South Africa is located in a strategic position in terms of world trading routes and after years of isolation is now seeking to assert itself as a significant player in international maritime commerce. A modern and sophisticated maritime law and legal system is an essential ingredient of this process and the time is therefore ripe for an up-to-date exposition of South African shipping law.

South African shipping law has some unique features. As Professor Hare notes: “During the 300 years of its modern jurisprudential development, South Africa has … had bestowed on it by history the developed laws of two of the most significant maritime trading nations of their times: the Dutch of the 17th and 18th centuries and the British of the 19th and 20th centuries” (p. 4). This juxtaposition is writ large in the Admiralty Jurisdiction Regulation Act 1983, s. 6(1), which provides essentially that in relation to pre-existing Admiralty jurisdiction the applicable law is that which would be applied by an English Admiralty Court as at 1 November 1983, but for new jurisdiction, created by the 1983 Act, South African Roman-Dutch common law applies. Because the Admiralty jurisdiction before the 1983 Act was derived from the Colonial Courts of Admiralty Act 1890, the practical effect of this provision is to make it necessary to apply English law as it was on 1 November 1983 to English Admiralty Jurisdiction as it was in 1891. Professor Hare argues that this is less than satisfactory and “the legislature should waste no time in amending it, allowing South African admiralty law to come of age by standing on the considerable foundations of its rich legal history”.

Professor Hare’s work is the first comprehensive shipping law textbook to be published since the 1983 Act and in it he attempts to bridge the divide between English maritime law and the Roman- Dutch common law of South Africa. That there is such a divide may be illustrated by reference to the applicable test for avoidance for material non-disclosure in marine insurance which is discussed by Professor Hare in §18-5.1.1. In the non-marine case Oudtshoorn Municipality 1985 (1) SA 419 SCA Joubert, J.A., rejected the English “prudent insurer” in favour of a Roman-Dutch diligens paterfamilias or average prudent person. That the divide may be bridged is illustrated by Professor Hare’s suggested adoption of a two-stage test favoured by Miller, J.A., in his minority judgment in Oudtshoom Municipality, which effectively synthesizes the two different approaches. The first stage requires that a prudent insurer would have declined the risk or charged a greater premium and the second that an average prudent person would have known that the insurer’s attitude to the risk would have been affected by the fact which is not disclosed. This is an example of what Professor Hare