Prevention and Combating of Pollution of the Sea by Oil (Amendment) Act (No. 24 of 1991)

R0,30 GOVERNMENT GAZETTE OF THE REPUBLIC OF N~MIBIA WINDHOEK - 21 December 1991 CONTENTS GOVERNMENT NOTICE No. 150 Promulgation of Prevention and Combating of Pollution ,of the Sea by Oil Amendment Act, 1991 (Act 24 of 1991), of the National Assembly ....... . No. 150 Government Notice OFFICE OF THE PRIME MINISTER PROMULGATION OF ACT OF THE NATIONAL ASSEMBLY Page 1991 The following Act which has been passed by the National Assembly and signed by the President in terms of the Namibian Constitution is hereby published in terms of Article 56 of that Constitution. No. 24 of 1991: Prevention and Combating of Pollution of the Sea by Oil Amendment Act, 1991. No. 326 2 Government Gazette 21 December 1991 No. 326 Act No. 24, 1991 PREVENTION AND COMBATING OF Amendment of section I of Act 6 of 1981. POLLUTION OF THE SEA BY OIL AMENDMENT ACT, 1991 EXPLANATORY NOTE: Words underlined with solid line indicate in sertions in existing enactments. Words in bold type in square brackets indicate omissions from existing enactments. ACT To amend the Prevention and Combating of Pollution of the Sea by Oil Act, 1981, in order to adjust cer tain provisions in view of the independence of Nami bia; to abolish the Oil Pollution Prevention Fund; to increase the fines that may be imposed in respect of offences; and to provide for incidental matters. (Signed by the President on JI December 1991) BE IT ENACTED by the National Assembly of the Republic of Namibia, as follows: 1. Section I of the Prevention and Combating of Pollution of the Sea by Oil Act, 1981 (hereinafter referred to as the principal Act), is hereby amended (a) by the substitution in subsection (1) for the definition of "Convention" of the following de finition: " 'Convention' means the International Con vention on Civil Liability for Oil Pollution Da mage, signed in Brussels on 29 November 1969 and published for general information under General Notice No. 58 of 1978 in Government Gazette No. 5867 of 27 January 1978, and in cludes any amendments thereof and additions thereto signed, ratified or acceded to by the Republic of [South Africa] Namibia;"; (b) by the deletion in subsection ( 1) of the definition of "Director-General"; No. 326 Act No. 24, 1991 Government Gazette 21 December 1991 PREVENTION AND COMBATING OF POLLUTION OF THE SEA BY OIL AMENDMENT ACT, 1991 3 (c) by the deletion in subsection (l) of the definition of "Fund"; (d) by the substitution in subsection (I) for the definition of "Minister" of the following defi nition: '' 'Minister' means the Minister of [Transport Affairs] Works, Transport and Communica tion;"; (e) by the substitution in subsection (I) for the definition of "natural oil" of the following defi nition: '' 'natural oil' means an li uid or solid h dro carbon or combustible gas existing in a natural condition in the earth's crust, but does not include coal or bituminous shales or other stratified deposits from which oil can be obtained by de structive distillation, or gas arising from marsh or other surface deposits;"; (f) by the insertion in subsection (1) after the defi nition of "owner" of the following definition: '' 'Permanent Secretary' means the Permanent Secretary: Works, Transport and Communica tion;"; (g) by the substitution in subsection (I) for the definition of "principal officer" of the following definition: " ' rinci al officer' means the officer in char e of the office of the Directorate Maritime Affairs of the Ministry of Works, Transport and Com munication at any port;"; (h) by the substitution in subsection (I) for the definition of "prohibited area" of the following definition: " ' rohibited area' means the territorial sea of Namibia and that portion of the exclusive eco nomic zone, as defined in section 4 of the Terri 4 Government Gazette 21 December 1991 No. 326 Act No. 24, 1991 PREVENTION AND COMBATING OF Amendment of section 7 of Act 6 of 1981. POLLUTION OF THE SEA BY OIL AMENDMENT ACT, 1991 torial Sea and Exclusive Economic Zone of Namibia Act, 1990 (Act 3 of 1990), situated within a distance of fifty nautical miles from the low-water mark, and includes the sea between the high-water and low-water marks and internal waters as defined in section 1 of the Marine Traffic Act, 1981;"; (i) by the substitution in subsection ( 1) for the definition of "sea" of the following definition: " 'sea' means the water and the bed of the sea and includes the land between the high-water and low water marks; and (i) by the substitution in subsection (1) for the definition of "territorial waters of the Republic" of the following definition: "'territorial sea ofNamibia'means the territorial sea of Namibia, as defined in section 2 of the Territorial Sea and Exclusive Economic Zone of Namibia Act, 1990 (Act 3 of 1990);". 2. The following section is hereby substituted for section 7 of the principal Act: Klnspection of ship or tanker and of records, and taking of samples of oil. 7. Any person authorized thereto by the Minister and any member of the [South African Police or of the police force of the South African Railways and Harbours Administration] Namibian Police Force may go on board any ship or tanker in any part of the prohibited area to ascertain whether any document required by this Act to be carried on board such ship or tanker is so carried on board or, if [he] such authorized person has reasonable grounds for be lievmg that any provision of this Act has been or is being contravened in connection with such ship or tanker, may so go on board and inspect such ship or tanker or any part or cargo thereof, inspect and make copies of any documents or records kept in respect of such ship or tanker or in respect of its cargo or oil on board thereof, take No. 326 Act No. 24, 1991 Amendment of section 8 of Act 6 of 1981. Amendment of section 9 of Act 6 of 1981. Government Gazette 21 December 1991 PREVENTION AND CO MBA TING OF POLLUTION OF THE SEA BY OIL AMENDMENT ACT, 1991 5 samples of any oil on board such ship or tanker, take soundings of tanks, spaces and bilges and test any equipment on board such ship or tanker which is intended for use in preventing a dis charge of oil from such ship or tanker.". 3. Section 8 of the principal Act is hereby amended by the substitution for paragraph (b) of subsection (1) of the following paragraph: "(b) as little damage, loss or inconvenience as possible shall be caused in the exercise of the powers conferred by this subsection, and such compen sation as may be agreed upon or, failing agree ment, determined by a competent court, shall be paid from [the Fund] moneys appropriated by law for any damage, loss or inconvenience so caused.". 4. Section 9 of the principal Act is hereby amended (a) by the substitution for subparagraph (ii) of para graph (b) of subsection (2) of the following sub paragraph: "(ii) an amount deemed by the [Director General] Permanent Secretary to be suffi cient to compensate [the South African National Foundation for the Conservation of Coastal Birds, an] any organization re gistered under the National Welfare Act, 1965 (Act No.79 of 1965),as a welfare orga nization, or any similar organization ap proved by the Minister, and which has as its aim the conservation of the sea and animal life along the coast, for expenses incurred in rescuing, conveying, treating, feeding, cleaning and rehabilitating coastal birds polluted by oil discharged from the ship, tanker or offshore installation in question."; and (b) by the substitution for paragraph (a) of sub section (8) of the following paragraph: "(a) 'unit of account' means a Special Drawing Right as defined by the International Mo 6 Government Gazette 21 December 1991 No. 326 Act No. 24, 1991 PREVENTION AND COMBATING OF Amendment of section 12 of Act 6 of 1981. Amendment of section 19 of Act 6 of 1981. POLLUTION OF THE SEA BY OIL AMENDMENT ACT, 1991 netary Fund, and the value of such Special Drawing Right in [South African] Nami bian currency shall be calculated in accord ance with the method of valuation applied by the International Monetary Fund and which is in effect at the time when payment is made, or, in the event of an application in terms of section 12( 1 ), at the time when such application is considered by the court;". 5. Section 12 of the principal Act is hereby amended by the substitution for subsection (8) of the following subsection: "(8) For the purposes of this section 'court' means [ any division of the Supreme Court of South Africa] the High Court of Namibia.". 6. Section 19 of the principal Act is hereby amended (a) by the substitution for the proviso to subpara graph (i) of paragraph ( a) of subsection (I) of the following proviso: "Provided that such detention shall not exceed a period of seven days or such further period as the [ division of the Supreme Court of South Africa having jurisdiction] High Court of Namibia may authorize; and"; (b) by the substitution for the words preceding sub paragraph (aa) of paragraph (a)(ii) of subsection (l) of the following words: "(ii) on the authority of the [said division of the Supreme Court of South Africa] High Court of Namibia and subject to its directions-"; (c) by the substitution for paragraph (b) of sub section (I) of the following paragraph: "(b) on the authority of the [ said division of the Supreme Court of South Africa] High Court of Namibia and subject to its directions, cause to be seized and realized in satisfaction of those costs, any goods of such owner on such ship or ships."; and No. 326 Act No. 24, 1991 Amendment of section 20 of Act 6 of 1981, as amen ded by section I of Act 63 of 1987. Government Gazette 21 December 1991 PREVENTION AND COMBATING OF POLLUTION OF THE SEA BY OIL AMENDMENT ACT, 1991 7 (d) by the substitution for subsection (2) of the following subsection: "(2) The Minister shall cause any ship or goods detained or seized in terms of subsection ( 1) to be released forthwith from detention or seizure if the owner concerned pays the costs, makes the deposit or furnishes the guarantee ref erred to in that section or by virtue of a direction contem plated in section 12(2) deposits an amount with the Master [ concerned] of the High Court of Namibia or furnishes the said Master with a guarantee as contemplated in that section before the realization, in terms of the said subsection, of the ship or goods in question.". 7. Section 20 of the principal Act is hereby amended (a) by the substitution for subsection (1) of the following subsection: "( 1) [ Any division of the Supreme Court of South Africa] The High Court of Namibia, and within the limits of its jurisdiction as determined in section 29 of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944), but subject to the provisions of section 12(8), any magistrate's court1 shall have jurisdiction in respect of all causes of action arising out of the provisions of this Act."; (b) by the substitution for subsection (2) of the following subsection: "(2) [ Any division of the Supreme Court of South Africa] The High Court of Namibia, and within the limits of its jurisdiction as determined in section 92 of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944), any magistrate's court for a regional division, shall have jurisdiction in all criminal matters arising out of the provisions of this Act."; and (c) by the substitution for subsection (3) of the following subsection: "(3) No prosecution in respect of an offence under this Act shall be instituted except on the authority, which may be given in writing or o uovernment Uazette 21 December 1991 No. 326 Act No. 24, 1991 PREVENTION AND CO MBA TING OF Amendment of section 21 of Act 6 of 1981. Repeal of section 26 of Act 6 of 1981. as amended by section I of Act 59 of 1985. Amendment of section 27 of Act 6 of 1981. Amendment of section 30 of Act 6 of 1981, as amen ded by section 2 of Act 63 of 1987. POLLUTION OF THE SEA BY OIL AMENDMENT ACT, 1991 otherwise, of the [attorney-general having ju risdiction in the area of the court in question] Prosecutor-General.". 8. Section 21 of the principal Act is hereby amended by the substitution for paragraph (a) of subsection (1) of the following paragraph: "(a) outside a harbour as defined in [section 1(1) of the Railways and Harbours Control and Manage ment (Consolidation) Act, 1957 (Act No. 70 of 1957),] section 1, of, the National Transport Corporation Act, 1987 JAct 21 of 1987), or a f1shmg harbour as defined in section 1 · of the Sea Fisheries Act, 1973 (Act No. 58 of 1973), and within the prohibited area, render any ship having oil on board (whether as cargo or otherwise), or any tanker, incapable of sailing or manoeuvring under its own power;". 9. Section 26 of the principal Act is hereby repealed. 10. Section 27 of the principal Act is hereby amended by the deletion of subsection (2). 11. Section 30 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection: lil "(2) Any person convicted of an offence referred to (a) section 3(4), 8(2), 13(7), 24(5) or subsection (I)( a)(i), shall be liable to a fine not exceeding [ one thousand rand] RIO 000 or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment; (b) subsection ( I )(b )(iii), (b )(iv), ( c )(i), ( c )(ii), ( c )(iii), or (c)(iv), shall be liable to a fine not exceeding [two thousand rand] R20 000 ~r to imprisonment for a period not exceeding one year or to both such fine and such imprisonment; No. 326 Act No. 24, 1991 Substitution of certain expressions in Act 6 of 1981. Transitional provisions. Short title. Government Gazette 21 December I 991 PREVENTION AND COMBATING OF POLLUTION OF THE SEA BY OIL AMENDMENT ACT, 1991 9 (c) subsection (l)(a)(ii), shall be liable· to a fine not exceeding [five thousand rand] R40 000. or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment; (d) section 2(1) or 13(6) or subsection (l)(b)(i) or (b )(ii), shall be liable to a fine not exceeding [twenty thousand rand] R200 000 or to impri sonment for a period not exceeding five years or to both such fine and such imprisonment.". 12. The principal Act is hereby amended (a) by the substitution for the expression "Director General", wherever it occurs, of the expression "Permanent Secretary"; (b) by the substitution for the expression "territorial waters", wherever it occurs, of the expression "territorial sea"; and (c) by the substitution for the expression "the Re public", wherever it occurs, of the word "Na mibia". 13. Anything done before the commencement of this Act under a provision of the principal Act shall be deemed to have been done under any such provision, as amended by this Act. 14. This Act shall be called the Prevention and Combating of Pollution of the Sea by Oil Amendment Act, 1991. Printed by and obtainable from WINDHOEK PRINTERS & PUBLISHERS (PTY) LTD. P.O. Box 1707 - Windhoek 9000 - Namibia