Twende Africa Group (Pty) Ltd t.a TAG Marine v Qavak; Fisherman Fresh CC v Twende Africa Group (Pty) Ltd t.a TAG Marine (AC216/2018) [2018] ZAECPEHC 20; [2018] 2 All SA 576 (ECP) (20 February 2018)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2018
>>
[2018] ZAECPEHC 20
|

|

Twende Africa Group (Pty) Ltd t.a TAG Marine v Qavak; Fisherman Fresh CC v Twende Africa Group (Pty) Ltd t.a TAG Marine (AC216/2018) [2018] ZAECPEHC 20; [2018] 2 All SA 576 (ECP) (20 February 2018)

IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
(In
the exercise of its admiralty jurisdiction in terms of Act 105 of
1993, as amended)
CASE NO: AC
216/2018
Dates heard: 8, 12
& 13 February 2018
Date
delivered: 20 February 2018
Admiralty
action
in
rem
MFV Qavak
In
the matter between
TWENDE
AFRICA GROUP (PTY) LTD
t/a
TAG
MARINE

Plaintiff
and
MFV
QAVAK

Defendant
In
the application
FISHERMAN
FRESH
CC

Applicant
And
TWENDE AFRICA
GROUP (PTY) LTD
t/a
TAG
MARINE

Plaintiff / Respondent
JUDGMENT
GOOSEN,
J.
[1]
This
is an urgent application brought by the owner of a commercial fishing
vessel, the MFV Qavak, to reconsider and set aside a
warrant of
arrest of the vessel issued by the Registrar of this Court on 26
January 2018. The warrant of arrest was sought
ex
parte
by the plaintiff pursuant to section 3 (4) of the Admiralty
Jurisdiction and Regulation Act, Act 105 of 1983 (hereinafter “the

Admiralty Act”). The application is opposed.
[2]
The
matter came before this Court on 10 February 2018. The question of
urgency remained in dispute. During argument of the matter
certain
issues arose which warranted the submission of further written
argument by both parties. The judgment was accordingly reserved
in
the application until 20 February 2018 in order to enable the parties
to file supplementary heads of argument on 12 and 13 February

respectively. This court is indebted to counsel for the helpful
submissions made.
[3]
The
MFV Qavak is a commercial fishing vessel, which until recently was
owned by M C Donahue Fishing Ltd (hereinafter “Donahue”).

Donahue is, or was, a commercial fishing enterprise conducting
business in Ireland. It operated the MFV Qavak,
inter-alia
,
in Irish waters.
[4]
The
vessel is now owned by Fisherman Fresh CC, the applicant in this
application. The applicant is a commercial fishing corporation
which
conducts business in Port Elizabeth. It owns or operates several
fishing vessels under fishing licences issued by the relevant
the
South African authorities.
[5]
The
plaintiff is a broker with its registered office in Cape Town. It
carries on the business of a ship broker facilitating,
inter-alia
,
the sale and purchase of shipping vessels.
[6]
On
26 January 2018 the plaintiff obtained a warrant of arrest of the
defendant vessel. On that day it commenced an Admiralty action
in
rem
by issue of a summons against the defendant vessel. The summons
alleges that the plaintiff’s claim against the defendant
vessel
is for:
Payment of
the sum of R713,769.58, which amount is commission due, owing and
payable by Defendant to Plaintiff arising out of professional
ship
brokering services rendered by Plaintiff to Defendant
circa
August 2017 and which amount, despite demand, remains unpaid.
[7]
The
claim also includes a claim for payment of interest on the said
amount.
[8]
The
applicant launched the present application on 1 February 2018. It
provided in its notice of motion for the filing of a notice
of
opposition and answering affidavits upon truncated time periods and
enrolled the matter for hearing on 8 February 2018. It seeks
an order
that the defendant vessel be released forthwith from its arrest and
that the summons issued by the plaintiff be set aside
as irregular
and of no force and effect for want of compliance with the peremptory
provisions of s 3 (4) of the Admiralty Act.
Urgency
[9]
In
respect of urgency it is alleged by the applicant that matters
involving the arrest of a vessel are inherently urgent, more
particularly where the warrant of arrest was obtained
ex
parte
.
A party affected thereby is therefore entitled to approach the court
on an urgent basis for reconsideration of the warrant. It
is further
alleged that the vessel was recently purchased and is presently
undergoing refurbishing so that it may be employed in
commercial
fishing operations conducted by the applicant. The applicant states
that the refurbishing will shortly be completed
and that the vessel
will be able to be employed in fishing operations from the end of
February. The refurbishing of the vessel
involves the construction of
additional crew accommodation. The applicant has employed an
additional 16 crew to for the vessel.
It is pointed out that the
purchase of the vessel, in an amount of approximately R11 million,
has been financed. The applicant
is under obligation to service this
loan and requires the vessel to be economically active. Once it is
involved in fishing operations
it is anticipated that it will
generate revenue of approximately R500 000 per month which will
enable the applicant to service
its obligations and meet the costs
associated with the employment of the crew, including the additional
16 staff members employed.
In the event that the vessel remains under
arrest the applicant will suffer significant financial losses. It is
submitted that
these commercial interests, together with the
prejudice suffered by virtue of the arrest, render the matter
sufficiently urgent
to warrant enrolment upon the truncated time
periods provided for in the notice of motion.
[10]
The
plaintiff takes issue with the urgency of the matter. It contends
that on this basis alone the application ought to be struck
from the
roll.  It was argued that it is incumbent on the applicant to
persuade a court that its non-compliance with the rules
of Court is
justified on the grounds of urgency. It was submitted that the
intention of the rule relating to urgency is that a
modification of
the time periods is permissible only in the respects and to the
extent that is necessary in the circumstances and
that the degree of
relaxation of the rules should not be greater than the exigencies of
the case demand.
[1]
[11]
In
response to the application the plaintiff issued a notice in terms of
Rule 35(12) calling on the applicant to produce the fishing
licences
referred to in its affidavit. In response the applicant furnished two
fishing licences, both of which name another vessel,
the MFV Cape
Maclear, as the vessel licenced to fish. The plaintiff accordingly
alleges that the applicant is unable to establish
that the MFV Qavak
will be able to commence commercial fishing operations or that it is
required to do so. The plaintiff further
alleges that the applicant,
which also owns the MFV Cape Maclear, will in any event be able to
continue its commercial fishing
operations and that the catching of
the relevant quotas can be achieved once the matter has been
finalised in due course.
[12]
In
its reply the applicant points out that the fishing licences are to
be transferred to the MFV Qavak once the refurbishing is
complete so
that it may commence fishing operations.
[13]
The
plaintiff’s contentions in regard to the uncertainty as to when
the MFV Qavak may be able to commence operations on account
of the
need to transfer licences and have the vessel certified as seaworthy
carry some force. They do not however address the case
made out by
the applicant to secure the release of the defendant vessel in order
to avert the commercial prejudice which attaches
to the ongoing
arrest of the vessel. In this regard the allegations relating to the
employment of additional crew, the risk of
loss of employment, and
the urgent need to commence operations in order to service the
applicant’s financial obligations
are essentially unchallenged.
Such commercial considerations may found grounds for urgent
intervention by a court.
[2]
[14]
In
the
Caledon
Street Restaurant
matter Kroon J,  in dealing with the modification of the time
periods provided by the Rules, held that,
In the
assessment of the validity of a respondent’s objection to the
procedure adopted by the applicant the following principles
are
applicable. It is incumbent on the applicant to persuade the court
that the non-compliance with the rules and the extent thereof
were
justified on the grounds of urgency. The intent of the rules is that
a modification thereof by the applicant is permissible
only in
respects and to the extent that it is necessary in the circumstances.
The applicant will have to demonstrate sufficient
real loss or damage
were he to be compelled to rely solely or substantially on the normal
procedure. The court is enjoined by rule
6 (12) to dispose of an
urgent matter by procedures “which shall as far as practicable
be in terms of these rules”.
That obligation must of necessity
be discharged by way of the exercise of a judicial discretion as to
the attitude of the court
concerning which deviations it will
tolerate in a specific case.
[15]
I
have already pointed to the fact that the applicant in this matter
points to real and substantial financial losses in the event
that the
vessel remains under arrest for any substantial period beyond the end
of this month. It is for this reason that it requires
determination
of the merits of application prior to that eventuality. These
considerations in my view, satisfy the requirement
that the applicant
demonstrate sufficient real loss were it to rely upon adjudication in
the ordinary course. Nor is sight to be
lost of the fact that the
arrest of a vessel involves inherent considerations of urgency.
[3]
[16]
I
am therefore satisfied that in the particular circumstances of this
matter the applicant’s modification of the rules relating
to
the enrollment and hearing of the matter was justified. In the
circumstances the plaintiff’s objection to the procedure

adopted cannot be sustained.
The
merits
[17]
A
party seeking to arrest a vessel
in
rem
is required to establish,
inter
alia
¸
that the claim is a “maritime claim” as defined in the
Admiralty Act; that the property to be arrested is maritime
property
within the meaning of section 3 (5) of the Admiralty Act; that the
property is either situated in or is likely to be situated
within the
jurisdiction of the court; that the property to be arrested is the
property against which the claim lies, and that the
claimant has no
security for its claim.
[18]
Section
3 (4) of the Admiralty Act provides that:
Without prejudice to any other
remedy that may be available to the claimant or to the rules relating
to the joinder of causes of
action maritime claim may be enforced by
an action
in rem
–
(a) if the claimant has a
maritime lien over the property to be arrested; or
(b) if the
owner of the property to be arrested would be liable to the claimant
in an action
in
personam
in respect of the cause of action concern.
[19]
A
party seeking the arrest or defending an arrest in circumstances
where it is sought to set it aside, is required to establish
that it
has a
prima
facie
case on the underlying claim in respect of which the arrest is sought
or was obtained. The
onus
is accordingly retained by the arrestor, even in an application for
the setting aside of the arrest.
[4]
In this regard the arrestor bears the
onus
to persuade the court that each of the grounds upon which the
applicant attacks the arrest should fail.
[5]
[20]
Hare
refers to two ‘layers’ of
onus
which apply in the case of an arrest of a vessel. The first concerns
the proof on the ordinary civil standards, namely a balance
of
probability, that the essential requirements to support an arrest or
attachment exist. The second is the standard of proof which
relates
to the claimant’s underlying claim against the defendant
vessel. This standard of proof is
prima
facie
.
In this regard the claimant is only required to place before the
court facts which, if approved, will show an underlying cause
of
action justiciable in the court.
[6]
[21]
In
Cargo
Laden on Board The Thalassini Avgi v MV Dimitris
[7]
it was held that:
The
requirement of
prima
facie
is satisfied where there is evidence which, if accepted, will show a
cause of action. The mere fact that such evidence is contradicted

would not disentitle the applicant to the remedy. Even where the
probabilities are against him, the requirement would still be

satisfied. It is only where it is quite clear that he has no action,
or cannot succeed, that an attachment should be refused or

discharged…”
Plaintiff’s
contractual claim
[22]
The
applicant’s case is that the plaintiff has no claim against it
in
personam
at all. The summons
in
rem
is predicated upon a claim in contract for the payment of commission
due consequent upon the purchase of the defendant vessel by
the
applicant. The applicant points out that the claim, as formulated in
the summons, is in conflict with assertions made by the
plaintiff in
correspondence addressed to the erstwhile owner of the vessel,
Donahue.
[23]
In
an email dated 19 January 2018 addressed to Donahue the plaintiff
states that it marketed the vessel and in due course introduced
the
applicant, as purchaser, to Donahue, as the seller. The email
continues as follows:
5. Our understanding, and the
basis of our agreement, is that the difference between your asking
price and the eventual purchase
price that we procure for the vessel
would be our commission.
6. As far as it turned out, the
vessel, so we understand, was indeed sold to Fisherman Fresh and, in
fact, delivered to it
circa
17 November 2017.
7. Since we introduced our
client to you, you have elected to keep us “out of the loop”
on the sale of the vessel.
8. Presumably you did so to
avoid paying our commission.
…
13. Unless
we receive payment from you of our commission by close of business on
Monday 22 January 2018, we intend to arrest the
vessel in order to
secure our claim. We have copied in the new owners of the vessel, so
that they may be aware of our intended
action. You are forewarned to
act accordingly.
[24]
No
reference is made in this correspondence to any agreement between the
plaintiff and the applicant in respect of the payment of
commission.
[25]
In
its letter of demand, addressed to Donahue on 22 January 2018, the
following is recorded.
1. Our client entered into an
agreement with you in terms of which you would pay our client
commission in the event that your vessel,
the MV Qavak, is sold to a
purchaser introduced to you by our client.
2. The MV Qavak was
subsequently sold to a purchaser introduced to you by our client,
namely a close corporation, trading as “Fisherman
Fresh”.
…
4. It was an express,
alternatively implied, term of the agreement that should our client
duly perform it would be entitled to be
paid a commission calculated
as the difference between what your asking price was and the eventual
selling price.
5.
Alternatively, it was an implied term of the agreement that, in the
event of such a sale, our client would be entitled to commission

calculated at 5% of the selling price.
[26]
The
letter then concludes,
Should you
fail to pay, we are instructed to arrest of vessel, pending the
determination of this dispute.
[27]
No
letter of demand was addressed to the applicant as the owner of the
vessel. Instead the vessel was arrested
in
rem
upon the allegations contained in the summons.
[28]
In
challenging the arrest, the applicant states that the plaintiff has
no claim whatsoever against it. Accordingly an essential
element for
the issue of a warrant of arrest, namely a claim
in
personam
against the owner of the vessel, is absent. The applicant furthermore
states that while the plaintiff may have a claim against
Donahue for
payment of commission, no such claim exists against the applicant.
The applicant furthermore points to the contract
of sale concluded
with Donahue in which Donahue confirms liability for payment of
commission, albeit to another agent, and indemnifies
the applicant
from such claims.
[29]
In
dealing with these allegations, the plaintiff has shifted its ground.
In its answering affidavit it asserts that it has two claims
against
the applicant, namely a contractual claim and an alternative claim
based on an alleged interference in a contractual relationship
as
existed between the plaintiff and Donahue. It should be mentioned at
this juncture that during the course of argument the plaintiff

abandoned its “claim” for payment of commission as
formulated in the summons, indicating that it would in due course

seek an amendment to reflect the cause or causes of action adumbrated
in its answering affidavit. In argument it was submitted
that it was
entitled to rely upon any ground to justify the arrest of the vessel,
notwithstanding that such ground was not that
upon which the arrest
was procured.
[8]
[30]
The
contractual claim, the plaintiff asserts, is one founded on the
applicant’s breach of “contractual obligations owed
by
it, as principal, to Plaintiff, as broker”. The contract is
alleged to have arisen in consequence of the conduct of the
parties.
The plaintiff accordingly disavows reliance upon an express
agreement.
[31]
The
conduct upon which the plaintiff relies includes the fact that
plaintiff listed the vessel on his website for sale; the applicant

contacting him as a broker to enquire whether the vessel is for sale;
and, following correspondence with Donahue, the submission
of a
letter of intent by the applicant via the plaintiff’s offices
reflecting an intent to purchase the vessel upon certain
conditions.
Based on this the plaintiff alleges that he was, throughout this
period, acting as a broker to the knowledge of both
plaintiff and the
applicant. From this knowledge is to be inferred an agreement in
relation to specific terms of the brokerage
agreement.
[32]
The
plaintiff’s answering affidavit proceeds as follows:
96. Furthermore, as stated
above, the Corporation and Donahue Fishing agreed that they would
purchase the vessel through Plaintiff,
that they would not employ
other brokers to conclude the sale, and they would not do anything
which may frustrate plaintiff’s
opportunity to earn commission.
97. Alternatively, and at the
very least, Plaintiff concluded a brokerage agreement with the
Corporation in terms of which the Corporation
would have the duties
described above.
98. In concluding the Sale
Agreement, the corporation and Donahue Fishing breached the agreement
in that:
98.1 they failed to use
Plaintiff as a broker;
98.2 they employed another
broker; and
98.3 thereby they denied
plaintiff an opportunity to earn the commission which had been
agreed.
99. As a result of the breach
as aforesaid, Plaintiff has suffered damages in the amount of the
commission which would have been
earned if the vessel had been
purchased through Plaintiff.
100. Both the Corporation and
Donahue Fishing are liable to plaintiff.
101. Based on my experience in
the industry I consider that 10% commission would constitute a fair
and reasonable reward for the
work which Plaintiff did in bringing
the Corporation and Donahue Fishing together.
102. I consider further that
Plaintiff would have been able to conclude a sale agreement between
the Corporation and Donahue Fishing
for at least the same amount as
was achieved in the Sale Agreement, namely €620,000.
103. The
fair and reasonable commission would therefore have been €62,000
and this is accordingly the amount of damages suffered
by Plaintiff
as a result of the Corporation’s breach.
[33]
It
will be immediately apparent from these allegations that the
plaintiff contends for a tacit contract, which includes both tacit

terms and implied terms in the sense that the terms are implied by
operation of law to the alleged tacit agreement. It will also
be
apparent that the amount of commission payable is founded upon an
allegation of what would be fair and reasonable rather than
what may
have been expressly or impliedly agreed.
[34]
Also
immediately apparent from these allegations is the fact that there is
no allegation, in the context of this tacit agreement,
as to the
party responsible for the payment of commission. It appears however
that the commission would be payable by the seller,
hence the
formulation of the claim against the applicant as being a damages
claim.
[35]
During
the course of argument the question arose as to the nature of the
legal relationship that may arise, in the context of a
tacit
contract, between a broker and a potential purchaser. It was to this
question that the parties addressed themselves in the
supplementary
heads of argument.
[36]
In
addressing this issue Mr Cooke, for the plaintiff, submitted that the
authorisation of a broker by the principal will usually
come about by
virtue of the contract between the principal and the agent. The
plaintiff’s case, he submitted, may thus be
summarised as
follows: the plaintiff acted as a broker in connection with the sale
of the vessel; a broker is an agent of the buyer
and the seller; in
acting as a broker the plaintiff was thus authorised by the buyer to
represent it; and, the authorisation of
the plaintiff by the
applicant therefore occurred by means of a contract. This syllogism
however, begs the question as to what
was agreed either tacitly or by
necessary implication.
[37]
It
was argued that an agency relationship comes into being when the
broker is employed or when the party concerned becomes aware
of the
fact that he is dealing with the broker. The argument was advanced
that since the plaintiff was the agent of both Donahue
and the
applicant that this agency relationship created certain duties owed
by the principals to the plaintiff. These duties were:
To pay a fair and reasonable
commission if a sale agreement was concluded between the principles;
and
To transact
with each other through the plaintiff, not to employ other brokers to
conclude the sale between them and not to do anything
which may
frustrate the plaintiff’s opportunity to earn the commission...
[38]
It
was argued that these terms are necessary to give effect to the
agreement and that such terms are to be implied by operation
of law.
Failing the imposition of such terms by law, the plaintiff submitted
that it is reasonable to infer from the conduct of
the parties that
the parties intended to and did contract on the these terms.
[39]
As
I understand, the case advanced by the plaintiff it is that the
conduct of each of the parties gave rise to an agreement tacitly

concluded between all three of the parties. I do not understand it to
be suggested that a tacit contract arose as between plaintiff
and
Donahue on the one hand and another separate tacit agreement as
between plaintiff and the applicant. The passages of the affidavit

cited above indicate that the plaintiff contends for a brokerage
agreement binding between each party.
[40]
If
this is so then an immediate conceptual difficulty arises which bears
upon the question whether the plaintiff’s contractual
claim is
prima
facie
established. It is of course trite that there is no difference
between express or tacit agreements. The difference lies in the

method of proof of the agreement.
[9]
In the case of a tacit agreement its existence and its terms are
established by inference drawn from the conduct of the parties.

Ordinarily the relevant conduct will be that of the contracting
parties.  In this instance it appears that the plaintiff relies

upon the individual conduct of parties who, on the plaintiff’s
version, acted separately from one another in concluding the

agreement with the plaintiff.
[41]
I
am not persuaded that such circumstances can give rise to a single
agreement to which all three are party. It is difficult to
conceive
how the separate individual conduct of one actor can found an
inference of agreement on the part of another actor. At
best the
conduct of separate actors may give rise to separate and distinct
tacit agreements, the terms of which would be inferred
from the
conduct of the particular actor with whom it is alleged a tacit
agreement was concluded.
[42]
The
alternative contention advanced by the plaintiff, is that a brokerage
agreement was concluded tacitly between the plaintiff
and the
applicant. Before dealing with the terms of this agreement and
whether they are established, it bears mentioning that the
allegation
relating to the tacit agreement with Donahue (and the applicant for
that matter), namely that it was tacitly agreed
that the plaintiff
would be entitled to “fair and reasonable commission” is
inconsistent with the terms of the letters
of demand (which are not
denied) addressed to Donahue. In the letter of demand, it will be
recalled, the plaintiff contended for
an express, alternatively
implied agreement that it would be “entitled to be paid
commission calculated as the difference
between what your asking
price was and the eventual selling price”, alternatively that
it was an implied term of the agreement
that the plaintiff would be
entitled to commission calculated at 5% of the selling price.
[10]
[43]
The
essential question to be answered in relation to the plaintiff’s
claim as formulated is whether the evidence put up by
the plaintiff
to establish its
prima
facie
case against the applicant, founded on contract, consists of
allegations of fact which if accepted will found a cause of action.

The evidence should of course, consist of facts and not mere
assertions. It is only when the assertion amounts to an inference

which may reasonably be drawn from the facts alleged that it can have
any relevance.
[11]
[44]
Mr
Cooke argued that at common law a broker is regarded as the agent of
both the seller and the buyer. He relied, for this, on the
judgment
of Wessels J in
Benoni
Produce  & Coal Co td v Gundelfinger
[12]
where the learned judge
said,
Now a broker
according to our law is a middleman or intermediary whose office is
to negotiate between two parties until they are
at idem as regards
the terms upon which they are prepared to buy and sell. (Faber’s
Lexicon
sub
voce
Froxeneta; Voet 17.1.4.) ‘He is as it were agent for both one
and the other to negotiate the commerce and affair in which
he
concerns himself.” (Domat
Droit
Civil
1.17.1.1.)
[45]
This
statement of the nature and character of the office of a broker is in
itself uncontroversial. As an expression of the true
nature of the
relationship of representation in agency and what that entails, it
cannot, as has been suggested by Dendy, be taken
at face value.
[13]
This is so because the act of authorisation of the broker and the
mandate thereby given may differ as between the buyer and seller.
The
act of authorisation of the broker arises by contract
[14]
.
The terms of that contract will determine what obligations are
imposed upon the respective parties to the agreement. The judgments

of Wessels J and Curlewis J in the
Benoni
Produce
matter recognised that the relationship between the broker and each
of the parties is one of agency. The authority of the agent
to
represent the principal is therefore an instance of the principle of
representation. It should be remembered that the authority
of a
broker may extend to the conclusion of an agreement on behalf of the
principal. That is of course not the type of brokerage
for which the
plaintiff contends. What is here asserted is akin to a selling or
property agent where the broker introduces a buyer
to the seller;
facilitates the negotiation of the agreement of sale and thereby
earns payment of remuneration of commission based
on his / her
employment as agent for the seller.
[46]
So
much for the nature of the relationship which is established in a
brokerage arrangement - but what of the particular obligations
which
are imposed thereby? As I understood it Mr Cooke sought to suggest
that the entitlement to earn commission is a necessary
instance of
the relationship of broker to principal and that it is to be an
implied term of such agency.
[47]
The
further argument was that it is either to be inferred from conduct
(in the case of a tacit agreement of brokerage) or implied
as a
matter of law, that upon the relationship of brokerage being
established the parties agree not to make use of the services
of any
other broker and furthermore agree not to do anything to prevent the
broker from earning his /her commission.
[48]
The
first issue, i.e. entitlement to remuneration, may be easily disposed
of. A broker / agent’s entitlement to remuneration
as mandatory
is dependent upon agreement, either express or tacit with the party
who undertakes such obligation. It is not implied
by law. The payment
of such remuneration is of course dependent upon fulfillment of the
terms agreed upon.
[49]
In
Karol
v Fidell
the court dealt, on appeal, with an instance where the court
a
quo
had found that there was an express agreement between a seller and
broker entitling the broker to commission. The court addressed

certain aspects of the magistrate’s reasoning and found that
the magistrate was wrong. The court nevertheless went on to
find, on
the evidence, that it was established that a tacit agreement had been
concluded. For present purposes the following finding,
made with
reference to earlier authority, is relevant:
[15]
That
plaintiff acted as broker and that he was the effective means of the
sale being concluded could not, in the light of these
authorities,
entitle him to claim a commission. It would still be necessary for
him to establish a contract, express or implied,
of employment and a
promise, express or implied, to pay remuneration.
[50]
As
to the second issue, namely an alleged ‘exclusivity’ of
mandate, it should be noted that the plaintiff alleges that
this term
of the agreement is to be inferred from the conduct of the parties
alternatively to be implied. The conduct upon which
the plaintiff
relies is no more than that upon which it relies to found the tacit
contract. No particular conduct or fact is alleged
which would
warrant the inference sought to be drawn. As already noted inferences
are to be drawn from facts.  It is in any
event to be doubted
that conduct of parties, in the absence of declarations, could
sustain an inference of exclusivity of mandate.
I need not however
make any positive finding in this regard since the court is at this
stage concerned with whether the plaintiff
has made out a
prima
facie
case against the defendant which would justify the arrest.
[51]
In
MV
Pasqualle Della Gatta, MV Filippo Lembo, Imperial Marine Co v
Deiulemar Compagnia Di Navigazione SPA
[16]
it was said,
Leaving that aside, two other
points fall to be made about the approach to proof of a
prima
facie
case. They are that where the applicant asks the court to
draw factual inferences from the evidence they must be inferences
that
can reasonably be drawn from it, even if they need not be the
only inferences from that evidence. If they are tenuous or
far-fetched
the onus is not discharged. Second, the drawing of
inferences from facts must be based on proven facts and not matters
of speculation.
As Lord Wright said in his speech in
Caswell v
Powell Duffryn Associated Collieries Ltd
:
‘
Inference
must be carefully distinguished from conjecture or speculation. There
can be no inference unless there are objective facts
from which to
infer the other facts which it is sought to establish….But if
there are no positive proved facts from which
the inference can be
made, the method of inference fails and what is left is mere
speculation or conjecture.’
[52]
A
careful reading of the plaintiff’s papers indicates that no
facts or assertions are advanced upon which an inference of
a tacit
agreement of exclusivity can be sustained.
[53]
That
leaves the contention that the term is to be implied by operation of
law. It should be emphasised here that the “exclusivity”

upon which plaintiff relies applies to both seller and buyer even in
circumstances where no express mandate to sell has been given
to the
broker by the seller. I was not referred to any authority pointing to
implied exclusivity of mandate by law.
[54]
This
is not surprising since the weight of authority dealing with the
nature of the business of a broker lays emphasis upon the
fact that
the broker is an intermediary – whose function is to negotiate
and make bargains between parties. The broker’s
role as agent
to both parties arises because of the process of facilitating the
negotiation as intermediary. His / her authority
or mandate is
however dependent upon the agreement concluded with each of the
principals.
[17]
The
plaintiff’s submission was that upon engagement in the process
of facilitation via a broker the parties implicitly agreed
that no
other broker would be employed in relation to the business between
the parties.
[55]
In
South
African Forestry Co Ltd v York Timbers Ltd
[18]
Brand JA set out the
approach to implied terms as follows:
Unlike tacit terms, which are
based on the inferred intention of the parties, implied terms are
imported into contracts by law from
without. Although a number of
implied terms have evolved in the course of development of our
contract law, there is no
numerus clausus
of implied terms and
the courts have the inherent power to develop new implied terms. Our
court’s approach in deciding whether
a particular term should
be implied provides an illustration of the creative and informative
function performed by abstract values
such as good faith and fairness
in our law of contract. Indeed, our courts have recognised explicitly
that their powers of complementing
or restricting the obligations of
parties to a contract by implying terms should be exercised in
accordance with the requirements
of justice, reasonableness, fairness
and good faith (see, eg,
Tuckers Land and Development Corporation
(Pty) Ltd v Hovis
1980 (1) SA 645
(A) at 651C-652G;
A Becker &
Co (Pty) Ltd v Becker and Others
1981 (3) SA 406
(A) at
471F-420A;
Ex Parte Sapan Trading (Pty) Ltd
1995 (1) SA 218
(W) at 226I-227G).
Once an
implied term has been recognised, however, it is incorporated into
all contracts, if it is of general application, or into
contracts of
a specific class, unless it is specifically excluded by the parties
(see, eg,
Alfred
McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration
1974 (3) SA 506
(A) at 531D-H). It follows, in my view, that a term
cannot be implied merely because it is reasonable or to promote
fairness and
justice between the parties in a particular case. It can
be implied only if it is considered to be good law in general.
[56]
In
this instance the plaintiff contends for the term on the basis of
what would be fair and reasonable between the parties. We are
here
concerned not with determining whether such exclusivity should be
implied in contracts of brokerage but with whether the plaintiff
has
established,
prima
facie
,
a cause of action against the defendant vessel (or applicant for that
matter) founded on contract and which entitles it to arrest
the
defendant vessel.
[57]
The
discussion of the nature of the brokerage relationship set out above
does not, in my view, favour a finding that such term as
is contended
for by the plaintiff is likely to be implied. Indeed the authorities
point in the opposite direction emphasizing as
they do that the
particular terms of the mandate conferred by the parties upon the
broker are matters to be regulated by the agreement
concluded by
them. Furthermore, it should be noted that the principle is well
recognised in contracts such as this that where two
or more brokers
are involved, for example in the purchase and sale of property, the
entitlement to remuneration accrues to the
first broker who
introduced the parties to the bargain.
[19]
[58]
In
my view the plaintiff has failed to make out a
prima
facie
case for a tacit or implied term in the tacit contract alleged to
have been concluded between plaintiff and the applicant in terms
of
which the
applicant
,
as buyer, was precluded from dealing with Donohue other than via
plaintiff as broker. It follows therefore that I am not satisfied

that the plaintiff has established on a
prima
facie
basis its claim founded upon the alleged breach of a contractual
term.
Plaintiff’s
delictual claim
[59]
That
brings me to the alternative claim as formulated in the plaintiff’s
answering affidavit. This claim is a delictual claim
for damages
caused by the applicant’s alleged wrongful and unlawful breach
of a legal duty owed to the plaintiff. The plaintiff
alleges that the
breach took the form of applicant’s culpable interference in a
contractual relationship which existed between
plaintiff and Donahue,
in terms of which plaintiff would have been entitled to payment of
commission upon the conclusion of a sale
agreement for the vessel.
[60]
The
first question that arises in regard to this claim is whether it is a
‘maritime claim’ as envisaged by the Admiralty
Act and as
required by s 3 (4) of that Act.
[61]
In
asserting that the claim is indeed a maritime claim it was submitted
that the claim arises out of or relates to an agreement
for the sale
of a ship (s 1 (1) (c) of the Act) and / or the remuneration of a
person appointed to act as a broker in respect of
a sale agreement
relating to a ship (s 1 (p) (ii) of the Act).
[62]
The
plaintiff’s claim is one against a third party who is alleged
to have ‘unlawfully interfered’ in a contractual

relationship between it and Donahue. This latter contract was, it is
alleged, a contract regulating the remuneration of plaintiff
as
broker in the sale of a vessel, the defendant, of which Donahue was
the erstwhile owner. The delictual claim therefore, it was
submitted,
“relates to” a matter which is defined to be a maritime
claim. On this basis the plaintiff’s claim
is said to be a
‘maritime claim’.
[63]
The
term ‘relates to’ as employed in the introductory portion
of s 1(1) of the Admiralty Act has been considered in
numerous
matters.  In
MAK
Mediterranee SARL v The Fund Constituting the Proceeds of the
Judicial Sale of the MC Thunder (S D Arch, Interested Party)
[20]
Scott J (as he then was)
stated that:
The expressions 'arising out
of' and 'relating to', like the expression  'in respect of',
which is used repeatedly in s 11(4)(c),
and the various other
expressions used in s 1(1) in its original form, such as 'in the
nature of' and 'in regard to', are all expressions
not having a very
definite meaning and in each case the meaning to be attributed to
them, I think, must depend largely on the context
in which they are
used. In
White and Others v Natal Provincial Administration
1955
(3) SA 82
(N) Broome JP construed, for instance, the expression 'in
respect of' in the context in which it was there used as indicating
'a
loose or indirect relationship', which he thought was also what
was indicated by the expressions 'in relation to' or 'relating to'.

The expression 'in respect of' was described by Beyers JA in
Montesse
Township and Investment Corporation  (Pty) Ltd and Another v
Gouws NO and Another
1965 (4) SA 373
(A) at 384B-C, citing with
approval Selke J in
McDermott and Others v Durban Transport
Management Board and Others
1955 (2) SA 191
(N) at 196, as
'an
expression of very wide, and not very definite, meaning',
and
one which
'was potentially the equivalent
of such expressions as "in connection with", "arising
out of", "with reference
to", "in relation to"
and "touching and concerning"'.
The same expression has also
been construed narrowly to mean 'having some direct or causal
relationship with' (see
Commissioner for Inland Revenue v
Crown Mines Ltd
1923 AD 121
at 125;
De Villiers v Commissioner
for Inland Revenue
1929 AD 227
at 229;
McNeil v Commissioner
for Inland Revenue
1958 (3) SA 375
(D) at 377; see also
Commissioner for Inland Revenue v Butcher Bros (Pty) Ltd
1945
AD 301
at 320). In
Continental Illinois National Bank and Trust Co
of Chicago v Greek Seamen's Pension Fund
1989 (2) SA 515
(D)
Thirion J, after referring to the dictionary meanings of certain of
the different expressions used in s 1(1) in its original
form to
connect the various claims with their subject-matter (which meanings
were given as being the equivalent of other expressions
also used in
the section), concluded at 528 that
'(w)hile
the expressions discussed above may have different shades of meaning
depending on the context in which they are used, it
would seem to me
that in the definition of 'maritime claim' in s 1(1) (ii) of the Act
they are used interchangeably'.
Similarly, Page J, in
Peros
v Rose
1990 (1) SA 420
(N) at 425, was unable to discern any
logical pattern which would explain the difference in the expressions
used in s 1(1) (ii)
and accepted that they were
'not
intended to convey any significant difference in the type of
relationship sought to be described'.
It seems to
me that expressions of the kind referred to above are not readily
capable of precise definitions, and have meanings
which by their very
nature are less than definite. When it becomes necessary, therefore,
to determine the limits of the relationships
which they may be
employed to describe, particularly in what may be considered as
borderline cases, it is inevitable, I think,
that particular regard
will have to be had to the context in which they are used in the
statutory provision in question as well
as any other indications,
whether in the statutes or otherwise, which may present themselves.
[64]
Lopes
J, in
MFV
El Shaddai, Oxacelay and Another v MFV El Shaddai And Others
[21]
held that the question to
be “considered is whether the claim is such that its
relationship with 'marine or maritime' matters
is sufficiently close
that it is necessary for it to be heard as a maritime claim in this
court.”
[65]
Van
der Linde J, in
Kuehne
& Nagel (Pty) Ltd v Moncada Energy Group SRL
[22]
approached the question
on the basis that “there has to be at least a legally relevant
connection between, on the one hand,
the claim being made and, on the
other hand, the object to which the claim is required to relate for
purposes of the definition
of “
maritime
claim”.
”
The learned judge explained that by ‘legally relevant
connection’ he meant that the claim and the object “must

be connected in such a way that either in procedural or substantive
law the determination of the one could be influenced, legally,
by the
determination of the other”.
[23]
[66]
The
‘object to which the claim is required to relate’ for
present purposes is the agreement regulating the remuneration
of the
plaintiff, as broker, in the sale of the vessel. For the purposes of
the plaintiff’s claim against the applicant,
it seems to me,
the plaintiff will necessarily have to establish that it would have
earned commission but for the alleged unlawful
interference.  The
substantive determination of damages in its claim against the
applicant will be determined with reference
to its maritime claim as
against Donohue. This being so, I consider that the plaintiff’s
alternative delictual claim is ‘sufficiently
closely connected’
to a maritime matter. Put differently, I consider that there is a
‘legally relevant connection’
between the claim, as
formulated, and the object to which it relates, namely the
remuneration of a broker as provided in an agreement
for the sale of
a ship.
[67]
It
follows that I am satisfied that the alternative claim does
constitute a ‘maritime claim’. That, however, is not
the
end of the matter. It remains necessary to determine whether the
claim is
prima
facie
established. It was argued by applicant’s counsel that the
requisites for establishing a delictual claim for alleged unlawful

interference in a contractual relationship are not sufficiently
pleaded in its answering affidavit.
[68]
The
allegations made by the plaintiff are the following: that the
applicant knew that plaintiff had introduced the parties; that
the
plaintiff knew that plaintiff would earn a commission; that inasmuch
as the applicant concluded an agreement through another
broker, the
applicant ‘acted in a dishonest and unfair manner’. The
plaintiff further alleges that the applicant had
a legal duty to
respect the plaintiff’s right to its goodwill. The plaintiff
further states that it appears that the applicant
“intentionally
assisted and supported” Donahue in breaching its agreement with
the plaintiff.
[69]
These
allegations are set out in the barest of terms. They constitute, for
the most part, assertions or inferences drawn from the
fact that an
agreement was concluded between the applicant and Donohue via another
broker; and from the alleged failure of both
Donohue and the
applicant to advise the plaintiff that the sale of the vessel had
been concluded via another broker.
[70]
As
stated by Hofmeyer
[24]
It is only
when an assertion amounts to an inference which may reasonably be
drawn from the facts alleged that it can have any relevance.
Although
some latitude may be allowed, the ordinary principles involved in
reasoning by inference cannot be ignored is assessing
whether or not
a
prima
facie
case has been established. In the ordinary course in a civil case the
court will consider the probabilities and will enquire whether
the
inference sought to be drawn from the facts is one which, by
balancing probabilities, is the one which is the most natural
or
acceptable one. While there need not be rigid compliance with this
standard, the inference sought to be drawn must at least
be one which
may reasonably be drawn from the facts alleged. If the position were
otherwise, the requirement of a
prima
facie
case would be rendered nugatory.
[71]
The
applicant deals with these allegations in its reply. It denies any
collusion and furthermore explains the process by which the
agreement
of sale came to be concluded. In the context of establishing whether
the plaintiff has made out a
prima
facie
case it is unclear to what extent regard ought to be had to
contradicting allegations made by the defendant vessel (in an
attachment
matter) of the defendant applicant in the present
matter.
[25]
Whatever the
position may be, it seems to me that the averments made by the
applicant cannot be ignored. Certainly not to the extent
that they
cast light on whether the inference upon which the plaintiff relies
may reasonably be drawn.
[72]
In
relation to the alleged loss suffered by the plaintiff – a
necessary element to establish its cause of action – the

plaintiff admits that it has a contractual claim against Donahue. It
says however, that it is unable to enforce the claim in this

jurisdiction and that “it appears that Donahue Fishing does not
have any assets against which a judgment could be executed”.
[73]
There
is no factual foundation to this latter assertion. Indeed it appears
to be wholly inconsistent with facts which are common
cause, namely
that Donahue received payment of an amount of €620 000 for the
defendant vessel.
[74]
The
fact that the plaintiff’s contractual claim is not enforceable
in this jurisdiction does not of course, mean that its
claim is
unenforceable. It is entitled in law to pursue Donahue in the
jurisdiction where the brokerage agreement was concluded.
[75]
It
is an essential requirement to found a delictual claim that the
claimant should allege (and ultimately prove) that it has suffered
a
loss caused by the delinquent defendant. In this instance all that is
in effect alleged is that the loss is to be quantified
on the basis
of the reasonable and fair commission that would have been earned.
That is not an alleged loss actually suffered.
It only becomes a loss
suffered in consequence of an alleged unlawful interference with the
contract if that which would have been
earned is contractually or
otherwise irrecoverable from the contracting party whose obligation
it was to make payment.
[76]
In
the light of this I am unable to conclude that the requisites for the
alternative delictual claim are
prima
facie
established. An essential requirement for an arrest, in terms of s 3
(4) of the Admiralty Act is lacking. It would follow that
the warrant
of arrest authorised by the Registrar falls to be set aside as does
the summons.
[77]
It
remains necessary to consider briefly a further basis upon which
applicant’s counsel contended for the setting aside of
the
warrant.
[78]
The
warrant for the arrest of the defendant vessel was obtained
ex
parte
.
As is required in terms of the Admiralty Rules, plaintiff’s
attorney issued a certificate in which was confirmed that the

plaintiff has a maritime claim in rem against the vessel and,
furthermore, that no reason exists to refer the matter to the duty

judge.
[79]
It
must be recalled that the basis of the claim in the summons
in
rem
was that the plaintiff and the defendant vessel had concluded an
agreement and that commission was payable to the plaintiff. A
party
is of course entitled to institute a claim
in
rem
if it has a claim in personam against the owner of a vessel and where
the claim is against the ship.
[80]
The
formulation of the claim against the defendant vessel, as we now
know, bears little or no resemblance to the claims that were
advanced
at the stage that the applicant sought to set aside the arrest. The
claims advanced before this court also do not appear
to be ‘claims
against the ship’. It is to be doubted, on this basis too that
the arrest was in terms of s 3 (4). I
need not say anything further
in this regard though. The object of outlining the significant
disparity between that which was formulated
as a claim at the stage
that the arrest was sought
ex
parte
and the claims as formulated thereafter, is to highlight the duty
which rests upon a party to make full and proper disclosure.
[81]
In
MV
Rizcun Trader (4), MV Rizcun Trader v Manley Appeldore Shipping Ltd
[26]
Van Reenen J held,
In the event of my
understanding of the said
dicta
being erroneous, it in any
event appears to me to be axiomatic that the question whether the
uberrima fides
rule has been breached must be decided on the
basis of the information before the Court when the ex parte order was
granted, judged
against facts that have subsequently come to light.
As by the very nature thereof
an
ex parte
application has to be decided on a one-sided
version of the events and, more particularly, as the evidentiary
criterion is
prima facie
proof, the
uberrima fides
rule
places a duty on a litigant who approaches the Court in an
application of that nature to disclose every circumstance which
might
influence the Court in deciding to grant or withhold relief. (See the
cases referred to by Erasmus
et al Superior Court Practice
at
B1 - 42 footnote 1; Van Winsen
et al The Civil Practice of the
Supreme Court of South Africa
4th ed at 367 footnote 124; Harms
Civil Procedure in the Supreme Court
at G1 footnote 10.)
Applications for the arrest of
vessels as security are as a matter of practice brought
ex parte
and almost invariably as a matter of urgency before duty Judges with
increasingly heavy workloads. The instant matter appears not
to have
been an exception as, according to a handwritten note on the Court
file, the arrest order was granted by Thring J at 21:50.
E M
Grosskopf JA in
Knox D'Arcy Ltd and Others v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A) at 379F - G adversely commented on the making of
orders in such circumstances, particularly if the relief sought is
based on
largely untested hearsay. It appears to me to be axiomatic
that where orders are sought in circumstances such as those set out
above the need on the part of deponents to adhere to the requirements
of the
uberrima fides
rule is more pronounced.
Le Roux J in
Schlesinger v
Schlesinger
1979 (4) SA 342
(W) at 349A - B extracted the
following principles applicable to the
uberrima fides
rule
from the relevant authorities:
'(1)
(I)n
ex
parte
applications all material facts must be disclosed which might
influence a Court in coming to a decision;
(2)
the non-disclosure or suppression of facts need not be wilful or
mala
fide
to incur the penalty of rescission [ie of the order obtained
ex
parte
];
and
(3)
the Court, apprised of the true facts, has a discretion to set aside
the former order or to preserve it.'
[82]
These
remarks apply with equal force in relation to arrest
ex
parte
by issue of warrant by the Registrar. Given what is now known, namely
that the plaintiff’s claim is based upon either a contractual

or delictual claim against the owner of the ship, it seems to me that
the plaintiff or its representatives failed to make full
and proper
disclosure of material facts. Had that disclosure been made or if the
claim had been formulated in a manner consistent
with the claims now
advanced, it is likely that the matter would have been referred to
the duty judge. In that event, various aspects
of the claim could
have been considered. It hardly bears repeating that the arrest of a
vessel carries with it potentially significant
consequences.
[83]
This
court is vested with a discretion whether or not to discharge the
order in the light of a failure to disclose material facts.
In
my view this is an instance where the exercise of such discretion may
well have been warranted. For the reasons which I have
set out above
it is however not necessary to reach this issue.
[84]
I
therefore make the following order:
1.
The
defendant vessel is released forthwith from its arrest and attachment
pursuant to the Warrant of Arrest issued in favour of
the Plaintiff
by the Registrar of this Court on 26 January 2018;
2.
The
Summons issued by the Plaintiff is set aside as being of no force and
effect due to non-compliance with the peremptory provisions
of
Section 3 (4) of the Admiralty Jurisdiction Act, Act 105 of 1983.
3.
The
Plaintiff is ordered to pay the Applicant / Defendant’s costs
of the application.
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:

For the Applicant / Defendant
Adv.
R. G. Buchanan SC
Instructed
by Greyvensteins
For
the Plaintiff
Adv.
D. Cooke
Instructed
by Thomson Wilks
C/o
Jacques Du Preez Attorneys
[1]
Caledon
Street Restaurants CC v D’Aviera
[1998] JOL 1832
(SE) at 7-8
[2]
Bandle
Investments (Pty) Ltd v Registrar of Deeds
2001 (2) SA 2013 (SE)
[3]
See
Bocimar
NV v Kotor Overseas Shipping Ltd
[1994] ZASCA 5
;
1994 (2) SA 563
(A) at 581 where Corbett CJ referred to a dictum of
Didcott J in
Katagum
Wholesale Commodities Co Ltd v The MV Paz
1984 (3) SA 261
(N) regarding the consequences of attachment of a
vessel.
[4]
Hofmeyer
Admiralty
Jurisdiction, Law and Practice in South Africa
2
nd
ed. p.124ff
[5]
Hare,
Shipping
Law & Admiralty Jurisdiction in South Africa
2
nd
ed. p 132 and the authorities there cited.
[6]
Hare
(supra); Hofmeyer p 124 V.20
[7]
1989 (3) SA
820
(A) at the 831H – 832B
[8]
Transol
Bunker BV v MV Andrico Unity and others; Grecian Mar SRL v M V
Andrico Unity and others
1987 (3) SA 794
(C) at 799F
[9]
Christie,
Law
of Contract in South Africa
5
th
ed. p.82
[10]
In its
answer affidavit it is now suggested that the fair an reasonable
commission would be 10% of the selling price.
[11]
Hülse-Reutter
and Others v Gödde
2001 (4) SA 1336 (SCA)
[12]
1918 TPD
453
at 458
[13]
LAWSA Vol.
1 (Agency and Representation) par 132
[14]
Joel
Melamed and Hurwitz v Cleveland Estates (Pty) Ltd
[1984] ZASCA 4
;
1984 (3) SA 155
(A)
[15]
Karol v
Fidell
1948 (4) SA 466
(C) at 470
[16]
2012 (1) SA
58
(SCA) at par 24
[17]
Jacobs
Levitatz And Braude  Kroonstad Roller Mills
1921 OPD 38
AT 40; Cf.
Benoni
Produce
(supra
)
[18]
2005 (3) SA
323
(SCA) at par 28
[19]
See
Hamlin
v Dunn & Co
1908 NLR 731
at 738. This judgment is also authority for the
proposition that it is an implied term that the seller is liable for
payment
of remuneration to the broker. At 734, the court held:
I
understand that the practice of brokers is to bring buyers and
sellers together, to ascertain what people want to buy and what

people wish to sell; when they know there is a buyer in the market
they go around to get quotations and try and bring buyer and
seller
together. In this they perform a very important duty. I understand
that the rule is that when a sale is effected, the
seller
pays the commission. Now, this custom has so universally obtained
that it may be said to have hardened into a rule of law, and
I do
not think that a Court ought to shut its eyes to a custom which is
so well known, although not pleaded. We are not require
to assume
entire ignorance of commercial matters. If there is such a custom I
think it was quite unnecessary to plead it. If,
on the other hand, a
plaintiff sought to recover commission from a
buyer
,
then I think it would be necessary for him to prove the exception to
the rule, or that there was a special contract between
the buyer and
the broker whereby the buyer was to pay the commission.
[20]
1994 (3) SA
599 (C)
[21]
2015 (3) SA
55
(KZD) at par 18
[22]
[2016]
ZAGPJHC 26 (19 February 2016) at par 30
[23]
Ibid at par
30.
[24]
Hofmeyer
(ibid) at p.125
[25]
See the
discussion of the authorities in Hofmeyer (supra) at 126, V.25
[26]
2000 (3) SA
776
(C) at 793H-794A