The classification of a ‘maritime claim’ in South Africa under the Admiralty Jurisdiction Regulation Act
Authors: Amy Harpur Gevers & Vishal Surbun
Affiliations: Legal Practitioner of the High Court of South Africa; Senior Lecturer in Law, University of KwaZulu-Natal
Source: South African Law Journal, Volume 140 Issue 1, p. 194-219
The definition of ‘maritime claim’ in s 1 of the Admiralty Jurisdiction Regulation Act 105 of 1983 is the gatekeeper to the exercise of admiralty jurisdiction. It is accordingly critical that the process of classifying a claim as a maritime claim is certain and predictable. However, the elasticity of the wording in the definition can create confusion for claimants in borderline cases. In Kuehne & Nagel (Pty) Ltd v Moncada Energy Group SRL 2016 JDR 0312 (GJ) the court formulated the ‘legally relevant connection’ test to assist it in classifying a claim to enforce a demand guarantee. The test was subsequently relied on in Twende Africa Group (Pty) Ltd v MFV Qavak 2018 JDR 0238 (ECP) in classifying a damages claim for unlawful contractual interference. This article examines the ‘legally relevant connection’ test in the context of both cases to assess whether it is consistent with the definition of ‘maritime claim’. We show that the reasoning followed in Kuehne & Nagel is flawed in several respects, revealing certain fundamental weaknesses of the test. However, the decision in Twende demonstrates that the test is capable of yielding results that align with the policy justification for the exercise of admiralty jurisdiction.