfeiture -- South Africa , Forfeiture -- South Africa -- Criminal provisions Reparation (Criminal justice) -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/14267 , vital:27501
- Description: In order for the proceeds of unlawful activities to be completely dislodged from the criminals’ hands, the latter should be effectively deterred from allowing their assets to be used to execute or facilitate the commission of offences. When properly exacted, in the interests of justice and within the existing constitutional framework, the legal process known as asset forfeiture should ensure that crime never pays. Asset forfeiture refers to both criminal forfeiture, which is conviction based following the United Kingdom asset forfeiture regime and civil forfeiture, which is non-conviction based following the United States of America one.2 Chapter 5 provisions of the Prevention of Organised Crime Act3 (hereafter POCA) provides for court, Basdeo M – Search, Seizure and Asset Forfeiture in the South African Criminal Justice System: Drawing a Balance between Public Utility and Constitutional Rights (2013) LLD, University of South Africa in Chapter 5 where a comprehensive comparative study of SA POCA and United States of America’s asset forfeiture and origin is undertaken. 3 Act 121 of applications for a restraint, confiscation and realisation for the recovery of proceeds of unlawful activities. The restraint is invoked when a suspect is to be charged or has been charged or prosecuted, there are reasonable grounds to believe that a conviction may follow and that a confiscation order may be made. Chapter 6 provisions of POCA provide for court applications for preservation and forfeiture order targeting both the proceeds of unlawful activities and removal from public circulation of instruments or assets used in the commission of offences where the guilt of the wrongdoer is not relevant. POCA has a Schedule with 34 items setting out examples of offences in relation to which civil forfeiture may be invoked. When the State discharges this noble professed task in the name of public safety, security and crime combating, legal challenges arise. This is more so within a constitutional democratic context where both individual and property rights are enshrined and protected. This study deals with some of these challenges. To the mind of a legal researcher, the law of asset forfeiture is, in this process, moulded and developed. South Africa (a developing country), Canada and New Zealand (developed countries in the north and southern hemispheres) have constitutional democracies. They also have asset forfeiture regimes, which attracted the attention of the researcher. The question is: can the developing country learn some best practices from the developed countries in this particular field? It would be interesting to establish this and the level of development of this field in the three countries under study. South Africa, with no federal government, has nine Provinces, single asset forfeiture legislation5 (combining both criminal forfeiture i.e. restraint, confiscation and realisation applications and civil forfeiture i.e. preservation and forfeiture applications), and a criminal statute6 applicable to all such Provinces. It also has, like Canada and New Zealand, pockets of asset forfeiture provisions embedded in various statutes. There is only one asset forfeiture office under the umbrella of the National Prosecuting Authority.7 It has branches8 in the Provinces, invoking the provisions of POCA, since 1999. It is not part of the police department. The researcher joined the South African Port Elizabeth branch in March 2003, Bloemfontein, Kimberly and Mmabatho branches from 2010 to 2011, July 2012 onwards in the Port Elizabeth and has practical experience in this regard. The Prevention of Organised Crime Act 121 of 1998. The Namibian POCA 29 of 2004 is almost a replica of the South African POCA except that the former makes express recognition of the victims of the underlying victims. The Criminal Procedure Act, 51 of 1977 (as amended). The Asset Forfeiture Unit (AFU) with its Head Office situated in Pretoria under the umbrella of the National Prosecution Authority, which Raylene Keightley in Young S Civil Forfeiture of Criminal Property Legal Measures for Targeting the Proceeds of Crime (2009) Cheltenham Edward Elgar Publishing, Inc.: Northampton, MA at 94 calls a specialist implementation agency. In Pretoria, Johannesburg, Cape Town, Port Elizabeth, East London, Durban, Bloemfontein, Kimberley, Mmabatho, Mpumalanga and Limpopo. It comprises of eleven Provinces to which the Criminal Code of Canada, the Controlled Drugs and Substances Act 1996 and a host of other statutes apply. Eight of the eleven Provinces have their own and distinct primary stand-alone asset forfeiture statutes introducing civil forfeiture10 as more fully explained in Chapter 2 of this study.
- Full Text:
- Date Issued: 2017
A comparative exposition of Islamic law relating to the law of husband and wife
- Authors: Denson, Razaana
- Date: 2017
- Subjects: Husband and wife (Islamic law) Marriage (Islamic law)
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/19564 , vital:28894
- Description: Notwithstanding the enactment of the Constitution of the Republic of South Africa, 1996 the recognition of systems of religious, personal or family law for certain cultural and religious groups has either been limited or is virtually non-existent. To this extent, marriages concluded in terms of Islamic rites do not enjoy the same legal recognition that is accorded to civil and customary marriages. Non-recognition of Muslim marriages means there is no legal regulatory framework to enforce any of the consequences that arise as a result of the marriage, or any orders that are made by the Ulama, thereby creating a perilous situation that has dire consequences for spouses to a Muslim marriage. Despite South Africa’s commitment to the right of equality and freedom of religion, the courts have acknowledged that the failure to grant recognition to Muslim marriages on the ground of gender equality, has worsened the plight of women in these marriages, in that they were left without effective legal protection, should the union be dissolved either by death or divorce. Whilst the ad hoc recognition of certain consequences of Muslim marriages by the judiciary has gone a some way to redress the plight of Muslim women, and provided relief to the lived realities of Muslim women, these decisions are in fact contrary to the teachings and principles of Islam and therefore problematic for Muslims. These court decisions, that are in conflict with Muslim Personal Law (MPL), will ultimately lead to the emergence of a distorted set of laws relating to Muslim family law. This is a real cause for concern. This thesis is written from an Islamic legal theory perspective, which is contrary to western legal theory, as the latter adopts a human rights perspective. The basis of modern western democratic societies is a constitution that is premised on human rights and equality and which advocates the notion that the rights contained in the constitution reign supreme in all matters, religion included. Therefore, where a conflict arises in respect of the freedom of religion and the right to equality, western ideologies and philosophies dictate that the latter trump the former. This would inevitably mean that religious law would have to be adapted and ultimately amended so that it is in compliance with the constitution. From an Islamic religious perspective, this is not feasible and practicing Muslims will find this untenable. This may be legally uncomfortable in South Africa as a constitutional democracy but it is the reality for the adherents of the Muslim faith. A draft Muslim Marriages Bill (MMB) was released in 2003, and an amended MMB was tabled in Parliament in 2010. Both MMBs propose the legal recognition and regulation of Muslim marriages in South Africa. However, the two major issues delaying the enactment of the MMB into legislation are, firstly, whether or not the MMB would pass constitutional muster and secondly, the lack of agreement in the Muslim community on whether the MMB is Shari’ah compliant. Despite the largely consultative process that the MMBs underwent the legislative attempts to enact the MMB into legislation has not been successful. This thesis seeks to provide a possible solution whereby legislation regulating MPL law can be implemented in South Africa, notwithstanding the apparent conflict existing between MPL and the rights contained in the Bill of Rights. Notwithstanding the preference shown by the legislature to enact the MMB into legislation which will grant recognition to Muslim marriages, it is submitted there is a need for the legislature to rethink the approach that has to date been adopted. To this extent, it is submitted that the legislature should reconsider granting recognition to Muslim marriages by enacting legislation that takes the form of general legislation where state recognition is granted to all religious marriages, whether it be Muslim, Hindu or Jewish marriages. General legislation would mean that the state would require the marriage to be registered. However, the prescribed requirements, formalities and the consequences of the marriage would be determined by the chosen religious system of the spouses. On a national level a comparative analysis between Islamic law and the South African legal system, relating to the law of marriage is conducted. For the comparative analysis on an international level the law of marriage in England and Wales has been chosen. South Africa and England and Wales share a commitment to human rights and have adopted various approaches in respect of accommodating the application of Islamic law. Furthermore, an internal pluralism exists within the Muslim communities in South Africa, England and Wales as the majority of Muslims in these countries have to varying degrees developed diverse strategies to ensure compliance with Islamic law, and as well as South African and English law. The manner in which MPL is granted recognition needs to be given careful consideration as the implementation of this legislation will only be successful if it is compatible with the rulings and teachings of Islamic law. Caution should therefore be exercised to ensure that the fundamental aspects of MPL are not compromised as this will result in the legislation not being Shari’ah compliant and there will be no buyin from the Muslim community, with the consequence that this legislation will be mere paper law.
- Full Text:
- Date Issued: 2017
- Authors: Denson, Razaana
- Date: 2017
- Subjects: Husband and wife (Islamic law) Marriage (Islamic law)
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/19564 , vital:28894
- Description: Notwithstanding the enactment of the Constitution of the Republic of South Africa, 1996 the recognition of systems of religious, personal or family law for certain cultural and religious groups has either been limited or is virtually non-existent. To this extent, marriages concluded in terms of Islamic rites do not enjoy the same legal recognition that is accorded to civil and customary marriages. Non-recognition of Muslim marriages means there is no legal regulatory framework to enforce any of the consequences that arise as a result of the marriage, or any orders that are made by the Ulama, thereby creating a perilous situation that has dire consequences for spouses to a Muslim marriage. Despite South Africa’s commitment to the right of equality and freedom of religion, the courts have acknowledged that the failure to grant recognition to Muslim marriages on the ground of gender equality, has worsened the plight of women in these marriages, in that they were left without effective legal protection, should the union be dissolved either by death or divorce. Whilst the ad hoc recognition of certain consequences of Muslim marriages by the judiciary has gone a some way to redress the plight of Muslim women, and provided relief to the lived realities of Muslim women, these decisions are in fact contrary to the teachings and principles of Islam and therefore problematic for Muslims. These court decisions, that are in conflict with Muslim Personal Law (MPL), will ultimately lead to the emergence of a distorted set of laws relating to Muslim family law. This is a real cause for concern. This thesis is written from an Islamic legal theory perspective, which is contrary to western legal theory, as the latter adopts a human rights perspective. The basis of modern western democratic societies is a constitution that is premised on human rights and equality and which advocates the notion that the rights contained in the constitution reign supreme in all matters, religion included. Therefore, where a conflict arises in respect of the freedom of religion and the right to equality, western ideologies and philosophies dictate that the latter trump the former. This would inevitably mean that religious law would have to be adapted and ultimately amended so that it is in compliance with the constitution. From an Islamic religious perspective, this is not feasible and practicing Muslims will find this untenable. This may be legally uncomfortable in South Africa as a constitutional democracy but it is the reality for the adherents of the Muslim faith. A draft Muslim Marriages Bill (MMB) was released in 2003, and an amended MMB was tabled in Parliament in 2010. Both MMBs propose the legal recognition and regulation of Muslim marriages in South Africa. However, the two major issues delaying the enactment of the MMB into legislation are, firstly, whether or not the MMB would pass constitutional muster and secondly, the lack of agreement in the Muslim community on whether the MMB is Shari’ah compliant. Despite the largely consultative process that the MMBs underwent the legislative attempts to enact the MMB into legislation has not been successful. This thesis seeks to provide a possible solution whereby legislation regulating MPL law can be implemented in South Africa, notwithstanding the apparent conflict existing between MPL and the rights contained in the Bill of Rights. Notwithstanding the preference shown by the legislature to enact the MMB into legislation which will grant recognition to Muslim marriages, it is submitted there is a need for the legislature to rethink the approach that has to date been adopted. To this extent, it is submitted that the legislature should reconsider granting recognition to Muslim marriages by enacting legislation that takes the form of general legislation where state recognition is granted to all religious marriages, whether it be Muslim, Hindu or Jewish marriages. General legislation would mean that the state would require the marriage to be registered. However, the prescribed requirements, formalities and the consequences of the marriage would be determined by the chosen religious system of the spouses. On a national level a comparative analysis between Islamic law and the South African legal system, relating to the law of marriage is conducted. For the comparative analysis on an international level the law of marriage in England and Wales has been chosen. South Africa and England and Wales share a commitment to human rights and have adopted various approaches in respect of accommodating the application of Islamic law. Furthermore, an internal pluralism exists within the Muslim communities in South Africa, England and Wales as the majority of Muslims in these countries have to varying degrees developed diverse strategies to ensure compliance with Islamic law, and as well as South African and English law. The manner in which MPL is granted recognition needs to be given careful consideration as the implementation of this legislation will only be successful if it is compatible with the rulings and teachings of Islamic law. Caution should therefore be exercised to ensure that the fundamental aspects of MPL are not compromised as this will result in the legislation not being Shari’ah compliant and there will be no buyin from the Muslim community, with the consequence that this legislation will be mere paper law.
- Full Text:
- Date Issued: 2017
Maritime piracy legislation for Nigeria
- Authors: Nkomadu, Obinna Emmanuel
- Date: 2017
- Subjects: Piracy -- Law and legislation -- Nigeria
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/14046 , vital:27410
- Description: As a result of maritime piracy attacks in the Gulf of Guinea, especially in the West Africa sub-region, off the coast of Nigeria the researcher started carrying out research in 2014 on the laws pertaining to piracy. In this regard Nigeria does not have the legal framework to effectively address the threat of piracy off its coast but a Bill entitled: “Piracy and Other Unlawful Acts at Sea (and Other Related Offences) Act” has been forwarded to the Nigerian National Assembly in order to criminalise ‘piracy and other unlawful acts at sea’. For this reason, the researcher deems it necessary to examine the provisions of the Bill to determine whether it is adequate to address the threat of piracy or whether there is a need to reform or improve it. As a result of the research, it was revealed that the Bill will never achieve the purpose for which it was drafted as the legal framework on piracy of the Bill has many limitations which makes it easier for perpetrators to escape punishment. In order to achieve the goal of this Bill, the researcher deemed it necessary to contribute by drafting maritime piracy legislation for Nigeria that effectively addresses the threat of piracy off its coast, relying on the preparatory work for UNCLOS and other global, continental and regional instruments relevant to maritime piracy. Relied upon also are comparative analyses of piracy legal system of Anglophone African States and Nigerian legislation. This draft legislation amends the limitations of the Bill and is in accordance with legal notions of piracy which emerge from the combination of the principles of criminal and international law.
- Full Text:
- Date Issued: 2017
- Authors: Nkomadu, Obinna Emmanuel
- Date: 2017
- Subjects: Piracy -- Law and legislation -- Nigeria
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/14046 , vital:27410
- Description: As a result of maritime piracy attacks in the Gulf of Guinea, especially in the West Africa sub-region, off the coast of Nigeria the researcher started carrying out research in 2014 on the laws pertaining to piracy. In this regard Nigeria does not have the legal framework to effectively address the threat of piracy off its coast but a Bill entitled: “Piracy and Other Unlawful Acts at Sea (and Other Related Offences) Act” has been forwarded to the Nigerian National Assembly in order to criminalise ‘piracy and other unlawful acts at sea’. For this reason, the researcher deems it necessary to examine the provisions of the Bill to determine whether it is adequate to address the threat of piracy or whether there is a need to reform or improve it. As a result of the research, it was revealed that the Bill will never achieve the purpose for which it was drafted as the legal framework on piracy of the Bill has many limitations which makes it easier for perpetrators to escape punishment. In order to achieve the goal of this Bill, the researcher deemed it necessary to contribute by drafting maritime piracy legislation for Nigeria that effectively addresses the threat of piracy off its coast, relying on the preparatory work for UNCLOS and other global, continental and regional instruments relevant to maritime piracy. Relied upon also are comparative analyses of piracy legal system of Anglophone African States and Nigerian legislation. This draft legislation amends the limitations of the Bill and is in accordance with legal notions of piracy which emerge from the combination of the principles of criminal and international law.
- Full Text:
- Date Issued: 2017
The legal framework of concession agreements in Nigerian ports
- Authors: Sanni, Tajudeen
- Date: 2017
- Subjects: Concessions -- Nigeria , Public law -- Nigeria Public-private sector cooperation -- Nigeria Marine terminals -- Economic aspects -- Nigeria
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/20537 , vital:29317
- Description: The thesis examines the legal framework for concession agreements in Nigerian ports. The principal question is whether the legal framework for concession in ports is adequate. In order to answer this question, a number of related questions are raised and answered by analysis of laws and proposed laws related to ports. One question relates to what laws regulate concession in Nigeria. The thesis submits that a number of laws governs concession, the principal one being the Infrastructure Concession Regulatory Act (ICRCA).The Act provides that Federal Government agencies may grant the private sector concession for the financing, construction and maintenance of their infrastructure. In order to examine what this means for the port sector, the thesis examines how concession is being currently implemented in the ports. It is pointed out that under concession policy, a whole lot of operational duties which used to be carried out by the Nigerian Ports Authority (NPA) were being transferred to private sector in the new port governance paradigm. For this purpose, the possession of key NPA assets such as terminals for handling cargos were being transferred to the private sector vide concession agreements. The official position is that provisions in the Nigeria Ports Authority Act (NPAA) which allow the NPA to grant leases provide justification for the concession agreement. The concession policy also appoints the Nigeria Shippers Council (NSC) as the economic regulator of the ports to regulate economic activities such as tariff charged in the port. The thesis proceeds to examine the question whether port concession as it is being implemented is actually consistent with NPAA and other relevant laws. The thesis submits that stripping the NPA of a whole string of operational duties on the basis of concession is inconsistent with the provisions of NPAA which establishes the NPA as a regulator, operator and landlord of the port. The thesis posits that the ICRCA does not mandate the NPA to grant concession but rather leaves the decision to do so to the relevant government agencies such as the NPA. It is further submitted that the provision allowing the NPA to lease out its asset must be read with another provision restricting such leases to assets that are not necessary for the performance of NPA’s statutory duties. The thesis argues that this is based on the canon of statutory interpretation that one section of the law must be read holistically with the other sections. It is further argued that designation of NSC as economic regulator not only runs contrary to the Nigeria Shippers Council Act but also Utilities Charges Regulatory Commission Act (UCRCA) which regulates ports tariff and appoints UCRC as the relevant agency for this purpose. The thesis proceeds to examine the question whether the proposed laws, Nigeria Port and Harbour Authority Bill (NPHB) which establishes the port authority as the landlord cum regulator of port and the National Transport Commission Bill (NTCB) which establishes port economic regulator provide adequate legal provisions for port concession. The thesis posits that both bills legalize concession for the performance of core port functions by the private sector. However both contain some clauses that run contrary to the objectives stated therein. NPHB, for example, requires that the bill must be read in the context of the specific objective of separating landlord and regulatory duty from cargo-handling functions in the port. In contrast to this, the bill grants the NPA the duty to carry out port business and the powers to run cargo-handling business in addition to its landlord and regulatory functions. It is proposed that there should be a provision in the port bill providing a separate public company to compete with concessionaires for port businesses while the port authority concentrates on its technical regulatory and landlord duty that will allow it to enter into concession agreements as an independent entity. The thesis makes other proposals for the improvement of the aspects of the bills relating to port concession including inclusion of an outline of terms of concession agreement in the bill, public access to concession agreement, among others. It is recommended that the proposals are considered when the bills are passed into laws and concession agreements renegotiated on the basis of the bills when they become laws.
- Full Text:
- Date Issued: 2017
- Authors: Sanni, Tajudeen
- Date: 2017
- Subjects: Concessions -- Nigeria , Public law -- Nigeria Public-private sector cooperation -- Nigeria Marine terminals -- Economic aspects -- Nigeria
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: http://hdl.handle.net/10948/20537 , vital:29317
- Description: The thesis examines the legal framework for concession agreements in Nigerian ports. The principal question is whether the legal framework for concession in ports is adequate. In order to answer this question, a number of related questions are raised and answered by analysis of laws and proposed laws related to ports. One question relates to what laws regulate concession in Nigeria. The thesis submits that a number of laws governs concession, the principal one being the Infrastructure Concession Regulatory Act (ICRCA).The Act provides that Federal Government agencies may grant the private sector concession for the financing, construction and maintenance of their infrastructure. In order to examine what this means for the port sector, the thesis examines how concession is being currently implemented in the ports. It is pointed out that under concession policy, a whole lot of operational duties which used to be carried out by the Nigerian Ports Authority (NPA) were being transferred to private sector in the new port governance paradigm. For this purpose, the possession of key NPA assets such as terminals for handling cargos were being transferred to the private sector vide concession agreements. The official position is that provisions in the Nigeria Ports Authority Act (NPAA) which allow the NPA to grant leases provide justification for the concession agreement. The concession policy also appoints the Nigeria Shippers Council (NSC) as the economic regulator of the ports to regulate economic activities such as tariff charged in the port. The thesis proceeds to examine the question whether port concession as it is being implemented is actually consistent with NPAA and other relevant laws. The thesis submits that stripping the NPA of a whole string of operational duties on the basis of concession is inconsistent with the provisions of NPAA which establishes the NPA as a regulator, operator and landlord of the port. The thesis posits that the ICRCA does not mandate the NPA to grant concession but rather leaves the decision to do so to the relevant government agencies such as the NPA. It is further submitted that the provision allowing the NPA to lease out its asset must be read with another provision restricting such leases to assets that are not necessary for the performance of NPA’s statutory duties. The thesis argues that this is based on the canon of statutory interpretation that one section of the law must be read holistically with the other sections. It is further argued that designation of NSC as economic regulator not only runs contrary to the Nigeria Shippers Council Act but also Utilities Charges Regulatory Commission Act (UCRCA) which regulates ports tariff and appoints UCRC as the relevant agency for this purpose. The thesis proceeds to examine the question whether the proposed laws, Nigeria Port and Harbour Authority Bill (NPHB) which establishes the port authority as the landlord cum regulator of port and the National Transport Commission Bill (NTCB) which establishes port economic regulator provide adequate legal provisions for port concession. The thesis posits that both bills legalize concession for the performance of core port functions by the private sector. However both contain some clauses that run contrary to the objectives stated therein. NPHB, for example, requires that the bill must be read in the context of the specific objective of separating landlord and regulatory duty from cargo-handling functions in the port. In contrast to this, the bill grants the NPA the duty to carry out port business and the powers to run cargo-handling business in addition to its landlord and regulatory functions. It is proposed that there should be a provision in the port bill providing a separate public company to compete with concessionaires for port businesses while the port authority concentrates on its technical regulatory and landlord duty that will allow it to enter into concession agreements as an independent entity. The thesis makes other proposals for the improvement of the aspects of the bills relating to port concession including inclusion of an outline of terms of concession agreement in the bill, public access to concession agreement, among others. It is recommended that the proposals are considered when the bills are passed into laws and concession agreements renegotiated on the basis of the bills when they become laws.
- Full Text:
- Date Issued: 2017
The safety of navigation and the role of port state jurisdiction: a South African perspective
- Authors: Metuge, Denning Ngomele
- Date: 2017
- Subjects: Harbors -- Law and legislation -- South Africa Law of the sea -- South Africa
- Language: English
- Type: Thesis , Masters , LLD
- Identifier: http://hdl.handle.net/10948/19343 , vital:28853
- Description: This thesis set to examine whether South Africa has incorporated the provisions on vessel navigational safety standards established in the relevant international instruments developed by the IMO: the International Convention for the Safety of Life at Sea, 1974 (SOLAS) as amended, the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW) as amended, and the Convention on International Regulations for Preventing Collisions at Sea, 1972 (COLREGs) as amended. It also set to determine the regulatory scope for the exercise of port State jurisdiction from a South African perspective. To establish whether a vessel’s condition complies to prescribed navigational safety standards, the relevant international instruments require States that have ratified the instruments not only to ensure that vessels registered under their flag are inspected for compliance before they can navigate, but that foreign visiting vessels must be surveyed to ensure that they also comply with the safety standards. These surveys are conducted while vessels are in the port of a port State. In addition, the Third United Nations Convention on the Law of the Sea, 1982 (LOSC), provides in article 218 that the port State may enforce anti-pollution regulations committed by a vessel that calls at one of its ports, after committing an illegal discharge outside the territorial waters of the State and its exclusive economic zone (EEZ). However, the provisions of article 218 LOSC have been the center of scholarly debate on the scope of port State jurisdiction (PSJ). Whilst one school of thought holds that PSJ refers only to the provisions of article 218 LOSC, another contends that in defining PSJ, its meaning must be awarded a broader scope to include the regulation of navigational safety standards. Due to the varied opinions on the scope of PSJ, this thesis examined the regulatory framework for the exercise of port State jurisdiction (PSJ) in South Africa. The discussion was relevant to determine the role of PSJ to enhance navigational safety from a South African perspective. This thesis comprised of an in-depth analysis of primary and secondary sources of data relevant to the regulation of navigational safety. The data obtained was critically discussed to establish whether the relevant international navigational safety standards are incorporated into South African law. The process included critical discussions on the principle of jurisdiction, and its exercise by States under international law. The discussions analysed the complexities associated with defining jurisdiction and determining its scope, which are relevant in respect of States’ competence to prescribe and enforce domestic laws, in conformity with the requirements of the LOSC. International law awards jurisdiction to the State to regulate laws within its national territory subject to some restrictions. However, the meaning of jurisdiction is not easily discernible even to lawyers. The discussions showed that the Republic exercises jurisdiction in conformity with generally accepted grounds for the exercise of jurisdiction, and that it is the prerogative of the State to adopt laws it deems necessary within its territory. Thus, the incorporation of international instruments on the safety of navigation is not a forgone conclusion, as it is dependent on the will of the State to ratify, and give effect to the provisions of the relevant instruments in its domestic law. Furthermore, this thesis discussed the relevant international safety instruments in contrast to the provisions of South African merchant shipping regulations, to identify any regulatory gaps in the incorporation of their provisions in South African law. Against a background of comparative analyses of the international norms and the provisions of South African merchant shipping regulations, this research found that a significant number of the relevant international safety instruments are incorporated into south African law by Merchant Shipping Act (MSA) as amended, and regulations made in terms of the Act. The provisions of South African merchant shipping regulations are administered by the South African Maritime Safety Authority (SAMSA). However, whilst this research found little doubt that the provisions of the STCW and COLREGs are given full effect in South African law, it identified regulatory differences in respect of the most relevant of all international instruments with regard to the safety of navigation, SOLAS. Some SOLAS provisions in respect of navigational safety are not incorporated into domestic law, and in some instances where they are incorporated, the provisions of domestic law contrasts that of SOLAS, or are not as comprehensive. For instance, there is a contrast in the provisions of the Navigation Bridge Visibility Regulations (NVBR), that make the regulations applicable to vessels of 45m or more in length constructed before 1 July 2008. Whereas, SOLAS regulations in respect of the navigation bridge visibility standards of vessels apply to vessels 55m or more length. Furthermore, a 5 months extension may be awarded in respect of a safety certificate issued for a South African vessel that is not in the Republic on the date of its expiry. This provision goes beyond the requirement of SOLAS, which requires that no extension be granted for a period longer than 3 months. Likewise, SAMSA may grant an extension of a safety certificate other than a cargo vessel construction certificate, for a period no longer than five month to enable a foreign vessel to complete its journey to its country of registry or point of inspection. This extension again, is longer than the 3 months requirement under SOLAS. Moreover, the survey requirements applicable to all South African vessels where ever they may be, and all foreign merchant vessels that come into the Republic, do not reflect the specific provisions of SOLAS. A significant amendment was made to SOLAS by SOLAS PROT 1988. SOLAS PROT 1988 introduced the harmonised system of survey and certification (HSSC) into the provisions of SOLAS, thereby harmonising its survey standards with those of other international instruments. SOLAS PROT 1988 has come into force for all States that have ratified the Protocol since the year 2000. This thesis finds that while South Africa is a party to SOLAS as amended by SOLAS PROT 1978, the Republic has not yet ratified SOLAS PROT 1988. Hence, the Republic is not bound to any requirements of SOLAS PROT 1988. Furthermore, although States that are not party to an international instrument requiring the implementation of the HSSC are invited to implement the HSSC anyway, there is no provision in the MSA that incorporates the HSSC. Of central importance to the regulation of merchant shipping standards, States are not only required to adopt domestic laws giving effect to international standards, but they are required to implement international standards in a uniform manner. This is aimed at avoiding a merchant shipping arena plagued by conflicting unilateral domestic rules. SOLAS PROT 1988 has been ratified by States comprising of 96% of the world’s merchant fleet by tonnage. The massive acceptance of SOLAS PROT 1988 is indicative of the international trend, towards uniformity in the implementation of international norms. This thesis recommends that, for the Republic’s merchant shipping regulations to reflect the international trend, the Republic should amend its merchant shipping regulation to incorporate the HSSC. Alternatively, the Republic may ratify SOLAS PROT 1988, and give full effect to its survey and certification standards and the relevant navigational safety provisions in the ANNEX of SOLAS.In addition, whilst a debate abounds on the international scene in respect of the scope of port State jurisdiction, the analysis of the regulatory framework for the exercise of port State jurisdiction in South Africa found that the regulatory framework for the exercise of port State jurisdiction by the Republic includes the regulation of not only environment-related navigational standards prescribed by article 218 LOSC, but also, navigational safety standards, and significantly, its scope is not burdened by the international law limitations to the exercise of coastal State jurisdiction. As such, a recommendation is made to the effect that when defining PSJ, its scope should not be limited to the enforcement of standards contained in article 218 LOSC, rather, it should be awarded a broader scope to include the regulation of other navigational standards including safety.
- Full Text:
- Date Issued: 2017
- Authors: Metuge, Denning Ngomele
- Date: 2017
- Subjects: Harbors -- Law and legislation -- South Africa Law of the sea -- South Africa
- Language: English
- Type: Thesis , Masters , LLD
- Identifier: http://hdl.handle.net/10948/19343 , vital:28853
- Description: This thesis set to examine whether South Africa has incorporated the provisions on vessel navigational safety standards established in the relevant international instruments developed by the IMO: the International Convention for the Safety of Life at Sea, 1974 (SOLAS) as amended, the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW) as amended, and the Convention on International Regulations for Preventing Collisions at Sea, 1972 (COLREGs) as amended. It also set to determine the regulatory scope for the exercise of port State jurisdiction from a South African perspective. To establish whether a vessel’s condition complies to prescribed navigational safety standards, the relevant international instruments require States that have ratified the instruments not only to ensure that vessels registered under their flag are inspected for compliance before they can navigate, but that foreign visiting vessels must be surveyed to ensure that they also comply with the safety standards. These surveys are conducted while vessels are in the port of a port State. In addition, the Third United Nations Convention on the Law of the Sea, 1982 (LOSC), provides in article 218 that the port State may enforce anti-pollution regulations committed by a vessel that calls at one of its ports, after committing an illegal discharge outside the territorial waters of the State and its exclusive economic zone (EEZ). However, the provisions of article 218 LOSC have been the center of scholarly debate on the scope of port State jurisdiction (PSJ). Whilst one school of thought holds that PSJ refers only to the provisions of article 218 LOSC, another contends that in defining PSJ, its meaning must be awarded a broader scope to include the regulation of navigational safety standards. Due to the varied opinions on the scope of PSJ, this thesis examined the regulatory framework for the exercise of port State jurisdiction (PSJ) in South Africa. The discussion was relevant to determine the role of PSJ to enhance navigational safety from a South African perspective. This thesis comprised of an in-depth analysis of primary and secondary sources of data relevant to the regulation of navigational safety. The data obtained was critically discussed to establish whether the relevant international navigational safety standards are incorporated into South African law. The process included critical discussions on the principle of jurisdiction, and its exercise by States under international law. The discussions analysed the complexities associated with defining jurisdiction and determining its scope, which are relevant in respect of States’ competence to prescribe and enforce domestic laws, in conformity with the requirements of the LOSC. International law awards jurisdiction to the State to regulate laws within its national territory subject to some restrictions. However, the meaning of jurisdiction is not easily discernible even to lawyers. The discussions showed that the Republic exercises jurisdiction in conformity with generally accepted grounds for the exercise of jurisdiction, and that it is the prerogative of the State to adopt laws it deems necessary within its territory. Thus, the incorporation of international instruments on the safety of navigation is not a forgone conclusion, as it is dependent on the will of the State to ratify, and give effect to the provisions of the relevant instruments in its domestic law. Furthermore, this thesis discussed the relevant international safety instruments in contrast to the provisions of South African merchant shipping regulations, to identify any regulatory gaps in the incorporation of their provisions in South African law. Against a background of comparative analyses of the international norms and the provisions of South African merchant shipping regulations, this research found that a significant number of the relevant international safety instruments are incorporated into south African law by Merchant Shipping Act (MSA) as amended, and regulations made in terms of the Act. The provisions of South African merchant shipping regulations are administered by the South African Maritime Safety Authority (SAMSA). However, whilst this research found little doubt that the provisions of the STCW and COLREGs are given full effect in South African law, it identified regulatory differences in respect of the most relevant of all international instruments with regard to the safety of navigation, SOLAS. Some SOLAS provisions in respect of navigational safety are not incorporated into domestic law, and in some instances where they are incorporated, the provisions of domestic law contrasts that of SOLAS, or are not as comprehensive. For instance, there is a contrast in the provisions of the Navigation Bridge Visibility Regulations (NVBR), that make the regulations applicable to vessels of 45m or more in length constructed before 1 July 2008. Whereas, SOLAS regulations in respect of the navigation bridge visibility standards of vessels apply to vessels 55m or more length. Furthermore, a 5 months extension may be awarded in respect of a safety certificate issued for a South African vessel that is not in the Republic on the date of its expiry. This provision goes beyond the requirement of SOLAS, which requires that no extension be granted for a period longer than 3 months. Likewise, SAMSA may grant an extension of a safety certificate other than a cargo vessel construction certificate, for a period no longer than five month to enable a foreign vessel to complete its journey to its country of registry or point of inspection. This extension again, is longer than the 3 months requirement under SOLAS. Moreover, the survey requirements applicable to all South African vessels where ever they may be, and all foreign merchant vessels that come into the Republic, do not reflect the specific provisions of SOLAS. A significant amendment was made to SOLAS by SOLAS PROT 1988. SOLAS PROT 1988 introduced the harmonised system of survey and certification (HSSC) into the provisions of SOLAS, thereby harmonising its survey standards with those of other international instruments. SOLAS PROT 1988 has come into force for all States that have ratified the Protocol since the year 2000. This thesis finds that while South Africa is a party to SOLAS as amended by SOLAS PROT 1978, the Republic has not yet ratified SOLAS PROT 1988. Hence, the Republic is not bound to any requirements of SOLAS PROT 1988. Furthermore, although States that are not party to an international instrument requiring the implementation of the HSSC are invited to implement the HSSC anyway, there is no provision in the MSA that incorporates the HSSC. Of central importance to the regulation of merchant shipping standards, States are not only required to adopt domestic laws giving effect to international standards, but they are required to implement international standards in a uniform manner. This is aimed at avoiding a merchant shipping arena plagued by conflicting unilateral domestic rules. SOLAS PROT 1988 has been ratified by States comprising of 96% of the world’s merchant fleet by tonnage. The massive acceptance of SOLAS PROT 1988 is indicative of the international trend, towards uniformity in the implementation of international norms. This thesis recommends that, for the Republic’s merchant shipping regulations to reflect the international trend, the Republic should amend its merchant shipping regulation to incorporate the HSSC. Alternatively, the Republic may ratify SOLAS PROT 1988, and give full effect to its survey and certification standards and the relevant navigational safety provisions in the ANNEX of SOLAS.In addition, whilst a debate abounds on the international scene in respect of the scope of port State jurisdiction, the analysis of the regulatory framework for the exercise of port State jurisdiction in South Africa found that the regulatory framework for the exercise of port State jurisdiction by the Republic includes the regulation of not only environment-related navigational standards prescribed by article 218 LOSC, but also, navigational safety standards, and significantly, its scope is not burdened by the international law limitations to the exercise of coastal State jurisdiction. As such, a recommendation is made to the effect that when defining PSJ, its scope should not be limited to the enforcement of standards contained in article 218 LOSC, rather, it should be awarded a broader scope to include the regulation of other navigational standards including safety.
- Full Text:
- Date Issued: 2017
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