THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
(Exercising its Admiralty Jurisdiction)
Case number: AC9 / 2023
NAME OF MOTOR VESSEL: MV “JACKIE O” aka MV “KIARA”
In the matter between:
ARROW CREEK INVESTMENTS 75 (PTY)
LTD
Applicant
and
V&A WATERFRONT HOLDINGS (PTY) LTD First Respondent
XOLILE ARON NGESI N.O.
(The Sheriff of High Court , Cape Town East)
Coram: Wille, J
Heard: 29 and 30 January 2025
Order: 10 February 2025
Reasons : 20 March 2025
Second Respondent
2
REASONS
WILLE, J:
INTRODUCTION
[1] In summary, t he applicant s ought urgent relief in the form of a rule nisi for an
interim interdict in the following terms that:
(a) the second respondent be replaced and an ad hoc sheriff be appointed
to take possession and control of the subject motor vessel.
(b) the first (and presumably the replaced sheriff) return the motor vessel
to a specific jetty (the jetty and berth at which the respondents arrested the
vessel) in the precinct controlled by the first respondent.
(c) the respondents are interdicted and restrained f rom accessing and
interfering with the motor vessel and equipment.
(d) the respondents be interdicted and restrained from interfering with the
duties and functions of the replaced ad hoc sheriff.
(e) the respondents take all necessary steps to place the motor vessel in
the possession and control of the replacement ad hoc sheriff and ensure that
the ad hoc sheriff has access to the specific jetty demanded by the applicant.1
[2] When the matter was first called many months ago, the first respondent took
the position that it needed more time to file a complete answering affidavit. The first
respondent initially filed a preliminary answering affidavit and reserved its right to file
a further answering affidavit . Thus, the interim interdict portion of the application was
postponed.
2
[3] This notwithstanding, I further ruled that it would be more appropriate to
decide the issue of urgency , consider ing also having the benefit of the second
1 This was the primary interim relief sought by the applicant. I will deal with the other relief in these
reasons.
2 Further time was given for the filing of opposing papers by the respondents.
3
respondent’s answering affidavit once the second respondent had obtained legal
representation.3
[4] After that, the applicant maintained its initial position by advancing that the
first respondent (after having filed its supplementary answering affidavit ) was
attempting to again re -argue its opposition to the urgency interim interdict portion of
the application. This is why I must deal with the issue of urgency.4
URGENCY
[5] The applicant initially advanced that some of the material and allegations
featured in the first respondent’s preliminary answering affidavit should be given very
little probative weight because some allegations contained therein amounted to
impermissible hearsay evidence. In response to this, t he first respondent took the
position that the employment of hearsay evidence in maritime matters is expressly
permitted , and the applicant’s reliance on the rules relating to hearsay in this c ourt’s
parochial jurisdiction was , therefore, misconceived.5
[6] The core argument advanced by the applicant seemed only to be a technical
argument. I say this because the deponent to the first respondent’s answering
affidavit was authorised to depose thereto and the applicant did not raise any facts
which suggest ed otherwise. Because of this, the deponent required no specific
discrete authorisation to depose to the affidavit .6
[7] As the matter progressed and before the first scheduled hearing, the applicant
sensibly proposed an arrangement in which it sought to postpone the hearing and
suggested it would be able to receive substantial redress in due course.7
3 The second respondent indicated that he wanted to be legally represented.
4 Although some time had since passed urgency remained a live issue.
5 Cargo Laden on Board the Thalassini Avgi v The Dimitris 1989 (3) SA 820 (A) at 841 C to 843 D.
6 Ganes & Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA) at para 19.
7 This reasonable attitude I considered when making the order in connection with costs.
4
[8] Another issue concerning me was that the relief sought in terms of the rule
nisi regarding the appointment of the ad hoc sheriff d id not directly affect the first
respondent and could not be ordered against the first respondent.8
[9] Under the rubric of urgent interim relief, the applicant also sought s ecurity in
the sum of million s of rands from the first respondent and an indemnity against both
respondents regarding possible environmental damage.9
[10] The applicant’s initial case was that the environment would suffer irreparable
harm if the current jetty and berthing arrangement endured. The applicant also
demanded that the motor vessel be re- connected to shore power . In addition, the
applicant complained that it could not access the motor vessel where it was currently
berthed. Finally, several complaints were chartered regarding the release of the
motor vessel from the first respondent’s arrest .
10
[11] Due to the passage of time (and other issues), the complaints about the
possible environmental damage became moot. In addition, s hore power had been
restored to the motor vessel before the first scheduled hearing.
11
[12] I say this also because the report handed up by the second respondent at the
first hearing concluded that the motor vessel was found safely afloat with minimal
ingress of water into the bilge since the last onboard visit.
12
[13] Thus, the grounds of urgency (such as they may have existed) all but
disappeared due to the passage of time. The parties were, therefore, given time to
file extensive papers in opposition to the remaining portions of interim relief sought by the applicant.
13
CONSIDERATION
THE FIRST RESPONDENT
8 This relief was sought as against the second respondent.
9 This could not have been considered as urgent relief on its own.
10 These were technical arguments about service.
11 On 10 June 2024.
12 In late October 2023.
13 Thus, the matter could be properly ventilated.
5
[14] The first respondent explained in detail why it was im possible to return the
motor vessel to the berth at the jetty specified and demanded by the applicant. This
was so because a large portion of the j etty had been leased for the berthing of other
motor vessels, and the remainder had to remain vacant for the routine handling of
large motor vessels. This operational and safety requirement formed part and parcel
of a contractual obligation imposed on the first respondent in terms of a contractual
arrangement concluded between the first respondent and a bona fide third party.14
[15] The applicant contended that (according to it) part of the subject j etty was
unoccupied. A ccordingly , no impediment exist ed to the motor vessel's return to the
berth at this j etty pending the outcome of the remainder of the second part of the
relief sought.15
[16] The applicant’s position was that after the (albeit disputed) upliftment of the
arrest at the instance of the first respondent , the applicant had a ‘right’ to claim that
the vessel be returned to the location where the arrest occurred.16
[17] This bears scrutiny. I say this because there was no lease agreement
between the applicant and the first respondent when the arrest initially occurred. The
first respondent made a jetty and berth available to the applicant to accommodate
the motor vessel .17
[18] From my reading of the papers, the applicant refused to sign a lease with the
first respondent. The motor vessel was accommodated because it was under arrest ,
and the sheriff had to find a jetty and berth to secure it.18
[19] The applicant argues that because it paid for one month after (or during) the
arrest of the vessel by the first respondent, it had (because of this payment)
concluded a tacit lease with the first respondent .
19
14 The Port of Cape Town (TPNA).
15 This was disputed by the first respondent.
16 I could find no authority for this contention by the applicant.
17 From November 2022 to February 2023.
18 The applicant omitted to pay berthing fees from November 2020 until October 2022.
6
[20] The simple point is that t he applicant had no contractual right to restore the
‘status quo ante’ that subsisted before the first respondent arrested the vessel .20
[21] As far as I am aware , there is no legal right for an owner to claim that its
motor vessel be returned to the place of arrest post upliftment.
21
[22] The applicable maritime rule records, among other things, the following :
‘…Any property arrested or attached shall be kept in the custody of the sheriff,
who may take all such steps as the court may order or as appear to the sheriff to be appropriate for the custody and preservation of the property...
22
[23] It seems to me that for so long as the vessel was under arrest , it remained in
the custody of the second respondent, who may then make any arrangements he or
she sees fit as to the motor vessel's berthing.
23
[24] The applicant launched this application more than fourteen (14) months after
the motor vessel was last berthed at the preferred jetty and berth and five (5) months
after the motor vessel had left the precinct controlled by the first respondent.
24
[25] Now, I turn to the issue of the motor vessel being arrested by the first
respondent. The applicant alleged that because the first respondent arrested the
motor vessel for unpaid berthing and mooring fees , its arrest was made for an
ulterior purpose.
25
[26] An arresting party may proceed with an arrest in rem if it either :
(a) has a maritime lien over the property to be arrested or
19 The first respondent arrested the vessel because of “historical ” debt due by the applicant.
20 No authority was advanced to demonstrate the converse position.
21 Not even in our common law.
22 Admiralty Rule 21 (1).
23 The Avalon 1996 (4) SA 989 (D) at 1000H.
24 The vessel moved from Jetty 2 to Quay 7 on 14 April 2023 and to the “TPNA” on 2 February 2024.
25 This was challenging to understand.
7
(b) if the owner of the property to be arrested would be liable to the
arresting party in an action in personam in respect of the cause of action
concerned.26
[27] The first respondent arrested (in rem ) the motor vessel because the applicant
was liable for berthing and mooring dues of the motor vessel on the first
respondent’s property .27
[28] The first respondent averred that in addition to the above, there were other
outstanding claims concerning unpaid berthing fees when the motor v essel was in
the possession of a third- party bareboat charter company .
28
[29] Initially , the first respondent also sought the applicant's payment of these
outstanding berthing dues. This notwithstanding, the claim on which the first
respondent’s arrest of the motor vessel was based excluded the liability concerning
berthing fees for this earlier period.
29
[30] Thus, because, among other things, there was no written lease, the first
respondent was within its rights to arrest the motor vessel and, in so doing, remove it
from the jetty and its berth, which berth could then earn an income for the first
respondent by the letting thereof to a paying ship owner .
30
[31] Part of the case on behalf of the applicant was the argument that the release
of the motor v essel from the arrest by the first respondent was inadequate and
defective. This averment was not made in the applicant’s initial papers.
31
[32] Initially, t he defective service argument was based on the contention that the
release warrant was faulty because it was served on the incorrect attorneys of
record.
32
26 In terms of section 3(4) of the AJRA.
27 From 25 November 2020 to 7 October 2022.
28 For the period 5 October 2017 to 25 November 2020.
29 For the period 5 October 2017 to 25 November 2020.
30 The first respondent would be able to earn an income from the leasing of this berth and Jetty 2.
31 This technical argument surfaced at a later stage.
32 It was released in May 2024, and the applicant’s attorneys were on record from April 2024.
8
[33] The second complaint was that the service of the release warrant was served
electronic ally and thus inadequate. The applicable maritime rule caters for the
service of the release warrant by way of facsimile transmission. To the extent that
the argument is made that service by email is insufficient because it is not service by facsimile transmission, such argument is challenging to understand.
33
[34] The factual position was that the r elease warrant was served by email , and
the applicant became aware of it and obtained a copy of the r elease warrant via
email. The release warrant was also served on an employee of the harbour master,
and thus, the arrest of the motor vessel was lawfully uplifted .
34
[35] Now, I turn briefly to the issue of the security contended for by the applicant
as much as it relates to the first respondent's position. The motor vessel remained
berthed in the controlled environment and present ed minimal (if any) environmental
risk. I say this also because some time has passed, and the applicant has not
demonstrated a genuine and reasonable need for security .35
[36] In addition, the first respondent possesses significant immovable assets
against which the applicant would be able to execute if the first respondent neglects
to satisfy a ny damages award that may be granted against it.36
[37] In any event, the applicant did not make out a case for the return of the motor
vessel to the berth demanded pending the finalisation of the remainder of the relief
sought in the second part of the application.37
[38] The (final) relief sought here concerns a claim for damages and thus
contemplates the institution of action proceedings . I say this because the applicant
has not demonstrated a clear right that the motor vessel is to be berthed at the jetty
33 Admiralty Rule 22(1)(f) authorises service of a release warrant by facsimile transmission/copy.
34 On 14 May 2024.
35 The Rizcun Trader 1999 (3) SA 966 (C) at 977 E to G.
36 Thus, there was no need for security to be posted.
37 The relief sought that the motor vessel be returned to Jetty 2 was, in any event, in the form of final
relief.
9
that it demands. The existence of a right is a question of substantive law , and
whether that right is ‘ clear ’ is a matter of evidence.38
THE SECOND RESPONDENT
[39] The applicant s ought interim relief against the second respondent for, among
other things, the following:
(a) that an ad hoc sheriff be appointed to take possession of the motor
vessel .
(b) that the second respondent be interdicted and restrained from
accessing or interfering with the motor vessel and the duties of the ad hoc sheriff .
(c) that access be facilitate d to the ad hoc sheriff to the motor vessel .
(d) that the second respondent provides an indemnity against any claims
that may arise regarding any environmental damage consequent to the
second arrest.
(e) that the ad hoc sheriff returns the motor vessel to a specific berth.
39
[40] The relief sought by the applicant that an ad hoc sheriff be appointed to
replace the second respondent and take possession of the motor vessel was
challenging to understand.40
[41] Put another way, the applicant failed to exhaust any of the prescribed internal
statutory remedies . Thus, in these circumstances, this court does not have the power
to appoint or remove sheriffs or acting sheriffs .
41
[42] Only in the clearest of cases will a court interfere with the performance of the
statutory duties of the second respondent. Also, in these rare cases, the substantive
38 Minister of Law & Order, Bophuthatswana v Committee of the Church Submit of Bophuthatswana
1994 (2) SA 89 (BG) at 97 to 98.
39 At Jetty 2.
40 No allegation was made that the “Board of Sheriffs ” failed to exercise its statutory power to appoint
a sheriff.
41 This vests with the Minister of Justice and Constitutional Development and the South African Board
of Sheriffs.
10
and procedural requirements that justify the second respondent’s removal must be
complied with.42
[43] In addition, t he failure of the applicant to join all the relevant parties with
vested interests in the appoint ment of the ad hoc sheriff and the removal of the
second respondent amounts to a non-joinder.43
[44] Most significantly, the second respondent takes the position that t he order
sought by the applicant that the second respondent should be directed to return the
motor vessel to the specified and demanded jetty and berth was impossible because
a berthing position at this jetty was and remains unavailable.
44
[45] About three (3) years ago, the second respondent was provided with a
warrant of arrest that was issued according to an application brought by the first
respondent.
45
[46] About a year later , the second respondent attended to the motor vessel to
inspect the motor vessel . Upon his arrival , he noted numerous undocumented
individuals on the motor vessel.
46
[47] As part of his duties to preserve the motor vessel, he requested these
individuals to leave. Following his inspections, he advised the applicant’s attorneys
that the applicant’s engineer could return to the motor vessel.
47
[48] After a short while, the second respondent moved the motor vessel to a
different berth for operational reasons .48
42 The order seeks to override the application of the principle of exclusive jurisdiction and is
incompetent.
43 The Board of Sheriffs , the Minister and the ad hoc sheriff all have a direct and substantial interest.
44 The berthing spot at Jetty 2 is not available.
45 During March 2022.
46 This was on or about 6 April 2023.
47 At that stage, he was unaware as to the identity of the applicant’s engineer.
48 The motor vessel was moved to Quay 7 due to the Two Oceans Race.
11
[49] About six (6) months later, the first respondent’s attorneys wrote to the
second respondent and requested him to move the motor vessel to a different jetty
and berth because:
(a) the first respondent was concerned about the safety of the motor
vessel as it was easily accessible at its location.
(b) the first respondent required certain berthing facilities for operational
reasons.
(c) the first respondent was in the process of redeveloping the entire area,
and t here was a crane in the vicinity of the current berth which posed a
substantial risk to the motor vessel due to the likelihood of parts of the crane
breaking off the main structure and landing on the motor vessel.49
[50] During this time, the second respondent commissioned a survey of the motor
vessel and was provided with a survey report which concluded that :
‘…the y acht was found to be safely and securely moored on the day of my
inspection. Fendering was good alongside the vessel …’50
[51] After that, the second respondent informed the applicant’s attorneys of the
request from the first respondent to move the motor vessel and advised that, in the
absence of alternatives from their client (the applicant) , he would be persuaded to
accede to the request.
51
[52] This is when the applicant raised several objections to the proposed moving
of the motor vessel . The second respondent replied that he was guided by what was
in the best interests of safeguarding the motor vessel. He then made the necessary
arrangements to provide shore power and to ensure that the shore power was
connected.
52
49 This was on 8 September 2023.
50 Another “expert” report was filed on behalf of the applicant . This report concentrated on issues of
contractors' access to the motor vessel as opposed to the secure mooring of the motor vessel. This
dispute of fact could not be resolved on paper. Most importantly, I was not furnished with any details
about any alleged urgent work that needed to be performed by the applicant’s contractors on the
motor vessel.
51 Thus, the applicant was informed of the intended move.
52 The second respondent acted in accordance with is duties as the arresting sheriff.
12
[53] The first respondent then provided the second respondent with a release
warrant regarding the motor vessel . Thus, the second arrest was uplifted , and only
the first arrest, initiated by the applicant, was still of application. It was also for this
reason that the second respondent limited and controlled access to the motor vessel
as he was obliged to do to ensure the safety of the motor vessel.53
[54] As alluded to earlier, the applicant failed to join the necessary parties to the
application in connection with the relief that it sought . The applicant omitted to join
the proposed ad hoc sheriff to replace the second respondent and take possession
and control of the motor vessel.54
[55] All the applicant says is that it approached the ad hoc sheriff , who indicated
he was willing to be the ad hoc sheriff.
55
[56] All sheriffs are appointed according to a statutory process. This is so because
there is a vested official interest in who is appointed as a sheriff.56
[57] Before a sheriff is appointed, numerous factors must be taken into
consideration. Also, one must consider the issue of enhancing and improving the
standard of functions performed by sheriffs.
57
[58] The second respondent acted following his overall duties and concerning the
best interests of the motor vessel.
58
[59] I say this because, f rom the date of the second arrest, the applicant and the
first respondent were co- arresting parties . Thus, both parties were responsible for
the preservation of the motor vessel. The documentary evidence attached to the
53 The applicant attached the motor vessel because of its dispute with the third- party charter
company.
54 The sheriff for Cape Town West .
55 There is no confirmatory affidavit by the proposed ad hoc sheriff.
56 By the Minister of Justice and Constitutional Development.
57 The Board of Sheriffs has this function. They were also not joined in this application.
58 MV Avalon: Curnow Shipping Ltd v Brooks NO and Another 1996 (4) SA 989 (D).
13
papers confirmed this billing process. This is precisely why both parties were
invoiced for the berthing fees until the release of the second arrest.59
[60] The applicant made various serious and unfounded allegations of improper
conduct against the second respondent , disregarding the proper procedure to
circumvent the statutory process. Instead of following the prescribed statutory
administrative process to complain about the alleged improper conduct of the second
respondent, the applicant elected to bring an application to effectively have the
second respondent removed as sheriff regarding the motor vessel. Failing to exhaust
these internal prescribed remedies was fatal to the applicant’s case against the
second respondent.60
[61] Thus, the relief sought by the applicant to remove the second respondent as
the sheriff concerning the motor vessel and replacing him with an ad hoc sheriff is
legally impermissible. I say this because I do not have the power to appoint or
remove sheriffs except in exceptional circumstances where the designated
appointing authorities have violated the law .61
[62] In seeking the relief that it seeks regarding the removal of the second
respondent and the appointment of an ad hoc sheriff, the applicant is effectively
asking me to indulge in judicial overreach by encroach ing on the exclusive statutory
powers entrusted to a statutory body.62
[63] Most importantly, only a suitably qualified sheriff can be appointed as an ad
hoc sheriff in a particular jurisdiction, especially in jurisdictions that require unique
expertise. The applicant did not place any facts before me concerning the proposed
replacement sheriff regarding his experience and knowledge of maritime cases.63
CONCLUSION
59 By the TNPA.
60 The applicant failed to even prefer a complaint against the second respondent with the Board of
Sheriffs.
61 Section 2(1) of the Sheriff’s Act, 90 of 1986.
62 This violates the principle of the separation of powers.
63 No information in this connection was put up by the applicant.
14
[64] The motor vessel is currently berthed at a safe berth within the second
respondent’s jurisdiction. Thus, the order sought by the applicant that the second
respondent be directed to return the motor vessel to the specified jetty and berth
would have no practical effect and was thus stillborn. To an extent, the relief sought
was also moot .64
[65] The applicant also sought an order directing the first and second respondents
to provide the applicant with an indemnity against any claims that may arise
regarding any environmental damage because of the second arrest. The second
respondent arrested the motor vessel for the second time because of a court order
directing him to do so.65
[66] After that, the second respondent was provided with a release warrant . The
second arrest was uplifted , and only the first arrest, initiated by the applicant,
remained. Thus, there was no basis for the relief sought by the applicant that the
second respondent indemnif y the applicant from liability for damages.66
[67] In addition, there was no basis for the applicant to allege any environmental
damage caused by the second arrest or that the second respondent contributed to
these damages .67
[68] In the circumstances, the applicant failed to make out a case for any relief it
sought, so I dismissed the application for interim relief. Before me was also an
application for condonation for the late filing of papers by the second respondent.
These issues were resolved (alternatively not pursued), and the parties argued the
matter based on the papers presented before me. It is so that the respondents
caused some lengthy delays in connection with the ultimate hearing of the
application , and that is why I formulated the costs order to cater for some of the
64 The relief sought would have no practical effect.
65 The second respondent was carrying out his duties as the arresting sheriff.
66 The motor vessel remained under arrest at the instance of the applicant.
67 The second arrest had been uplifted , and any environmental damage alleged by the applicant was
speculative
15
delays, which I deemed unnecessary. These are then my reasons for the order being
granted.68
E. D. WILLE
(Cape Town)
68 Signed on 10 February 2025 and handed down on 11 February 2025.