Abstract
To provide an overview of the domestic legal mechanisms adopted by the Republic of South Africa to implement the Convention on International Interests in Mobile Equipment, the Aircraft Equipment Protocol and the Space Asset Protocol). The legal uncertainty surrounding the implementation of the Cape Town Convention relates to the manner in which certain declarations were made and these have been proven to be inconsistent not only with the Constitution of the Republic, but with Company and insolvency laws as well. These uncertainty has resulted in South Africa being excluded from enjoying the benefits flowing from being a State party to the Convention. Presently, South Africa is excluded from the Cape Town List with resultant commercial exclusion under the OECD arrangement. However, efforts are underway to correct the anomalies and suggestions for reforms have been forwarded to the relevant authorities.
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- 1.
Convention on International Interests in Mobile Equipment, 2001, Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment, 2001, and also Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Space Assets, 2012 and Luxembourg Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Railway Rolling Stock, 2007, http://www.unidroit.org/english/conventions/mobileequipment/main.html
- 2.
Annex to the Instrument of Ratification in respect of the Cape Town Convention, http://www.unidroit.org/english/conventions/mobileequipment/main.html
- 3.
See, e.g, Airline Association of Southern Africa, Discussion Document on the Incorporation of the Convention on International Interests in Mobile Equipment, 22 August 2012, on file with author.
- 4.
Roy Goode, Convention on International Interests in Mobile Equipment and Protocol Thereto on Matters Specific to Aircraft Equipment: Official Commentary, para. 2.1. (Revised edition 2008, Rome).
- 5.
Anthony Saunders, Anand Srinivasan, Ingo Walter & Jeffrey Wool, The Economic Implications of Secured Transactions Law Reform: A Case Study, University of Pennsylvania Journal of International Economic Law, Vol. 20, p.309, at 324.
- 6.
See, e.g. Chris Christodoulou, International Comparative Legal Guide, Aviation Law 2015: 3st Edition,, Global Legal Group, www.iclg.co.uk, accessed 28 June 2015.
- 7.
Anthony Saunders, Anand Srinivasan, Ingo Walter & Jeffrey Wool, The Economic Implications of Secured Transactions Law Reform: A Case Study, University of Pennsylvania Journal of International Economic Law, Vol. 20, p.309, at 324.
- 8.
So is disposition without value, voidable preferences, and undue preferences.
- 9.
Goode, Official Commentary, supra note 5, para. 4.132.
- 10.
Article IX (3) of the Protocol.
- 11.
see, Section 34, Constitution of the Republic of South Africa, 1994 read with Section 36 (“the limitations clause”).
- 12.
Juglal NO and Another v Shoprite Checkers (Pty) Ltd 2004 (5) SA 248 (SCA), at para 12.
- 13.
Goode, Official Commentary, supra note 5, para. 4.101.
- 14.
Art.XI of the Aircraft Protocol; Art.IX of the Rail Protocol; and art.XXI of the Space Assets Protocol)
- 15.
Prof. Souichirou Kozuka, Chap. 2 of this volume.
- 16.
Section 129, Companies Act of 2009, www.gov.za/pub/Acts, accessed 20 July 2014.
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Sekhula, P. (2017). The Cape Town Convention and Its Implementation in South African Air Law. In: Kozuka, S. (eds) Implementing the Cape Town Convention and the Domestic Laws on Secured Transactions. Ius Comparatum - Global Studies in Comparative Law, vol 22. Springer, Cham. https://doi.org/10.1007/978-3-319-46470-1_9
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