IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, G QEBERHA
Case No. : 3683/2022
Date Heard: 22 November 2024
Date Delivered: 2 May 2025
In the matter between:
MINERVA BUNKERING MARINE SERVICES (PTY) LTD Appplicant
and
THE ACTING CHIEF EXECUTIVE OFFICER OF THE First Respondent
SOUTH AFRICAN MARITIME SAFETY AUTHORITY
THE SOUTH AFRICAN MARITIME SAFETY AUTHORITY Second Respondent
TRANSNET NATIONAL PORT AUTHORITY Third Resondent
JUDGMENT
RONAASEN AJ:
Introduction
The parties to this application
[1] The applicant :
1.1. is Minerva Bunkering Marine Services (Pty) Ltd (“Minerva”) ;
1.2. is a subsidiary of the Minerva Group , which is in turn part of the
Mercuria Energy Group . The Minerva Group claims to be the largest
physical bunker supplier globally, servicing more than 50 ports around
the world;
1.3. took over the existing marine bunkering business of Aegean Marine
Petroleum SA (“Aegean ”) in April 2019 ; and
1.4. carries on marine bunkering services within the ports of Port Elizabeth
and Ngqura , both situated in Algoa Bay .
[2] The first respondent is the Acting Chief Executive Officer of the South African
Maritime Safety Authority (“SAMSA”) a juristic person established in te rms of
the South African Maritime Safety Authority Act, 5 of 1998 (“the SAMSA Act ”).
[3] The second respondent:
3.1. is SAMSA ;
3.2. is tasked with the administration and enforcement of the Marine
Pollution (Control and Civil Liability ) Act, 6 of 1981 (“the MPA”) ; and
3.3. has as its objectives, in terms of section 3 of the SAMSA Act the safety
of life and property at sea ; to prevent and combat pollution of the
marine environment by ships and to promote South Africa’s maritime
interests .
[4] I shall refer to the first and second respondents, collectively, as “SAMSA ”.
[5] The third respondent:
5.1. is the Transnet National Ports Authority (“the TNPA” ) and is an
operating division of Transnet SOC Ltd ; and
5.2. has authority and responsibility over the commercial seaports of the
Republic of South Africa, including the ports of Port Elizabeth and
Ngqura (“the ports”) .
[6] Minerva seeks no relief against the TNPA, which has not participated in these
proceedings and abides the outcome of this application .
Brief overview
[7] In 2012 the Coega Development Corporation initiated a series of meetings to
identify common issues which could lead to an increase in maritime business in
the Algoa Bay region . One of the areas identified was the possibility of locating
a ship -to-ship bunkering operation in Algoa Bay and the ports . One of the key
motivations was that if passing vessels could be persuaded to bunker in Algoa
Bay there would be positive economic spin -offs for the region.
[8] Aegean was identified as a possible company to develop bunker ing operations
in Algoa Bay. An audit of Aegean was undertaken during July 2013 by
SAMSA , in Greece. This resulted in an approval in principle by SAMSA being
granted to Aegean , on 26 July 2013, to conduct ship to ship bunker transfers in
Algoa Bay.
[9] The approval in principle became a final approval (“the approval”) on 8 May
2014, after Aegean had met SAMSA’s outstanding requirements. It is not
disputed that during 2019 the approval was transferred to Minerva .
[10] On 5 December 20 22 SAMSA decided to withdraw the approval (“the
decision”) . The decision was communicated to Minerva on 6 December 2022.
[11] It is common cause that the decision constitutes administrative action as
defined in the Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”) and
is therefore susceptible to review in terms of PAJA.
[12] Pursuant to the decision , SAMSA , on 9 December 2022 , issued a document
entitled “ MARINE INFORMATIO N NOTICE” (“the notice”) to interested parties
to provide information on the withdrawal of the approval, which was stated to be
of immediate effect .
Litigation history and the relief currently sought
[13] Minerva launched this application on 11 December 2022, i n two parts, namely:
13.1. part A , in terms of which it sought urgent interim relief pending
determination of the relief sought in terms of part B of the application;
and
13.2. part B, by way of which it sought to review and set aside the decision .
[14] On 13 December 22 this Court granted an interim order in favour of Minerva
which, in summary, directed that:
14.1. SAM SA would suspend the notice with immediate effect , and would by
15:00 on Tuesday, 13 December 2022 , notify all addressees thereof
that the notic e had been suspended with immediate effect and that
vessels calling for bunkers or oil cargo transfers could lawfully continue
to use the services of Minerva to that end;
14.2. SAMSA would not take any steps to give effect to the decision provided
that all ship-to-ship bunker and cargo transfers would be conducted by
Minerva subject to the authority of SAMSA , in law, whether the transfer
occurred within or outside the port limits, and such transfers would
include any ship -to-ship:
14.2.1. bunker or cargo transfer between the cargo vessel and the
mothership;
14.2.2. oil cargo transfer between the mothership and the bunker
barge vessel ; and
14.2.3. bunker or cargo transfer between the bunker barge vessel and
the client vessel ;
14.3. the costs in respect of part A of the application would stand over for
determination in the review proceedings.
[15] Thus, in addition to the costs of part A of the application, I am required to
determine part B of the application in terms of which Minerva , in its amended
notice of motion, asks that:
15.1. the decision be reviewed , set aside and be declared unlawful ;
15.2. the approval be reinstated;
15.3. the decisions taken to issue various “Admission of Contravention
Notices ” and the notices themselves be reviewed, set aside and
declared unlawful; and
15.4. SAMSA be directed to pay the costs of both parts A and B of the
application .
Summary of the dispute between Minerva and SAMSA regarding the scope of
the approval
Nomenclature
[16] Minerva’s case is that it provides marine fuel and re lated services to ships in
the ports . The services it provides include marine bunkering and ship -to-ship
cargo transfers.
[17] “Bunkering” refers to the supply of “bunkers” (marine fuel oil) from an outside
source such as a fuel tank situated onshore or a floa ting bunker tanker or
bunker barge into a ship’s fuel tanks for use by that ship .
[18] A ship-to-ship cargo transfer refers to the transfer of fuel oil cargo (bunkers)
between two ships where the recipient ship does not utilise the fuel that is
transferred for its own consumption . This occurs when a tanker ship transfers
fuel oil to an anchored “mothership” that stores the fuel oil and later transfers
that fuel oil to a bunker tanker or bunker barge and where the fuel oil is
thereafter transferred from the bunker tanker or bunker barge to a third -party
vessel for its own consumption .
Minerva’s contentions
[19] Minerva submits that a ship-to-ship cargo transfe r has three legs, namely:
19.1. the first leg which entails the replenishment of a mothership’s supply of
marine fuel oil from a tanker ;
19.2. the second leg which involves the transfer of marine fuel oil from a
mothership into bunker tankers or bunker barges that are smaller
vessels which are used to transport fuel oil to third -party vessels ; and
19.3. the third leg which relates to the transfer of fuel oil from the bunker
tankers or bunker barges into the fuel tanks of third -party vessels for
their consumption.
[20] Minerva’s c ontention is that the approval covers all three the abovementioned
legs. It says, further, that SAMSA’s conduct for some seven years supported
this contention and only in the latter half of 2022 SAMSA first suggested that
the approval was limited to the third of the three legs and that individual
approval s were required for the other two legs .
SAMSA’s contentions
[21] SAMSA submits that a distinction must be drawn between bunker transfers and
cargo transfers, as follows:
21.1. a bunker transfer occurs where fuel oil is pumped into the receiving
ship’s fuel tank for use by that receiving ship (essentially the third leg
described in paragraph 19. 3, above) ; and
21.2. a cargo transfer happens where fuel oil is pumped into the cargo tanks
of the receiving ship and the receiving ship will then transport that fuel
oil (essentially the first and secon d legs described in paragraphs 19. 1
and 19. 2 respectively, above).
[22] SAMSA’s case is that it s permission is required for all cargo transfers, wherever
they occur, for all bunker transfers outside a harbour and for all bunker
transfer s inside a harbour in cir cumstances where certain regulatory provisions
(to which I shall revert later) do not apply.
[23] SAMSA says it grants approval for bunker transfers (i.e. leg three described in
paragraph 19. 3, above) on a conditional blanket basis and grants approval for
cargo transfers individually (i.e. legs one and t wo described in paragraphs 19. 1
and 19. 2 respectively, above).
[24] In short, it is SAMSA’s case that the approval only covers the third leg
described in paragraph 19.3 above , namely the transfer of fuel oil from bunker
barges or bunker tankers into the fuel tanks of third -party vessels for their
consumption.
Relevant statutory and regulatory provisions
The MPA
[25] This Act has as its objectives:
“To provide for the protection of the marine environment from pollution by oil
and other harmful substances , and for that purpose to provide for the
prevention and combating of pollution of the sea by oil and other harmful
substances; to determine liability in certain respects for loss or damage caused
by the discharge of oil from ships, tankers and other offshore installations ; and
to provide for matters connected therewith.”
[26] SAMSA was introduced as the principal regulatory authority in terms of the Act ,
with effect from 1 April 1988 .
[27] Sections 21 and 22 of the Act provide as follows:
“21 Authority's permission required for transfer of certain harmful
substances or for certain other acts in respect of ships or tankers
(1) No person shall -
(a) outside any harbour of which Transnet Limited has become
the owner in terms of section 3 of the Legal Succession to
the South African Transport Services Act, 1989 (Act 9 of
1989) , or a fishing harbour as define d in section 1 of the Sea
Fishery Act, 1988 (Act 12 of 1988) , and within the prohibited
area, render any ship having oil or any other prescribed
harmful substance on board (whether as cargo or
otherwise), or any tanker, incapable of sailing or
manoeuvring under its own power;
(b) within the prohibited area transfer any oil or other prescribed
harmful substance from any ship or tanker to any other ship
or tanker or to an offshore installation or from such offshore
installation to any ship or tanker,
except with the permission of the Authority and in accordance with the
provisions of this Act.
(2) In giving its permission for the performance of any act referred to
in subsection (1), the Authority may impose any conditions subject
to which such act shall be performed, and such conditions may
include the obligation to obtain the services of one or more tugs,
spray boats or other vessels to stand by during a period
determined by the Authority.
22 Powers of Authority in case of default by master or owner
(1) If-
(a) the master or owner of a ship or a tanker refuses or fails
to perform, within the time specified by the Authority, any
act which he has in terms of paragraph
(a), (b), (e), (f), (g) or (h) of section 4(1) been required to
perform;
(b) the master of an offsh ore installation refuses or fails to
perform, within the time specified by the Authority, any act
which he has in terms of paragraph (a), (g) or (h) of
section 4(1) been required to perform; or
(c) any person refuses or fails to comply with a condition
imposed by the Authority in terms of section 21(2),
the Authority may cause such act to be performed or such condition to
be complied with, and for that purpose may cause steps to be taken
which may include the taking over of control of such ship, tanker or
offsh ore installation.
(2) All expenses reasonably incurred by the Authority by virtue of the
provisions of subsection (1), shall be deemed to be costs referred
to in section 9(1)(b). ”
[28] Section s 21(1)(b) and 21(2) form the statutory bas es for the approval and the
conditions attached thereto . Section 22, in turn, vests SAMSA with certain
powers in the case of a refusal or failure to comply with conditions imposed by
it in terms of section 21(2). These provisions will receive further attention later.
[29] The “prohibited area ” referred to in section 21(1)(b) is defined by the Act to
mean:
“… the internal waters, the territorial waters and the exclusive economic zone
and, in relation to an offshore installation, includes a sea within the limits of the
continental shelf.”
The National Ports Act, 12 of 2005 (“the Ports Act”)
[30] All ports , as defined in the Ports Act , fall under the jurisdiction of the TNPA, by
virtue of the provisions of section 10 of the Act. Those ports include the two
ports concerned in this application.
[31] Section 11 of the Act sets out in detail the functions of the TNPA in imposing on
it the duties to own, manage, control and administer ports to ensure the ir
efficient and economic functioning. In terms of section 11(1) (g)(vi) its functions
include the duty to regulate and control pollution and the protection of the
environment within the port limits.
[32] Section 69(1) of the Act provides that the TNPA must in the performance of its
functions ensure that a fair and reasonable balance is achieved between the
protection of the environment and the establishment, development and
maintenance of ports.
[33] In terms of section 74(3) of the Act the Harbour Master is the final authority in
respect of all ma tters relating to the movement of vessels within port limits
including , in terms of section 74(3)(b) (iii), controlling the manner in which fuel is
taken on by vessels in port limits .
The regulations promulgated under the MPA (published under GN R1276 in GG
9277 of 29 June 1984 , as amended ) (“the regulations”)
[34] Chapter V of the regulations is entitled “TRANSFER OF OIL FROM SHIP OR
TANKER TO ANOTHER SHIP OR TANKER ”. The chapter (regulations 13 -21)
deals with and regulates applications for the transfer of oil and matters ancillary
to that process.
[35] Regulation 13 of the regulations reads as follows:
“CHAPTER V TRANSFER OF OIL FROM A SHIP OR TANKER TO
ANOTHER SHIP OR TANKER (regs 13 -21)
13 Application of chapter
The provisions of this Chapter shall not apply to-
(a) a ship, tanker or warship used exclusively in the service of a State for
other than commercial purposes and, in the case of another State,
present in the prohibited area with the consent of the Government of the
Republic;
(b) a ship or tanker based in a ha rbour within the prohibited area and
transferring oil obtained from such harbour into the fuel tanks of another
ship or tanker for the latter's own use;
(c) a ship or tanker to which oil is transferred in the manner referred to in
paragraph (b).”
[36] It is common cause that oil transfers falling within the parameters of regulations
13(a) and (b) (“regulation 13 transfers”) are under the exclusive control of the
TNPA and the Harbour Master and that SAMSA has no jurisdiction over these
transfers.
The respectiv e roles of SAMSA and the TNPA
[37] Minerva’s principal contentions in this regard can be summarised, as follows :
37.1. regulation 13 transfers fall outside the jurisdiction of SAMSA;
37.2. its ship-to-ship transfers in the nature of the activities referred to in
paragraph 19 above are conducted within port limits and therefore fall
under the sole purview of the TNPA . To that end the TNPA issued
them with bunkering licences in respect of both ports concerned, with
which they comply; and
37.3. in any event, the approval covers the entire ambit of its activities and is
not limited, as suggested by SAMSA.
[38] Under this heading I shall deal with the contention s summarised in paragraph
37.1 and 37.2, above. Under a separate hea ding, below , I shall deal with the
interpretation and ambit of the approval.
[39] In respect of regulation 13 transfers, I accept the submission advance d by
SAMSA that regulation 13 is of limited application and applies only to situations
where the transferring ta nker is based in the harbour, the oil be ing transferred
as bunkers has been obtained from the harbour, and the oil is transferred into
the fuel tanks of the receiving ship for its own consumption . A contrary
proposition was not seriously argued at the hearing of the application.
[40] In my view SAMSA and the TNPA do not have mutually exclusive roles but
rather have mutually supportive roles. The TNPA’s primary role is the
management of ports , which includes ensuring that threats to the marine
environment, such as pollution , do not occur within port limits. To the extent
that the Ports Act enjoins it to regulate and control pollution and the protection
of the environment within port limits that, by necessary implication , means that
it must ensure that users of port s comply with legislation specifically dealing
with these matters, such as the MPA. The port limits include the prohibited
area, as defined by the MPA.
[41] My view in this regard is supported by the wording of the bunkering licences
granted to Minerva which confirmed that the licences are issued subject to
compliance with the provisions of the Ports Act and all other re levant
legislation , as well as compliance with all other applicable legislation and
generally the requirement to conduct its bunkering activities in accordance with
the law .
[42] An illustration of the mutually supportive roles I referred to is to be found in t he
provisiona l approval, which ma de the granting of the bunkering licences to
Aegean , and later Minerva, by the TNPA a condition of the final approval .
[43] SAMSA’s jurisdiction covers the prohibited area which , as defined, includes all
ports . Thus , its jurisdiction includes all ship-to-ship transfers, other than
regulation 13 transfers , whether they occur inside or outside port limits . It has
as its function the achievement of the objectives of the MPA and enjoys the
powers conferred on it by that legislation to achieve these objectives .
The approval - its interpretation and its ambit
The approval in principle
[44] The approval in principle and the final approval clearly jointly constitute the
approval .
[45] The approval in principle of 26 July 2013 reads as follows :
“ 26 July 2013
Approval in principle to conduct ship to ship bunker transfers in Algoa
Bay
The Marine Pollution (Control and Civil Liability) Act 6 of 1981 refers. Section
21, Authority’s permission required for transfer of certain harmful
substances or for certain other acts in respect of ships or tankers.
21. (1) No person shall -
(a) outside a h arbour of which Transnet Limited has become the owner in
terms of section 3 of the Legal Succession to the South African Transport
Services Act 9 of 1989, or a fishing harbour as defined in section 1 of the Sea
Fishery Act 12 of 1988, and within the prohib ited area, render any ship having
oil or any other prescribed harmful substance on board (whether as cargo or
otherwise), or any tanker, incapable of sailing or manoeuvring under its own
power;
(b) within the prohibited area transfer any oil or other presc ribed harmful
substance from any ship or tanker to any other ship or tanker or to an offshore
installation or from such offshore installation to any ship or tanker, except with
the permission of the Authority and in accordance with the provisions of this
Act.
(2) In giving its permission for the performance of any act referred to in
subsection (1), the Authority may impose any conditions subject to which such
act shall be performed, and such conditions may include the obligation to obtain
the services of one or more tugs, spray boats or other.
The South African Maritime Authority supplied, in writing, the conditions
required to grant approval to the company to undertake these transfers in June
2012. These conditions were agreed to during the audit of Aege an Bunkering
Services Inc, in Greece in July 2013.
The reasons we say in principle is twofold:
1. The appointment of the company that would combat any pollution
issue is still work in progress; and
2. The training plan that would allow South Africa seafarers to receive
the necessary experience to occupy the senior Officer positions on
the tankers is to be agreed.
On completion of the above and other aspects of the regulatory process
required by South Africa, such as the registration of the South Agrican
subsi diary company, the required licence from Transnet National Ports
Authority to undertake transfers within the ports of Port Elizabeth and Nqgura
and the permission from the Department of Mineral and Energy Affairs to import
the bunkers we would be able to m ove to the next phase of the approval
process.
The next phase of the project, from a SAMSA perspective, would be the pre -
registration survey of the two tankers to be brought onto the South African
register and the public consultation process which althoug h not mandatory is
agreed as a necessary step to be open and transparent with the general public
given the sensitivity concerning the environment.
Captain N.T. Campbell
Acting Executive Head: Centre for Shipping Services
South African Maritime Safety Authority”
[46] I point out the following in respect of the approval in principle:
46.1. the document states that SAMSA supplied , in writing , the conditions
required to grant approval to Aegean to undertake ship to ship bunker
transfers in June 2012 . These conditions were apparently agreed to
during the audit of Aegean Bunkering Services Inc, in Greece in July
2013 ; and
46.2. attached to the approval in principle is a document entitled “ANNEX 1
SAMSA REQUIREMENTS”. No reference is made to this document in
the letter confirming the approval in principle . The document is not
framed in the form of conditions and onl y in paragraph 7 thereof, under
the heading “ Conditions of approval for transfer”, is th ere any reference
to conditions. The document itself is incomplete in that it refers to four
annexures, none of which are present .
[47] SAMSA, without more, submitt ed in argument that the attachment reflects the
conditions of approval, but this is not borne ou t by the approval in principle or
the document itself.
The final approval
[48] The final approval reads as follows:
“ 8 May 2014
Approval to conduct ship to ship bunker transfers in Algoa Bay
Our correspondence of 23 July 2013 refers.
At that stage the approval was granted in principle as there w ere two
outstanding issues:
1. The appointment of the company that would combat any pollution
issue is still work in progress; and
2. The training plan tha t would allow South African seafarers to
receive the necessary experience to occupy the senior Officer
positions on the tankers is to be agreed.
It is confirmed that the appointment of Drizit and the submission of the
response plan and the submission and approval of the required training plan
have met these requirements.
The next steps in the process are:
1. The pre -registration survey of both the mother ship and the bunker
tanker. Application for these surveys should be undertaken at our
Port Elizabet off ices. The costs of these services area as
prescribed in the Determination of Charges, Section 50,
Government Gazette No. 36819, 6 September 2013. The survey of
the mother ship will be undertaken by Mr G Dirksen, Chief Naval
Architect and a Surveyor from the Port Elizabeth office. The survey
of the bunker tanker will be undertaken by Mr G Dirksen.
2. One month prior to the intended commencement of operations the
pollution response capability is to be demonstrated by undertaking
a simulated Tier Three inciden t occurring at the designated
anchorage area. The Department of Environment Affairs and the
National Ports Authority are also to be involved.
The above assumes that all other regulatory issues required by South African
law, outside the jurisdiction of S AMSA, have been complied with.
Captain N.T. Campbell
Acting Executive Head: Centre for Shipping Services
South African Maritime Safety Authority”
Interpretation
[49] The interpretation of documents is a unitary exercise , taking into account text,
context and purpose. As stated in Natal Joint Municipal Pension Fund v
Endumeni Municipality 2012 (4) S A 593 (SCA) at [18]:
“The present state of the law can be expressed as follows. Interpretation is the
process of attributing meaning to the words used in a document, be it
legislation, some other statutory instrument or contract, having regard to the
context provided by reading the particular provision or provisions in the light of
the document as a whole and the circumstances attendant upon its coming into
existence. Whatever the nature of the document, consideration must be given
to the language used in the light of the ordinary rules of gra mmar and syntax;
the context in which the provision appears; the appellant purpose for which it is
directed and the material known to those responsible for its production. Where
more than one meaning is possible each possibility must be weighed in the lig ht
of all these factors. The process is objective and not subjective. A sensible
meaning is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the app arent purpose of the document . Judges must be
alert to, and guard against, the temptation to substitute what they regard as
reasonable, sensible or businesslike for the words actually used. To do so in
regard to a statute or statutory instrument is to cross the divide between
interpretation and legislation. In a contra ctual content it is to make a contract
for the parties other than the one they in fact made. The ‘ inevitable point of
departure is the language of the provision itself ,’ read in context and having
regard to the purpose of the provision and the background to the preparation
and production of the document.”
See also University of Johannesburg v Auckland Park Theological Seminary
2021 (6) SA 1 (CC) at [63] -[65] where the Cons titutional Court endorsed the
abovementioned approach.
[50] In applying the cited principles of interpretation, I have come to the conclusion
that the approval applies to all three legs of ship-to-ship transfers postulated in
paragraph 19, above , for the follow ing reasons:
50.1. the provisions of section 21(1)(b) of the MPA do not preclude a blanket
or long -term approval covering all three legs;
50.2. Aegean sought approval for all three legs of the transfer process. That
much was understood by SAMSA in the person of Captain Campbell
who, from the side of SAMSA, was integral to the approval process .
He states clearly that it would have made no commercial sense for the
approval to cover merely one leg of the transfer process as such a
restrictive approval would effectively have left Aegean without approval
to conduct its business;
50.3. a reading of the approval raises the question as to why the re would
have to be a pre -registration survey of both the mothership and the
bunker tanker if cargo transfers were not envisaged ;
50.4. SAMSA ’s interpretation of the approval would lead to an unbusinesslike
and even nonsensical outcome. It is not disputed that the approval was
fundamental to Aegean’s decision to invest substantially (R200 million)
into vessels to operate its ship-to-ship transfer business in the ports .
The whole premise of Minerva ’s (and formerly Aegean ’s) business
model is that it undertakes all three legs of ship-to-ship cargo transfers ;
50.5. the conduct of the parties after th e granting of the approval on 8 May
2014 is illuminating. From inception Aegean , and then Minerva ,
operated on the basis that the approval applied to all three legs of ship -
to-ship transfers and was not sought to be enforced differently by
SAMSA . SAMSA did not suggest that they were acting outside the
scope of the approval until the 2022 events which p receded this
application ;
50.6. significantly SAMSA has not disclosed documentation to support its
averment that Minerva applied for and was granted approval for
specific ship -to-ship transfers during the period January 2020 to June
2022 . Instead, it has rather referred to documents covering the period
2017 to 2019 ;
50.7. SAMSA, itself, referred to the approval as including all three legs of
ship-to-ship transfer operations. In a memorandum to the SAMSA
Board dated 7 November 2022 the first respondent stated as follows :
“SAMSA have informed Transnet National Port Authority of its intention
to withdraw Minerva’s bunker tanker approvals to conduct ‘Ship to Ship’
Oil Cargo Transfers and ’Ship to Ship ’ bunkering in the bay of Algoa
Bay as at 4 November 2022.”
50.8. in the marine information notices issued by SAMSA online in December
2022 , pursuant to the withdr awal of the approval, the following is
stated:
“SAMSA has withdrawn Minerva Marine Bunkering Services’ approval
to conduct Ship to Ship Bunk ering and oil cargo operations in Algoa
Bay with immediate effect.”
50.9. if SAMSA wished to limit the scope of the approval it could and should
have done so clearly in the document. Section 21(2) of the MPA
entitles it to attach conditions to an a pproval.
Is the decision invalid, as contended by Minerva
The Constitution and PAJ A
[51] In terms of section 172(1) (a) of the Constitution , when deciding a constitutional
matter, a court must declare that any conduct that is inconsistent with the
Constitution is invalid . The “conduct” referred to would include an administrative
action .
[52] PAJA defines an administrative action as including any decision taken by an
organ of state when exercising a public power or performing a public function in
terms of any legislation.
[53] The correct approach in a matter such as the present application where the
applicant seeks to review the decision , is to establish, factually, whether an
irregularity occurred . Then the irregularity must be legally evaluated to
determine whether it amounts to a ground of review under PAJA. Once a
ground of review under PAJA has been established section 172(1)(a) of the
Constitution requires the decision concerned to be declared unlawful. The
consequences of the declaration of unlawfulness must be dealt with in a just
and equitable order in terms of section 172(1)(b). Section 8 of PAJA, in turn,
provides the detailed legislative content to the just and equitable remedy
envisaged by the Constitution. Allpay Consolidated Investment Holdings (Pty)
Ltd and Others v Chief Executive Officer, South African Social Security Agency
and Others 2014 (1) SA 604 ( CC) at [25] and [28] .
[54] Section 5 of PAJA deals with a party’s rights which have been adversely
affected by adm inistrative action to be provided with reasons for the action. If
an administrator has failed to furnish adequate reasons for an administrative
action it may , in terms of section 5(4) , in certain circumstances, be presumed
that the administrative action wa s taken without good reason.
SAMSA’s “reason s” for the decision
[55] Because of the conclusion I have reached in this matter I find it unnecessary to
deal at any great length with Minerva’s contentions that SAMSA failed to
provide adequate reasons for the decis ion.
[56] Mr Ramugondo , the first respondent , in response to Minerva’s contentions in
this regard stated as follows in his opposing affidavit:
56.1. paragraph 47 :
“The memorandum to the Board of the Second Respondent was
authored by the previous acting chief executive officer of the Second
Respondent, Ms Zamachonco Chonco. I respectfully refer to the facts
set out in the memorandum and confirm that I also had regard to these
facts when I took the dec ision to withdraw the Applicant’s approval .”
56.2. paragraph 48.1:
“I very clearly stated in my letter of 5 December 2022 that I took the
decision for the reasons set out in that letter and in the preceding 30-
day notice letter dated 4 November 2022: see paragra ph 9 of my letter
of 5 December 2022, a copy of which is attached to the original
application marked “KA1.”
56.3. paragraph 48.2:
“On Thursday, 8 December 2022, the Applicant’s attorneys advised
that the Applicant would be ‘bringing review proceedings against th is
decision ’ and requested the Second Respondent to provide adequate
reasons as prescribed by PAJA.”
56.4. paragraph 48.3 :
“I am advised that I had 90 days to furnish reasons in terms of PAJA.”
56.5. paragraph 48.4:
“The instant application was then issued on Sunday, 11 December
2022, and an order was granted by the above Honourable Court on 13
December 2022 following negotiations between the parties.”
56.6. paragraph 48.5:
“There was clearly insufficient time for me to furnish any further
reasons before the review a pplication was served, there was no
request in the original application for further reasons, presumably
because my reasons are very clearly set out in the correspondence,
and no further request for reasons has been received .”
[57] The deponent’s response quoted in paragraph 56.6, above is misleading. The
original notice of motion in respect of part B of the application clearly requires of
SAMSA to comply with rule 53(1)(b) of the Uniform Rules and to that end inter-
alia to “Despatch to the Registrar such further reasons as may be given for the
making of the Decision .”
[58] The further reasons required by rule 53 were not provided by SAMSA . The
provision of adequate reasons for an administrative action serves to promote
administrative certain ty and can be of great assistance to a court tasked with
decid ing an application for judicial review.
[59] In the so -called 30-day notice letter of 4 November 2022 SAMSA records that:
59.1. the app roval was limited only to the conduct of ship -to-ship bunker
transfers in Algoa Bay . No context is given to this subjective conclusion
with reference to the approval . SAMSA says in its opposing affidavits
that the approval was conditional. No attempt is made in the letter or
the opposing affidavits to define those conditions and set out Minerva’s
breaches thereof ;
59.2. it had been brought to SAMSA’s attention that Minerva had been
conducting ship -to-ship cargo transfers in Algoa Bay and that such
transfers fel l outside the scope of the approval. This conduct , according
to SAMSA, entailed Minerva utilising the approval for conducting
operations that were illegal and not permitted by law . Various examples
of Minerva’s alleged unlawful conduct were mentioned . Again this
amounted to SAMSA’s subjective interpretation of the approval ;
59.3. Minerva had not complied with demands to remedy its alleged unlawful
conduct; and
59.4. SAMSA had formed the intention to withdraw the approval.
[60] The “reasons” provided by SAMSA cannot be descr ibed as adequate . The
import of the letter appears to be that because Minerva was conducting
operations falling outside the ambit of the approval , SAMSA was withdrawing
its consent to Minerva to continue with operations falling within the ambit of the
approval. This is not rational. Significantly, the reasons furnished do not
provide a statutory or regulatory basis which would allow SAMSA to revoke the
approval.
[61] In its letter of 5 December 2022, revoking the approval, SAMSA in equally
inadequate terms :
61.1. repeated its subjective interpretation that the approval was limited in
scope and its allegations of unlawful conduct on the part of Minerva;
61.2. stated that it was not persuaded by the represent ations made by
Minerva in response to the 30-day notice letter . The representations
were not individually addressed and no reasons were furnished as to
why the response was unpersuasive ;
61.3. stood by the “reasons” provided in the 30 -day notice letter , which I have
already found to be inadequate.
[62] I am therefore unable to discern a rational basis for the decision from the
reasons furnished by SAMSA
Was SAMSA empowered to revoke the approval
[63] In applying the PAJA definition of administrative action , set out above, SAMSA
is an organ of state exercising public power or performing a public function in
terms of the MPA. Section 6 of PAJA , which sets out the power of a court to
judicially review administrative actions , consistently requires administrators (in
this case SAMSA) to act in accordance with an empowering provision. An
empowering provision is, in turn, defined by PAJA as including a law, such as
the MPA.
[64] The principal question to be answered in determining this application is whether
the MPA afforded SAMS A the authority to revoke the approval .
[65] I have, above, set out in full the provisions of sections 21 and 22 of the MPA.
Section 22 deals with SAMSA’s powers in the event of a default by a master or
owner of a vessel. Section 22(1) (c) provides that if any p erson refuses or fails
to comply with a condition imposed by SAMSA in terms of section 21(2) ,
SAMSA “ may cause such steps to be taken which may include the taking over
of control of such ship, tanker or offshore installation ”.
[66] Section 22 does not, in expre ss terms, allow SAMSA to revoke an approval
given in terms of section 21(1)(b) of the MPA in the event of a default . No other
provision in the Act allows for this.
[67] The question then arises whether the MPA impliedly allows SAMSA to revoke
approvals granted in terms of section 21. That depends on an interpretation of
the statute . In Private Security Industry Regulatory Authority v Anglo Platinum
Management Services Ltd [2007] 1 All SA 154 (SCA) at [27] it was held that:
“A provision can only be read into a statute when it is a necessary implication .
The test for implying the provision, therefore, is whether it is necessary for the
efficacious operation of the statute .”
See also Administrative Law in South Africa , third edition, by C H oexter an d G
Penfold at pp 385 -6 under the authors’ discussion of the application of the
functus officio doctrine.
[68] I cannot see why the MPA cannot operate efficaciously without implying the
power to revoke approvals granted in terms thereof , particularly a s section
21(2) allows SAMSA to attach conditions to such approvals . Notionally such
conditions could include the power to revoke an approval in specified
circumstances such as the non -compliance with conditions at taching to the
approval , the limitation of the duration of an approval , or the requirement that in
respect of ship-to-ship cargo transfers for which long -term approval has been
granted, SAMSA be given prior not ice of such transfers , which would allow it to
fulfil its monitoring function .
[69] SAMSA contends that the annexure to the provisional approval of 26 July 2013
sets out the conditions under which the approval was granted. Nowhere in this
document does SAMSA r eserve for itself the right to cancel the approval.
[70] On the principles of our funct us officio doctrine , SAMSA’s decision to grant the
approval was final and also vested significant rights in Minerva. SAMSA , of late,
adopted a subjective interpretation of th e approval, which it had not hitherto
applied . In this regard it is apposite to refer to the judgment of the Constitutional
Court in Magnificent Mile Trading 30 (Pty) Ltd v Celliers NO 2020 (4) SA 375
(CC) at [50]:
“……… . Imagine the spectre of organs of state and private persons ignoring or
giving heed to administrative action based on their view of its validity. The
administrative and legal chaos that would ensue from that state of affairs is
unthinkable. Indeed , chaos and not law would rule.”
[71] Thus, the withdrawal of the approval could not have occurred without an order
from a court of competent jurisdiction. SAMSA appears to have recognised this
requirement . In its letters of 5 July 2022 and 19 October 2022 , addressed to
Minerva, it threatens l egal action in the absence of compliance with its
requirements.
[72] In my view the decision is therefore reviewable in terms of PAJA , at least, on
two grounds , namely:
72.1. SAMSA was not authorised by the empowering provision, i.e. the MPA ,
to make the decision to revoke the approval (section 6( 2)(a)(i) of
PAJA ); and
72.2. the decision was materially influenced by an error of law (section
6(2)(d) of PAJA ), namely that the MPA authorised SAMSA to revoke
the approval .
[73] Accordingly, and in terms of section 172(1)(a) of the Constitution I am required
to declare the decision to be unlawful .
[74] In view of the conclusion I have reached , it is unnecessary for me to consider
the other grounds of review relied on by Minerva in respect of the decision. I
must add that my conclu sion is not dependent on an interpretation of the ambit
of the app roval. Thus, even if I was incorrect in my interpretation of the ambit of
the approval , SAMSA still did not have the right to revoke it unilater ally.
[75] The decisions by SAMSA to issue admissi on of contravention notices depend
for their validity on SAMSA’s incorrect interpretation of the approval . It follows
that the se decisions are therefore also unlawful , because they have been
materially influenced by an error of law .
Just and equitable reli ef
[76] Given my conclusion section 172(1) (b) of the Constitution provides that I may
make any order that is just and equitable. In the context of PAJA , section 8
thereof is the statutory embodiment of this constitutional pr ovision , which sets
out the orders which can follow in proceedings for judicial review in terms of
section 6(1) .
[77] The only order which can follow from my conclusion, in my view, is to set aside
the decis ion and to grant the relief sought by Minerva in terms of its amended
notice of motion.
[78] The order I intend granting is also just and equitable in the circumstances
where SAMSA has acted inconsistently with regard to its application of the
approval and its interpretation thereof . Initially its conduct accorded with
Minerva’s interpretation of the scope of the approva l but later , during the latter
half of 2022 , it clearly altered its position. It is trite that administrators must act
consistently, as consist ency promotes administrative certainty .
Costs
[79] It was not suggested to me that the usual principle that costs follow the result
should not apply in this case. I therefore intend applying that principle.
Order
[80] Thus, I make the following order:
1. The decision taken by the first and second respondents on 5 December
2022 to withdraw the approval granted to the applicant by the second
respondent on 8 May 2014 (“the approval”) to conduct ship-to-ship bunker
transfers in Algoa Bay is declared to be unlawfu l and is reviewed and set
aside.
2. The approval is reinstated .
3. The decisions taken by the first and second respondents to issue notices in
terms of section 30(3) of the Marine Pollution (Control and Civil Liability)
Act, 6 of 1981 on 28 June 2022, 29 June 2022, 1 July 2022, 28 July 2022,
26 October 2022 and 6 February 2023 as well as the said notices are
declared to be unlawful and are reviewed and set aside.
4. The first and second respond ents are directed to pay the applicant’s costs in
respect of part B of this application as well as the cost reserved for
determination in respect of part A of the application , such costs to include
the costs of two counsel, where so employed.
O H RONAASEN
ACTING JUDGE OF THE HIGH COURT
Appearances: Applicant: K. Pillay SC
Instructed by Bowman Gilfillan Inc., c/o Rushmere Noach Inc.,
5 Ascot Office Park, Conyngham Road, Greenacres,
Gqeberha
First and Second Respondents: R.G. Buchanan SC and D.
Niek erk
Instructed by Goldberg & De Villiers Inc, 13 Bird Street,
Central, Gqeberha
Third Respondent: No appearance
Represented by Woodhead Bigby Inc., c/o Munshi &
Associates, Bloomingdale’s Office Park and Lifestyle Park,
Corner 9th Avenue and Main Road, Walmer, Gqeberha