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[2017] ZAECPEHC 31
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Saharawi Arab Democratic Republic and Another v Owner and Charterers of the MV 'NM Cherry Blossom' and Others (15/6/2017) [2017] ZAECPEHC 31; 2017 (5) SA 105 (ECP); [2018] 1 All SA 593 (ECP) (15 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
no. 1487/17
Date
heard: 18/5/17
Date
delivered: 15/6/17
Reportable
In
the matter between:
THE
SAHARAWI ARAB DEMOCRATIC
REPUBLIC First
Applicant
THE
POLISARIO
FRONT Second
Applicant
and
THE
OWNER AND CHARTERERS OF THE
MV
‘NM CHERRY
BLOSSOM’ First
Respondent
THE
MASTER OF THE MV ‘NM CHERRY BLOSSOM’ Second
Respondent
THE
PURCHASER OF THE CARGO LADEN ON BOARD
THE
MV ‘NM CHERRY
BLOSSOM’ Third
Respondent
OCP
SA Fourth
Respondent
PHOSPHATES
DE BOUCRAA
SA Fifth
Respondent
THE
MINISTER OF INTERNATIONAL RELATIONS
AND
COOPERATION Sixth
Respondent
JUDGMENT
MBENENGE
ADJP, PLASKET and GOOSEN JJ:
[1]
The territory of Western Sahara is said to be the only African
territory still subject to colonial rule. This application has
its
genesis in that far off land. On 1 May 2017, the MV ‘NM Cherry
Blossom’ entered the port of Coega on the outskirts
of Port
Elizabeth to take on bunkers. Aboard the vessel was a cargo of
phosphate that had been mined in the Boucraa mine in the
northern
part of Western Sahara and loaded at the port of El Aauin. The cargo,
it transpired, was en route to the port of Tauranga
in New Zealand,
having been sold to Ballance Agri-Nutrients Ltd (Ballance), a company
that manufactures fertiliser.
[2]
On that day, an ex parte application was brought before Revelas J by
the applicants, the Saharawi Arab Democratic Republic (the
SADR) and
the Polisario Front (the PF). She granted an order which in part
provided:
‘
1 That a rule nisi issue
calling on all interested parties to show cause on
18
MAY 2017
at 09h30 or as
soon thereafter as the matter may be heard, why an order should not
be made in the following terms, that:
1.1
The first to fifth respondents
be interdicted and restrained from taking the cargo of phosphate
presently on board the ‘NM
Cherry Blossom’ (“
the
cargo”
) from the
jurisdiction of the Court in Algoa Bay, pending the determination of
the applicants’ action for,
inter
alia
, delivery of the cargo
(“
the action”
),
save in the event of suitable security being furnished to the
applicants in terms of paragraph 1.4 below.
1.2
The sheriff is directed and
authorised to attach the cargo pending the determination of the
action.
1.3
The sheriff is directed and
authorised to remove the ship’s registration documents and
trading certificates.
1.4
The first to fifth respondents
shall be released from the above interdict, and the sheriff shall
release the cargo from attachment
and return the registration
documents and trading certificates, in the event that suitable
security is furnished to the applicants
for their claim, which is
from a first-class South African bank or other equivalent financial
or insurance institution, and contains
at least the following
provisions:
1.4.1 a submission from the first to
fifth respondents to the jurisdiction of the South African courts for
the purposes of the action;
and
1.4.2 in the event that the applicants
obtain a final order for the delivery and/or possession of the cargo,
the guarantor shall
pay to the applicants the market value of the
cargo in Port Elizabeth as of the date of this order.
1.5
In the event that the parties
are not able to agree on the terms of the security, including the
market value of the cargo, they
are given leave to apply to this
Court for directions.
1.6
In the event that security is
given to obtain the release of the cargo from the attachment, then
that security and the proceeds
thereof shall, for all purposes, be
deemed to be the cargo, and the cargo shall be deemed to be under
attachment in the jurisdiction
of this Court at the instance of the
applicants.
[3]
Paragraph 2 of the order stated that paragraphs 1.1 to 1.6 ‘shall
operate as an interim order with immediate effect pending
the return
date of the rule nisi’. The remainder of the order concerned
service of both the rule nisi and the summons in
the vindicatory
action to be instituted in due course, access to certain information
held by the master of the ship and the setting
of time periods for
the filing of papers and heads of argument prior to the return day.
[4]
Because of both the novelty of the matter and the complexity of the
international law issues that arise, the Acting Judge President
constituted a full bench to hear the matter on the return day.
The
parties and the issues
[5]
The second applicant, the PF, is a national liberation movement. It
was established in 1973 with the aims of ending Spanish
colonial rule
of Western Sahara (then known as Spanish Sahara) and of representing
the people of Western Sahara. One of its fundamental
objectives is to
seek self-determination for the people of Western Sahara.
[6]
The PF was recognised by the United Nations (the UN) as
representative of the people of Western Sahara in relation to their
right to self-determination. It was also a signatory to tripartite
agreements with the UN and the Kingdom of Morocco (Morocco)
in
relation to the holding of a referendum concerning
self-determination. That process continues in fits and starts.
[7]
On 27 February 1976, the PF proclaimed the SADR as a sovereign state.
The SADR is not a member of the UN but it is a member
of the African
Union (AU). It is recognised by 45 members of the UN, including South
Africa.
[8]
The Constitution of the Saharawi Arab Democratic Republic was adopted
by the 14
th
Congress of the PF held from 16 to 20 December 2015. Article 17
provides that public property belongs to the people. Public property,
the article continues, includes ‘the mineral wealth, energy
resources, underground wealth, territorial waters and other resources
defined by the law’.
[9]
Only two of the respondents opposed the confirmation of the rule
nisi. They are the fourth respondent, OCP SA (OCP) and the
fifth
respondent, Phosphates de Boucraa SA (Phosboucraa). The other
respondents, it would appear, abide our decision.
[10]
OCP is a company registered in accordance with the laws of Morocco.
It is the largest exporter of phosphate rock and phosphoric
acid, and
producer of fertiliser extracts, in the world. The Moroccan
government is its major shareholder. It owns 94.12 per cent
of OCP’s
shares. OCP mines phosphate in three areas of Morocco and enjoys a
monopoly over phosphate reserves in that country.
[11]
Phosboucraa is also a Moroccan company. It is a wholly owned
subsidiary of OCP. It operates the phosphate mine at Boucraa in
Western Sahara. It is common cause that the phosphate that is the
subject of this case was mined by Phosboucraa from its Boucraa
mine
and sold to Ballance.
[12]
Mr Otmane Bennani Smires, the Executive Vice-President and General
Counsel of the OCP Group, stated in the answering affidavit
that ‘OCP
and Phosboucraa support and act fully under the principle enshrined
in Moroccan law that Morocco exercises sovereignty
over the Southern
Provinces of Morocco where Phosboucraa carries out its operations’
and that both companies ‘conduct
their operations and
activities in compliance with Moroccan law’.
[13]
The essence of the case for the SADR and the PF is that the phosphate
aboard the MV ‘NM Cherry Blossom’ is part
of the national
resources of Western Sahara and belongs to its people; and that OCP
and Phosboucraa misappropriated the phosphate
and sold it, having no
right to do so. The SADR and the PF intend to institute a vindicatory
action in respect of the cargo and
the purpose of these proceedings
is to ensure that it remains within the jurisdiction of this court
(except if suitable security
is furnished) until the vindicatory
action is finalised.
[14]
They therefore claim an entitlement to an interim interdict pending
the final determination of their right of ownership of
the cargo. We
shall consider the elements of an interim interdict pending a
vindicatory action below.
[15]
OCP and Phosboucraa, on the other hand, state that Phosboucraa was
entitled to mine the phosphate and to sell it. Its rights
to do both
are derived from the law of Morocco. It also claimed to have mined
and sold the phosphate in accordance with international
law. Two
further defences were raised. They are that in terms of the common
law act of state doctrine, the dispute before us is
not justiciable
and secondly, that in terms of the Foreign State Immunity Act 87 of
1981, this court is precluded from deciding
the matter because the
laws of a sovereign state, Morocco, are implicated.
[16]
In this judgment we shall set out the relevant historical background,
consider the international law that applies in relation
to the
ownership of and exploitation of the natural resources of Western
Sahara, decide on whether the SADR and the PF have established
the
requirements of an interim interdict and, if so, consider the
application of the act of state doctrine and state immunity,
and
their consequences.
The
background
[17]
Western Sahara lies on the north-western coast of Africa. It is
bordered by Morocco to the north, Algeria to the north-east
and
Mauritania to the east and south. It is a sparsely populated desert
region. The indigenous population, the Sahawari people,
were largely
nomadic peoples who were organised socially and politically in tribes
under the rule of chiefs. As a result of the
conflict that we shall
describe in due course, many now live in refugee camps in Algeria.
[18]
The Sahawari people are a distinct people. They have their own
culture and customs. They speak Hassaniya Arabic, which is closer
to
the Arabic spoken in Mauritania than to the Arabic spoken in Morocco.
[19]
Western Sahara was a Spanish colony – and later a province of
Spain – from 1884 (at the height of the so-called
European
scramble for Africa) until 1976 when Spain, in effect, abandoned
Western Sahara and offered it to Morocco and Mauritania.
(Prior to
the formal withdrawal of Spain, in October 1975, Moroccan troops had
already entered Western Sahara.)
[20]
Prior to this turn of events, it had been expected that a referendum
would be held to determine the future of the territory
on
decolonisation. The UN General Assembly had, in 1966, adopted
resolution 2229 (XXI) in which it had ‘re-affirmed’
the right to self-determination of the people of Spanish Sahara and
requested Spain to hold a referendum under UN auspices in order
to
enable ‘the indigenous population of the Territory to exercise
freely its right to self-determination’.
[21]
This request was made annually thereafter for a number of years. In
August 1974, Spain announced that it would hold a referendum
under UN
auspices during the first six months of 1975 so as to enable the
indigenous people of the territory to exercise their
right to
self-determination. Morocco and Mauritania then asked the UN to
postpone the referendum while their claims to Western
Sahara were
considered. The UN agreed to the postponement of the referendum. It
is yet to be held.
[22]
When Spain agreed to give Western Sahara to Morocco and Mauritania,
the PF took up arms. Thus began a war that was to last
16 years.
Although Mauritania withdrew from Western Sahara in 1979, the war
fought by the PF and Morocco continued until a cease-fire
was agreed
to in 1991.
[23]
During the course of the war, Morocco built a wall, or berm, that ran
for 2 700 kilometres through the middle of Western
Sahara and
into the south-eastern part of Morocco. About 80 per cent of Western
Sahara is controlled by Morocco. It does not control
what has been
referred to in the founding affidavit as a ‘liberated zone’
to the east of the berm. Morocco exerts its
control through the
deployment of about 100 000 troops. It has also engaged in a
substantial program of settlement of Moroccans
in Western Sahara.
[24]
In 1988, the PF and Morocco agreed in principle to a UN settlement
proposal which postulated a cease-fire and the holding of
a
referendum to enable the indigenous people of Western Sahara to
choose between independence and integration into Morocco.
[25]
The settlement plan was refined over the following years. In April
1991, the UN Security Council approved the settlement plan,
established the UN Mission to the Referendum in Western Sahara
(MINURSO) and established a time-table for the transitional period
preceding the referendum.
[26]
The first MINURSO observers arrived in El Aauin in September 1991. On
6 September 1991, the cease-fire was announced and military
operations by both sides were stopped.
[27]
The process of identifying who would vote in the referendum was
painfully slow, stalling completely from time to time. It was
only
completed in December 1999. Eventually, the entire process ground to
a halt. Morocco then said that it was unwilling to proceed
with a
referendum that offered the choice of independence, proposing instead
that Western Sahara be integrated into Morocco as
an autonomous zone.
[28]
Various alternatives to the agreed settlement plan have been proposed
over the years but not accepted by one or the other of
the
protagonists. Nearly 16 years after the cease-fire, no referendum has
been held. A new round of negotiations is set to commence
soon.
The
applicable international law
[29]
The historical process of the colonisation of Western Sahara, its
abandonment by Spain and its occupation by Morocco has been
outlined
above. In this section of the judgment, we shall consider the
international law that applies in respect of the right to
self-determination of the people of Western Sahara, the position of
Morocco in respect of Western Sahara and the position in respect
of
its natural resources and their exploitation.
[30]
Before doing so, it is necessary to comment on the law applicable in
this case and the place of international law in South
African law.
[31]
At its core, this is a case that concerns the ownership of the cargo
aboard the MV ‘NM Cherry Blossom’, albeit
that at this
stage, the central enquiry is whether the SADR and the PF have
established a prima facie right to the cargo, which
may even be open
to some doubt.
[32]
In order to engage with that issue, it is necessary to consider
international law because rules of international law (as well
as
judicial decisions) have determined the status of Western Sahara, the
status of Morocco in relation to Western Sahara, the ownership
of
Western Sahara’s natural resources and the conditions under
which they may be exploited.
[33]
Section 232 of our Constitution provides:
‘
Customary international law is
law in the Republic unless it is inconsistent with the Constitution
or an Act of Parliament.’
Western
Sahara: the right to self-determination
[34]
In terms of article 73 of the UN Charter, colonial powers undertook
to develop self-government in the territories they administered.
The
Charter also affirmed the principle of self-determination of
peoples.
[1]
In 1963, the UN
added Western Sahara to its list of non-self-governing territories.
The effect of this designation was to ‘confer’
the right
of self-determination on its people. Dugard, writing in 1994, stated
that while the International Covenant on Civil and
Political Rights
affirms that all people have this right, ‘it appears that
customary international law recognises such a
right only in respect
of territorial units that have been designated as non-self-governing
territories by the United Nations’.
[2]
[35]
On 14 December 1960, the UN General Assembly adopted resolution 1514
(XV) titled the Declaration on the Granting of Independence
to
Colonial Countries and Peoples.
[3]
The effect of the resolution was to outlaw colonialism.
[4]
It proclaimed ‘the necessity of bringing to a speedy and
unconditional end colonialism in all its forms and
manifestations’.
[5]
To
this end, it provided:
[6]
‘
Immediate steps shall be taken,
in Trust and Non-Self-Governing Territories or all other territories
which have not yet attained
independence, to transfer all powers to
the peoples of those territories, without any conditions or
reservations, in accordance
with their freely expressed will and
desire, without any distinction as to race, colour or creed, in order
to enable them to enjoy
complete independence and freedom.’
[35]
In 1965, the UN General Assembly called upon Spain to decolonise
Western Sahara and to enter into negotiations in order to
do so.
Spain declared itself willing to do so and to apply ‘the
principle of self-determination’. UN General Assembly
resolution 2229 (XXI) of 20 December 1966 re-affirmed the
‘inalienable right of the peoples of . . . Spanish Sahara to
self-determination
in accordance with General Assembly resolution
1514 (XV)’.
[7]
[36]
As Spain got closer to departing from Western Sahara, Morocco and
Mauritania asked the UN to consider their claims to the territory.
By
resolution 3292 (XXIX) of 13 December 1974, the General Assembly
requested an advisory opinion from the International Court
of Justice
(the ICJ) on whether Western Sahara was, at the time of colonisation,
a territory that belonged to no-one –
terra
nullius
– and, if it was not, what were the legal ties between the
territory and Morocco and Mauritania.
[37]
The ICJ’s advisory opinion was handed down on 16 October
1975.
[8]
It found that at the
time of colonisation Western Sahara was not
terra
nullius
.
As to the second question, it found that while certain ties existed
between the territory and Morocco and Mauritania respectively,
they
fell short of territorial sovereignty. It concluded:
‘
Thus the Court has not found
legal ties of such a nature as might affect the application of
resolution 1514 (XV) in the decolonisation
of Western Sahara and, in
particular, of the principle of self-determination through the free
and genuine expression of the will
of the peoples of the Territory.’
[38]
Morocco’s occupation of Western Sahara has not affected the
status of the territory: Hans Corell, the UN Under-Secretary-General
for Legal Affairs, gave an opinion to the President of the UN
Security Council in which he stated that Spain was not able to
transfer
sovereignty over the territory to Morocco and Mauritania in
1975 and that its transfer of administrative authority ‘did not
affect the international status of Western Sahara as a
Non-Self-Governing Territory’.
[38]
Resolution 34/37 (1979) of the UN General Assembly recognised the PF
as the representative of the Saharawi people and confirmed
their
‘inalienable right’ to self-determination and
independence.
[39]
Dugard states ‘[t]hat the right to self-determination is a
legal right under international law is no longer seriously
challenged’.
[9]
It is
apparent from what we have set out above that apart from Western
Sahara having been recognised as a non-self-governing territory
in
terms of article 73 of the UN Charter, with the concomitant
recognition of the right of its people to self-determination, over
a
period in excess of 50 years resolution after resolution of the UN
General Assembly has recognised, affirmed and re-affirmed
that the
people of Western Sahara indeed enjoy this right.
The
position of Morocco
[40]
The ICJ’s judgment is clear: Morocco has no claim to
sovereignty over Western Sahara. Its claim to sovereignty as a result
of its occupation of the territory is incompatible with the status of
Western Sahara as a non-self-governing territory. Furthermore,
it
acquired control of the territory by force. This, as a means of
acquiring sovereignty, is contrary to customary international
law.
[10]
[41]
That Morocco has no legitimate claim to sovereignty over Western
Sahara was recognised in
R
(on application of Western Sahara Campaign UK) v Revenue and Customs
Commissioners & another
,
[11]
a case concerned with the validity of preferential trade tariffs in
respect of goods classified as being of Moroccan origin that
in fact
emanated from Western Sahara, and a European Union and Moroccan
fisheries agreement insofar as it related to the waters
of Western
Sahara. In considering the position of Morocco in relation to Western
Sahara, Blake J held:
[12]
‘
The present position is
different. Morocco may claim Western Sahara to be part of its
sovereign territory but the international
community generally and the
European Union, in particular, does not recognise that claim. Indeed,
the Western Sahara is one of
the few pieces of disputed territory
where a claim by a neighbouring state to sovereignty has been
examined by the International
Court of Justice. In my judgment,
Morocco's claim to the territory must be based on:
i)
the pre-existing links before 1975 that it relied on its submissions
to the International Court; or
ii)
the November 1975 agreement with the former colonial power; or
iii)
its military occupation in December 1975; or
iv)
a free act of self-determination by the people of Western Sahara.
However, the first basis of claim was
considered and rejected by the Court in its Advisory Opinion of 16
October 1975 (
Western Sahara
Advisory Opinion
ICJ
Reports 1975 p.12 at [162]). The second and third bases would
unambiguously conflict with the principles of the UN Charter.
A
colonial power cannot gift an occupied territory to a neighbouring
state for some reason of diplomatic advantage, particularly
where it
has been directed by the UN to supervise the process whereby the
72,000 odd people of the Western Sahara should express
their right to
self-determination. Equally, unauthorised military occupation cannot
found the basis for legitimate territorial
claims. The fourth
potential basis of sovereignty has not come to pass; despite long
engagement by the UN no free expression of
the will of the Saharawi
people has yet been undertaken.’
[42]
The European Court of Justice reached much the same conclusion in
Council
of European Union v Polisario Front
,
[13]
a matter also concerned with an agricultural goods and fisheries
agreement between the EU and Morocco that impacted on the natural
resources of Western Sahara. The court held:
[14]
‘
In view of the separate
and distinct status accorded to the territory of Western Sahara by
virtue of the principle of self-determination,
in relation to that of
any State, including the Kingdom of Morocco, the words “territory
of the Kingdom of Morocco”
set out in Article 94 of the
Association Agreement cannot, as the Commission maintains and as the
Advocate General essentially
pointed out in points 71 and 75 of
his Opinion, be interpreted in such a way that Western Sahara is
included within the territorial
scope of that agreement.’
[43]
From the above, we conclude that howsoever Morocco’s presence
in Western Sahara may be described, it does not exercise
sovereignty
over the territory.
Ownership
and exploitation of natural resources
[44]
UN General Assembly resolution 1514 (XV) of 14 December 1960 had, in
its preamble, affirmed that ‘peoples may, for their
own ends,
freely dispose of their natural wealth and resources . . .’.
Resolution A/1803 (XVII) of 14 December 1962, concerning
Permanent
Sovereignty over Natural Resources, recognised in article 1 the
‘right of peoples and nations to permanent sovereignty
over
their natural wealth and resources’ and that this right should
be exercised ‘in the interest of their national
development and
of the well-being of the people of the State concerned’.
Article 7 provided:
‘
Violation of the rights of
peoples and nations to sovereignty over their natural wealth and
resources is contrary to the spirit
and principles of the Charter of
the United Nations and hinders the development of international
co-operation and the maintenance
of peace.
’
[45]
Hans Corell’s opinion has been mentioned above in relation to
the right to self-determination. He had been asked for
an opinion by
the President of the UN Security Council on the legality of contracts
entered into by Morocco and foreign companies
to permit the companies
to explore for oil off the Western Saharan coast. His opinion focused
not only on the legality of these
exploration contracts in terms of
international law but also considered the conditions under which the
exploitation of natural
resources in Western Sahara would be lawful.
In doing so, he considered the UN Charter, UN General Assembly
resolutions, the case
law of the ICJ and the practice of states.
Having done so, he concluded his opinion thus:
‘
24 The recent State practice,
though limited, is illustrative of an opinio juris on the part of
both administering Powers and third
States: where resource
exploitation activities are conducted in Non-Self-Governing
Territories for the benefit of the peoples of
those Territories, on
their behalf or in consultation with their representatives, they are
considered compatible with the Charter
obligation of the
administering Power and in conformity with the General Assembly
resolutions and the principle of “permanent
sovereignty over
natural resources” enshrined therein.
25 The foregoing legal principles
established in the practice of States and the United Nations pertain
to economic activities in
Non-Self-Governing Territories, in general,
and mineral resource exploitation, in particular. It must be
recognised, however, that
in the present case, the contracts for oil
reconnaissance and evaluation do not entail exploitation or the
physical removal of
the mineral resources, and no benefits have as
yet accrued. The conclusion is, therefore, that, while the specific
contracts which
are the subject of the Security Council’s
request are not in themselves illegal, if further exploration and
exploitation
activities were to proceed in disregard of the interests
and wishes of the people of Western Sahara, they would be in
violation
of the principles of international law applicable to
mineral resource activities in Non-Self-Governing Territories.’
[46]
By resolution 61/123 of 14 December 2006, the General Assembly
re-affirmed the ‘right of peoples of Non-Self-Governing
Territories to self-determination’ and ‘their right to
the enjoyment of their natural resources and their right to
dispose
of those resources in their best interest’. Article 8
recognised the ‘permanent sovereignty of the peoples
of the
Non-Self-Governing Territories over their natural resources’
and article 9 urged administering powers to ‘take
effective
measures to safeguard and guarantee the inalienable right of the
peoples of Non-Self-Governing Territories to their natural
resources
and to establish and maintain control over the future development of
those resources’.
[15]
[47]
Flowing from the resolutions that have consistently recognised the
right of peoples of non-self-governing territories to sovereignty
over the natural resources of their territories, the UN has developed
a legal framework setting conditions in terms of which natural
resources may lawfully be exploited. In essence, following the Corell
opinion, administering powers may only allow the exploitation
of
natural resources on behalf of the peoples of a territory if to do so
will be for the benefit of the peoples of that territory
or in
consultation with their representatives.
[48]
OCP and Phosboucraa do not claim to have mined the phosphate in
Western Sahara with the consent of the people of the territory.
They
do not and cannot claim to do so on behalf of its people. Their claim
to mine phosphate for the benefit of the people is disputed
by the
SADR and the PF: as most of the Sahrawi people live to the east of
the berm or in refugee camps in Algeria, those who may
benefit from
the mining of phosphate are not the ‘people of the territory’
but, more likely, Moroccan settlers.
Have
the requirements of an interim interdict been established?
[49]
An applicant for an interim interdict is, generally speaking,
required to establish four elements. They are: (a) a prima facie
right, which may even be open to some doubt; (b) an apprehension of
irreparable harm if the interdict is not granted; (c) a balance
of
convenience in favour of the grant of the interdict; and (d) the
absence of any other satisfactory remedy.
[16]
As the SADR and the PF apply for an interim interdict pending a
vindicatory action, they ‘need not allege irreparable loss
inasmuch as there is a presumption, which may be rebutted by the
respondent, that the injury is irreparable’ and nor need
they
show that they have no other satisfactory remedy.
[17]
[50]
The proper approach to determining whether an applicant for an
interim interdict has crossed the threshold by establishing
a prima
facie right which may be open to some doubt was set out by Clayden J
in
Webster
v Mitchell
[18]
as follows:
‘
The use of the phrase “prima
facie established though open to some doubt” indicates I think
that more is required than
merely to look at the allegations of the
applicant, but something short of a weighing up of the probabilities
of conflicting versions
is required. The proper manner of approach I
consider is to take the facts as set out by the applicant, together
with any facts
set out by the respondent which the applicant cannot
dispute, and to consider whether, having regard to the inherent
probabilities,
the applicant could on those facts obtain final relief
at a trial. The facts set up in contradiction by the respondent
should then
be considered. If serious doubt is thrown on the case of
the applicant he could not succeed in obtaining temporary relief, for
his right, prima facie established, may only be open to “some
doubt”. But if there is mere contradiction, or unconvincing
explanation, the matter should be left to trial and the right be
protected in the meanwhile, subject of course to the respective
prejudice in the grant or refusal of interim relief.’
[51]
The SADR and the PR have established on a prima facie basis that, to
use the terminology of UN General Assembly resolutions,
sovereignty
over the cargo of phosphate is vested in the people of Western
Sahara. In other words, the people of Western Sahara
own the cargo.
The defence on the merits that OCP and Phosboucraa have raised is
that they mined and sold the phosphate in accordance
with the UN
framework for the lawful exploitation of the natural resources of a
non-self-governing territory. But this averment
does not stand
undisputed: the SADR and the PF state that the phosphate was
exploited without consultation with the people of Western
Sahara,
without their consent and that they do not and will not benefit from
its exploitation. On the test set out in
Mitchell
v Webster
,
it seems to us, the threshold has indeed been crossed – a prima
facie right to ownership of the phosphate, which may be
open to some
doubt, has been established by the SADR and the PF.
[52]
We turn now to the balance of convenience. By this is meant ‘the
prejudice to the applicant if the interdict be refused,
weighed
against the prejudice to the respondent if it be granted’.
[19]
It is no doubt so that great inconvenience and cost will be
occasioned for the respondents by the interdict being granted. That
can, however, be allayed to an extent by the furnishing of security.
On the other hand, if the MV ‘NM Cherry Blossom’
sails
from Algoa Bay, that will, for all practical purposes, spell the end
of the proposed vindicatory action. In these circumstances,
it seems
to us, the balance of convenience favours the SADR and the PF.
The
non-justiciability defences raised by OCP and Phosboucraa
[53]
OCP and Phosboucraa found their opposition to the confirmation of the
rule
nisi
upon two separate but interrelated grounds. On the basis of each of
these grounds it is contended that the applicants’ proposed
vindicatory action is non-justiciable by a domestic South African
court. It is submitted that the issue of justiciability of the
envisaged vindicatory action must be determined at this stage of the
proceedings and that the court ought to discharge the rule.
[54]
The two grounds pleaded are, first, the act of state doctrine which
is a common law ground of non-justiciability and, secondly,
the
principle of state immunity, which is a customary international law
rule incorporated in our statutory law by virtue of s 2
of the
Foreign State Immunities Act.
[55]
The two grounds are, to a limited extent, interrelated. Thus, both
have as foundation the principle of the sovereign independence
and
equality of states. That principle finds its expression in the
concept of comity of nations, a foundational concept in the
conduct
of South Africa’s international relations.
[56]
The act of state doctrine and state immunity are, nonetheless,
distinct grounds upon which the justiciability of a suit is
to be
determined. In essence, a claim to state immunity, if successful, has
the effect that a domestic court does not have jurisdiction
to
adjudicate the matter before it, whereas reliance upon the act of
state doctrine concerns the justiciability of the suit before
the
domestic forum notwithstanding its jurisdiction to adjudicate on the
matter before it. For this reason we consider it appropriate
to first
deal with the claim to state immunity before addressing the defence
founded upon the act of state doctrine. Before
turning to
consideration of the relevant legal principles it is appropriate to
outline briefly those facts which are common cause
between the
parties or at least not in dispute and which are relevant to the
non-justiciability defences.
[57]
The first is that the phosphate cargo at issue in this matter was
mined at the Boucraa mine situated in Western Sahara and
outside of
the international borders of Morocco. The SADR claims sovereignty
over territory where the mine is situated and in respect
of which the
Saharawi people, represented by the PF, claim a right of
self-determination. The SADR and Morocco are both recognised
as
states by South Africa.
[58]
Morocco exercises
de
facto
administrative control over that portion of the territory of Western
Sahara in which the mine is situated. Moroccan law is applied
there
by Morocco. The exercise of administrative control and the
application of Moroccan law to the portion of the territory of
Western Sahara under Moroccan control is the subject of dispute and,
as the historical outline set out above indicates, is at the
heart of
the dispute as to the exercise of the right to self-determination by
the Saharawi people.
[59]
OCP and Phosboucraa are corporate bodies with separate legal
existence from the state of Morocco. They operate the Boucraa
mine in
accordance with Moroccan law, having been granted rights to do so in
accordance with Moroccan law. Both claim that the
exploitation of the
mineral accords with the UN framework governing the exploitation of
resources in a non-self-governing territory.
State
immunity
[60]
State immunity is a rule of international law which serves to
preclude a state or its representatives from being sued or prosecuted
in foreign courts. It accordingly precludes a domestic court from
exercising adjudicative and enforcement jurisdiction in matters
in
which a foreign state is a party.
[20]
[61]
In
Minister
of Justice and Constitutional Development & others v Southern
Africa Litigation Centre & others
[21]
(the
Al
Bashir
judgment) the Supreme Court of Appeal set out the principle as it
applies in South African law as follows:
‘
This immunity is available when
it is sought to implead a foreign state, whether directly or
indirectly, before domestic courts,
and also when action is taken
against state officials acting in their capacity as such. They enjoy
the same immunity as the state
they represent. This is known as
immunity ratione materiae (immunity attaching to official acts). In
addition, heads of state and
certain other high officials of state
enjoy immunity ratione personae (immunity by virtue of status or
office held at any particular
time). This form of immunity terminates
when the individual demits or is removed from office. The country
concerned may waive either
form of immunity.’
[62]
This rule of customary international law finds expression in s 2 of
the Foreign State Immunities Act which provides as follows:
‘
(1) A foreign state shall be
immune from the jurisdiction of the courts of the Republic except as
provided in this act or in any
proclamation issued thereunder.
(2) A court shall give effect to the
immunity conferred by this section even though the foreign state does
not appear in the proceedings
in question.’
[63]
Sub-section 2 recognises the concept of indirect impleading as
articulated in the
Al-Bashir
judgment. As to what constitutes indirect impleading there is no
direct South African authority on the point. In order to determine
what constitutes indirect impleading for the purposes of application
of the principle, regard must be had to customary international
law
and, in particular, the manner in which the principle is interpreted
and applied.
[64]
In terms of s 232 of the Constitution customary international law is
automatically incorporated into South African law unless
it is
inconsistent with the Constitution or an Act of Parliament. Section
233 of the Constitution further provides:
‘
When interpreting
any legislation, every court must prefer any reasonable
interpretation of the legislation that is consistent with
international law over any alternative interpretation that is
inconsistent with international law.’
[65]
Reference to customary international law does not however involve a
development of that law. As was stated in
Al-Bashir
[22]
,
‘
Development of customary
international law occurs in international courts and tribunals, in
the contents of international agreements
and treaties and by general
acceptance by the international community of nations in their
relations with one another as to the
laws that govern that community.
However tempting it may be to a domestic court to seek to expand the
boundaries of customary international
law by domestic judicial
decision, it is not in my view permissible for it to do so.’
[66]
In
Belhaj
& others v Straw & others
;
Rahmatulah
v Minister of Defence & others
[23]
(Belhaj)
the Supreme Court of the United Kingdom was called upon to consider
defences based on a claim to state immunity and the doctrine
of a
foreign act of state. The defences were raised in two cases in which
the claimants sought to establish liability in tort for
the alleged
complicity of officials of the government of the United Kingdom in
procuring the claimants’ detention by Malaysian
officials in
Kuala Lumpur, by Thai and United States agents in Bangkok and their
unlawful rendition to Libya where the claimants
were subjected to
treatment amounting to torture.
[67]
The Supreme Court dismissed the plea of state immunity on the basis
that the foreign states (Malaysia, Thailand, the United
States and
Libya) were not impleaded and their legal position was not affected
either directly or indirectly by the claims in tort
advanced against
officials of the government of the United Kingdom. In arriving at
this conclusion, the court considered what is
meant by indirect
impleading. Lord Sumption noted:
[24]
‘
The second case comprises
actions in which a state, without being a party, is said to be
“indirectly impleaded” because
some relevant interest of
that state is directly engaged. In England, the only cases in which a
foreign state has been held to
be indirectly impleaded in this way
are those involving the assertion of some right over property of that
state situated within
the jurisdiction of the English courts.’
[68]
The rationale for this is that both English and international law
treat a claim against a state’s property as being tantamount
to
a claim against the state.
[25]
The court was however called upon to address an argument supporting
an extension of the ambit of state immunity. The appellants
there
argued that a state is to be treated as being indirectly impleaded in
‘any case where the issues would require the
court to
adjudicate on its legal rights or liabilities, albeit as between
other parties’.
[26]
[69]
In support of this argument reliance was placed on an analogous
approach in matters which served before the ICJ in two cases,
namely
Monetary
Gold Removed From Rome
[27]
(
Monetary
Gold
)
and
East
Timor (Portugal v Australia)
[28]
(
East
Timor
).
Reliance was also paced on the terms of the UN Convention on
Jurisdictional Immunities of States and their Property (2004).
[70]
In the present matter similar arguments were advanced in support of a
finding that the rights and interests of Morocco are
indirectly
impleaded in the envisaged vindicatory action to be brought by the
applicants. It is accordingly instructive to consider
the reasoning
adopted in
Belhaj
in relation to these arguments.
[71]
Neither
Monetary
Gold
nor
East
Timor
concerned questions of state immunity. In
Monetary
Gold
the ICJ was concerned with a claim brought by the United Kingdom to
apply Albanian gold stored at the Bank of England towards satisfying
a judgment which it had obtained against Albania before the ICJ.
Italy prosecuted a competing claim to apply the same gold in
satisfaction of its claims against Albania although it did not have a
judgment in its favour. The ICJ declined to adjudicate the
dispute as
between the United Kingdom and Italy because it could not do so
without deciding that Italy’s claims against Albania
were
well-founded. This it could not do in litigation to which Albania was
not a party, in circumstances in which Albania’s
legal
interests formed the subject matter of the dispute to be determined.
The court stated:
[29]
‘
Where, as in the present case,
the vital issue to be settled concerns the international
responsibility of a third state, the court
cannot, without the
consent of that third state, give a decision on that issue binding
upon any state, either the third state,
or any of the parties before
it.’
[72]
The
East
Timor
case concerned a claim by Portugal, the administering authority of
the territory then under Indonesian occupation, that Australia,
by
entering into a treaty with Indonesia regarding the exploitation of
minerals in the territory of East Timor, had acted unlawfully
and in
violation of the obligation to respect Portugal’s administering
authority and in violation of the right of the people
of East Timor
to self-determination.
[73]
The ICJ declined to resolve the claim on the basis that Indonesia was
not a party to the proceedings. The court held:
[30]
‘
Whatever the nature of the
obligations invoked, the Court could not rule on the lawfulness of
the conduct of a State when its judgment
would imply an evaluation of
the lawfulness of the conduct of another State which is not a party
to the case. Where this is so,
the Court cannot act, even if the
right in question is a right erga omnes.’
[74]
In
Belhaj
Lord Sumption found that the principle to which expression was given
in these two cases did not, in the context of the claim to
state
immunity, found a basis for finding that a foreign state was
impleaded merely because that state’s rights and liabilities
were in issue. He said:
[31]
‘
Both cases had two features
which in combination account for the outcome. First, the rights or
liabilities of the non-party state
were the very subject matter of
the dispute between the parties. Secondly, although the judgment
would have bound only the parties,
each of the parties would have
been bound to deal with the non-party in accordance with it. Even on
the assumption (and it is a
large one) that the principle applied in
these cases can readily be transposed to the domestic law plane, the
mere fact that the
rights or liabilities of the non-party were in
issue would not be enough.’
[75]
In this matter the SADR and the PF seek by way of a vindicatory
action to assert title to property as against OCP and Phosboucraa.
The latter in turn assert title on the basis that the phosphate was
lawfully mined at Boucraa in accordance with Moroccan law which
applies and by reason of their compliance with the UN framework which
regulates the exploitation of minerals in non-self-governing
territories. No legal right or interest in the phosphate cargo is
asserted on behalf of the state of Morocco. Indeed it is common
cause
that Morocco has no legal right in and to the cargo. The basis upon
which it is asserted that the legal rights and interests
of Morocco
are impleaded is that the court hearing the action will be required
to determine whether the Moroccan law under which
OCP and Phosboucraa
claim a right to title is valid.
[76]
It is in this context that OCP and Phosboucraa rely upon the 2004
Convention on Jurisdictional Immunities as establishing a
broad basis
upon which state immunity may be invoked.
[77]
As already indicated a similar argument was considered in the
Belhaj
case. The court accepted, per Lord Sumption
[32]
,
that the Convention although not binding by reason of the fact that
it has yet to be ratified by the required number of states,
represents an ‘authoritative statement . . . on the current
understanding of the limits of state immunity in civil cases’.
[33]
[78]
It was, however, noted that the Convention, by virtue of article 1,
‘applies to the immunity of a state and its property
from the
jurisdiction of the courts of another state’.
[34]
Article 6 (2) provides:
‘
A proceeding before a court of
a State shall be considered to have been instituted against another
State if that other State:
(a) is named as a party to that
proceeding; or
(b) is not named as a party to the
proceeding but the proceeding in effect seeks to affect the property,
rights, interests or activities
of that other State.’
[79]
Lord Sumption considered that the words ‘interests or
activities’ in article 6(2) (b) are limited by their context
and that the article is concerned only with proceedings which seek to
‘affect’ the rights, interests or activities
of another
state. He expressed the view that it would be difficult to envisage a
case where this did not relate to property within
the jurisdiction of
the domestic court.
[35]
He
accordingly considered that the language of article 6(2) (b) ought to
be construed in the context of the assertion of the immunity
of the
state
eo
nomine
and in its property.
[80]
Lord Mance adopted a similar restrictive interpretation of the
language of the Convention, with reference to its drafting
history:
[36]
‘
The drafting history locates
article 6 firmly in the context of the case law concerning the arrest
of vessels, such as
The
Parlement Belge
, and
property in which states claim an interest, such as
Dollfus
Mieg
: see eg the Report of
the International Law Commission (Yearbook 1991, Vol II, (2), pp 23-
25). The Report also explains the focus
of article 6 as avoiding the
exercise of State jurisdiction in a way which would put any foreign
sovereign in the position of having
to choose between being deprived
of property or otherwise submitting to the jurisdiction; and it
explains the words “to affect”
as having been introduced
to replace the prior draft wording “to bear the consequences of
a determination by the court which
may affect”, in order to
avoid “unduly broad interpretations” of article 6(2)(b).
Even so, concerns were expressed
at the drafting stage by both
Australia and the United States about the potential width of article
6(2) (b): see the Report of
the Secretary General of the United
Nations A/47/326 of 4 August 1992. But academic commentators have
concluded that any uncertainty
in its scope should be addressed by
recognizing that “’interests’ should be limited to
a claim for which there
is some legal foundation and not merely to
some political or moral concern of the State in the proceedings”:
Fox and Webb,
The Law of
State Immunity
, 3
rd
ed (2015 revision), p 307; and O’Keefe, Tams (eds),
The
United Nations Convention on Jurisdictional Immunities of States and
Their Property
(2013), pp
110-111, indicating that some specifically legal effect should be
required as distinct from social, economic or political
effect.’
[81]
In
Belhaj
no such legal effect was found to flow from the suit pursued by the
claimants and accordingly the claim to state immunity was
dismissed.
[37]
Lord Sumption
nevertheless left open the question as to whether litigation between
parties might directly affect interests of another
state other than
interests in property. In summarizing his assessment of the limits of
a claim to state immunity, he commented
as follows:
[38]
‘
The essential point about the
property cases is that they have the potential directly to affect the
legal interests of states notwithstanding
that they are not formally
parties. In the case of an action in rem, this is obvious. The
court’s decision binds all the
world. But although perhaps less
obvious it is equally true of an action in personam, where the court
is asked to recognise an
adverse title to property in someone else or
award possession of property as of right to another. As Lord Porter
and Lord Radcliffe
put it in
Dollfus
Mieg
(pp 613, 616) the law
cannot consistently with immunity of states require a state to appear
before a domestic court as the price
of defending its legal
interests. None of this reasoning, however, applies in a case where
the foreign state has no legal interest
to defend because the court’s
decision in its absence cannot directly affect its legal interests. I
would not altogether
rule out the possibility that litigation between
other parties might directly affect interests of a foreign state
other than interests
in property. But, as I have observed, it is not
easy to imagine such a case. The appellant’s argument is in
reality an attempt
to transform a personal immunity of states into a
broader subject immunity, ie, one which bars the judicial resolution
of certain
issues even where they cannot affect the existence or the
exercise of a state’s legal rights.’
[82]
It is to this possibility that we must now turn. As already indicated
OCP and Phosboucraa would have it that the determination
by a South
African domestic court that title in the phosphate cargo vests in the
SADR necessarily implies that the title conferred
upon OCP and
Phosboucraa by Morocco is invalid, and therefore that the legal
rights of Morocco are thereby affected.
[83]
It is not altogether clear on what basis this is asserted. Morocco is
not a party to the proceedings. It is accordingly not
bound by any
finding or judgment to be made in relation to the issues between the
parties. It has no proprietary interest in the
matter which the SADR
and the PF seek to prosecute by way of the vindicatory action. OCP
and Phosboucraa assert that their mining
operations are authorised in
accordance with Moroccan law which applies to the territory over
which Morocco exercises authority.
They furthermore assert that the
exploitation of minerals within a non-self-governing territory is not
per se
illegal provided it complies with conditions determined by the UN
framework governing the issue.
[84]
A finding on these issues by a South African court applying South
African law, which includes customary international law by
virtue of
s 232 of the Constitution, cannot in any legal sense affect the
rights of Morocco at international law. If that were
so then in every
instance in which a South African court made a determination as to
whether or not to accept and therefore apply
foreign law in relation
to a matter before it, it would thereby be affecting the rights of
the relevant foreign state. In
Van
Zyl & others v Government of the Republic of South Africa
[39]
Patel J approved a dictum by Lord Nichols in
Kuwait
Airways Corporation v Iraqi Airways Company
[40]
where he stated
that ‘[i]n appropriate circumstances it is legitimate for an
English Court to have regard to the content
of international law in
deciding whether to recognize a foreign law’. A finding by a
domestic forum that OCP’s and
Phosboucraa’s exploitation
of minerals in Western Sahara does not comply with the UN framework
and is illegal also can have
no effect upon the legal rights of
Morocco. It is after all OCP’s and Phosboucraa’s case
that they conduct their activities
as incorporated legal entities
wholly separate from the state of Morocco.
[85]
It may well be so that such a determination carries with it an affect
upon the interests of Morocco but such affect falls within
the realm
of political or moral interests and cannot have legal affect. It
follows therefore that the claim to state immunity cannot
be upheld.
The
act of state doctrine
[86]
Unlike state immunity, which is a rule of public international law,
the doctrine of a foreign act of state is a municipal law
rule which
derives from common law principles as developed in Anglo-American
courts. It is founded upon the principle of mutual
respect for
equality of sovereign states
[41]
,
the principle of comity.
[87]
In
Swissborough
Diamond Mines (Pty) Ltd v Government of the Republic of South Africa
[42]
it was held:
‘
The basis of the application of
the act of State doctrine or that of judicial restraint is just as
applicable to South Africa as
it is to the USA and England. The
comity of nations is just as applicable to South Africa as it is to
other sovereign States. The
judicial branch of government ought to be
astute in not venturing into areas where it would be in a judicial
no-man’s land.
It would appear that in an appropriate case, as
an exercise of the Court’s inherent jurisdiction to regulate
its own procedure,
the Court could determine to exercise judicial
restraint and refuse to entertain a matter, notwithstanding it having
jurisdiction
to do so, in view of the involvement of foreign states
therein.’
[88]
This was approved in
Van
Zyl v Government of the Republic of South Africa
[43]
where it was stated that
‘[c]ourts should act with restraint when dealing with
allegations of unlawful conduct ascribed to
sovereign states’.
[89]
The ambit of the doctrine and its application in this matter elicited
thorough and detailed submissions from counsel for the
parties. For
reasons which will become apparent we find ourselves constrained not
to address these matters, however tempting it
is to engage with them.
[90]
The applicant argued that a decision regarding the justiciability of
the dispute at this interlocutory stage would be premature.
It was
argued that circumstances are similar to those that applied at the
stage of the first judgment in
Kuwait
Airways Corporation v Iraqi Airways Company & others
[44]
(
Kuwait
1
)
where Lord Goff held that it would be more appropriate that an
invocation of that principle should be considered only after the
issues in the action had been properly defined on the pleadings,
rather than at a preliminary stage. The case was remitted to the
Commercial Court with directions as to service so that the trial
judge could decide the issue of justiciability, once the particular
issues had been precisely determined on the pleadings.
[91]
Counsel for OCP and Phosboucraa argued that the circumstances of
Kuwait 1
are not similar to the present. In that matter the issue had come
before the House of Lords in circumstances where a default judgment
had been obtained on a writ and where the claims to both state
immunity and the application of the act of state doctrine had not
been adumbrated on the pleadings. It was also argued that in any
event, in the present matter, the parties had filed extensive
affidavits in which the basis of the SADR’s claim to ownership
to be prosecuted in the envisaged vindicatory action is fully
set
out. OCP and Phosboucraa had filed a detailed answer thereto, in
which the issues of state immunity and the application of
the act of
state doctrine are set out. The submission was that the issues as
presently defined would not change between now and
the envisaged
trial and that, at best, the relevant evidence may differ. It was
therefore submitted that this court, constituted
as it is, would be
in precisely the same position to determine the legal issues at stake
and would, given its composition as a
full court, have a decided
advantage over a presiding trial judge who will hear the matter in
due course.
[92]
It is indeed so that the issues have been set out in considerably
more detail than in
Kuwait
1
.
Nevertheless, the salutary principle articulated in that matter
remains of application, namely that a court dealing with an
interlocutory
proceeding, particularly one such as the present which
involves significant issues of considerable complexity, will only
decide
such issues where it is strictly necessary to do so and where
the issues upon which the decision is required have been fully and
precisely determined in the pleadings between the parties.
[93]
As to the first aspect, the submission was advanced on behalf of OCP
and Phosboucraa, relying on a dictum in
Geyser
v Nedbank Ltd: In re Nedbank Ltd v Geyser
[45]
that, to quote that judgment, ‘a legal issue should only be
decided at the interlocutory stage of the proceedings if it would
result in the final disposal of either the matter as a whole or a
particular aspect thereof’. It was submitted the present
is
such a case.
[94]
There is no doubt that a decision in relation to the justiciability
of the matter may finally dispose of the entire matter
if it is
decided that the case is not justiciable, or an important part of the
proceedings if the converse is decided. However,
that issue can only
be decided in circumstances where the issues between the parties are
clearly and fully ventilated on the pleadings.
[95]
OCP and Phosboucraa assert that the broad definition of the issues in
the papers is sufficient to engage the question of a
foreign act of
state. In our view that is not so. A court which is called upon to
exercise restraint or to refrain from adjudicating
a matter in
respect of which it otherwise has jurisdiction will do so with
caution and then only in circumstances where it is necessary
to
determine the particular issue engaged by a foreign act of state.
[46]
The scope and application of the principle of restraint is a matter
for determination at domestic law. There is no public international
law principle which obliges a domestic court to refrain to adjudicate
a matter involving a foreign act of state in respect of the
subject
matter over which the court otherwise has jurisdiction.
[47]
[96]
This court, bound as it is to apply the Constitution as supreme law
and to give effect to the spirit, purport and objects of
the
Constitution, will be mindful of the fundamental rights contained
therein, particularly the right of access to the courts enshrined
in
s 34, in determining the circumstances in which and the ambit of the
exercise of its discretion to decline adjudication in circumstances
where an act of a foreign sovereign is engaged.
[48]
[97]
A court will accordingly require precision in definition of the
particular issues to be determined. In the present matter it
is not
entirely clear precisely what the act of a foreign state is that OCP
and Phosboucraa rely upon which may render the matter
non-justiciable. It is certainly not clear at this stage precisely
what issue the trial court may be called upon to adjudicate.
OCP and
Phosboucraa contend for title upon the basis that Moroccan law
applies in the territory and that their mining operations
are lawful
in accordance with that law. That may perhaps be the necessary issue
to determine. Equally, the question of compliance
with the UN
framework regulating the exploitation of mineral resources in a
non-self-governing territory, upon which OCP and Phosboucraa
also
rely, may prove to be the central issue for adjudication. Whether
that is so will depend upon the full and proper ventilation
of the
issues on the pleadings in the vindicatory action. If indeed the
latter issue is the central dispute to be determined, then
it is
difficult to conceive on what basis it could be contended that the
dispute is non-justiciable before this court.
[98]
It follows from this that the question of the justiciability of the
dispute ought not now to be decided. In these circumstances
it would
be imprudent to express any view in regard to the either the nature
or ambit of the doctrine of a foreign act of state
as it applies in
our law.
[99]
OCP and Phosboucraa also argued that the particular context, namely
the ongoing UN Security Council process in relation to
the resolution
of the international law status of Western Sahara serves as a further
reason why the matter ought now to be determined.
That context,
however, does not in and of itself demand determination of a matter
that the court can otherwise not decide at this
stage.
[100]
We are mindful of the complexity of the issues raised in this matter
and the obvious fact that the issues to be addressed
in achieving a
resolution of the international disputes in relation to the territory
of Western Sahara are matters that concern
the international
community at the highest level. Nevertheless, this court is faced not
with the broader political question but
with the rather more prosaic
question as to the regulation of its procedure to enable litigating
parties access to a judicial forum
in which they can resolve a legal
dispute. There is no reason of high policy engaged in this matter
which would preclude the court
from doing so.
Conclusion
[101]
It follows from what is set out above that the claim as to
non-justiciability on the basis of an act of foreign state is to
be
determined by the forum hearing the vindicatory action in due course.
As already indicated the claim as to state immunity cannot
succeed.
In these circumstances, and having found that the SADR and the PF
have made out a case for an interim interdict there
is no basis not
to confirm the rule.
[102]
In paragraph 3 of the Order issued by Revelas J on 3 May 2017 the
second respondent was directed to provide the sheriff with
copies of
certain documents, including all extant charterparties, the mate’s
receipt(s) in respect of the cargo and the bill(s)
of lading in
respect of the cargo. That order is not subject to confirmation.
However, the rule nisi provided for the delivery
of said documents by
the sheriff to the applicants. It is therefore necessary to consider
whether that order should be confirmed.
[103]
The information is sought in terms of the common law right of access
to information. In
Stuart
v Ismail
[49]
it was held that a court has the power to order the general secretary
of a trade union to provide to a member the names and addresses
of
the members of the executive committee to enable legal proceedings to
be instituted against the union. In
Ex
parte Matshini & others
[50]
a full bench of this court held (in the context of an application for
an Anton Piller order to secure electric-shock equipment
in two
police stations) that there was no reason why ‘the procedure
should be limited to the disclosure of names’,
pointing out
that in
Hart
v Stone
[51]
the disclosure of facts had been ordered.
[52]
[104]
The basis of this power is the court’s inherent jurisdiction
‘to prevent a denial of justice because of a procedural
difficulty facing the applicant’.
[53]
An applicant is required to show that, prima facie, he or she has a
right of action against the respondent, that the action cannot
properly be brought without the information and that it is within the
power of the respondent to supply the information.
[54]
[105]
We are of the view that these three requirements have been met by the
SADR and the PF.
[106]
We were provided with a draft order, discussed between the parties,
in which provision is made for certain forms of service
in the
vindicatory action and it is accordingly appropriate that an order be
made in the terms proposed.
[107]
In the result we make the following order:
1.
The
first to fifth respondents be interdicted and restrained from taking
the cargo of phosphate presently on board the “NM
Cherry
Blossom” (“
the
cargo”
)
from the jurisdiction of the Court in Algoa Bay, pending the
determination of the applicants’ action for,
inter
alia
,
delivery of the cargo (“
the
action”
),
save in the event of suitable security being furnished to the
applicants in terms of paragraph 4 below.
2.
The
sheriff is directed and authorised to attach the cargo pending the
determination of the action.
3.
The
sheriff is directed and authorised to remove the ship’s
registration documents and trading certificates.
4.
The
first to fifth respondents shall be released from the above
interdict, and the sheriff shall release the cargo from attachment
and return the registration documents and trading certificates, in
the event that suitable security is furnished to the applicants
for
their claim, which is from a first-class South African bank or other
equivalent financial or insurance institution, and contains
at least
the following provisions:
4.1
a
submission from the first to fifth respondents to the jurisdiction of
the South African courts for the purposes of the action;
and
4.2
in
the event that the applicants obtain a final order for the delivery
and/or possession of the cargo, the guarantor shall pay to
the
applicants the market value of the cargo in Port Elizabeth as of the
date of this order.
5.
In
the event that the parties are not able to agree on the terms of the
security, including the market value of the cargo, they
are given
leave to apply to this Court for directions.
6.
In
the event that security is given to obtain the release of the cargo
from the attachment, then that security and the proceeds
thereof
shall, for all purposes, be deemed to be the cargo, and the cargo
shall be deemed to be under attachment in the jurisdiction
of this
Court at the instance of the applicants.
7.
The
sheriff shall provide the applicants’ attorneys with copies of
all the documents obtained in terms of paragraph 3 of the
order dated
1 May 2017.
8.
Leave
be and is hereby given to the applicants to sue the first to fifth
respondents for delivery of the cargo and further relief.
9.
Summons
shall be served on the respondents as follows:
9.1
On
the owner of the “NM Cherry Blossom” and the second
respondent, by service on Edward Nathan Sonnenbergs Inc, 1 Richefond
Circle, Ridgeside Office Park, Umhlanga, Durban (attention K Pitman);
9.2
On
the time charterer of the “NM Cherry Blossom”, Furness
Withy (Australia) Pty Ltd, by service by a legal practitioner
practising in Australia, at 12
th
Floor, 484 St Kilda Road, Melbourne, 3004, Victoria, Australia,
alternatively, if agreement is reached in this regard, on Shepstone
&
Wylie, 18
th
Floor, 2 Long Street, Cape Town (attention E Greiner);
9.3
On
the third respondent, by service by a legal practitioner practising
in New Zealand, on Ballance Agri-Nutrients Ltd at Hewletts
Road,
Mount Maunganui, Tauranga, New Zealand, alternatively, and if
agreement is reached in this regard, on Edward Nathan Sonnenbergs
Inc, 1 North Wharf Square, Loop Street, Foreshore, Cape Town
(attention M Tucker);
9.4
On
the fourth and fifth respondents, by service on Werksmans Attorneys,
18th Floor, 1 Thibault Square, Cape Town (attention R Driman);
and
9.5
On
the sixth respondent, by service on the State Attorney, 29 Western
Road, Central, Port Elizabeth.
10.
The
applicants shall issue the summons within one month of the date of
this order, failing which the order shall lapse.
11.
It
is recorded that insofar as the respondents agree to accept service
of the summons at the South African addresses listed in paragraph
9
above, this is without prejudice to any defences they may wish to
raise, including in relation to the jurisdiction of this Court
(subject to any undertaking given in terms of paragraph 4.1 above).
12.
The
respondents shall be given one month after service of the summons
within which to enter an appearance to defend.
13.
The
costs of this application, including the costs of two counsel, shall
be paid by the fourth and fifth respondents.
______________________
SM
Mbenenge
Acting
Deputy Judge President
_______________________
C
Plasket
Judge
of the High Court
________________________
GG
Goosen
Judge
of the High Court
APPEARANCES
For
the applicants: A Katz SC and D Cooke instructed by Webber Wentzel,
Cape Town and Van Wyk Attorneys, Port Elizabeth
For
the fourth and fifth respondents: M Du Plessis, A Coutsoudis and D
Simonsz instructed by Werksmans Attorneys, Cape Town and
Greyvensteins Attorneys, Port Elizabeth
[1]
UN Charter, articles 1(2) and 55. See
too article 1(1) of the International Covenant on Civil and
Political Rights.
[2]
Dugard
International
Law: A South African Perspective
at 76. This statement does not appear in the fourth edition of
Dugard’s book. If anything, in the years between the first
and
fourth editions, the right to self-determination appears to have
been more firmly and broadly entrenched as a right recognised
by
customary international law and not only in the context of
decolonisation. See generally, Dugard
International
Law: A South African Perspective
(4 ed) at 99-103. We shall refer to this work as ‘Dugard (4
ed)’.
[3]
Of the nine countries who abstained
in the adoption of the resolution, Spain was one. (Another was South
Africa.) See Dugard (4
ed) at 94 (note 83).
[4]
Dugard (4 ed) at 94.
[5]
Preamble.
[6]
Article 5.
[7]
Article 1.
[8]
Western Sahara Advisory Opinion
[1975] ICJ 12.
[9]
Dugard (4 ed) at 100.
[10]
Dugard (4 ed) at 97.
[11]
R (on application of Western
Sahara Campaign UK) V Revenue and Customs Commissioners &
another
[2015] EWHC 2898
(Admin).
[12]
Para 40.
[13]
Council of European Union v
Polisario Front
C-104/16
(21 December 2016).
[14]
Para 92.
[15]
See too UN General Assembly
resolution 71/103 of 6 December 2016, entitled Economic and other
activities which affect the interests
of the peoples of the
Non-Self-Governing Territories.
[16]
Tshwane City v Afriforum &
another
2016 (6) SA 279
(CC) para 49. See too
Setlogelo
v Setlogelo
1914 AD 221
at
227;
Webster v Mitchell
1948 (1) SA 1186
(W) at 1186-1187;
Spur
Steak Ranches Ltd & others v Saddles Steak Ranch, Claremont &
another
1996 (3) SA 706
(C) at 714B-C.
[17]
Fedsure Life Assurance Co Ltd v
Worldwide African Investment Holdings (Pty) Ltd & others
2003 (3) SA 268
(W) para 28;
Stern
and Ruskin NO v Appleson
1951 (3) SA 800
(W) at 813B-C;
Olympic
Passenger Service (Pty) Ltd v Ramlagan
1957 (2) SA 382
(D) at 384F-G;
Tshwane
City v Afriforum
(note 16)
paras 146-147 (Froneman and Cameron JJ). See too Van Loggerenburg
Erasmus: Superior Court
Practice
(2 ed) (Vol 2) at
D620-21.
[18]
Note 16 at 1189. See too
Spur
Steak Ranches Ltd & others v Saddles Steak Ranch, Claremont &
another
(note 16) at
714E-H.
[19]
Olympic Passenger Service (Pty)
Ltd v Ramlagan
(note 17)
at 383F-G.
[20]
Crawford
Brownlie’s
Principles of Public International Law
(8 ed) at 487-8.
[21]
Minister of Justice and
Constitutional Development & others v Southern African
Litigation Centre & others
2016 (3) SA 317
(SCA) para 66.
[22]
Note 21 para 74.
[23]
Belhaj & others v Straw &
others; Rahmatulah v Minister of Defence & others
[2017] UKSC 3
(17 January 2017).
[24]
Belhaj
(note 23) para 186.
[25]
Belhaj
(note 23) para 191.
[26]
Belhaj
(note 23) para 191.
[27]
Monetary Gold Removed from Rome
[1954] ICJ Rep 19.
[28]
East Timor (Portugal v Australia)
[1995] ICJ Rep 90.
[29]
Monetary Gold
(note 27) at 33.
[30]
East Timor
(note 28) para 29.
[31]
Belhaj
(note 23) para 193.
[32]
Belhaj
(note
23) para 194. But see Lord Mance at para 25.
[33]
He cited Lord Bingham in
Jones
v Ministry of the Interior of the Kingdom of Saudi Arabia (Secretary
of State for Constitutional Affairs intervening)
[2006] UKHL 26
;
[2007] 1 AC 270
para 8.
[34]
Belhaj
(note 23) para 194.
[35]
Belhaj
(note 23) para 194.
[36]
Belhaj
(note
23) para 26.
[37]
See the judgment of Lord Mance at
para 31 and that of Lord Sumption at para 197.
[38]
Belhaj
(note 23) para 196.
[39]
Van Zyl & others v Government
of the Republic of South Africa
[2005] 4 All SA 96
(T) para 74.
[40]
Kuwait Airways Corporation v Iraqi
Airways Company
[2002]
UKHL 19
;
[2002] 2 WLR 1353
para 26.
[41]
See
Belhaj
(note 23) para 199.
[42]
Swissborough Diamond Mines (Pty)
Ltd v Government of the Republic of South Africa
1999 (2) SA 279
(T) at 334D-F.
[43]
Van Zyl v Government of the
Republic of South Africa
2008 (3) SA 294
(SCA) para 5.
[44]
Kuwait Airways Corporation v Iraqi
Airways Company & others
[1995] 3 All ER 754
(HL) at 715d.
[45]
Geyser v Nedbank Ltd: In re
Nedbank Ltd v Geyser
2006
(5) SA 355
(W) para 9.
[46]
WS Kirkpatrick & Co Inc v
Environmental Tectonics Corporation International
[1990] USSC 11
;
(1990)
493 US 400
(cited in
Belhaj
(note 23) para 54) where
the US Supreme Court stated that ‘Act of state issues only
arise when a court
must
decide
– that is,
when the outcome of the case turns upon the effect of official
action by a foreign sovereign’.
[47]
Belhaj
(note 23) para 200.
[48]
See Dugard (4 ed) at 79.
[49]
Stuart v Ismail
1942
AD 327.
[50]
Ex parte Matshini & others
1986 (3) SA 605 (E).
[51]
Hart v Stone
(1883)
1 BAC 309.
[52]
At 611F-G. See too
Van
Zyl v Wilson & another
ECG
4 December 2015 (case no. 5772/15) unreported.
[53]
Ex parte Matshini & others
(note 48) at 610I-J.
[54]
Colonial Government v WH Tatham
(1902) 23 NLR 153
at 159;
Ex
parte Matshini & others
(note 48) at 610B-D, 611C-D.