Recent stowaways cast a focus on the issue
Alan Peat
CAN THE SA authorities arrest someone for a crime committed on the high seas?
That question is made all the more relevant by the recent case in SA of four stowaways who were cast adrift in an inflatable life raft - without food or water - after they had been discovered on board a cargo vessel.
And it's not unique, according to Quintus van der Merwe of attorneys Shepstone & Wylie, who were involved in that case.
"There are many colourful tales of crimes that have been committed on the high seas," he said.
In response to the question of whether the SAPS have the power of arrest - and whether the SA courts would have jurisdiction to hear such matters - the answer is yes, Van der Merwe told FTW.
"Yes in the case of common law crimes such as murder, robbery or assault committed at sea," he said.
According to Shepstone & Wylie's latest Maritime Review, the issue hinges on the fact that, generally speaking, SA courts have the right to try any offence committed within the geographic jurisdiction of that court.
But does that geographic boundary extend offshore?
Again yes. Under the Magistrates Court Act of 1944, it extends to a distance of twelve nautical miles from the low-water mark.
Within these territorial waters the appropriate court can try any offence committed on board any vessel, said Van der Merwe.
But not beyond the 12-mile mark.
That, according to Van der Merwe, would then fall under the Criminal Procedure Act.
Under this, he added, a police officer does have the right of arrest. This working on the basic premise that the accused had been implicated in an act which - although committed outside the country - would have been punishable as an offence if committed in the Republic.
Added to that is the law relating to extradition or fugitive offenders - where again the SA authorities have rights of arrest in the Republic, even for crimes committed on the high seas. Though, in this case, the accused would be returned for trial to the foreign country - which had satisfied the conditions of proof in its extradition treaty with SA.
A final set of laws which can play a part is Section 174 of the Merchant Shipping Act.
This creates a statutory offence which could be added to any common law crimes which might have been committed.
It relates primarily to safety at sea, according to Van der Merwe, and is aimed at the officers and crews of a ship.
Where would all this relate to our representative case of the castaway stowaways?
Said Van der Merwe: "Where the master or crew of a ship throw stowaways overboard, this would not only constitute the crime of murder (if the stowaways perish) or attempted murder (if they survive) - but would also constitute an offence in terms of that section 174."
The difference, however, is in the possible sentences for each crime, according to Van der Merwe.
The overall answer is - don't commit a crime on the high seas and expect to get away with it. The long arm of the law can reach you - wherever you might go.
