In the High Court of South Africa
(Western Cape Division, Cape Town
(In the exercise of its admiralty jurisdiction)
Case No: AC16/2024
In the ex parte application of:
VIKING FISHING A DIVISION OF SEA HARVEST First Applicant
CORPORATION (PTY) LTD
ANTHEA MELISA THOMPSON Second Applicant
GAIL CHARLEEN KLEINSMIDT Third Applicant
LYLE LILIAN COETZEE Fourth Applicant
ALISON MINNIES Fifth Applicant
GERTRUDE FARO Sixth Applicant
ELMINA TATUM TITUS Seventh Applicant
FAIEKE CHARLES Eighth Applicant
JENOBIA-LEE SWIERS Nineth Applicant
VERONICA FRANCES BOUKERS Tenth Applicant
EDINE BENELIZE SIAS Eleventh Applicant
LENA ISSACS Twelfth Applicant
In re: application for an order presuming the death of the below mentioned
seafarers (“the missing crew”) onboard mfv LEPANTO on 17 May 2024: -
Ashwell Solomon Peter Thompson
Christian Steven Kleinsmidt
Jeremia Coetzee
Jeremy Neil Minnies
Johan Faro
Marshall Titus
Mohammad Faadiel Groenewald
Wilfred Johannes Swiers
William Frank Boukers
Eusibio Cornelius Sias
Johnwill Leonard Issacs
Heard: 18 September 2024
Delivered (electronically): 30 September 2024
JUDGMENT
LEKHULENI J
1. Introduction
[1] This is an ex parte application for the presumption of death of eleven crew
members who were on board the mfv Lepanto when this Vessel suddenly capsized
and sank at sea on 17 May 2024 at approximately 14h30 about 34 nautical miles off
Hout Bay. The applicants pray for a final order declaring that the missing seafarers in
respect of this application be presumed dead. In the alternative, the applicants
sought an order that a rule nisi be issued, calling for interested parties to appear on a
date to be determined by this court and say why an order for final relief should not be
granted.
2. Background Facts
[2] On 17 May 2024, the seafarers ("the missing crew") of the mfv Lepanto
disappeared at sea when their Vessel suddenly capsized and sank at 14h30
approximately 34 nautical miles off Hout Bay. Pursuant thereto, the applicants
brought this application for an order that the missing crew on board the Vessel be
presumed dead. The first applicant is Viking Fishing, a division of Sea Harvest
Corporation (Pty) Ltd, a company duly incorporated in accord ance with the company
laws of South Africa, with its registered address at South Arm Road, Table Bay
Harbour, Cape Town, Western Cape. Sea Harvest is the registered owner of the
Vessel that disappeared on 17 May 2024 with the missing crew. Viking operated the
Vessel at the time that it capsized and sank.
[3] At the time of their disappearance, the missing crew were employed by Viking
in terms of temporary employment contracts. Given that the missing crew were
employed on board the Vessel of Viking, Viking brought this application to assist the
missing crew's families to obtain a final order from this Court presuming the missing
crew dead so that death certificates can be obtained from the Department of Home
Affairs. The second to the tenth applicants are t he respective family members of the
missing crew in respect of this application.
[4] The applicants assert that the missing crew set sail from Table Bay Harbour
on 14 May 2024 . The survivors of the tragedy on board the Lepanto reported that
after the fishing operations were completed on Friday, 17 May 2024, and at
approximately 14h30, the crew were working the fish away, and the Skipper was
steaming. The Vessel thereafter suddenly listed to starboard, capsized and then
sank at the stern. The surviving crew inflated one of the life rafts and made their way
into it before the Vessel sank.
[5] According to the National Sea Rescue Institute ("NSRI") report dated 22 May
2024 and the South African Maritime Rescue Coordination Centre ("MRCC") report
dated 21 June 2024, when this tragedy unfolded, the FV ARMANO was
approximately 1 nautical mile away and saw the Lepanto Vessel sink. The FV
ARMANO radioed the MRCC a mayday relay. At 15h39, the NSRI received a call
from the Emergency Oper ations Centre regarding a Mayday radio message . The
MRCC immediately triggered an emergency response, with all vessels in the vicinity
of the sinking vessel proceeding to the location of the casualty to carry out a search.
The MRCC provided the Vessels with a search pattern and deployed life rafts and
fishing boats in the area to search for survivors. More fishing Vessels responded to
assist with the rescue.
[6] Around 16h03, the FV ARMANO reported that more fishing Vessels
responded to assist with the rescue. At 16h06, it was reported that of the 20 total
crew in the sinking Vessel, 9 had been recovered onto the FV ARMANO, and 11
were still missing or unaccounted for. At 16h48, the FV ARMANO reported that the
crew rescued from the Vessel had been removed from the life raft and were on deck.
The search for the missing crew continued diligently until 18 May 2024 by the MRCC
and NSRI, and the missing crew were not fo und. The MRCC and NSRI reports show
that an extensive search and rescue operation was activated following the Mayday
relay received from the FV ARMANO.
[7] All fishing Vessels in the immediate vicinity of the Lepanto and helicopter
services were utilized during the search and rescue operation. No sign of life for the
missing crew was found during the search and rescue operation, and only a few
pieces of debris were spotted and retrieved. Despite an extensive two -day search
and rescue operation, there was no sign of the missing crew. The search and rescue
operation were called off at 21h00 on 18 May 2024.
3. Principal submissions by the Applicants’ Counsel
[8] At the hearing of this matter, the applicants' Counsel implored the court to
grant a final order so that the applicants can have closure. Counsel submitted that a
rule Nisi would lead to a delay in the registration and administration of the estate of
the missing crew. Counsel further submitted that this matter is different in that it is
known that the missing crew perished at sea, and it is unlikely that the missing crew
are alive. The applicants' Counsel prayed that the court grant the final order sought
in the notice of motion.
4. Applicable Legal Principles
[9] This is a maritime claim as contemplated in section 1(1) (f) and (s) of the
Admiralty Jurisdiction Regulation Act 105 of 1983. This Court accordingly has
jurisdiction in terms of section 2(1) of this Act. More so, it is common cause that the
missing crew with respect to this application were domiciled within the juri sdiction of
this Court.1 This is the appropriate court with jurisdiction to consider this application
and grant the relief sought.
[10] The applicants seek an order that the missing crew be presumed to have died
on 17 May 2024. A court may, in certain circumstances, upon the application of any
interested party, presume the death of a missing person and grant an order to that
effect. The Court requested to presume the death of a person will not do so unless it
is satisfied that such can rightly and should, therefore, be inferred on a
1 Ex Parte Maclean 1968 (2) SA 644 (C) at 645-6).
preponderance of probabilit ies from the evidence adduced in the proceedings. 2
Whether the inference can rightly be drawn in any given case is always a question of
fact, the answer to which depends on its own particular circumstances. The applicant
must prove on a balance of probabilities that the missing person is dead.3
[11] A person’s death is not presumed lightly, and it is thus required that the
applicant bring all relevant facts and circumstances to the attention of the court. 4
Whether an order presuming the death of a person will be granted depends o n the
circumstances of each case. Factors which may be of importance in this regard are
the age, occupation of the missing person, the risk to which he was exposed and the
circumstances under which he disappeared. 5 The fact that a person disappear ed in
an intrinsically dangerous situation or area will usually tip the scale in favour of
granting a presumption order that he is dead.
5. Discussion
[12] It is common cause that the missing crew in this matter were on board
Lepanto Vessel when it sunk and disappeared 34 nautical miles off Hout Bay. Their
names appear on the crew list marked TR1 attached to the applicants' application.
They worked for the first applicant, and their employment contracts were also
attached to the application. From the available evidence, 2 0 crew members were on
board th e sunken Vessel and 9 of them survived the tragedy. Despite the diligent
search, to date, no other Vessel or person has reported any sighting of any of the
missing crew, nor have their bodies been sighted or retrieved. When the Vessel
sank, the surviving c rew managed to inflate one of the life rafts and made their way
into it before the Vessel sank. However, the missing crew were not located following
the sinking of the Vessel.
[13] In my view, it is extremely unlikely that the missing crew would have sur vived
a swim to shore, particularly in the very cold water. It has been four months since the
tragedy, and no one has seen them. No sign of life was found during the search and
2 Ex Parte Govender 1993 (3) SA 721 (D) at 722G.
3 Ex Parte Rungasamy 1958 (4) SA 688 (D) at 690-691.
4 Ex Parte Parker 1947 (3) SA 285 (C) at 287.
5 Ex Parte Pieters 1993 (3) SA 379 (D) at 382.
rescue operation, and only a few pieces of debris were spotted and retrieved. T he
missing crew, in my view, disappeared at sea, an intrinsically dangerous area. They
were involved in an occupation that endangered life. In my view, their disappearance
at sea tips the scale in favour of granting the applicants' application.
[14] At the hearing of this application, I thought of acting ex abudanti cautela by
granting an interim order calling upon interested parties (if any) to show cause on the
return date why a final presumption order of death regarding the missing crew should
not be granted. However, after considering the circumstances of this matter, the
crew list attached to the a pplication, their employment contracts, and the reports of
the MRCC and NSRI, I am of the view that such an order would only serve to delay
matters and would serve no purpose other than incurring further expenses
associated with the publication and the sec ond appearance of Counsel on the return
date. From the available evidence, it is apparent that the missing crew were together
with the surviving crew at sea when the disaster occurred. The applicants, with the
assistance of the surviving crew, have explici tly explained how the accident leading
to the disappearance of the missing crew occurred.
[15] Despite the extensive search at sea that lasted for two days, there was no
sign of life for the missing crew. The overwhelming evidence from the surviving crew
is that after fishing operations were completed on Friday, 17 May 2024, at
approximately 14h30, the crew were working the fish away, and the Skipper was
steaming. Their Vessel, suddenly listed to starboard, capsized and sank at the stern.
Evidently, the m issing crew were exposed to a dangerous and life -threatening
accident. In my view, the probabilities are irresistible that the missing crew were
sadly lost with the Vessel when it sank on 17 May 2024 at 14h30 in the afternoon.
There is overwhelming evidence, in my opinion, to infer on a preponderance of
probabilities that their death has, in fact, occurred when their Vessel sunk.
[16] Consequently, t he only reasonable conclusion to be drawn in the
circumstances is that the missing crew perished at sea.
6. Order
[17] In the result, t he missing crew listed hereinabove are presumed to have died
at sea on 17 May 2024.
___________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
APPEARANCES
For the Applicant: Adv Cooke
Instructed by: Edward Nathan Sonnenbergs Inc