Maritime Piracy and South African Law

Over the past decade, piracy on the high seas and off the coast of Somalia has been on the rise. Although there have been preventative measures deployed by maritime nations to counter the crime, across the seas, there is an identified need to develop an efficient regime to prosecute pirates with “pirates” long being described as hostes humani generis (enemies of all humankind).

The general modus operandi that is employed by arresting-vessels is a ‘catch-and-release’ procedure, which means that there are no further steps taken to bring these pirates to account for their crimes.

There are several difficulties facing national courts in the prosecution of pirates. Broadly speaking these difficulties are both political and procedural in nature. Some of the underlying concerns are that:

  1. various prosecuting states may grant asylum to detained pirates;
  2. detained pirates may seek relief via the law of human rights, which creates further difficulties; and,
  3. there is a lack of clarity in domestic legislation regarding the procedure for dealing with expatriated pirates.

These challenges call for a uniform body of international piracy law to better enable national courts across the globe to successfully prosecute pirates. The framework for piracy legislation is contained in the provisions of the United Nations Convention on the Law of the Sea (UNCLOS). The most important aspect of these provisions is that it confers on states the power to exercise universal jurisdiction over the crime of piracy at sea. South Africa, as a member state of the United Nations, and in adherence to the recent Resolutions adopted by the United Nations Security Council, has incorporated international law into its national laws to criminalise piracy and provide procedures under which its national forces may pursue suspected pirate vessels. The advent of the latter Resolutions conferred on nations the power to patrol and pursue pirates into Somali territorial waters and land. These Resolutions transformed current international law regarding Somalia, and have aided in combating the crime of piracy.

However, the successful prosecution of pirates is fundamentally dependent on sovereign states developing their domestic legislation to deal with piracy. For instance, South Africa’s piracy regime is provided for in our Defence Act of 2002 which incorporates the crime of piracy as defined in UNCLOS. South Africa has also signed the Durban Resolution on Maritime Safety, Maritime Security and Protection of the Marine Environment in Africa (2009), as well as the Djibouti Code of Conduct, which are both directed at ensuring a uniform approach to maritime safety in Africa. Apart from the positive steps taken by South Africa from a legislative point of view, it has also engaged in pro-active methods of deterring the crime of piracy on the seas such as its Trilateral Memorandum of Understanding (MOU) with Tanzania and Mozambique, which details the effective patrolling of the East Coast of the Southern African Indian Ocean.

An example of the implementation of the MOU occurred in April 2012, where an anti-piracy operation took place in the Southern Africa Development Community region. The South African Navy vessel, the SAS Drakensberg, was patrolling the Mozambique Channel for a missing yacht when a suspected pirate ship was seen near the Tanzanian Coast by a French aircraft. The Tanzanian Navy in accordance with the MOU granted the SAS Drakensberg the authority to interdict the piratical activity occurring within its territorial waters. Due to collaborative efforts such as these by navies of different nationalities, many of the pirates have been arrested and transferred to Tanzanian authorities to be prosecuted.

However, the question still remains whether South Africa, as an arresting state, would prosecute suspected pirates. South Africa, like every other state, enjoys the discretionary power to exercise universal jurisdiction over piratical matters owing to the principles of customary international law. Jurisdiction, in respect of the criminal offence of piracy, is embodied in Sections 10 and 15 of our Protection of Constitutional Democracy Against Terrorist and Related Activities Act (POCDATARA).

It is understood from the provisions of the Defence Act and Section 15 of POCDATARA that when our Defence Force captures pirates, they are entitled to bring the offenders back to South Africa to face prosecution in accordance with South African law. It is also evident that the MOU between South Africa, Tanzania and Mozambique as well as the assistance of our Defence Force is having a positive outcome in safeguarding the sea lanes of the Indian Ocean. Accordingly, South Africa appears to be engaging in efforts on par with international standards of combating piracy and being pro-active in its undertaking.

Section 15(1)(c) of POCDATARA implies that a court in the Republic may further exercise jurisdiction over ‘any specified offence,’ if ‘evidence reveals any other (legal) basis recognised by law,’ which could be interpreted to include universal jurisdiction. Therefore, the latter would pave the way for South Africa to prosecute suspected pirates without necessarily having a national interest attached to the matter.

Apart from the legislative ability, it is evident that South Africa is genuinely concerned about the threat of maritime piracy occurring on the East Coast of Africa. South Africa and the Transitional Federal Government of Somalia have recently concluded official diplomatic relations with each other in terms of which it appears that South Africa could assist Somalia in a number of ways, but most significantly, in its law-making.

Having said that, it remains the responsibility of the international community to not only combat the crime of piracy, but to also successfully prosecute suspected pirates. As such, South Africa is a leading example in its pro-activeness demonstrated by intervening piratical attacks, as well as the incorporation of international instruments dealing with the crime of piracy into its domestic laws and its diplomatic efforts with the Transitional Federal Government of Somalia. Time will tell however whether South Africa will effectively move from an arresting state to a prosecuting state in respect of piratical matters and undertake policy changes which reflect this intention.

February 4, 2014
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