The Maritime Zones in the South African Interpretation Act

The Interpretation Act, 1957 (Act 33 of 1957) does not contain any reference to the South African maritime zones. This is one of the reasons why there remains a degree of uncertainty in domestic law with regard to the extent of the marine component of the South African territory (see P Vrancken “The marine component of the South African territory” (2010) 127 South African Law Journal 207-223).

In 2006, the South African Law Reform Commission (SALRC) published its discussion paper 112 entitled: “Statutory Revision: Review of the Interpretation Act 33 of 1957 (Project 25)”. The draft Bill submitted by the SALRC contains in s 25(1) a number of general definitions for words and expressions. Those words and expressions were selected on the ground that they are “often used in legislation” (par 36). They include the terms “continental shelf”, “exclusive economic zone” and “territorial waters”. All three terms are defined as having “the meaning assigned to [them] in the Maritime Zones Act, 1994 (Act No. 15 of 1994)” (MZA). However, the latter also provides for three additional maritime zones which are not mentioned in the draft Bill: the internal waters (s 3 MZA), the contiguous zone (s 5 MZA) and the maritime cultural zone (s 6 MZA). As suggested in par 36 of the discussion paper, the reason why the last-mentioned three zones are not included in s 25(1) of the draft Bill could be that the authors of the discussion paper decided that those zones were not often used in legislation. But it is not impossible that one or more of those zones, especially the internal waters, might in fact have been overlooked. This is suggested by the proposed definition of the term “the Republic”, which is defined in the draft Bill as meaning, when referred to as a geographic area: “the territory of the Republic of South Africa, including its territorial waters and the airspace above its territory and territorial waters”.

This definition is problematical in two respects. Firstly, the word “territory” is used in two obviously different senses: in the broader sense (when used the first time in the provision), the word refers to an area which includes the territorial waters and the airspace; in the narrow sense (when used the second time in the provision), the word refers to an area which does not include the territorial waters and the airspace. The second problem arises from the lack of reference to the internal waters, ie the waters landward of the baselines (s 3(1) MZA) or, in other words, the waters between the land territory and the territorial waters. As a result, it is open to question whether the term “territory” used in the narrow sense includes the internal waters (the kind of uncertainty that the draft Bill would be expected to avoid). If “territory” in the narrow sense does not include the internal waters, it would be more accurate to use the term “land territory”. It would also mean that neither the internal waters nor the airspace above the internal waters are part of the territory in the broad sense. While it is difficult to find a reason for such exclusion, it is also difficult to find a reason why a distinction is made between internal waters, on the one hand, and territorial waters, on the other hand, by mentioning only the latter in the definition.

The two problems would be easily resolved, and the definition tidied up, by amending it as follows: “the territory of the Republic of South Africa, including its internal waters and territorial waters [and] as well as the airspace above its land territory, internal waters and territorial waters”. In addition, the term “internal waters” being now used in the draft Bill, it would have to be defined in s 25(1) as follows: ““internal waters” has the meaning assigned to it in the Maritime Zones Act, 1994 (Act No. 15 of 1994)”.