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[2017] ZAKZDHC 28
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National Ports Authority, a Division of Transnet (SOC) Ltd v Owners and Underwriters of the MV "Smart" (A11-2016; A56-2016; A64-2016) [2017] ZAKZDHC 28 (18 July 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION,
DURBAN
(Exercising
its Admiralty Jurisdiction)
CASE
NOs: A11/2016
A56/2016
A64/2016
Name
of ship:
MV “SMART”
In the matter between:
THE
NATIONAL PORTS AUTHORITY, A
DIVISION
APPLICANT
OF
TRANSNET (SOC)
LTD
/DEFENDANT
And
THE OWNERS
AND UNDERWRITERS OF
FIRST
RESPONDENT
THE MV
“SMART”
PLAINTIFF
IN A11
THE OWNERS,
BEARERS OF RISK AND
SECOND
RESPONDENT
INSURERES OF
THE PLAINTIFF’S
CARGO
PLAINTIFF
IN A56
FORMERLY IN
THE MV “SMART”
MINMETALS
LOGISTICS ZHEJIANG
THIRD
RESPONDENT
CO
LTD
PLAINTIFF
IN A64
Date of Hearing: 27 June
2017
Date
of Judgment: 18 July 2017
JUDGMENT
D.
Pillay J:
Introduction
[1]
On 19 August 2013 the MV
Smart
grounded as it departed from Richards Bay Harbour. It was a Capesize
bulk carrier with a gross register tonnage of 77 240 metric
tons, an
overall length of 273 metres and fully laden with 147 650 metric tons
of steam coal. The vessel was wrecked and its cargo
lost. Arising
from this incident the applicant, the National Ports Authority, A
Division Of Transnet (Soc) Ltd (TNPA) applies for
a stay of three
actions in this Division:
a.
The owners and the underwriters of the MV
Smart
(the
owners), the first respondent’s claim in delict against TNPA
includes damages totalling in excess of USD107 million
for the loss
of the vessel, the wreck removal and the loss of use of the vessel.
The owners also seek indemnification from TNPA.
b.
The Owners, Bearers of Risk and Insurers of
the Plaintiff’s Cargo formerly in the MV
Smart
(the cargo interests) the second respondent, claim in delict damages
against TNPA to recover USD14 284 399.25 as the market value
of the
cargo at the time.
c.
Minmetals Logistics Zhejiang Co Ltd (the
charterer) the third respondent has an
action
against TNPA in both contract and delict. It also seeks
indemnification against liability to the owners from TNPA.
[2]
Additionally, the respondents have three
arbitrations underway in London arising from the incident. The
owners’ arbitration
is for a declaration that it is not liable
to the cargo interests on the basis that the incident fell within the
exception to the
Hague-Visby Rules, that is, it was without fault on
the part of the owners, that it was caused by the unsafe conditions
of the
port, the perils of the sea or an error in navigation. The
owners’ arbitration against the charterer is based on a
contractual
breach of warranty about the safety of the port. The
damages claimed is substantially similar to those claimed in their
action
against TNPA. Likewise the cargo interests’ arbitration
lies against the owners for the market value of their lost cargo of
approximately USD14 million, the amount they also claim from TNPA.
[3]
TNPA seeks a stay of these actions in this
Division pending the determination of the respondents’
arbitrations in London.
The charterer has a counter-application for a
stay of its action against TNPA.
The
Issue
[4]
This application turns on the
interpretation and application of s 7(1)(b) of the Admiralty
Jurisdiction Regulation Act 105 of 1983
(the Admiralty Act) which
provides:
‘
A
court may stay any proceedings in terms of this Act if it is agreed
by the parties concerned that the matter in dispute be referred
to
arbitration in the Republic or elsewhere,
or
if for any other sufficient reason the court is of the opinion that
the proceedings should be stayed
.’
(my emphasis)
[5]
The
‘or’ in s 7(1)(b) must be read disjunctively.
[1]
No agreement to arbitrate with TNPA exists. Neither is TNPA party to
the London arbitrations. Therefore the first ground for a
stay does
not apply. What constitutes ‘sufficient reason’
is
at the heart of the debate in this application. The Afrikaans version
of the Admiralty Act refers to ‘gegronde rede’
(sound
reasons). Determining what is ‘sufficient reason’
is
a factual enquiry. ‘Sufficient reasons’ requires that ‘a
strong case and exceptional circumstances’ or
‘rare and
compelling circumstances’ must exist.
[2]
Abusive, vexatious or oppressive proceedings brought in bad faith are
examples of sufficient reason for a stay,
[3]
as might be convenience.
[4]
There
must be ‘very strong reasons’ for granting a stay and the
benefits that are likely to result must clearly outweigh
‘any
disadvantage to the plaintiff’.
[5]
Therefore
deciding the question of a stay involves judicial discretion
exercised in appropriate but rare circumstances.
[6]
In this instance my exercise of discretion is facilitated by the
facts being substantially common cause or not seriously in dispute;
to these facts I must apply the narrow interpretative point raised
about s 7(1)(b). Able counsel have also assisted me to expedite
my
judgment.
[6]
In
exercising its ordinary jurisdiction the court may stay proceedings
on the following grounds: abuse of proceedings,
lis
pendens
,
pending criminal proceedings, unpaid prior costs awards, arbitration
agreements, insolvency and other status limiting events.
[7]
TNPA invokes none of these grounds. In the context of maritime law a
stay of proceedings has two additional dimensions: an international,
multi-jurisdiction, multi-party perspectives and multiple proceedings
arising from the same incident. In this context s 7(1)(b)
is a
procedural tool in the hands of the admiralty court to enable it to
manage its expanded admiralty jurisdiction and powers
efficiently.
The
Application
[7]
TNPA
contends that if the owners succeed at arbitration their claims
against TNPA would either be extinguished if they recover their
award
or be reduced by the amounts recovered. If the charterer succeeds at
arbitration in proving that the owners are liable for
the loss of the
vessel on account of the negligence of the master and crew, then the
charterer’s action for indemnity would
fall away and it would
not persist in its claim for damages against TNPA; then the owners
too would be hard pressed to persist
in their action against TNPA.
The owners would be released from liability to the cargo interests if
their arbitration finds that
the port being unsafe or a peril of the
sea did not cause the loss of the cargo but an error in the
navigation of the vessel by
the master and crew did. This finding
would weigh against the owners and cargo interests persisting with
their actions against
TNPA. The cargo interests’ arbitration
could dispose of the owners’ indemnity action against the TNPA
and reduce the
owners’ claim by approximately USD15 million. If
the cargo interests succeed in their arbitration and recover damages
from
the owners they would not need their action against TNPA. TNPA
submits that
‘
the
practical, fair and frankly common sense solution’ is to grant
the application.
[8]
[8]
TNPA contends further that the owners are
persisting with their action at this stage because they have the
ulterior and improper
motive of wanting to procure evidence to use in
the arbitrations; this constitutes an abuse of process of this court;
in exercising
its discretion at the very least the court should take
into account the owners’ strategy. So TNPA urged.
The
Opposition
[9]
The owners resist the application on the
grounds that first, it is an indefinite long-term stay of an action
in South Africa against
a South African defendant susceptible to no
other jurisdiction in delict arising exclusively from events in this
jurisdiction and
subject to South African law. Second, the basis for
the application has no precedent in South African law and is not
justified
on the facts. Third, the owner has a right to institute the
action and to its speedy resolution. Fourth, whether the owner or the
charterer is successful in the arbitrations and whether the owner is
fully indemnified by the payment of an award or not, the litigation
between TNPA and the owner will inevitably proceed in South Africa.
Fifth, the findings of fact in the arbitrations would
not
narrow the factual disputes in the actions because they are
irrelevant and inadmissible. The action and the arbitration are
based
on fundamentally different legal issues. There is therefore no
quantified or sustainable benefit for TNPA from granting a
stay other
than the expense of three separate actions in South Africa, which in
comparison to the amounts of the claims is insignificant.
Sixth, a
stay may stall the arbitrations. Last, the owners would be prejudiced
by the delay if a stay is granted.
[10]
Regarding prejudice and injustice, the
owners anticipate that the arbitrations would be long running. Two of
the three arbitrations
started in September 2013; three and a half
years later they reached no further than discovery. The owners are
but one of the parties
and do not have exclusive control of the
arbitrations. If these arbitrations took as long as eleven years as
the arbitration in
The Ocean Victory:
Gard Marine and Energy Limited
v
China
National Chartering Company Ltd and another; and two related matters
[2017] UKSC 35
did then trial
preparation in their action is likely to begin only in 2024. This
would be contrary to the interests of justice.
Furthermore the issues
in the actions raise novel points of law which the owners anticipate
might lead on to appeals to the Supreme
Court of Appeal and the
Constitutional Court. Piling this delay onto the actions is also not
in the interests of justice.
[11]
The delay could lead to a loss of evidence
as witnesses become unavailable or their capacity for recollection
fades. The owners
would be precluded from issuing subpoenas when that
might be the only way of preserving the evidence of third party
witnesses.
Subpoenaing witnesses would not be a cost to TNPA.
[12]
If the respondents had not instituted
actions against TNPA they ran the risk of the
Prescription Act 68 of
1969
barring them from doing so. The purpose behind prescription is
to discourage claims being pursued after the prescribed time to avoid
injustice, uncertainty and the unavailability and unreliability of
witnesses. So objectively there is some cogency in litigating
expeditiously.
[13]
The charterer has not secured the owners’
claim in the arbitration. The limited security of USD7 million
forthcoming from
the arrest of an associated ship will not satisfy an
arbitration award. If the owner fails in its arbitration against the
charter
party TNPA cannot assume that the owners would abandon their
claim against it.
[14]
The owners accept that the court has the
power to order a stay if it determines that the owners’ actions
constitute an abuse
of process. What constitutes an abuse of process
depends on the circumstances of each case. A rough guideline is that:
‘
an
abuse of process takes place where the procedures permitted by the
Rules of the Court to facilitate the pursuit of the truth
are used
for a purpose extraneous to that objective.’
[9]
[15]
The owners’ demand for discovery is a
legitimate and inevitable exercise of power enabled by the rules of
court. Because the
discovered documents could have an alternative and
additional use in the arbitration it is not an abuse of process.
[16]
The cargo interests supported the owners’
opposition to the application. Although they have a contractual claim
against the
owners they also have a delictual claim against TNPA for
allegedly knowing about but failing to warn against the heavy swells
and
closing the port.
[17]
The charterer’s arbitration commenced
at an early stage. Its action was instituted cautiously to avoid
prescription. However
it has taken no further steps other than to
launch a counter-application supporting a stay of its action pending
its arbitration.
Analysis
[18]
Generally
permitting parallel proceedings and risking inconsistent decisions in
multiple forums on substantially the same dispute
is undesirable.
[10]
However, in this instance although the single event triggering the
actions and arbitrations is the shipwreck of the MV
Smart
,
and even though the ultimate question common to all the proceedings
is what or who caused the MV
Smart
to ground, the actions of all the respondents are founded on
different causes. It is common cause or not disputed that the only
forum having jurisdiction over the actions against TNPA is this
court,
[11]
that the actions in
this court offer the only opportunity in which all the claims between
all the parties against TNPA can proceed,
that this court is the most
convenient forum to determine all the disputes between all the
parties, and that the findings in the
arbitrations are not binding on
this court, but that they would impact significantly on the actions.
Therefore underpinning
the definition of ‘sufficient reason’
is the search for the most efficient procedural arrangements for the
ventilation
of all the causes in the arbitrations and actions without
compromising any rights, procedural or substantive, of any of the
parties.
[19]
Turning
to precedents in
MV
Iran Dastghayb
v
Terra-Marine
SA
(
MV
Iran Dastghayb
)
the first case in which a court considered the meaning of ‘sufficient
reason’, the Supreme Court of Appeal placed
the onus on ‘a
party resisting a stay of those proceedings … of showing why
it should be permitted nevertheless to
pursue those claims here.’
[12]
Receiving no more than
‘a speculative hypothesis’ from such party,
[13]
it held that the outcome of an action
in
rem
that was identical to and dispositive of an arbitration
in
personam
was sufficient reason for a stay.
[14]
Nevertheless, the court imposed a condition on the party seeking the
stay to provide security for the final arbitration award.
[15]
[20]
The
TNPA accepts that the court will not lightly order a stay but
contends that the applicable test is less stringent than that
which
was applied in
Reichhold
Norway ASA and Another
v
Goldman
Sachs International
1999 (2) Lloyd’s Rep 567 (CA). Reichhold sued Goldman Sachs for
damages in the English High Court. Goldman Sachs applied
to stay the
London action. Reichhold then commenced arbitration against Jotun in
Norway in terms of an arbitration clause in the
agreement for the
sale of shares from Jotun to Reichhold. In opposing this stay
Reichhold insisted that it was entitled to choose
whom to sue and
when without interference from the court; only in ‘exceptional
circumstances’ could the court interfere.
[16]
The court below granted the stay. The Court of Appeal dismissed the
appeal on the basis that the stay delayed the action only for
a year
to await the outcome of the arbitration in Norway and in anticipation
that the action would then fall away.
[17]
[21]
MV
Iran
Dastghayb
and
Reichhold
Norway
are distinguishable from this case on both the facts and the law. On
the facts the arbitrations are not dispositive of the actions;
furthermore the claims are not secured adequately or at all. In
Reichhold
Norway
the stay was granted for a limited period of a year. On the
information available to that court it was able to anticipate the
time by which the arbitration would be concluded and assess that a
‘delay of that kind can be compensated by an award of
interest.’
[18]
Nevertheless the court recognised as a matter of law that
individuals are:
‘
entitled
to untrammelled access to a court of first instance in respect of a
bona fide claim based on a properly pleaded cause of
action, subject
only to the sanction or consideration that he is in peril of an
adverse costs order if he is unsuccessful, in respect
of which the
opposing party may resort to the usual remedies of execution and/or
bankruptcy is such order is not complied with.’
[19]
[22]
However, on the law both cases were decided
without any reference to a constitutional right of access to a court
and what limitations,
if any, constrained the right. And so it is to
the constitutional right that I now turn.
[23]
Section 34 of the Constitution of the
Republic of South Africa 1996 provides:
‘
Everyone
has a right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum’.
[24]
‘
Everyone’
enjoys this right including
peregrine,
which the owners are.
[20]
A
fair hearing be it in public in a court of law or in private
arbitration implies both ‘the twin notions of procedural and
substantive fairness’,
[21]
each interacting dialectically with the other. Granting a stay is a
procedural step that could implicate the substantive rights
and
fairness in several ways. Topping the list is the right to have
disputes resolved expeditiously.
[22]
‘Justice delayed is justice denied’ is a legal maxim
[23]
that the Constitutional Court reinforces for sound practical reasons.
Delay prolongs the uncertainty of the outcome. Witnesses
become
unreliable or unavailable.
[24]
Recovering judgment debts and arbitration awards are put at risk.
[25]
In this instance a stay would suspend the
owners’ and the cargo interests’ pre-trial procedural
rights to discovery
and to subpoena witnesses in the actions. In so
far as the enforcement of their pre-trial rights in the actions also
assists their
causes in the arbitrations the latter could also be
delayed. Undoubtedly therefore a stay of the actions is a
suspension
and limitation of the right to access to justice. Is the
limitation reasonable and justifiable in the circumstances of this
case?
Reasons
[26]
Weighing the submissions for and against
the stay I find against staying the actions for the reasons that
follow.
[27]
For
all the reasons advanced by the owners and cargo interests, the
arbitrations are not dispositive of the actions. The causes
of action
in the arbitrations differ from the actions against TNPA. In the
arbitration the owners allege that the charterer breached
its
obligations under the charter party to take the MV
Smart
only to safe ports. Richards Bay was not safe. The arbitration is
seized with determining the meaning of safe port.
[25]
In contrast, in their action the owners have to prove a single
incident of negligence that caused the casualty rather than the
general unsafe conditions of the port. The defence of ‘error in
navigation’ and other defences under The Hague-Visby
Rules that
arise in the arbitration between the owner and the cargo interests do
not apply to the owners’ action against
TNPA. A failure at
arbitration of a ‘safe port warranty’
contractual
case hardly forecasts a failure in the delictual action. Conversely,
in the action an apportionment of fault, the defence
of vicarious
liability of the pilot as the servant of the owners in terms of
s 76
of the
National Ports Act, 2005
and ‘good faith’
to
determine the liability of TNPA in terms of
s 85
of that Act could
arise.
[28]
The
arbitrations could narrow down the issues in the actions. But the
arbitrations are non-binding. Their findings would only lead
to a
narrowing down of the actions if the litigants agree. Naturally if
the respondents lose at arbitration they would hardly be
inclined to
admit those findings in their actions.
[26]
Conversely if they win TNPA is unlikely to admit them into the
actions. The findings in the arbitrations may be such that
the
litigants may even be hard pressed to admit them in the actions, but
they cannot be compelled to do so. Nor can this application
to stay
be used to engineer or manipulate the admission of the arbitration
findings into the actions, as might happen if witnesses
become
unavailable.
[29]
Simultaneously, a refusal to make
admissions when it is reasonable and sensible to do so would have
adverse consequences for any
party who adopts this stance. Having
assessed this risk the owners and cargo interests have reconciled
themselves to tendering
the costs of TNPA if they have to withdraw
their actions. Far riskier for them are the opportunity costs
of delaying the
actions: first, evidence could become unreliable or
unavailable; second, discovery and the tactical advantages it extends
to the
arbitrations would not be available; and third, debt recovery
could be impaired.
[30]
The
novelty of the issues at arbitration may result in appeals and
reviews. TNPA wants a stay until all those processes are determined.
This will delay the actions indefinitely. The parties have some
control over the scheduling of the arbitrations but they will have
less control over the scheduling of their appeals and reviews.
Unlike in
Reichhold
Norway
no one involved in these cases can estimate when the arbitrations
will be finalised. Compensation for a stay in the form of interest
is
also out of the question for as long as the risk of debt recovery is
real and the
in
duplum
rule applies.
[27]
[31]
As justification for the stay TNPA points
to the delay in the owners and cargo interests launching their
actions. The cargo interests
delayed instituting their actions for
less than three years in order to investigate and collect evidence
and reports to support
their claim against TNPA. The respondents had
by law three years to institute their actions. That delay, necessary
as it was, is
reason enough to avoid unnecessary delays. More
prejudicial would be a further delay of the actions four years after
the incident
for an indefinite period.
[32]
To mitigate the effects of the passage of
time on memory loss taking statements of witnesses is not ideal.
Without cross-examination
the statements carry less weight. The
preferred option of issuing subpoenas would not be a cost for the
TNPA.
[33]
The arbitrations are being stayed pending
full disclosure in the actions. If this application is granted then
the arbitrations would
be frustrated. Furthermore a significant
difference in the rules of discovery arises between Uniform
Rule 35
read with Admiralty
Rule 15
and requesting TNPA for specific
documents. Uniform
Rule 35
requires TNPA to disclose all relevant
documents, which would include documents that are unknown to the
respondents.
[34]
The motives of the owners and the cargo
interests in wanting to persist with the actions are at the best of
times hard to discern
in motion proceedings. TNPA’s contention
that the owners are abusing discovery procedures would be a relevant
and worthwhile
enquiry in this application if they had no discovery
rights. They do have such rights, procedural in form, substantive in
effect.
Equally hard to discern is whether TNPA is seeking to avoid
discovering by applying for a stay. Ironically some of the costs that
the TNPA sought to avoid incurring in the pre-trial process it has
already incurred in this opposed application. If TNPA wants
a stay to
avoid having to discover in the action it would be a sufficient
reason to refuse the application. TNPA has no right to
a stay but an
obligation to comply with Uniform
Rule 35
read with Admiralty
Rule 15
requests for discovery.
[35]
The owners have limited security of USD7
million against the charterer secured only by way of an arrest of a
vessel. If the owners’
claim remains unsatisfied by the
charterer it would proceed against TNPA for the balance. TNPA
responds that the recovery of the
claims from the charterer should
not be a concern because the charterer is part of a state owned
company in China that has over
240 000 employees internationally and
an operational revenue in 2015 of USD65 billion. The charterer also
has liability insurance.
[36]
But
the charterer has not undertaken to settle in full if the owners
succeed at arbitration. Consequently at most the owners can
entertain
a
spes
that the charterer would be able to fulfil any awards against it.
Aptly the short response to TNPA’s optimistic projections
is to
be found in the Asian proverb: ‘There’s many a slip
between cup and lip.’
[28]
[37]
Case
management principles are not a basis for limiting substantive and
procedural rights as granting the stay would. The Chief
Justice’s
Norms and Standards issued in terms of
s 8
of the
Superior Courts Act
10 of 2013
read with s 165(6) of the Constitution stipulates that
matters should be finalised speedily and as far as possible within
one year
from issuing summons. Case management is a practical
tool employed by the court to encourage the efficient resolution of
disputes within the limited resources available to the courts without
compromising the rights of the litigants to access to justice.
Therefore TNPA’s reliance on case management in the interests
of court administration as a ground for the stay is misplaced.
Even
though the clear trend is towards giving ‘greater control by
the courts over the course of proceedings,’
[29]
case
management is rather a means to an efficient and expeditious end and
not an end in itself.
[38]
All that would be achieved by a stay is a
deferral of the trial preparations. Costs may be avoided only if the
findings of the arbitrations
are allowed to limit or dispose of the
issues in the actions. And there is no certainty of this happening.
TNPA’s application
for a stay is not aimed at protecting any
established right.
Its
purpose is primarily and ostensibly driven by considerations of costs
and convenience.
In contrast the
prejudice to the owners’ procedural and substantive fair trial
rights is significant. In the circumstances
the stay of the actions
will be an unreasonable and unjustifiable suspension and limitation
of the owners’ and cargo interests’
access to justice.
Accordingly the stay is refused.
[39]
The court notes that the owners are
prepared to go to trial in the actions as soon as the pre-trial
proceedings are concluded and
a court date is allocated even if the
trial precedes the arbitration. However, if the arbitration is ready
they may delay the trial
in the actions after close of the pre-trial
procedures. The cost of the pre-trial preparations are relatively
insignificant in
relation to the trial, which the owners anticipate
would run for about 20 days, and even more insignificant in
comparison to the
amount of the claims.
[40]
Ideally the court
would look to avoiding outlaying resources for a long trial and would
delay the actions if the arbitrations were
on the brink of
finalisation. Case management offers an opportunity to reassess the
situation once pre-trial preparation is concluded
and before trial
dates are allocated. Either party may ask for a case management
hearing at that stage if the court has not already
convened one. Such
a hearing would dispense with another formal application to stay
unless the parties think otherwise. To balance
the concerns of TNPA I
will issue an appropriate directive regarding case management with my
order.
The
Charterer’s Counter-Application
[41]
The charterer’s counter-application
is also for a stay of its action against TNPA. If it succeeds in the
arbitration it would
not be seeking an indemnity in its South African
action against the TNPA. In its arbitration the charterer’s
stance is that
the Richards Bay port was safe at the time of the
casualty. In contrast its South African action is premised on a
condition of
claim that the port was unsafe. It contends
further that the cost of the action for the charterer and the court
would be
considerable.
[42]
The charterer refutes TNPA’s
contention for an ‘all or nothing’
stay
of all the actions
.
It
contends that if the actions of the owner and the cargo proceed
whilst the charterer’s action is stayed, and if the charterer
loses at its arbitration it would uplift the stay of its action and
join the consolidated actions of the other two respondents.
[43]
I agree that they would not be prejudiced
by the charterer’s stay of action. Some time will have to lapse
between the end
of the arbitration and the trial being set down for
the actions. This would enable the charterer to catch up with the
actions of
the others. TNPA would also not be prejudiced by the
charterer’s stay of action. If the charterer’s action is
not stayed
then costs would be wasted which for the charterer would
be substantial. More importantly however it would have to plead
conflicting
versions in each process.
[44]
From the perspective of case management the
court is unlikely to allow separate actions arising from the same
incident. Consequently
a consolidation of actions against TNPA is a
practical and an efficient way of determining all the actions.
Consequently all three
respondents will have to be trial ready before
the matter is enrolled unless there are compelling reasons to
separate the actions.
Order
[45]
The application of the National Ports
Authority, a Division of Transnet (Soc) Ltd (applicant) to stay the
actions of the Owners
and Underwriters of the MV “
Smart
”
(first respondent) and the Owners, Bearers of Risk and Insurers of
the Plaintiff’s Cargo formerly in the MV “
Smart
”
(second respondent) is dismissed with costs, including the costs of
two counsel when employed.
[46]
The counter-application of Minmetals
Logistics Zhejiang Co Ltd (third respondent) is granted with
applicant paying its costs, including
the costs of two counsel when
employed.
Directive
[47]
The parties are directed to approach the
registrar of the court to convene a pre-trial conference before a
judge within 30 days
after the pre-trial preparations in the actions
are concluded or the awards in arbitrations are issued, whichever
occurs first.
APPEARANCES
Counsel
for the Applicant: M Wragge SC (with J.D Macenzie &
D.M
Nyathi
Instructed
by: Webber Wentzel Cape Town
c/o
Goodricks Attorneys
Tel:
(021) 431 7279/81
Ref:
Mr G Fitzmaurice
Counsel
for the First Respondent: S.R Mullins SC (with P.J Wallis)
Instructed
by: Shepstone & Wylie
Tel:
(031) 575 7307
Ref: S Dwyer/T Edwards
Counsel for the Second
Respondent: G.D Harpur SC
(with J Thobela-Mkhulisi)
Instructed
by: Norton Rose Fulbright S.A Inc
Tel:
(031) 582 5600
Ref: Mr M Hartwell
Counsel for the Third
Respondent: M Fitzgerald SC (with D.J Cooke)
Instructed
by: Edward Nathan Sonnenbergs Inc.
Cape
Town
Tel:
(021) 410 2500
Ref: Mr T Norton/Mr M
Tucker
Date of Hearing: 27 June
2017
Date of Judgment: 18 July
2017
[1]
MV
Iran Dastghayb Islamic Republic of Iran Shipping Lines v Terra-Marine
SA
2010 (6) SA 493
(SCA) para 22.
[2]
Reichhold
Norway ASA and another v Goldman Sachs International
1999 (2) Lloyd’s Rep 567 (CA) at 682.
[3]
Shaw
Admiralty
Jurisdiction and Practice in South Africa
at 54-55
[4]
Heys
Hofmeyer
Admiralty
Jurisdiction Law and Practice
at 32.
[5]
Reichhold
Norway
at
678.
[6]
Reichhold
Norway
at
682.
[7]
Hofmeyer
Admiralty
Jurisdiction Law and Practice in South Africa
2 ed 70-71
[8]
Para
97 of the applicant’s heads of argument.
[9]
Beinash
v
Wixley
1997
(3) 721 (SCA) at 734G.
[10]
MV
Iran
Dastghayb
)
para 31;
Astrazeneca
UK Ltd v Albemarle International Corp and another
[2011] 1 All ER (Comm) 510
;
[2010] EWHC 1028
(Comm) para 108.
[11]
MV
Iran
Dastghayb
.
[12]
MV
Iran Dastghayb
para
19.
[13]
MV
Iran Dastghayb
para
26.
[14]
MV
Iran
Dastghayb
para
36.
[15]
MV
Iran
Dastghayb
para
2 of Order.
[16]
Reichhold
Norway
at 679.
[17]
Reichhold
Norway
at
681, 686.
[18]
Reichhold
Norway
at
679.
[19]
Reichhold
Norway
at
680.
[20]
Kiliko
And Others v Minister Of Home Affairs And Others
2006
(4) SA 114
(C) par 28: ‘The State, under international law, is
obliged to respect the basic human rights of any foreigner who has
entered its territory, and any such person is under the South
African Constitution, entitled to all the fundamental rights
entrenched
in the Bill of Rights, save those expressly restricted to
South African citizens’.
[21]
See
Stopforth
Swanepoel & Brewis Inc v Royal Anthem (Pty) Ltd and others
2015
(2) SA 539
(CC) para 19, 25.
[22]
National
Director of Public Prosecutions and another v Mahomed
2008 (1) SACR 309
(SCA) para 31.
[23]
Attributable
without verification to either
William
Ewart Gladstone
or William Penn
https://en.wikipedia.org/wiki/Justice_delayed_is_justice_denied
(accessed 15 July 2017).
[24]
Mohlomi
v
Minister
of
Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC) para 11
[25]
The
Ocean Victory: Gard Marine and Energy Limited
v
China
National Chartering Company Ltd and another; and two related matters
[2017]
UKSC 35
[26]
Hollington
v F Hewthorne & Co Limited
and
another
1943
KB 587
(CA).
[27]
[zRPz]
Paulsen
And Another V Slip Knot Investments 777 (Pty) Ltd
2015
(3) SA 479 (CC).
[28]
http://www.english-for-students.com/there-is-many-a-slip-between-the-cup-and-the-lip.html
(accessed
9 July 2017)
[29]
Reichhold
Norway
at
681.