IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
Case No: A42/2014
Name of ship: MV “CECILIA B”
In the matter between:
GLENCORE INTERNATIONAL AG APPLICANT
and
ATAKAS TICARET VE NAKLIYAT AS FIRST RESPONDENT
RICHARDS BAY COAL TERMINAL (PTY) LTD SECOND RESPONDENT
THE OWNERS OF THE MV “CECILIA B” THIRD RESPONDENT
se SO aa aaa
ORDER
a Se
The following order is made:
a The first respondent is directed to provide security for the applicant's costs in
the action commenced by the first respondent, as plaintiff, against the applicant,
the second and third respondents, as defendants, under case number
A42/2014 in the amount of R1,2 million.
2. The security referred to in paragraph 1 shall be furnished in a form agreed by
the applicant and the first respondent, alternatively in a form to be determined
by the Registrar.
2
Se The security shall be furnished within ten days of the date upon which this order
is made, alternatively within ten days of the date of determination of the form of
security by the Registrar, whichever is the later date.
4. The action commenced by the first respondent against the applicant is stayed
until such time as this order is complied with.
5. In the event of the security not being furnished timeously or at all, the applicant
is granted leave to make application on the same Papers, duly amplified, as
may be necessary, for an order dismissing the first respondent's action against
the applicant with costs.
6. The first respondent shall pay the applicant's costs of this application on scale
B.
a
JUDGMENT
Sibiya AJ:
Introduction
[1] This is an application in which the applicant, Glencore International AG
(‘Glencore’), a Swiss company, seeks security for costs from the first respondent,
Atakas Ticaret VE Nakliyat AS (‘Atakas’), a Turkish company and a plaintiff in an action
for delictual damages against Glencore, second respondent and third respondent, as
7 defendants. The application is brought in terms of s 5(2)(b) of the Admiralty Jurisdiction
Regulation Act' (‘the Act’), read with Uniform rule 47. No relief is sought against the
second and third respondents.
Background facts
(2] The essential facts giving rise to this application, which are largely common
cause, can be summed up as follows. On 18 December 2012 Atakas purchased a
consignment of coal from Glencore. On or about 28 October 2013, the vessel MV
“Cecilia B” (‘the vessel’), owned by the third respondent, “The owners of the MV
“Cecilia B” (‘the owners’) and chartered by Atakas, called at Richards Bay coal
‘ Admiralty Jurisdiction Regulation Act 105 of 1983.
3
terminal, Kwazulu-Natal, for the Purpose of the carriage of coal from the port of
Richards Bay to Turkey. The second respondent, Richards Bay Coal Terminal (Pty)
Ltd ((RBCT’) was responsible for the loading of the coal onto the vessel.
[3] On 30 October 2013, after the coal was loaded onto the vessel, an explosion
occurred onboard, causing damage to the vessel and its hatch covers and to part of
the consignment of coal. As a result of the explosion, the whole cargo of coal had to
be off-loaded and the vessel was precluded from leaving the port of Richards Bay until
late in December 2013. Atakas, through its investigations, determined that the loading
of heated coal onto the vessel was the cause of the explosion.
[4] On 26 June 2014 Atakas instituted an action in personam against RBCT for
damages constituting expenses incurred by it as a result of the explosion. On 23
February 2016 ‘the owners’ were Joined to the action as the second defendant and on
30 May 2019 and pursuant to a confirmation order by the Supreme Court of Appeal,
Glencore was joined as the third defendant. Glencore’s application for leave to appeal
to the Constitutional Court was unsuccessful. Glencore defends the action and has
delivered its plea in which it denies liability for Atakas’ loss.
[5] On 03 February 2020 Glencore issued a notice in terms of rule 47 calling for
security for its costs in an amount of R1,2 million. The notice was premised on the.
ground that Atakas is a peregrinus of this court with no known assets of value within
: the Republic of South Africa, and secondly, that Glencoe has a genuine and
reasonable need for security for its costs.
{6] In response to the notice in terms of rule 47, Atakas’ attorneys, on 25 June
2021, sent an e-mail to Glencore’s attorneys, tendering a draft bank guarantee to be
issued by a Turkish bank, Garanti BBVA for an amount up to USD75.000 to their
nominated correspondent bank in South Africa, provided the proposed wording of the
bank guarantee was acceptable to Glencore. Atakas advised further that it will revert
as soon as it is possible regarding the identity of the nominated correspondent bank
in South Africa.
[7] By letter dated 30 June 2021, and before Atakas could provide the details of
the nominated correspondent bank, Glencore’s attorneys advised that Glencore was