Space has fascinated mankind for millennia. For generations, the stars were mystical objects that became the subject of mythology, legends, and religion, and played a central role in communities. These impossibly far, twinkling lights that illuminated the cosmos seemed so far removed and out of reach that it seemed folly for man to even dream that they would someday become reachable.
The Roman property law maxim of "cuius est solum, eius est usque ad coelum et ad inferos" literally translates to: "He who owns the soil owns everything above (and below) from heaven (to hell)". Of course, the Romans had no concept of flight, never mind spaceflight.
This blog delves into the relevant treaties that govern space law, as well as the progress and challenges in the South African context.
Treaties that govern space law in South Africa
International outer space law is well documented between five main international treaties: The Outer Space Treaty, the Liability Convention, the Registration Convention, the Moon Agreement, and the Rescue Agreement.
South Africa has ratified all the above treaties and is therefore bound by their provisions. Article II of the Outer Space Treaty places an obligation on the state, as it provides that the state is responsible for assuring activities carried out by entities within its jurisdiction conform with the laws of outer space. It is only necessary to look as far as section 39(1)(b) of the Constitution of the Republic of South Africa of 1996 to realise that international law plays a very prominent role in South African law.
The method to fulfil this obligation placed on the South African state in terms of the Outer Space Treaty has historically been dealt with by passing national legislation. The Space Affairs Act 84 of 1993, the South African National Space Agency Act 36 of 2008, and the Non-Proliferation of Weapons of Mass Destruction Act 87 of 1993 were all passed by parliament in an attempt to fulfil the obligation placed on the South African state in terms of the Outer Space Treaty.
However, the space arena has drastically changed since the promulgation of the Space Affairs Act in 1993. In 1993, around 510 satellites were in orbit around Earth. By January 2026, a total of some 15 000 satellites were in orbit around Earth, Starlink alone consisting of over 9000 satellites. The main difference between the outer space environment in 1993 and 2026 is the privatisation and commercial exploitation of outer space. Whereas in the past only governments could fund elaborate space missions, the arena has drastically changed to private entities performing most of the space launches and controlling space objects. SpaceX, Blue Origin, and Virgin Galactic are all private entities that are currently dominating the commercialisation of outer space.
Legislation like the Space Affairs Act was promulgated in a period when only governmental entities were able to participate in space activities. As such, current legislation is extremely outdated and irrelevant to the current world (or dare I say "outer world") order. This was noticed by national governments around the world, and a process of promulgating new legislation to govern outer space activities was undertaken. France, the UK, Australia, and New Zealand all promulgated new space legislation post-2017. South Africa has also seen this need for increased regulation, and the process for drafting a new Outer Space Bill commenced.
On 20 June 2017, a parliamentary monitoring group met to consider the repeal of the Space Affairs Act and commence the process for drafting a new Outer Space Bill. Crucially, the sentiment at the time was that the Outer Space Bill should reach some sort of conformity with the United Nations (UN) Recommendations on National Legislation Relevant to the Peaceful Exploration and Use of Outer Space of 2013.
National Legislation Relevant to the Peaceful Exploration and Use of Outer Space
These recommendations provided a conceptual framework for states in the process of developing new national space legislation and recommend that the following should be covered.
Proper authorisation frameworks
States are internationally liable for damage caused by space objects in terms of Article VI and VII of the Outer Space Treaty, as well as Articles II and III of the Liability Convention. The implication of this provision is that the South African state is internationally liable for any damage caused by a space object. Without proper legislation, the state would not be able to reclaim the damage from the national.
Proper supervision of space activities of nationals
As alluded to above, the state is internationally liable for damage caused by a space object in terms of the Outer Space Treaty and the Liability Convention. Therefore, it is imperative for the state to exercise proper supervision of space activities. As a general point, proper supervision of space activities will also force space actors to responsibly engage in space activities. This would most likely be in the form of a licensing regime, where an entity can only engage in space activities after obtaining a license from an authorising authority.
National Registry
Article II of the Registration Convention requires the state to keep a national registry of space objects launched from its jurisdiction or launch facility. There is a further obligation on the state to inform the UN Secretary-General of all launched space objects on the register of the state (Article IV Registration Convention).
Insurance requirements
Space travel is an inherently high-risk activity. Therefore, it is logical for the state to require any entity that wants to engage in space activities to furnish proof of proper insurance obtained for such purposes. Australia, for example, formulated the Maximum Probable Loss Methodology, which is a scientific and mathematical calculation performed to determine the insurance requirements for each specific license. This approach has been adopted by many states and is done on a case-by-case basis.
Concerns and challenges
What is extremely concerning is that the Bill was to be published for public commentary by early 2018, but no progress has been made since to finalise it. The impact of this is twofold: Uncertainty regarding the regulatory framework exists for investors, which leads to reduced investment in the commercial exploitation of space. Secondly, entrepreneurs who want to commercially exploit space are left without a regulatory framework. It is therefore unsurprising that there is no major commercial entity exploiting the space sector in South Africa. Furthermore, there is uncertainty about a licensing regime or any requirements for obtaining a license in South Africa. Even if a foreign commercial entity wants to launch a space object from South Africa, there is extreme uncertainty as to the procedure for obtaining a license and the proper body for this purpose.
The Outer Space Bill represents a critical opportunity for South Africa to modernise its regulatory framework and align itself with contemporary developments in the global space economy. While it is concerning that no progress on the Bill has been made since 2017, international space law has since again changed with the signing of the Artemis Accords in 2021. The Outer Space Bill from 2017, in its current form, will need to be adapted again to conform to the current international law order.
Some critical issues could emerge as a result of South Africa's inaction. In the recent Starlink situation, SpaceX did not introduce Starlink in South Africa, citing BEE as a hurdle.
South Africa should welcome a piece of the global space economy, rather than refuse it. What should happen if a decommissioned satellite crashes back to Earth and causes damage to a business hub? What is the procedure if a foreign company converts its domicile status to South Africa and exploits the lack of regulations? South Africa will be internationally liable if damage is caused by that company's actions, which will inadvertently affect the taxpayer.
Conclusion
Prolonged delays in finalising the Bill undermine legal certainty, deter investment, and hinder both domestic and international participation in space activities. In an era where commercial space operations are rapidly expanding, timely and effective legislation is not merely desirable but essential. South Africa’s continued inaction risks leaving it behind in an increasingly competitive and strategically important domain.
About the author
Hein Steenberg completed his BCom Law degree, followed by an LLB and LLM in mercantile law, with a specific focus on space law at the North-West University. Hein will pursue his LLD in space law this year.
Last updated on 3 February 2026.