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TRANSPORT PORTFOLIO COMMITTEE
7 June 2000
SEA TRANSPORT DOCUMENTS BILL: DISCUSSION & VOTING
Documents handed out:
Sea Transport Documents Bill [B28 - 2000]
Presentation by Mr Shaw
Chairperson: Mr J Cronin
The Committee decided the two Latin phrases "action in rem" and "delectus personae" should remain in the Bill since there is no translation all encompassing enough without being verbose to accommodate their meanings. It was also decided to leave the Bill separate from the Carriage of Goods by Sea Act. The Committee passed the Bill with a technical amendment to the layout of the English and Afrikaans texts in Clause 1. The Chairperson said the Committee should exercise its monitoring role on the Helderberg aircrash issue while letting the investigation take its course.
The Chairperson pointed out that there are three basic issues for consideration by the Committee namely:
- the use of two Latin phrases;
- whether the Bill should stand as a separate Bill or be incorporated into the Carriage of Goods by Sea Act, 1986;
- and inconsistencies between the English and Afrikaans texts of the Bill that would lead to inaccuracies in interpretation.
▪ Advocate Shaw discussed the Latin terms:
"Action in rem" is used universally to a particular type of action in admiralty proceedings. Its precise nature cannot be summarised in any phrase which would be appropriate for insertion in legislation. The view is that it should be retained since it appears in the Act which defines the admiralty jurisdiction of South African Courts.
"Delectus personae" is used in connection with the transfer of rights and obligations provided for in Clause 4 of the Bill. As a rule of law, a right or obligation cannot be transferred if in the case of transfer of a right, the nature of the right is such as to require the person against whom it is enjoyed to render performance to someone other than the person holding the right. This would by reason of the personal nature of the right be fundamentally to change the nature of the performance.
These limitations are conveniently and accurately described by the phrase delectus personae. An endeavour to describe the limitation must, of necessity, be verbose and almost inevitably far from all-embracing. To describe the rights merely as personal would be misleading. This is because personal rights and obligations have a quite different significance in legal parlance from rights and obligations where there is a delectus personae. It is also suggested that the phrase be left as it is.
▪ Regarding whether the Bill should be incorporated into the Carriage of Goods by Sea Act of 1986, Advocate Shaw said that Act relates to the content of the obligations, more particularly of the carrier, with regard to carriage of goods. This Bill relates to a different topic, namely, the transfer of rights and obligations. It deals with a wider range of documents than the bill of lading referred to in the 1986 Act. It would be highly inconvenient to include the present Bill as an amendment to the 1986 Act. Advocate Shaw submitted that the Bill be separate from the 1986 Act as has been done.
▪ Mr Gideon Hoon, State Law Advisor, said in Clause 1 both the English and Afrikaans texts have technical errors that would cause inaccuracies. In line 17 on the English text the sentence that reads "irrespective of whether it is transferable or negotiable," should be aligned back so that it starts in the same position as the sentence in line 18.
In the Afrikaans text the sentence in line 18 that reads "wat betrekking het op die algehele of gedeeltelike vervoer van goedere oor see," should start immediately after the comma in line 17 after the word "dokument"
Voting on the Bill
The Chairperson moved the motion of desirability which was agreed to.
Clause 1 was agreed to with the proposed amendment. All the remaining clauses were agreed to without amendment.
The Chairperson said that he would recommend to the ANC Party Whip that no debate should take place on the Bill and encouraged other parties in their discretion to do so.
Helderberg Aircrash Issue
The Chairperson mentioned that the view is that since there is an investigation taking place, the Committee should let the process follow its course. He stated that the Committee should however monitor the process. The meeting was adjourned.
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