IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
CASE NO: 2025-209746
Reportable
In the matter between:
OCEAN ARK SHIPPING LTD First applicant
ASTRON ENERGY Second applicant
and
THE COMMISSIONER FOR THE
SOUTH AFRICAN REVENUE SERVICE Respondent
Heard: 15 May 2026; 1 June 2026
Delivered: 8 June 2026
Summary:
Application for leave to appeal and section 18(3) application – Whether interim
order appealable – Final in effect – Interests of justice – Leave granted to the
Supreme Court of Appeal – Section 18(3) – Test restated – Failure to prove on a
balance of probabilities that the appealing party will not suffer irreparable harm
if an execution order is granted – Section 18(3) application refused
ORDER
The following order shall issue:
(a) The application for leave to appeal by the Commissioner for the
South African Revenue Service (the Commissioner) against the
judgment and order delivered by this Court on 24 April 2026 is
granted.
(b) Leave to appeal is granted to the Supreme Court of Appeal.
(c) The costs of the application for leave to appeal shall be costs in the
appeal.
(d) The application in terms of Section 18(1), read with Section 18(3)
of the Superior Courts Act 10 of 2013 by Ocean Ark Shipping
Limited and Astron Energy (Pty) Ltd (the Section 18 application),
for an order directing that the operation and execution of the order
dated 24 April 2026 shall not be suspended pending the outcome of
the appeal, is refused.
(e) Ocean Ark Shipping Limited and Astron Energy (Pty) Ltd are
ordered to pay the Commissioner’s costs of opposing the Section
18 application, such costs to include the cost of two counsel, to be
taxed on Scale C.
JUDGMENT – LEA VE TO APPEAL AND SECTION 18(3)
APPLICATION
HOLDERNESS J
[1] This judgment is in respect of an application for leave to appeal against
the judgment and order of this Court, (the main judgment and the order
respectively) handed down on 24 April 2026, to the Supreme of Appeal (the
SCA), alternatively to the full court of this Division and in respect of the
conditional application by the respondents in the leave to appeal application for
an order in terms of section 18(3) of the Superior Courts Act 10 of 2013 (the SC
Act).
[2] The applicant in the application for leave to appeal and the respondent in
the conditional section 18 application (the section 18 applicati on) is the
Commissioner for the South African Revenue Service (the Commissioner , also
referred to as SARS).
[3] The first and second respondents in the application for leave to appeal,
and the first and second applicants in the se ction 18 application are Ocean Ark
Shipping Ltd (Ocean Ark) and Astron Energy (Pty) Ltd (Astron) respectively.
[4] The main judgment was in respect of an urgent application for the
temporary suspension of the Commissioner’s decisions pertaining to the
detention, seizure, and deemed importation of the Vessel belonging to the first
applicant, and for the release of such Vessel, subject to the provision by the
second applicant of a guarantee in respect of the value of the Vessel and any
Valued-Added Tax (V AT), penalties and interest claimed by the respondent ,
pending the outcome of the review proceedings already launched in the Gauteng
Division.
[5] The complex legal questions raised includ ed the proper interpretation of
section 10(1)(e) of the Customs and Excise Act 91 of 1964 (the Customs Act) ,
(read with General Note F), and the lawfulness of the Commissioner's refusal to
release the Vessel under section 93.
[6] In the main judgment , the court found that the revised guarantee,
provided after the hearing of the main application , provides the fiscus with
security that is equivalent, in all material respects, to continued physical
possession of the Vessel, that the Commissioner's objections, whilst properly
raised, ultimately do not render the guarantee inadequate, and that release
pending the determination of the review proceedings against the guarantee
appropriately and adequately protects the Commissioner’s position.
The order of 24 April 2026
[7] The order of the court was as follows:
(a) The application is heard as one of urgency in terms of Rule 6(12)
of the Uniform Rules of Court, dispensing with the ordinary forms
and service provided for in these Rules.
(b) Pending the outcome of the review application instituted by the
applicants in the High Court Gauteng Division (Pretoria) under
case number 245199/2025, it is directed that the respondent's
detention decision; seizure decision, deemed importation decision
and section 93 decision (as defined in paragraph 3 of the notice of
motion) are temporarily suspended.
(c) Pending the final determination of the review application, and
subject to any directives by the review court in respect of the
control of the Vessel, the respondent is directed to release the
Vessel, the MT Essien , to the applicants subject to the following
conditions:
(i) Payment by the second applicant of any reasonable charges that
have been incurred in connection with the detention and seizure
of the Vessel.
(ii) Provision by the second applicant of a guarantee in the amount
of R398 378 772.60, being the estimated value of the Vessel,
and R124 239 531.95 for any VAT, VAT penalty and interest
that may be charged in respect of the alleged importation of the
Vessel, as set out by SARS in the correspondence to ST
Shipping and Transport Pte Ltd of 22 August 2025 issued by
Lombard Insurance on behalf of the second applicant in favour
of the respondent (on the terms as set out in Annexure X 1
hereto).
(d) The respondent is to pay the costs of this application, such costs to
include the costs occasioned by the employment of two counsel on
Scale C.
The grounds of leave to appeal
[8] The Commissioner relies on the following grounds in the application for
leave to appeal:
8.1 The Court granted a final substitutionary order, in place of
the Commissioner’s discretionary decision under section 93 of the
Customs and Excise Act, 1964, (“the Act”) not to release the vessel
in terms of section 93 of the Act, by directing the release of the
vessel against the provision of a guarantee, without finding that
Ocean Ark and Astron Energy had a clear right to such relief. The
order had the final effect of rendering moot any decision by the
Review Court on a review of the Commissioner’s d ecision under
section 93 of the Act (the first ground).
8.2 The Court made a fundamental misdirection by granting an
order on a guarantee that was not before the Honourable Court on
the record of the proceedings and in respect of which no
submissions were invited or heard from the Commissioner (the
second ground).
8.3 The Court erred in considering that the guarantee upon
which the order was made, place the Commissioner in the same
position as if the vessel had not been released (the third ground).
8.4 The Court misdirected itself in not determining the legal
question whether or not the vessel was liable to forfeiture on the
common cause facts (fourth ground).
8.5 To the extent that the relief was interim relief, the
Honourable Court failed to apply the test for a prima facie right
with respect to a finding that the Ocean Ark and Astron Energy
should, as opposed to could, obtain final relief, on the facts alleged
by the m together with those facts alleged by the Commissioner
which were admitted by Ocean Ark and Astron Energy or which
they could not dispute:
8.5.1 The vessel was brought to South Africa in 2023 for the
purpose of operating in South Africa to perform coastwise traffic
and did so until the date of its detention. As a matter of common
cause fact, the vessel was imported without due entry having been
made and thus liable to forfeiture.
8.5.2 The claim of Ocean Ark to be an innocent owner was correct
by reason of the fact that it acquired ownership of the vessel
approximately 12 months after it had been imported into South
Africa at a time when it was already liable to forfeiture.
(i) Notwithstanding Ocean Ark’s innocence in relation to events
at the time of importation, it did not disclose evidence of
what it was aware at the time it became the owner, nor did it
disclose what due diligence investigations it undertook.
(ii) Ocean Ark protected itself against the possibility of seizure
by stipulating warranties in the contract whereby it acquired
rights in the vessel.
(iii) In relation to seizure and forfeiture being disproportionate:
(a) Ocean Ark had acquired its rights in the vessel for little
more than 50% of its market value.
(b) Ocean Ark had disposed of its interest in the vessel under
a financing transaction for the acquisition price together
with interest.
(c) Ocean Ark’s interest in the vessel was limited to security
for the outstanding capital and interest charges.
(d) There was no evidence of the outstanding balance of
Ocean Ark’s exposure, either to the Commissioner, when
release was sought under section 93, or to the Court.
(e) No evidence was given as to the existence or absence of
other securities for Ocean Ark’s exposure.
(f) No evidence was given as to what Ocean Ark’s
unrecovered loss would be if the vessel were not released
at any time.
(g) There was no evidence as to why Ocean Ark was not
indemnified for loss under the warranties in its purchase
agreement or in terms of the provisions of its finance
agreement (the fifth ground).
8.6 In relation to irreparable harm:
8.6.1 There was no evidence of irreparable harm in the interim on
the part of Ocean Ark.
8.6.2 Astron Energy as a time charterer had no legal interest in the
proceedings.
8.6.3 Astron Energy failed to prove a contractual obligation to pay
for services that were not being rendered by reason of the detention
and seizure of the vessel.
8.6.4 Astron Energy’s contract was in any event to expire in the
middle of 2026 (sixth ground).
8.7 To the extent that the relief was truly interim relief, the Court
misdirected itself in relation to costs, applying the principal
applicable to final relief whereas in matters of the grant of interim
relief the ordinary rule is that the costs are reserved for
determination by the court dealing with the final relief (the seventh
ground).
[9] The court in the main judgment ordered that pending the outcome of the
review, the Commissioner’s detention, seizure decision, deemed importation
decision and section 93 decisions are temporarily suspended, and that subject to
any directives by the review court in respect of the control of the Vessel, the
respondent is directed to release the Vessel, the MT Essien, to the applicants
subject to the conditions set out in paragraph (c) of the order.
[10] The central issue in the application for leave to appeal is that by ordering
the release of the Vessel against the revised guarantee, the court granted a final
substitutionary order that pre-empted the statutory discretion vest in the
Commissioner by Section 93 of the Act, thereby rendering the pending review
moot.
Applications for leave to appeal generally
[11] Section 17(1)(a)(i) of the SC Act provides that leave to appeal may only
be where the appeal would have a reasonable prospect of success. The use of the
word ‘would’ in subsection 17(1) (a)(i) of the SC Act imposes a more stringent
threshold in terms of the SC Act.1
[12] Ocean Ark and Astron oppose the leave to appeal and have brought a
conditional application under section 18(3) of the SC Act, the determination of
which is subject to whether this Court grants leave to appeal.
[13] The SCA recently reaffirmed 2 that ‘an interim order may be appealable,
taking into account a range of factors. The Zweni requirements play an
important role in determining the issue of appealability in a particular case, but
they are not immutable. The interests of justice continue to play a substantial
role in the inquiry.’
1Compared to the provisions of the repealed Supreme Court Act 59 of 1959.
2 In MV “Tai Harmony” and Another v Sure Success Steamship S.A and Another (MV Tai) (953/2024 ;
923/2024) [2026] ZASCA 60; [2026] 2 All SA 460 (SCA (28 April 2026) at para 68.
[14] An interim order may be appealed against if the interests of justice so
dictate, even if it does not possess all three attributes set forth in Zweni v
Minister of Law and Order,3 ‘but has final effect or is such as to dispose of any
issue or portion of the issue in the main action or suit, or if the order irreparably
anticipates or precludes some of the relief which would or might be given at the
hearing, or if the appeal would lead to a just and reasonable prompt resolution
of the real issues’.4
[15] Referring to MV “Tai Harmony” and Another v Sure Success Steamship
S.A and Another 5 (MV Tai), a decision of the Supreme Court of Appeal (the
SCA) handed down on 28 April 2026, Ocean Ark and Astron emphasised that
the Commissioner must show that two jurisdictional facts exist to establish
appealability: (i) leave to appeal, and (ii) that the impugned ruling constitutes a
decision as contemplated by section 16(1)(a) of SC the Act.
[16] In MV Tai, the SCA, after setting out the most recent higher court
authorities regarding the appealability of interim orders, concluded that:
‘In sum, on the jurisprudence as it stands, an interim order may be appealable, taking
into account a range of factors. The Zweni requirements play an important role in
determining the issue of appealability in a particular case, but they are not immutable.
The interests of justice continue to play a substantial role in the inquiry. What those
interests are involves a finely weighed consideration of relevant factors in each
case. In addition, to establish appealability, two jurisdictional facts must ordinarily be
present: (i) leave to appeal, and (ii) that the impugned ruling constitutes a ‘decision’
as contemplated by s 16(1)(a) of the SC Act. The grant of leave does not render a non-
3 Zweni v Minister of Law and Order [1992] ZASCA 197; 1993 (1) SA 523 (A) ; [1993] 1 All SA 365 (A)..
Namely (a) that it is final in effect and not susceptible to alteration by the court of first instance; (b) that it is
definitive of the rights of the parties, in other words, it must grant definite and distinct relief; and (c) that it has
the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.
4 United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others [2022] ZACC
34; 2023 (1) SA 353 para 42.
5 MV “Tai Harmony ” and Another v Sure Success Steamship S.A and Another 5 (MV Tai) 953/2024 and
923/2024) [2026] ZASCA 60 (28 April 2026).
appealable order appealable. If the second jurisdictional fact is absent, the appeal must
be struck from the roll for want of jurisdiction.’
[17] The court in MV Tai emphasised that in considering whether an order is
final a court must consider the effect of the order, rather than the form:
‘What needs to be considered is whether the consequences and conditions of the orders may
not be capable of being undone. I find that none of the orders have a final effect, rendering
them appealable from the high court's orders. In addition, no grave injustice or prejudice
would result from the said orders, given their interlocutory nature.’6
[18] Lastly, the SCA observed that ‘ considerations of convenience, costs, or
delays …do not convert an interlocutory order into an appealable one. The focus
will always be on the legal effect of the order, not its practical consequences’.7
[19] Ocean Ark and Astron submit that this Court’s judgment and order is not
appelable and the court therefore does not have jurisdiction to consider the
application for leave to appeal, despite the Commissioner’s contentions to the
contrary, and its stance that as the judgment will allow the ‘ship to sail’, it is
final in effect and therefore appealable.
[20] The Commissioner in argument raised the practical difficulties with this
approach, particularly that it could not simply approach the review court to
request directives regarding the control of the Vessel, and that it was free to sail
beyond its reach the moment the order was given effect to, and once this
transpired the order would be final in effect as there would be no Vessel to
6 Ibid para 70.
7 Ibid fn 2 para 71.
forfeit if the review was unsuccessful. The effect of the decision is therefore
permanent and irreversible.
[21] In argument, SARS highlighted that in terms of the amended notice of
motion in the review, which was annexed to the founding affidavit in the section
18 application, Ocean Ark and Astron sought an order (in the alternative)
reviewing and setting aside the section 93 decision and remitting it to the
Commissioner for reconsideration. SARS emphasised that if the order is
enforced, the Vessel will not be liable for forfeiture and that is the end of the
matter.
[22] I am further of the view that the additional grounds, including the revised
guarantee not being part of the record and the issue of costs are issues which
enjoy a reasonable prosect of success on appeal. I pause however to mention
that the argument that the court should not have awarded costs in relation to
interim relief was never advanced before the court in the main application.
[23] Turning to the second ground, i t is correct that the guarantee which was
incorporated in the terms of the order differs from the guarantee which formed
part of the record before the court a quo. The revised guarantee was provided by
Ocean Ark and Astron to address concerns and objections raised by the
Commissioner on a post-hearing note.
[24] I note that t he Commissioner appears on the one hand to take issue with
the further submissions provided to the court at its request , whilst at the same
time bemoaning the fact that it was not given a further opportunity to address a
further note to the court to set out i ts further objections to the revised guarantee
which was redrafted to address the explicit concerns which it raised regarding
the terms thereof. I accept, nonetheless, that there is a reasonable prospect that
another court may find that the Commissioner should still have been afforded
such an opportunity in the circumstances of this case.
[25] This matter raised complex issues of importance. Another court may well
find that if the Vessel is released and taken beyond the control of SARS it would
have the consequence, which is final in nature, that whatever the outcome of the
review, SARS can no longer take possession of the Vessel and forfeit it in terms
of the Customs Act.
[26] I am satisfied that the order is sufficiently invasive and far-reaching such
that it is in the interests of justice for the grant of the impugned interim order to
be treated as a ‘decision’.8
[27] The grounds of the leave to appeal and the challenge to the court's
assessment of irreparable harm raises legitimate legal questions. In my view
there is a reasonable prospect that another court would find differently.
Consequently, leave to appeal must be granted.
[28] In light of the complexity and importance of the issues concerned , leave
ought to be granted to the SCA.9
[29] The possibility of removal from South African territorial waters and
effectively out of reach from the Commissioner is a consideration that is also of
course relevant to the requirement of irreparable harm in the section 18
application, which I now turn to deal with.
8 Ibid fn 6 paras 41-46.
9 Mr. Peter SC indicated that the Commissioner agrees to the appeal being heard on an expedited basis, and that
it would facilitate any such expedited appeal in accordance with any direction given by the President of the
SCA.
The section 18 application
[30] Under Section 18(1), the default rule is that the operation and execution
of a decision are suspended pending the outcome of an application for leave to
appeal or an appeal.
[31] In terms of s ection 18(3) , a court may, in exceptional circumstances,
order that the decision be executed despite the pending appeal. To succeed, the
applicant must satisfy a threefold test on a balance of probabilities , namely that
exceptional circumstances exist (a fact -specific enquiry) to warrant the
deviation from the default rule of suspension , they will suffer irreparable harm
if the order is not put into operation , the respondent (the party appealing) will
not suffer irreparable harm if the order is put into operation.10
[32] In Tyte Security Services CC v Western Cape Provincial Government and
Others (Tyte Security),11 the SCA 12 held that what constitutes irreparable harm
is always dependent upon the factual situation in which the dispute arises, and
upon the legal principles that govern the rights and obligations of the parties in
the context of that dispute.
[33] In relation to exceptional circumstances, Astron Energy and Ocean Ark
relied on the further grounds advanced in the main application relating to
potential threats to inter alia regional energy security , and from a geopolitical
standpoint the current war in Iran has destabilised the Strait of Hormuz and
forced global shipping traffic to reroute around the Cape of Good Hope,
massively increasing the regional demand for reliable bunkering and refuelling
services that the Vessel is meant to provide.
10 See also Knoop NO and Another v Gupta (Execution) [2020] ZASCA 149; 2021 (3) SA 135 (SCA) para 2.
11Tyte Security Services CC v Western Cape Provincial Government and Others [2024] ZASCA 88; 2024 (6) SA
175 (SCA) para 11.
12 Ibid para 13.
[34] In Tyte Security Ponnan JA observed that whilst it is important to
recognise that the existence of ‘exceptional circumstances’ is a necessary
prerequisite for the exercise of the court’s discretion under s 18 , if exceptional
circumstances are found to be present, it would not follow, without more, that
the application must succeed.13
[35] The Court recognised that the ‘presence or absence of irreparable harm,
as the case may be, may well be subsumed under the overarching exceptional
circumstances enquiry. As long as a court is alive to the duty cast upon it by the
legislature to enquire into, and satisfy itself in respect of exceptional
circumstances, as also, irreparable harm, it does not have to do so in a formulaic
or hierarchical fashion.’14
[36] On the issue of whether Ocean Ark and Astron will, on a balance of
probabilities, suffer irreparable harm if the order is suspended pending the
review application, they contend that Astron suffers direct, unrecoverable losses
of approximately R31 million per month in charter costs for an idle vessel it
cannot use, which cannot be compensated by damages under section 4(13) of
the Customs Act. At the same time, Ocean Ark is forced to watch a R400
million physical asset actively depreciate while sitting entirely idle and non -
operational.
[37] My view insofar as the irreparable harm which Ocean Ark will suffer if
the order is not enforced remains unchanged, for the same reasons which I have
given in the main judgment. Ocean Ark and Astron have, in my view, shown
that they will suffer irrecoverable losses if the Vessel is not released, including
catastrophic financial harm amounting to approximately R1 million per day.
13 Ibid at para 11.
14 Ibid at para 14.
[38] On the issue of the irreparable harm which it avers that it will suffer if the
order is not suspended, Mr. Peter SC argued that if the Commissioner is
ultimately successful in the main review application at a later date, its victory
will be a Pyrrhic one , as the Vessel will be gone , and the Commissioner’s
statutory right to physically execute a forfeiture order against the Vessel itself
will have been permanently destroyed.
[39] SARS contends that the Lombard guarantee is inadequate, as if the Vessel
sails and it is successful in the review, it cannot claim a loss arising directly
from physical forfeiture, forcing it to pursue a third-party commercial guarantor,
and that the order and guarantee changed neither the finality nor the permanence
and irrevocability of the order of release.
[40] The Commissioner contends further that if an execution order is granted,
and SARS is successful in an appeal , the order of the appeal court would be
rendered nugatory.
[41] In a supplementary affidavit delivered after the first hearing at the request
of the court, Ocean Ark and Astron undertook ‘not to take steps to sail the
Vessel out of South African waters.’
[42] In response the Commissioner highlighted that Astron’s and Ocean Arks’
undertakings not to issue any orders or take any steps that the Vessel leave the
Republic are meaningless and ineffective , as there exists a chain of contract s
between four parties, starting with Ocean Ark and ending with Astron.
[43] It is undisputed that Astron’s contract with ST Shipping expires 30 days
before or after 19 July 2026 .15 The bareboat charter between Ocean Ark and
Michael 5 does not give Ocean Ark any contractual right to direct Michael 5 to
retain the Vessel in South Africa, nor does Michael 5 require permission from
Ocean Ark to remove the Vessel from South Africa.
[44] The undertaking by Ocean Ark and Astron cannot prevent parties who are
not before the court from removing the Vessel from our territorial waters, at the
earliest by 19 June 2026.
[45] However, neither Mr Mullins SC nor Ms Pillay SC could, nor did,
positive assert that the Vessel cannot leave South African waters ,
notwithstanding the undertaking given on behalf of Ocean Ark and Astron. This,
in my view, lends credence to the Commissioner’s argument that, ultimately,
despite any undertaking Ocean Ark and Astron may be willing to give, they
cannot de facto prevent the Vessel from leaving our waters.
[46] The issue of the Vessel not being prevented from being removed from
South African waters is a factor which has significantly weighed against the
granting of the section 18 application . This is an issue which was not raised by
either of the parties in the main proceedings.
[47] An overarching cause for concern is that Ocean Ark has given possession
of the Vessel to Michael 5. It therefore cannot direct that the Vessel remain in
South African waters. Michael 5 and ST Shipping may choose not to leave the
Vessel here, knowing that it is subject to forfeiture.
15 The Time Charter had to be extended by 19 April 2026. No evidence was placed before the Court that it was
in fact extended by such date.
[48] This, in my view, is the irreparable harm which SARS may face if a
section 18(3) execution order is granted. Upon expiry of Astron’s time charter,
at the earliest on 19 June 2026, the Vessel is free to leave. There is merit to the
Commissioner’s argument that the necessary safeguards to avoid this coming to
pass should have been catered for in the original application.
[49] It may appear that this stance cannot be readily reconciled with the
finding in the main judgment that led to the g ranting of an interim interdict.
However, the test in terms of section 18 is far more stringent. Whilst the
circumstances in this matter may properly be described as exceptional, the
applicant is also required to show, on more stringent threshold that the
respondent will not suffer irreparable harm if the order to execute is granted.
This third leg of the test has not, in my view, been met.
[50] SARS argued that if the appeal is successful as the order, including the
guarantee, will be set aside and the application dismissed. In other words, if the
Commissioner succeeds in the appeal and the section 18(3) order is granted, it
will be left without either the guarantee or the Vessel.
[51] During the hearing on 1 June 2026, Ms . Pillay SC pointed out that in
terms of paragraph 7.2 of the guarantee if SARS is finally successful in any
appeal it would still be entitled to call up the guarantee. She further contended
that any irreparable harm SARS may suffer is addressed by its automatic right
of appeal in terms of section 18(4) of the SC Act.
[52] In my view, the latter argument cannot be sustained. The requirement in
section 18(3) that an applicant must show on a balance of probabilities that the
respondent will not suffer irreparable harm if the execution order is granted
would be superfluous if this were so, as the respondent automatically has an
automatic right of appeal if such an order is granted. Section 18(4) therefore
cannot, in my view, be an answer to the issue of irreparable harm by SARS.
[53] Ms. Pillay SC relied on clause 8 of the guarantee, which provides that:
‘In respect to a forfeiture claim, and in the event that a court orders that the Vessel be
restored to the control of SARS, in addition to clauses 7.1. to 7.3 above, SARS shall
only be entitled to demand payment under this Guarantee on presentation to Lombard
of a recordal in writing by the Customer that it is unable to restore the Vessel to SARS
or a recordal in writing by SARS that it does not seek restoration of the Vessel.’
[54] The difficulty is that if the Vessel has sailed beyond the court’s reach
before the order is granted , it will not be capable of being restored to SARS.
There is no undertaking that the Vessel will be restored or returned to the
Commissioner at the end of the review proceedings and that the guarantee will
still be available.
[55] For all these reasons Ocean Ark and Astron have , in my view. failed to
prove on a balance of probabilities that the Commissioner will not suffer
irreparable harm if the execution order is granted, arising from the fact that
Astron’s time charter expires at the earliest on 19 June 2026 and that Ocean Ark
does not have any contractual right to direct Michael 5 to retain the Vessel in
South Africa nor to prevent it from removing the Vessel from South Africa.
[56] The offer by the Commissioner to facilitate the expedited hearing of the
appeal in accordance with any directions given by the President of the Supreme
Court of Appeal may serve to ameliorate the ongoing harm which Ocean Ark
and Astron continue to suffer by the continued detention of the Vessel pending
the determination of the review application.
[57] For all the reasons set out above, the application in terms of section 18(3)
cannot succeed.
Costs
[58] There is no reason why the ordinary rule that costs should follow the
event should not apply. The Commissioner has been successful in opposing the
section 18(3) application and is entitled to its costs.
[59] The costs of the application for leave to appeal shall be costs in the
appeal.
Order
[60] The following order shall issue:
(a) The application for leave to appeal by the Commissioner for the
South African Revenue Service (the Commissioner) against the
judgment and order delivered by this Court on 24 April 2026 is
granted.
(b) Leave to appeal is granted to the Supreme Court of Appeal.
(c) The costs of the application for leave to appeal shall be costs in the
appeal.
(d) The application in terms of Section 18(1), read with Section 18(3)
of the Superior Courts Act 10 of 2013 by Ocean Ark Shipping
Limited and Astron Energy (Pty) Ltd (the Section 18 application),
for an order directing that the operation and execution of the order
dated 24 April 2026 shall not be suspended pending the outcome of
the appeal, is refused.
(e) Ocean Ark Shipping Limited and Astron Energy (Pty) Ltd are
ordered to pay the Commissioner’s costs of opposing the Section
18 application, such costs to include the cost of two counsel, to be
taxed on Scale C.
__________________
M Holderness
Judge of the Western
Cape High Court
Appearances
Ocean Ark Shipping Limited
and Astron Energy (Pty) Ltd: Adv S Mullins SC, Adv K Pillay SC, Adv D
Cooke, Adv E Muller
Instructed by
Ocean Ark Shipping Limited: Bowman Gilfillan Inc.
Astron Energy (Pty) Ltd: Webber Wentzel
The Commissioner for the
South African Revenue Services: Adv J Peter SC
Instructed by: MacRobert Attorneys