de Swarst on Forum Non Conveniens

Graduate Publications

NON CONVENIENS DOCTRINE IN SOUTH AFRICAN LAW

by

Madeleine de Swardt
Senior Counsel of the High Court of South Africa
Cape Town

Website note:
This paper was submitted to the Shipping Law Unit of the Faculty of Law in June 1994 in part fulfilment of the requirements for a Graduate Diploma in Shipping Law. The paper reflects the views of the author, and is reproduced with the consent of the author.
The text is protected by Copyright. Reproduction for bona fide academic purposes is permitted with full acknowledgement of source.

Prior to the enactment of the Admiralty Jurisdiction Regulation Act, No 105 of 1983 ("the AJRA"), South Africa derived its admiralty jurisdiction from the English Colonial Courts of Admiralty Act 1890. Section 2 of that Act provided that every court in a British possession which had "unlimited civil jurisdiction" was to be "a court of Admiralty with the jurisdiction in this Act mentioned". South Africa qualified on both grounds and its Supreme Court therefore was also constituted a colonial court of admiralty.

In enacting section 7(1)(a) of the AJRA, the legislature has been found to have incorporated into South African law the principle of forum non conveniens, which has long been followed in Scotland and which has also been adopted in England.

This dissertation will provide an overview of the development of the law in England and in South Africa which culminated in the acceptance of the forum non conveniens principle in both legal systems. The differences in the practical application of this principle in South Africa and England will be discussed. Issues which could present certain practical difficulties, such as the onus of proof and the furnishing of security, will be alluded to.

As will become apparent, the reference to forum non conveniens is perhaps somewhat of a misnomer, inasmuch as the question which falls to be decided in each instance when this defence is raised, is whether the court which is seized with the matter is the more appropriate forum for the adjudication of the parties' dispute. The convenience or inconvenience suffered by either or both of the parties is but one of the factors to be considered.

In La Societe du Gaz de Paris v La Societe Anonyme de Navigation "Les Armateurs Francais" the plaintiffs brought action against the defendants in a Scottish court for recovery of certain damages sustained pursuant to the loss of a cargo of coal which had been shipped aboard a vessel owned by the defendants and which had foundered. The plaintiffs arrested a sister ship within the jurisdiction of the Scottish court, but the defendants raised the defence of forum non conveniens, claiming that the action should proceed in France.

The Lord Chancellor interpreted the plea as raising the contention that "for the interests of all the parties, and for the ends of justice, the cause may more suitably be tried elsewhere" so that "if it appeared to the Court, after giving consideration to the interests of both parties and to the requirements of justice, that a case could not be suitably tried in the Court in which it was instituted and full justice could not be done to either of the parties but could be done in another Court, then the former Court might give effect to the plea by declining jurisdiction and permitting the issues to be fought out in the more appropriate Court." The burden of proof was cast on the defendant who raised this plea, to satisfy the court that there was another forum which was more suitable for the ends of justice and which was preferable because pursuit of litigation in that forum would be more likely to secure the ends of justice.

The House of Lords, in dismissing an appeal and upholding the defendant's plea based on the said doctrine, took into account that the plaintiffs and defendants were French companies carrying on business in France. Neither had any place of business in Scotland. The ship in question was a French vessel, carrying cargo for delivery to the plaintiffs in France under a charterparty, the obligations whereof were not to be performed in Scotland. The surviving members of the crew were French, the log was written in French and the plans of the vessel were in the metric system with French notes. The vessel was of the "Marie-Louise" class in respect whereof a French commission had made certain safety recommendations and there was evidence that French law in certain circumstances allowed the shipowners to limit their liability, a right which they would be deprived of, should they be obliged to litigate in Scotland. In short, the court found that there was not "a breath of Scottish atmosphere" about the case and that Scotland was clearly not the appropriate forum for the hearing of the matter. The facts that the charterparty was in the English language and that the underwriters carried on business in England did not affect the situation.

In contradistinction to Scottish law, English law until 1973 adopted the stance that a foreign plaintiff who could establish jurisdiction against a foreign defendant by a method recognised by English law, was entitled to pursue his action in the English court if he genuinely thought that it would be to his advantage so to do and he was not acting merely vexatiously. Neither the parties nor the subject-matter of the dispute needed to have any connection with England. The fact that proceedings were pending in another jurisdiction which might be a far more appropriate forum and the fact that the defendant may have to suffer great expense and inconvenience if he would have to litigate in England, did not militate against the plaintiff's right to obtain the decision of an English court. In short, the attitude adopted by the English court can perhaps best be described in the words of Lord Denning which were referred to in The Atlantic Star:

"No one who comes to these courts asking for justice should come in vain ... This right to come here is not confined to Englishmen. It extends to any friendly foreigner. He can seek the aid of our courts if he desires to do so. You may call this "forum shopping" if you please, but if the forum is England, it is a good place to shop in, both for the quality of the goods and the speed of service."

The decision in The Atlantic Star, however, marked the beginning of a change in the attitude which was adopted by the English Courts. The House of Lords, having been referred to the forum non conveniens doctrine recognised in Scotland, declined to impose those principles on the prevailing English law. It rather adopted the view that it had to work within the then existing framework of English law which required that a plaintiff should not be acting vexatiously, oppressively or in abuse of the process of the court, but it moved away from a strict approach and expressed the view that these concepts should be interpreted more liberally.

A distinction was drawn between a case where England was the natural forum for the plaintiff and the situation which existed when a plaintiff approached the English court merely to serve his own ends. In the former case, it was held that the plaintiff should not be driven from the court, but in the latter event the plaintiff should be expected to offer some reasonable justification for his choice of forum if the defendant sought a stay.

Although the House of Lords stated that a plaintiff should not lightly be denied the right to sue in England if jurisdiction had been properly founded, that right was held not to be absolute. The British courts were open even to actions between foreigners in actions relating to foreign matters. The court had a discretion to grant a stay and in considering whether or not to grant a stay, it had to take into account any advantages which would accrue to the plaintiff by allowing the proceedings in England, as against any disadvantages which would be suffered by the defendant of so allowing the suit to proceed.

In the final analysis, in each instance when a stay was sought, the court had to decide whether the defendant had clearly shown that to allow the case to proceed in England would in a reasonable sense be oppressive, taking into account all the relevant circumstances, including the personal position of the defendant.

Albeit that the House of Lords shied away from adopting the Scottish doctrine of forum non conveniens, the shift in The Atlantic Star was significant. The right of the Plaintiff to approach the English court was tempered by a balancing of the plaintiff's interests against those of the defendant, although this change in the then existing law was couched in terms which were still rather strict and formalistic.

In 1978, in the case of MacShannon v Rockware Glass Ltd the House of Lords once again moved a step closer to the adoption of the forum non conveniens principle. It was held that in order to obtain a stay of proceedings, a defendant had to satisfy two requirements. Firstly, he had to show that there was another forum to whose jurisdiction he was amenable and in which justice could be done between the parties at substantially less inconvenience and expense. Secondly, the stay should not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him if he were to proceed in the English court.

Once again a distinction was drawn between instances where England was the natural forum and where it was not. In the latter case, the plaintiff bore the onus of providing reasonable justification for his choice of forum in the shape of some juridical or personal advantage which could be objectively demonstrated. If the plaintiff did not succeed in showing such advantage, the defendant, in order to obtain a stay, only had to show that he would be involved in substantial inconvenience and unnecessary expense if proceedings were to continue in England. If the plaintiff, however, succeeded in establishing some real advantage to being able to pursue the defendant in the English court, the court would only grant a stay if it was satisfied that the disadvantages to the defendant of continuing in England outweighed the advantages to the plaintiff to the extent that it would be unjust to refuse a stay.

It is significant that the House of Lords in MacShannon for the first time did away with the requirement that litigation should be classified as vexatious or oppressive before a stay would be granted. The emphasis shifted from the right of the plaintiff to proceed in an English court, to a more even handed approach requiring the interests of the plaintiff to be weighed against those of the defendant in order to ascertain how best justice could be served.

English law underwent a further significant change as a result of the decision in The Abidin Daver. Whereas the emphasis previously had been placed on the rights of plaintiffs to obtain a decision from the English courts, the plaintiff was for the first time burdened with an onus to maintain his arrest.

The facts, briefly, were that a collision occurred in the Bosphorus between vessels owned by the plaintiffs and defendants respectively. The plaintiffs were domiciled in Cuba and the defendants in Turkey. The defendants had initiated proceedings in Turkey in order to recover their damages and the plaintiffs subsequently served a writ on a sister ship of defendants' vessel in England and brought an action in rem in the Admiralty Court. The defendants applied for a stay of the English proceedings.

The House of Lords found that Turkey was not only the country with which the case had the closest connection, but that it was the natural and appropriate forum for the resolution of the dispute. In view thereof, and taking into account that an action was pending in the foreign jurisdiction the court held that the plaintiff, in order to resist a stay, bore an onus of establishing objectively and by cogent evidence that even handed justice might not be accorded to him in the foreign jurisdiction or that there was some personal or juridical advantage available to him only in the English action which was of such importance that it would be unjust to deprive him thereof.

In the course of the judgment Lord Diplock found that the move away from the "good old days" when Englishmen "felt an innate superiority over those unfortunate enough to belong to other races" which had started with the decision in The Atlantic Star, had brought about such change that the position in English law was "indistinguishable from the Scottish legal doctrine of forum non conveniens".

The finding that the principles of English law recognised the Scottish doctrine of forum non conveniens was echoed and authoritatively expounded upon by the House of Lords in 1987 in the by now well known case of The Spiliada. This case has not only proved to be the fons et origo for the application of the forum non conveniens doctrine in modern day English law, but has also served as a bench mark in the application of this doctrine in South Africa. It will therefore be dealt with in some detail.

The bulk carrier Spiliada flying the Liberian flag, was owned by a Liberian corporation which chartered the Spiliada to an Indian company under a voyage charter for the carriage of a cargo of sulphur from Vancouver to Indian ports. The charterparty contained a London arbitration clause.. The respondents carried on business as exporters of sulphur in British Columbia. The sulphur was duly loaded and the owners subsequently brought suit against the respondents in an action for damages, alleging that the sulphur had been wet when loaded, thereby causing severe corrosion and pitting to the holds and tank tops of the vessel. The owners had obtained leave to issue and serve a writ upon the respondents outside the jurisdiction of the English court on the grounds that the action was based on the breach of a contract which was by its terms governed by English law. The respondents applied for an order setting aside the leave which had been granted, as well as all proceedings brought pursuant thereto.

Lord Goff of Chieveley handed down a judgment which dealt with the application of the doctrine in a most comprehensive manner. Lord Goff held the basic principle to be that a stay of proceedings in England would only be granted on the basis of forum non conveniens if the English court was satisfied that there was another forum, having competent jurisdiction, which was the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.

In applying this principle Lord Goff distinguished two stages of enquiry and held that the onus shifted. In general, it was held, the onus of persuading the court to exercise its discretion to grant a stay rests upon the defendant. The defendant therefore has not only to show that England is not the natural or appropriate forum for the adjudication of the parties' dispute, but also has to establish that there is another available forum which is clearly or distinctly more appropriate than the English court. However, once the court finds that there is another available forum which is prima facie the appropriate forum for the trial of the action, the onus shifts to the plaintiff to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in England.

Because the first question which has to be decided is whether there is another available forum which is clearly more appropriate, the court will first look to see what factors there are which point in the direction of another forum. If the court comes to the conclusion that there is no other available forum which is appropriate for the trial of the action, the application for a stay will be refused and the matter will proceed in England. If, however, the court concludes that there is indeed another available forum which prima facie is more appropriate for the trial of the action, it will ordinarily grant a stay unless circumstances are present by reason whereof justice requires that a stay not be granted, such as, that a plaintiff would not obtain justice in the foreign jurisdiction.

In assessing whether another appropriate forum is available, the court will have regard to which was the natural forum, i.e. that with which the action has the most real and substantial connection. Such factors will include, not only the convenience of witnesses and the expense of the trial, but also other factors such as the law governing the transaction or cause of action and the places where the parties reside or carry on business.

The question whether a stay would deprive the plaintiff of a legitimate juridical or personal advantage, which had previously been regarded as of considerable importance, was held to be merely one of the factors which fall to be considered in determining which is the appropriate forum for the trial of the action. The test to be applied in each case is where can the case be tried more suitably for the interests of all the parties and for the ends of justice. Generally speaking, a court should not be deterred from granting a stay simply because a plaintiff will be deprived of a juridical advantage, provided that the court is satisfied that "substantial justice" will be done in the available appropriate forum.

The importance of the decision in The Spiliada lies not only in its clear, detailed and unequivocal exposition of English law, but also therein that it constituted a final move away from the "superior" attitude previously adopted by English courts. The emphasis now is on international comity and respect for foreign judicial systems.

Shortly after the decision in The Spiliada, a judgment by Steyn J in Du Pont de Nemours & Co & Endo Laboratories Inc v Agnew & Others came before the Court of Appeal. The Judgment by Steyn J in the court a quo had been handed down after argument in The Spiliada but before judgment. Steyn J had followed the decisions in MacShannon and The Abidin Daver referred to above. The court of appeal applied the principles laid down in The Spiliada, but did not in any way expand thereupon.

Other cases which have referred to the principles laid down in The Spiliada have likewise not added anything new to the principles enunciated therein.

Shortly before the AJRA was enacted, the question whether the doctrine of forum non conveniens found application in terms of South African law was pertinently raised in two cases before the Full Bench of the Natal Provincial Division - the Melina Tsiris and the Houda Pearl. In both instances, suit was brought by seamen for the recovery of arrear wages. In both instances the court found that the doctrine was not applicable, but there was no unanimity on the effect of the doctrine.

The Melina Tsiris and a sister ship, the Antigoni Tsiris, which had also been arrested by her crew, were registered in Cyprus and the owners were said to be Lebanese. Neither the plaintiffs nor the defendants nor the subject-matter of the action had any connection with South Africa, save for the fact that the plaintiffs and the ships were in the area of the court's jurisdiction at the time of the arrests. On behalf of the defendant vessel(s) the court was requested to decline to exercise its jurisdiction and to dismiss the action(s).

Thirion J found that the exercise of the court's jurisdiction, which it derived from the Colonial Courts of Admiralty Act, was discretionary and that the court could in its discretion decline to exercise jurisdiction, thereby leaving it to the parties to pursue their rights in some other competent forum.

The court, with reference to Benedict on Admiralty, took cognisance of the fact that American law recognised the doctrine of forum non conveniens and that this doctrine was also recognised in Scottish law, as was evident from the decision in the Société du Gaz case. However, the court found that the Colonial Courts of Admiralty Act enjoined it to apply English Admiralty law as it existed in 1890 and that, as was evident from the decision in The Atlantic Star, the doctrine of forum non conveniens did not form part of such law.

Thirion J was, however, of the view that the application of the dicta in The Atlantic Star would not be likely to lead to results which were essentially different from that which would be achieved if the doctrine were to be applied or, for that matter, if the court merely adopted the stance that it had to exercise its discretion judicially and on consideration of all relevant circumstances.

When the question regarding the application of the doctrine came before the Natal Court a few months later in the Houda Pearl, the court (per Friedman J) agreed that it had a discretion to refuse to exercise its jurisdiction. Once again, the court referred to the position in American law and in the law of Scotland as expressed in the Société du Gaz case. It was found that the effect of the doctrine was that the court had a general discretion which was to be exercised judicially upon a consideration of all the relevant facts, to refuse to exercise jurisdiction in a case where there was another forum which was "more suitable for the ends of justice, and is preferable, because pursuit of the litigation in that forum is more likely to secure those ends".

With reference to The Atlantic Star, Friedman J also found that English law did not recognise the doctrine and that an English court would only be persuaded to decline to exercise its jurisdiction if the plaintiff was acting vexatiously or oppressively, or in abuse of the process of the court, albeit that a more liberal meaning was to be given to the words "vexatious" and "oppressive".

Friedman J, in contradistinction to Thirion J, was very aware of the difference between the nature of the discretion exercised by the English court pursuant to the principles enunciated in The Atlantic Star and the nature of the discretion which would be exercised in terms of the doctrine of forum non conveniens. The case was, however, dealt with on a different basis, the court having found that instances where seamen were claiming wages were by their nature to be dealt with on a different footing.

The view expressed by the court in the Houda Pearl appears to be more sound from the point of view that the English court applied a totally different point of departure when called upon to decline to exercise its jurisdiction than the Scottish court. The emphasis in England fell squarely on the plaintiff's right to avail himself of the assistance of the English courts and the circumstances under which a defendant could succeed in obtaining a stay were severely circumscribed, even if allowance is made for the somewhat more lenient approach adopted in The Atlantic Star. This parochial approach sharply contrasted with the Scottish attitude where the emphasis fell on a more even handed treatment of litigants and a careful evaluation of factors favouring a change of venue as well as factors militating against. One can easily envisage that a defendant may have succeeded in obtaining a stay in Scotland whereas, on exactly the same facts, he would not have been successful in England.

"(1)(a) A court may decline to exercise its admiralty jurisdiction in any proceedings instituted or to be instituted, if it is of the opinion that the action can more appropriately be adjudicated upon by another court in the Republic or by any other court, tribunal or body elsewhere.

(b) A court may stay any proceedings in terms of this Act if it is agreed by the parties concerned that the matter in dispute be referred to arbitration in the Republic or elsewhere, or if for any other sufficient reason the court is of the opinion that the proceedings should be stayed."

Although subsection 7(1)(b) has remained unchanged, subsection 7(1)(a) was amended by Act 87 of 1992 and now reads as follows:

"(a) A court may decline to exercise its admiralty jurisdiction in any proceedings instituted or to be instituted, if it is of the opinion that any other court in the Republic or any other court or any arbitrator, tribunal, or body elsewhere will exercise jurisdiction in respect of the said proceedings, and that it is more appropriate that the proceedings be adjudicated upon by any such other court or by such arbitrator, tribunal or body."

The reported cases in South Africa have thus far dealt with section 7(1) in its original form.

In The Paz the Full Bench of the Natal Provincial Division was called upon to deal with a security arrest in terms of section 5(3) of the AJRA in circumstances where the applicant, a Nigerian Company, was applying for leave to arrest the Paz in order to obtain security for an eventual judgment in an action in rem which was pending in Hong Kong pursuant to loss of and damage to cargo conveyed from Antwerp to Laos.

In dealing with the jurisdiction and powers of the court in terms of section 5(3) of the AJRA, the court (per Friedman J, Kriek & Didcott JJ concurring) referred to the provisions of section 7(1) in order to place in perspective the powers of the court to decline to exercise jurisdiction. The court referred to its discretion to decline to exercise jurisdiction as "not a general unfettered one" but rather one which was "circumscribed". After quoting the relevant section, Friedman J without further ado found that "Section 7(1)(a), in effect, introduced into our law the principle of Scottish law that a Court can decline to exercise jurisdiction on the ground of forum non conveniens ... which, because it was not accepted as a principle of English law ..., was therefore prior to the enactment of section 7(1)(a) also not part of our law ..."

The Full Bench of the Natal Provincial Division again referred to the provisions of section 7(1) in the Spartan Runner, a case in which an exclusive jurisdiction clause was contained in the contract between the parties providing that any disputes arising from the contract would be subject to English law and the jurisdiction of the English courts.

The court held that the fact that the parties had agreed to refer their disputes to a particular forum was certainly material to a consideration as to whether that court would constitute the appropriate forum for the trial of the action. Regard was had to the fact that in English law, in accordance with the principles enunciated in The Eleftheria, a court was not bound to grant a stay, but had a discretion so to do, in instances where a plaintiff sued in England in breach of an agreement to refer disputes to a foreign court. It was held, however, that the onus was upon the plaintiff to show why the court should not stay the proceedings so as to give effect to the agreement between the parties. Having found that the plaintiff had failed to advance "sufficiently cogent reasons" why the local court would be more appropriate than the English court for resolution of the matter, the arrest was set aside.

In neither The Paz nor the Spartan Runner, did the court analyse the provisions of section 7(1) of the AJRA. The finding in The Paz to the effect that section 7(1)(a) incorporated into our law the Scottish doctrine of forum non conveniens, was made with but the briefest reference to the decision in the Société du Gas. Much the same can be said about the decision in the Spartan Runner. By that time The Spiliada had been reported, but apart from a cursory reference to the case, it did not receive any attention.

Great River shipping was the first case in South Africa to deal in detail with the forum non conveniens doctrine in the light of the provisions of section 7(1)(a) and the decision in The Spiliada. It therefore merits a closer look.

The facts. briefly, were that Great River Shipping, a company based in the People's Republic of China, had purchased a vessel it renamed the "Great Eagle" at a Judicial Sale at Qingdao in China. It was then registered in Panama. The vessel came to Saldanha Bay, where it loaded a cargo of iron ore which was to be transported to China. Sunnyface arrested the vessel in an action in rem claiming ownership on the basis, inter alia, that the judicial sale in China had been obtained consequent to a conspiracy in which the Maritime Court at Qingdao had been implicated. The first arrest of the vessel was set aside on the basis that Sunnyface had failed to make out a prima facie case. The Great Eagle was arrested a second time after further evidence had allegedly been obtained and Great River Shipping applied for the arrest to be set aside, inter alia, in terms of the provisions of section 7(1)(a).

The court, per Berman J, accepted that section 7(1) embodied the forum non conveniens doctrine which had been applied in Scotland and had become accepted in England through the series of cases starting with The Atlantic Star and culminating in The Spiliada. In applying the principles of the doctrine to South African law, the court summarised the position as follows:

1. The basic principle is that a stay will only be granted, or a warrant of arrest be set aside, on the basis of forum non conveniens in instances where the court is satisfied that there is some other available forum of competent jurisdiction which is the appropriate forum for the trial of the action rather than merely being more convenient.

2. An initial general onus rests on the party seeking the stay or setting aside of the warrant of arrest to persuade the court to exercise its discretion to grant the stay or set aside the arrest.

3. Once that onus has been discharged, i.e. once the court is satisfied that there is another available forum which is prima facie more appropriate, the onus shifts to the other party, that is the party who made the arrest, to show that special circumstances exist which warrant the dispute being adjudicated in South Africa.

4. In deciding whether special circumstances in the sense referred to are present, the court will have regard to connecting factors which point to the other forum as that with which the dispute has the most real and substantial connection, such as the availability of witnesses, the places where the parties reside or carry on business, the law governing the situation, the likelihood of the arresting party obtaining justice in the foreign forum and any other relevant circumstance.

5. The onus to establish the aforesaid special circumstances which is cast upon the party resisting the application for a stay or setting aside of the arrest, is dischargeable on a preponderance of probabilities although a party who claims that he will not receive justice in the foreign jurisdiction will have to advance "positive and cogent evidence" to support his contention because one does not readily impute dereliction of duty to a responsible body and that is more particularly the case where a court is alleged to have been part of a conspiracy.

Berman J referred to the fact that the Australian court had declined to follow The Spiliada in two cases, but was of the view that those cases had been trenchantly criticised and that the Appellate Division had in The Thalassini by implication acknowledged that there was a heavy onus on the party who contended that it would not receive justice at the hands of the foreign court. The court preferred the two-stage approach adopted in The Spiliada to that of the Australian court which placed the onus squarely on the party seeking the stay to show that the local court was clearly inappropriate.

After applying the principles set out above, the court set aside the arrest of the vessel. An application for leave to appeal by Sunnyface was refused and a petition to the Chief Justice met with the same fate. Great River Shipping in the result stands as a landmark in South African case law.

A comparison of the judgment handed down by Berman J in Great River Shipping with that of Lord Goff in The Spiliada reveals that the South African court closely followed the English decision and, in essence, adopted the reasoning therein as part of our own law. As a result, the defendant has to satisfy the court that there is another available forum which is prima facie more suitable for the adjudication of the dispute between the parties and if he succeeds in so doing, the court will, in the absence of special circumstances warranting that the matter be decided locally, decline to exercise its jurisdiction.

Albeit that Berman J adopted the reasoning of Lord Goff in The Spiliada, two aspects of his judgment require further comment. In setting aside the arrest on the basis of forum non conveniens, Berman J failed to make any order relative to the furnishing of security by the Defendant, Great River, for the litigation in the foreign forum. This issue will be dealt with in a separate chapter hereunder. The other aspect which requires comment is the context within which the "connecting factors" with the foreign forum are to be considered.

"(4) Since the question is whether there exists some other forum which is clearly more appropriate for the trial of the action, the Court will look first to see what factors there are which point in the direction of another forum. These are the factors which Lord Diplock described in MacShannon's case ... as indicating that justice can be done in the other forum at substantially less inconvenience or expense. ... So it is for connecting factors in this sense that the Court must first look: and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction ... and the places where the parties respectively reside or carry on business."

When regard is had to the judgment in Great River Shipping Berman J appears at first blush to have found that connecting factors fall to be considered within the different context of ascertaining whether the plaintiff had shown that "special circumstances" existed which warranted that the dispute be resolved in the local forum.

The court's ostensible departure from the principles enunciated in The Spiliada appears to be unwarranted. The "connecting factors" are obviously linked to the foreign forum which the defendant has to prove, prima facie, to be the more appropriate for the adjudication of the dispute between the parties. Lord Goff's finding in this respect was unequivocal. Immediately after the extract of his judgment quoted above, Lord Goff held that "(i)f the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, it will ordinarily refuse a stay". There does not appear to be any justification for considering "connecting factors" in relation to the "special circumstances" which the plaintiff has to prove.

When regard is had to the remainder of the judgment in Great River Shipping it is, however, clear that Berman J himself dealt with the "connecting factors" as a first step in the proceedings. After alluding to the evidence adduced by Great River in substantiating the connecting factors with the court in China, Berman J expressly found that those factors were "more than sufficient to require Sunnyface, if it is to succeed in this application, to discharge the burden of showing that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country."

The manner in which the court initially expressed the basic principles of the doctrine in Great River Shipping is therefore unsatisfactory. It may cause a measure of uncertainty and could even constitute a trap for the unwary.

The decisions in The Spiliada and Great River Shipping referred to a shifting of the onus. It is necessary to ascertain which of the parties bears the onus in the true sense of the word, as opposed to the burden merely to produce evidence (referred to in Afrikaans as "'n weerleggingslas"). This will determine whether or not the court will decline to exercise jurisdiction in instances where the court finds that the scales are evenly balanced.

In Great River Shipping, Berman J specifically referred to "an initial general onus" on the party seeking the stay to persuade the court to exercise its discretion to grant a stay or to set aside the arrest. This general onus is, in terms of the judgment, discharged by the defendant when he succeeds in satisfying the court that there is another available forum which is prima facie more suitable. This choice of words contrasts sharply with the court's finding that the plaintiff's onus to show special circumstances is an onus which is "dischargeable on preponderance of probability".

When regard is had to the language used by the court, it appears that there is in fact no ambiguity regarding the onus. The defendant who wishes to obtain a stay of proceedings or the setting aside of an arrest, has a burden of adducing certain evidence. The arresting plaintiff, however, must discharge the onus of satisfying the court that the trial should take place in South Africa. The aforegoing interpretation of the court's judgment, is also clearly consistent with the accepted view that the onus is on the plaintiff to maintain the arrest. The result is therefore that if the scales are, at the end of the day, evenly balanced, the plaintiff will be unable to maintain his arrest and relief in terms of section 7 will be granted.

As has been pointed out above, section 7(1) was amended in 1992. Whereas the court, prior to the amendment merely had to be of the opinion that the action between the parties "can more appropriately be adjudicated upon by another Court", before declining to exercise jurisdiction, the court must now in addition be of the opinion that such other court "will exercise jurisdiction in respect of the said proceedings". The question which arises is whether the effect of this amendment is to vary what has been said above with regard either to the manner in which the doctrine is to be applied, or the operation of the onus, as was laid down in Great River Shipping.

It is trite that the legislature is taken to know existing law and that the legislature is presumed not to amend or interfere with existing law more than is necessary. Taking these rules of construction as a basic point of departure, the legislature is thus presumed to know not only of the existence of the judgment in Great River Shipping, but also of the manner in which the court interpreted and applied the provisions of section 7(1)(a) prior to its amendment. If this interpretation conflicted with what the legislature had originally intended, or if the legislature wished to change the law, it would therefore have to specifically provide for a change.

An analysis of section 7(1), reveals that there is neither an express reference to the question of the onus nor does the section indicate by necessary implication that a change with regard to the onus was intended. Prior to its amendment, the section in effect listed one requirement which had to be satisfied in order for the doctrine to be applied - that the action can more appropriately be dealt with in another forum. The South African court must now, in addition, also be satisfied that the other/foreign court or tribunal will exercise jurisdiction.

The injustice to the plaintiff which would result if an arrest were set aside on the basis of the forum non conveniens doctrine and the foreign court were subsequently also to decline to exercise jurisdiction, is obvious. Neither the decision in The Spiliada nor that in Great River Shipping referred to this important issue. However, it is difficult if not impossible to imagine how a defendant could make out a prima facie case for the trial of the action in a foreign jurisdiction if he did not indicate that the trial would or could actually take place there. It appears to be an essential element of the defendant's case in his application in terms of section 7(1)(a). This is, to an extent, borne out by a reading of the record in Great River Shipping. Great River adduced evidence to the effect that the Maritime Court in Qingdao not only had jurisdiction with regard to the parties' dispute, but would, in all likelihood, exercise that jurisdiction.

The amendment of section 7(1)(a) came about after the decision in Great River Shipping. When this is borne in mind, it would appear that the Legislature realised that there was to some extent a lacuna in the relevant section and therefore added the further requirement that the South African court must be satisfied not only that the case can more appropriately be adjudicated upon in another/foreign forum, but that the court should also know that the dispute between the parties will be adjudicated upon in that other forum.

The inclusion of the additional requirement in the test as aforesaid, however, does not necessarily indicate that the defendant who seeks the setting aside of the arrest must now be taken to bear the burden of proving this requirement on preponderance of probabilities. Once again, if regard is had to the decision in Great River Shipping, the defendant obviously had to provide prima facie evidence as to the availability of the foreign forum as part and parcel of adducing evidence showing that the dispute could more appropriately be adjudicated upon elsewhere. It was then for the plaintiff who wished to maintain his arrest to prove, on preponderance of probabilities and as part of the "special circumstances" warranting the exercise of jurisdiction by the South African court, either that the foreign court would not exercise that jurisdiction or, for example, that it would not receive justice at the hands of the foreign court. Had the Legislature desired to burden the defendant with an onus to prove that another/foreign forum would exercise jurisdiction, it is submitted that clear and unambiguous words to this effect should and would have been used.

As matters stand it appears that the amendment of section 7(1)(a) merely added an additional requirement which the Court has to take into account in applying the doctrine. In view of the fact that South Africa has chosen to regulate its Admiralty Jurisdiction by Statute rather than to merely follow English law as it existed in 1890, the express provision in the AJRA which was brought about by the amendment, appears to have been necessary. English Admiralty law will merely follow the principles set out in The Spiliada. The defendant who seeks the stay in England on the basis that a foreign forum has jurisdiction will surely have to show that the foreign forum will exercise that jurisdiction in showing that the matter could more appropriately be adjudicated upon elsewhere.

It is evident from the cases which have been referred to above that in English law the doctrine of forum non conveniens is applied against the background of a stay of proceedings. By contrast South Africa, in terms of section 7(1) of the AJRA has drawn a definite distinction between the court declining to exercise jurisdiction in terms of section 7(1)(a) and a stay of proceedings in terms of section 7(1)(b). In the former event, the proceedings commenced in South Africa (whether by way of an action in rem or an action in personam) are dismissed, as a consequence whereof the arrest or attachment is set aside.

By virtue of the fact that English law applies the defence based on forum non conveniens against the background of a stay of proceedings, the security which the plaintiff obtained through institution of his action in rem either remains to be held in England pending the determination of the proceedings before the foreign tribunal or, alternatively, the defendant has to provide security in the foreign forum as part of the order staying the action granted by the English court.

As a consequence of the arrest or attachment being set aside when the plaintiff's action is dismissed pursuant to an order by the court in terms of section 7(1)(a), the plaintiff will, in the absence of an order to the contrary by the Court, be deprived of the security which he had obtained by virtue of his arrest or attachment. The AJRA contains no provision compelling the defendant to furnish security for the plaintiff's claim as part and parcel of the court's order in terms of section 7(1)(a).

In The Spartan Runner the full bench of the Natal Provincial Division was faced with a situation where a plaintiff had instituted proceedings in South Africa by means of an arrest in breach of an exclusive jurisdiction clause contained in the parties' contract requiring the parties to litigate in England. In attempting to resist the defendant's application in terms of section 7(1) of the AJRA, the plaintiff pointed out that the defendant had not furnished security for the plaintiff's claim in England and that the plaintiff would be deprived of the security he had obtained by means of his arrest in South Africa if the proceedings were set aside. Shearer J was singularly unsympathetic to the plaintiff's plight and remarked that a plaintiff who "had chosen the wrong forum and thereby obtained the arrest" could not "improve its position by wrongly obtaining security".

The reasoning in The Spartan Runner, with respect, does not appear to be sound. It ignores the fact that plaintiffs have always had a wide prerogative to arrest ships all over the world. There also does not appear to be any cogent reason why the plaintiff should, as it were, be punished because he effected an arrest in rem in terms of the provisions of section 3(4) of the AJRA instead of effecting a security arrest in terms of section 5(3) of the Act.

Although a reading of the record in Great River Shipping reveals that Great River tendered to furnish security in China and that full argument was addressed to the court relating to the furnishing of security pursuant to an order in terms of section 7(1)(a), Berman J omitted to deal with the issue in his judgment. There is therefore at the present time no clarity in South African law on the question as to whether or not the defendant who succeeds in his defence based on the forum non conveniens doctrine should furnish security or not.

It would appear that there are cogent reasons why the South African court, like the English court, should require the defendant who succeeds in his defence based on the forum non conveniens doctrine to provide security, whether by way of maintaining the security provided in South Africa by the arrest or attachment, or by means of an order requiring the defendant to furnish equivalent security in the foreign jurisdiction. Per contra, there appears to be no acceptable reason to deprive the plaintiff of the benefit of the security which he obtained in the local forum purely because he did not avail himself of the provisions of section 5(3) providing him with a security arrest, whether on its own or in addition to an arrest or attachment in order to commence proceedings in rem or in personam.

The plaintiff who effects an arrest or attachment in South Africa in circumstances where another forum is available, does not necessarily institute his action locally merely to gain a procedural or personal advantage. It is a well recognised principle of maritime law that a plaintiff is entitled to arrest a ship wherever he may find her in the world and in arresting (or attaching) a ship in South Africa, the plaintiff may well have genuinely desired to litigate in the South African court. The arrest or attachment effected by the plaintiff, however, serves the twofold purpose of founding the court's jurisdiction as well as furnishing security for the plaintiff's claim. If the arrest or attachment is subsequently set aside and if no provision is made for the furnishing of security, the plaintiff may suffer the very serious prejudice of effectively being permanently deprived of security for his claim. So, for example, the plaintiff may be unable to launch an application for a security arrest in terms of section 5(3) after his original action has been dismissed because ownership of the ship has changed in the interim. Should the ship have sailed after being released from arrest pursuant to the defendant furnishing security, the plaintiff will be placed in the invidious position that he becomes obliged to chase it across the globe in the hope of arresting elsewhere, provided that it does not founder and that ownership does not change whilst he is conducting his pursuit.

Even in instances where ownership has not changed and the ship or property is still within the local jurisdiction, it appears ridiculous to require the plaintiff to incur the additional expense of rearresting the ship in terms of section 5(3) of the AJRA purely in order to obtain security. One is also faced with the anomalous position that in instances where the South African court has stayed proceedings because the dispute between the parties was to be determined in a foreign forum, the defendant has been ordered to provide security.

It is evident from the aforegoing that a setting aside of an arrest or attachment in terms of section 7(1)(a) of the AJRA without an accompanying order compelling the defendant to provide security, whether in the foreign forum or in South Africa, subjects the plaintiff to real and substantial prejudice. The AJRA does not contain any provisions which militate against the presiding judge in the application under section 7(1)(a) making provision for security as part of the order which is handed down in terms of section 7(1)(a). Indeed, it does not contain any provision militating against or expressly authorising orders relating to security in instances where proceedings are stayed in terms of section 7(1)(b). The reason why the South African courts have made orders for security in instances where stays have been granted is probably to be found therein that the courts have followed the English law provisions relating to stays.

In the circumstances referred to above and especially in view of the anomaly which is created by the courts in ordering security when dealing with stays in terms of section 7(1)(b) but not doing so when declining to exercise jurisdiction in terms of section 7(1)(a), the Legislature should intervene. Section 7(1) should be amended so as to provide clearly and unequivocally that a suitable order for the furnishing of security accompany the order setting aside the arrest or attachment in terms of both section 7(1)(a) and 7(1)(b).

Du Pont de Nemours & Co and another v Agnew and Others [1987] Vol 2 Lloyds Rep 585 (CA)

La Societe du Gaz de Paris v La Societe Anonyme de Navigation "Les Armateurs Francais" [1926] Vol 23 Lloyds Rep 209