IN THE HIGH COURT OF SOUTH AFRICA
(DURBAN AND COAST LOCAL DIVISION)
Exercising its Admiralty Jurisdiction

IN THE MATTER BETWEEN
BASAK DENIZCILIK NAKLIYAT VE TICARET (Applicant)
and
H.S.H. NORDBANK
(formerly Hamburgische Landesbank-Girozentrale) (Respondent)
and
m.v. "BAHA KARAHASAN" (Defendant)
and
H.S.H. NORDBANK
(formerly Hamburgische Landesbank-Girozentrale) (Applicant)
m.v. "BAHA KARAHASAN" (First Respondent
BASAK DENISCILIK NAKLIYAT VE TOCARET LIMITED SIRKETI (Second Respondent)
MASTER AND CREW OF THE mv "BAHA KARAHASAN" (Third Respondent)

Per: Magid J.
Judgment delivered: 19 September 2003
Full text available

IN THE HIGH COURT OF SOUTH AFRICA
(DURBAN AND COAST LOCAL DIVISION)

Case No. AR 289/2002

Name of Ship: "Afris Pioneer"

In the matter between
National Stevedores (Proprietary) Limited (Appellant) (Plaintiff in the Court a quo)

and

mv "Afris Pioneer" (First Respondent) (First Defendant in the Court a quo)
Afris Lines (Mauritius) Limited (Second Respondent) (Second Defendant in the Court a quo)
per: Levinsohn J (Hurt J and Patel J concurring) (9 May 2003)
Full Judgment (in PDF format)
SUMMARY: An accident occurred whilst one of the plaintiff's servants was operating a derrick belonging to the first respondent. Believing that its servant caused damage to the derrick, the plaintiff agreed to have the derrick repaired and to pay the costs of the repair. Unbeknown to the plaintiff, a derrick on a sister ship also belonging to the defendant had failed some two months before as a result of an alleged defect in one of its components. According to the plaintiff the defendant's representatives, who had knowledge of this component defect, suppressed the information. The plaintiff claimed for the cost of repair on the grounds of an actionable non-disclosure. The court a quo absolved the defendant from the instance. On appeal the main question was whether the plaintiff could resile from the oral agreement to repair the derrick on the grounds of the non-disclosure.
HELD, on the facts, that the knowledge that the defendant had acquired about the derrick with a defective component on a sister ship could not be used to establish an inherent defect in the derrick in question. However, if this finding were wrong, the question arose as to whether the defendant's representative had had a duty to disclose this information, and had been negligent in not doling so. In the circumstances that prevailed no duty had arisen, and if it had, the defendant's representative had not been negligent. The court a quo had correctly absolved the defendant from the instance.

IN THE HIGH COURT OF SOUTH AFRICA
(DURBAN AND COAST LOCAL DIVISION)

Name of Ship: "The Wisdom"

In the matter between
Olam International Ltd (Applicant)
and
Legacy Navigation Ltd (First Respondent)
Ocean Wind Maritime SA (Second Respondent)
Bulk Asia Lines (PTE) Ltd (Third Respondent)
Olbulk Inc (Fourth Respondent)

per: Nicholson J (20 November 2002)
Full Judgment (in PDF format, 5 files)

(see also mv "Wisdom" [per McCall J, Case No. A39/2002])

IN THE HIGH COURT OF SOUTH AFRICA
(DURBAN AND COAST LOCAL DIVISION)

Name of Ship: mv "Atlantic Spirit"

In the matter between
Ameriquest Shipping Inc. (Applicant/First Respondent)
and
Unishipping SA (Respondent/Appellant)
AND IN THE MATTER of an application for an order varying the order of this Honorable Court made on 11th April 2003, seeking an order that the Respondent (Applicant in the initial application) provide security and for further or alternative relief.

per: Msimang J
Full judgment (in PDF format)

IN THE HIGH COURT OF SOUTH AFRICA
(DURBAN AND COAST LOCAL DIVISION)

Names of ships: mv "ACOR" and mv "SALANGO"

In the matter between:
The mv "SALANGO" (Applicant)
and
The Owners of the mv "ACOR" (Respondent)

Per: Galgut DJP
Heard at Durban on 24 February 2003
Judgment delivered on 27 February 2003

Summary to follow
Full judgment available

IN THE HIGH COURT OF SOUTH AFRICA
(DURBAN AND COAST LOCAL DIVISION)

Case No. A39/2002

Name of ship: mv "WISDOM"

In the matter between:
OCEAN WIND MARITIME SA (Applicant)
and
BULK ASIA LINE (PTE) LIMITED (Respondent)

And

In the matter between:
OCEAN WIND MARITIME SA (Applicant)
and
THE OWNERS OF mv “WISDOM” (First Respondent)
BULK ASIA LINE (PTE) LTD (Second Respondent)
WORLD SHIPPING AGENCIES (PTY) LIMITED (Third Respondent)

Judge: McCALL J
(Full judgment to follow)

Facts:

The applicants arrested bunkers on board the mv “Wisdom” in terms of secton 5(3) of the AJRA for the purpose of obtaining security for an alleged claim against the respondent. Shortly after, Oil Bulk Inc. (“the intervener”) applied to set aside the arrest on the grounds that it was the time charterer of the vessel at the time of the arrest and that in the result, the bunkers were not the property of the respondent. The intervener evidenced their application with a document marked “TR3” in which the purported owners of the mv “Wisdom” stated that their vessel was on charter with “Messrs OLBUK INC. (sic) pursuant to a fixture concluded on 1^st August 2002…”. In turn, the applicants brought a counter-application, requiring the intervener to produce certain documents for inspection, i.e. the documents relevant to the conclusion of the fixture of the charterparty, the documents entitling the respondent to nominate the charter of the vessel, as well as the documents containing the nomination of the intervener as the charterer.

Arguments:

The applicants purported to have brought the counter-application in terms of Rule 35(12) of the Uniform Rules, which provides :–

“Any party to any proceeding may at any time before the hearing therof deliver a notice as near as my be in accordance with Form 15 in the First Schedule to any other party in whose pleadings or affidavits reference is made to any document or tape recording to produce such document or tape recording for his inspection and to permit him to make a copy or transcription thereof. Any part failing to comply with such notice shall not, save with the leave of the court, use such document or tape recording in such proceeding provided that any other party may use such document or tape recording."

The applicant argued that the documents requested pertaining to the fixture, were those to which annexure “TR3” referred. He contended that a fixture is the result of negotiations conducted by an exchange of correspondence, and that it is inevitable that there exists a file of correspondence evidencing the fixture. As far as the documents relating to the nomination were concerned, the applicant argued that the Court was entitled to have regard to the surrounding circumstances, particularly the documents supporting the application which shows that the nomination was in writing. Alternatively the applicant argued that the Court should exercise its general discretion to order discovery of the documents. It was the case of the intervener that the documents requested are not those to which Rule 35(12) applies. The intervener contended further that the reference in annexure “TR3” to a fixture, was a reference to the actual written Time Charter, which was in fact annexed to the intervener’s founding affidavit. As regards the nomination, the intervener countered that it was not permissible to look at any documents other than “TR3”, and that the nomination could have been in writing or oral. As to the alternative argument, the intervener argued that this was not a case where the Court should exercise its discretion to order discovery.

Judgement:

McCall J. stated that it was highly improbable that the parties would have conducted their negotiations resulting in the fixture, orally. In the result, annexure “TR3”, at least by implication, refers to the documents constituting the fixture. Accordingly, these documents, for purposes of Rule 35(12), constitute documents to which reference is made in the founding affidavit of the interveners. On the other hand, McCall J. was of the opinion that reference in annexure “TR3” to the nomination of “Olbuk Inc” (sic) as charterers is not necessarily a reference to a document, and might have been an oral nomination. The Judge held that there was no reference in annexure “TR3” to “fixture files”, nor to “documents entitling the respondent to nominate the charterer of the vessel”. In terms of Rule 35(12), the applicant was therefor only entitled to disclosure of the documents constituting the “fixture concluded on 1^st August 2002”. On the authority of The mv Urgup 1999 (3) SA 500 (C) and The mv Rzcun Trader (2) 1999 (3) SA 956 (C), McCall J. held that it would be inappropriate to go beyond Rule 35(12) and to allow the applicant, who bore the onus of justifying the arrest, access to documents which were not mentioned in the affidavit of the intervener, and subsequently allow the applicant to “go on a fishing expedition in the hope of bolstering its case”.

Raporteur: Johan Botes

Case No. A39/2002  

Facts

Transpacific Eternity SA (the respondents) were the owners of the mv “Antares III”. Wajilam Exports (Singapore) Pte Limited (the applicants) chartered the mv “Antares III” on the NYPE form to ship inter alia a cargo of steel coils from Mumbai to Ravenna, Italy. The bill of lading in respect of this cargo identified the respondent charterers as the carrier. Upon discharge at Ravenna, the receivers alleged that many of the coils were damaged. The receivers arrested the mv “Anteres III” and damages in the sum of US$ 300 000 were laid at the door of the applicant owners. Since this claim gave rise to a maritime lien under Italian law, the applicants put up security, notwithstanding the fact that the applicants were the carriers under the bill. Consequently, the respondents requested the applicants to substitute the security, and furthermore alleged an outstanding balance on the hire statement. The respondents proceeded to arrest the applicants’ bunkers on board another vessel chartered by them, the mv “Galant II”, in order to obtain security for the outstanding hire, and for the cargo claim. In order to lift the arrest, the applicants provided a bank guarantee as security in the amount of US$109 912.

Arguments

In the present application, the applicants sought to reduce the security under section 5(2)(d) of the AJRA. The applicants contended that the respondents have no claim against them, and therefore did not make out a prima facie case against the applicants in respect of the cargo claim, which in accordance to Botha J.A. in Cargo Laden on Board the M.V. “Thalassini Augi” v MV “Dimitris” 1989 (3) SA 820 A.D. at 832 the respondents had to establish to succeed with a security arrest. It was their case that in accordance with clause 4(c) of the Inter Club Agreement, which applied to the charter and governed the settlement of cargo claims between owners and charterers, apportionment shall only take place once the claim has been properly settled or compromised. The respondents, in turn, contended that under clause 18 of the charter they were still entitled to an indemnity, regardless of the Inter Club Agreement. In terms of this clause, the applicants undertook not to permit any lien to continue which might have priority over the title and interest of the owner of the vessel.

Judgment

Pillay A.J. found in favour of the applicants. She held that the claim under consideration is in fact a cargo claim, and purported to follow the principle laid down in Primegates Maritime v Bunders on Board mv “Cargo Explorer” 1995 CLD 617 (D). In that case it was held that the Inter-Club Agreement only comes into operation after the cargo claim has been settled, and that the obligation to indemnify only arises once the underlying claims have been met. Subsequently, Pillay A.J. held that the respondent could not claim for indemnity nor for security in that respect until the cargo claim is settled, and that this finding does not conflict with section 5(3) of the AJRA. She concluded with a reference to the American case Seguros Banavenez SA v The Oliver Drescher, 761 F.2d 855, 1985 AMC 2168 (2d Cir. 1985). The Second Circuit reversed the order for the arrest of a vessel as security for a cargo claim, holding that, whereas the quid pro quo for voluntarily furnishing security is the release of the vessel, the charterers may not be deprived of its property rights without any similar quid pro quo. Supposedly following this decision, Pillay A.J. found that even if the claim was not a cargo claim, any claim for security was premature without any prior establishment of the liabilities for the cargo damage. In the result, she allowed the amount of security to be reduced to US$35 745.

Raporteur: Johan Botes

The Applicant had an in rem summons issued on 1 June 2000 aimed at the defendant vessels , being two allegedly associated ships of the mv "Evelyn" (termed "the guilty" ship for being the ship against which the Applicant’s claim lies). The Applicant’s claim was based on loss of cargo of fertilizer shipped on board the "Evelyn" from Russia to Malaysia. The cargo was lost when the ship sank in mid Atlantic on 19 May 2000. The Hague Rules incorporated in the contract of carriage stipulated that suits for loss or damage had to be brought within one year after the goods should have been delivered.

In terms of sec.1(2)(b)(iii) of the Act the institution of an action in rem lapses if not served within twelve months of the issue thereof. Prior to the lapsing of the summons the Applicant approached the court for a two year extension in terms of sec.5(2)(d)(A) of the Admiralty Jurisdiction Regulation Act 105 of 1983 ("the Act").

1. The likelihood of the associated vessels entering the Court’s jurisdiction:

The judge stated that there should be an indication whether the ship concerned would be likely to enter the ports within the jurisdiction of the Court within the foreseeable future. When the Applicant supplemented its papers to show that there had been the occasional visit to Cape Town and Durban by these vessels the judge disposed of this issue by stating :

"[t]here are indications that both these ships called at other African ports but it is by no means clear that they had to traverse South African waters to do so. " (page 3 original order)

2. The rationale behind sec. 2(b)(iii):

The court referred to the fact that a similar summons had been extended for a two-year period by the Cape High Court but hastened to add that clear policy considerations motivated the legislature in enacting sec.2(b)(iii). The judge proffered that it was

"undesirable to have process gathering dust for years on end and thereby discouraging the free access to our ports by ships that might be associated with guilty ships." (page 4 original judgment)

3. Considerations of prejudice :

In terms of the Hague Rules, the ship would only have been discharged from liability within one year of the date on which the goods had to be delivered and thus summons need only to have been issued a year later i.e in May 2001. Nevertheless, the court stated that an extension would not be prejudicial to the associated vessels but that the position may have been different regarding attachment or arrest proceedings against the guilty vessel itself.

4. The exercising of the court’s discretion:

Hugo J stated in essence that two factors should be taken into account namely that :

"such extensions of time should not be granted willy nilly upon mere application therefore but that attention should be given to the prejudice to either side if the extension is either granted or not granted." (page 5 original judgment)

and the likelihood of the ship finding itself in the jurisdiction of the court exercising its discretion should be taken into account.

Held:
Extension granted for two years.

Unreported Case Nos: A249/2001
A254/2001
A255/2001

The Applicant sought:

1. the seeking aside of the arrest orders arresting the merchant vessel “Able Monarch”;
2. an interdict restraining the Third Respondent from interdicting the vessel from arrest; and
3. the granting of a counter application for the payment of security in respect of an action for damages for wrongful arrest.

The matter came before Gyanda J as a matter of urgency. The First and Second Respondents applied to file further affidavits in response to certain new allegations raised by the Applicant in its replying affidavits. Counsel for the Respondents argued that inasmuch as Admiralty Rule 9(3)(c) allowed the Applicant to introduce new material in its replying affidavit; in light of the urgency of the matter and in view of the fact that the Monarch in Malaysia had died and that there thus was a public holiday, it was in the interest of fairness and justice to have allowed the Respondents to file such further papers in terms of the provisions of Uniform Rules of Court, Rule 6(5)(e). The court granted the Respondents leave to file further papers and offered the Applicant the indulgence of an adjournment to respond to the those allegations. Counsel for the Applicant advised that it would have taken days to respond and that in light thereof it requested the noting that the filing of further papers by the Respondents was prejudicial to the Applicant’s case.

It was agreed that the Respondents bore the onus of proving on a balance of probability that they were justified in arresting the vessel in the circumstances.

The Issue in Dispute:

It was common cause that the vessel had previously belonged to Tauladan Gigih SND BHD (“Tauladan” / “Tauladam” used interchangeably in the judgment) against whom the Respondents had a claim. The Applicant alleged that it had purchased the vessel from Tauladan prior to the arrest.

The Applicant bore the onus or evidentiary burden of establishing prima facie that it owned the vessel at the relevant time. Only once this onus had been discharged would it become necessary to look into the question of counter-security for wrongful arrest.

The Respondents alleged that several factors indicated that at the time of the arrest the vessel was still the property of Tauladan and that the purchase of the vessel by the Applicant was a means to having the vessel released from arrest and avoiding to pay the debts of Tauladan. The Respondents averred that there was no independent evidence confirming the sale in question.

The court found that this onus had not been discharged by the Applicant for the following reasons:

1. When the vessel entered Durban port it submitted papers to the Port authorities indicating that Tauladan was still the owner of the vessel;

2. The manager of the Applicant’s chartering division, Mr Voon made an error in assuming that the sale was for cash when it was not. He was found not to have been au fait with the financial affairs of the company generally and regarding the purchase of the vessel and had been unable to explain how and why he made the mistake in question;

3. The vessel had not been registered in the name of the Applicant at the time that the arrest of the vessel occurred. Hence a third party could not determine that a change of ownership had taken place. The sale was termed a “sale of convenience” [at page 6 para (c)] and was found to have been aimed at releasing the vessel from arrest and for defeating the claims of the Respondents and other creditors;

4. The Bill of Sale put up by the Applicant as proof did not comply with the Malaysian Merchant Shipping Ordinance of 1952;

5. The Master had on a number of instances signed or completed documents showing that Tauladan was still the owner of the vessel. If there had been a genuine purchase the Master in so doing, would have committed fraud;

6. Furthermore if the transaction had indeed been “at arms length” [at page 7 para (f)], as averred by the Applicant, the Applicant would have protected itself by having recorded the nature of the transaction properly.;

7. The ships agent and classification society were unaware of the change in ownership and therefore did not send their fees and charges for services rendered to the Applicant instead of to Tauladan; and

8. The telephone and telefax numbers of the Applicant were shown to be the same as those of Tauladan whereupon the Applicant tendered that it had taken over the premises and contents from Tauladan and that the vessel had been sold to them as Tauladan was experiencing financial difficulties.

In view of the above the judge stated that:

“… this also creates a strong suspicion that the entire transaction was not one at arms length but a collusive one in order to obtain the release from arrest of the vessel in question and to avoid paying the Respondents and other creditors of Tauladan what was due to them.” [at page 7].

The Order:

The application was dismissed with costs.

Rapporteur: Arabella Bennett

IN THE HIGH COURT OF SOUTH AFRICA
DURBAN AND COAST LOCAL DIVISION
(Exercising its Admiralty Jurisdiction)

Name of ship: mv "Als Express"

Case No. A55/2001

October International Navigation Inc (Applicant)
v
MV Fayrouz IV (Respondent)

Shearer J, Page J and Booysen J
Date delivered: 1987 December 8, 17

Appellant’s attorneys: Bowens, Garlicke & Bousfield
Respondent’s attorneys: Shepstone & Wylie (Counsel: Mr Hurt)

The Facts:

Case No. A135/2001

An ex parte application for the arrest of the
Respondent for security in terms of
Section 5(3)(a) of the
Admiralty Jurisdiction Regulation Act No. 105 of 1983
in order to obtain security for proceedings
in the United States.

Case No. A228/2000

IN THE HIGH COURT OF SOUTH AFRICA
DURBAN AND COAST LOCAL DIVISION

Name of Ship: mv 'Mbashi'

Case No. A284/97; A66/98
Citation: 2002 JDR 0012(D)

In the matter between:
TRANSNET LTD - Plaintiff
and
MBASHI AND ANOTHER - Defendants
per: LEVINSOHN J
Date delivered: 6 December 2001

This case concerns a salvage operation performed outside the Durban Harbor on 7 August 1997 when a fire broke out in the engine room of the m.v. Mbashi causing the vessel to lose all her power and become a "dead ship." In response to a distress call from the vessel, the plaintiff sent out a pilot and two tug boats that responded promptly and, despite harrowing sea and vessel conditions, performed a successful rescue operation.

The plaintiff consolidated two actions in rem for its salvage claim into one action against the first defendant being the m.v. Mbashi, the second defendant being the cargo on board the vessel and the third defendant being the charterers as owners of the bunkers on board the vessel.

The plaintiff contended that its actions amounted to a salvage operation ito article 1(a) of the schedule to the Wreck and Salvage Act 94 of 1996 ("the Act") entitling it to a salvage reward for saving the lives of the crew, members, the ship, her furniture, stores and victuals, the bunkers, the cargo and the freight as well as averting damage to the environment as contemplated ito article 1(d) of the schedule to the Act. In the alternative the plaintiff claimed special compensation ito article 13 and 14 of the schedule to the Act.

The defendants placed in issue whether the actions of the plaintiff amounted to salvage operations and alleged that the operations were conducted simply under a contract of carriage. This refute was based on the fact that the defendants believed the actions of the plaintiff not to amount to ‘voluntary’ conduct ito the South African common law. The defendants argued that because the plaintiff’s powers were limited (unlike the erstwhile South African Railways and Harbors whose powers were not circumscribed) it was not in a position to undertake salvage operations voluntarily. The court did not accept this argument and stated that the plaintiff was entitled to a salvage reward.

Regarding the fixing of the reward, the court stated that it was plainly self-evident on the facts of the case that the rescue efforts of the plaintiff had been wholly successful ito the requirement of "useful result" in article 12 of the Act. The court then examined the matters which it was enjoined to take into account ito article 13(1)(a) to (j) of the Act and held that all the requirements had been satisfied in this particular case judged on its own facts and circumstances (section 3 of the Convention). The court stated that although it must be born in mind that a salvage reward should not be unduly burdensome to the ship owners and cargo interests; it was particularly impressed with the conduct of the plaintiff.

The court fixed the reward at R3 212 459.90 with interest running from the date of judgment (being the date of liquidation of the reward). The first defendant was ordered to pay the costs of the action including the costs of two counsel. On request of the parties, no apportionment between the defendants was made ito article 13(2) of the Convention but leave to approach the court in this regard was granted.

Rapporteur: Arabella Bennett

IN THE HIGH COURT DURBAN AND COAST LOCAL DIVISION

Name of ship: mv 'Delta Peace'

Case No. A224/97
Reportable

In the matter between:"
MAREE N.O. - Plaintiff
and
The Registrar of the High Court Durban and Coast Local Divisions and Others - Defendants
2001 JDR 0440 (D) (Unrep)
per Combrink J
Date delivered: 10 April 2001

The Facts:

The Sheriff of the High Court of South Africa, Durban and Coast Local Division (exercising its admiralty jurisdiction) applied for an order directing the Registrar of the High Court to authorise payment out of the fund constituted ito s 9 (2) of the Admiralty Jurisdiction Act 105 of 1983. The fund was the result of the proceeds of the judicial sale of the m.v. Delta Peace and the payment was for costs and expenses incurred by the Sheriff in respect of the preservation, maintenance and provisioning of the vessel while in the sheriff’s custody and also for the repatriation of its crew.

The relevant claim concerns the ‘reasonable remuneration’ to which the sheriff is entitled ito Rule 21(3) of the Admiralty Proceedings Rules for work performed by him in his custodial capacity in respect of the preservation of the vessel.

The opposition to the relevant order sought by the sheriff came from a group of creditors of the ship cited as the fourth respondent.

The respondent’s objection was based on 3 grounds:

1. the times said to have been devoted to certain tasks were inflated;
2. the rate of R500 per hour was unreasonable;
3. the work performed by the Deputy Sheriff and the office, manager, being largely of a clerical nature was also charged out at R500.

Combrinck J in a preliminary comment stated that rule 21(1) imposed a positive duty on the sheriff to act as enjoined by the rule. The rule expressly leaves it up to the sheriff to take such steps ‘as appear to him to be appropriate’ in order to preserve the vessel and a court of law will riot readily interfere in the exercise of that discretion. Furthermore, rule 21(3)(a) makes no provision for a specific tariff and if the rulemakers had had in mind that the quantum of remuneration contemplated in the rule should dwell in the vicinity of the comparable tariff in rule 68 of the Uniform rules, they could easily have said so.

Held (1) Time spent as reflected on the schedule presented to the court was fully justified.

Held (2) The rate of R500 was objectively unreasonable. The court considered the fact that the sheriff had to thoroughly acquaint himself with the requirements of ship management and provisioning but held that due to the factors mentioned hereunder, the charge of R500 was considered excessive.

There was no evidence placed before the court that the charge of R500 was the usual rate applied in these cases;

The fact that most of the work required in order to preserve the vessel fell within the domain of the ship’s agent, who would have done the work at greater expense to the creditors was held to be irrelevant;

The schedule presented by the sheriff to the court did not reflect that any work was substantially done outside of business hours;

None of the tasks presented to the court as having been particularly complex or difficult.

The court allowed the rate of R300 per hour based solely on the facts placed before the court. The court hastened to add that this rate was not a tariff and that the sheriff would be well advised to specify the unusual or the extraordinary expenses when those are encountered as in such cases there would be little double that a higher rate would be held to be appropriate.

Held (3) The work done by the office manager or the Deputy Sheriff were all constituent elements of the larger task of preserving the vessel. Viewed from that perspective, the court stated that there would be no justification for the suggested application of differing rates of remuneration for these persons. It is not the category of the work that entitles the sheriff to remuneration, but the work itself and the nature thereof.

Rapporteur: Arabella Bennett

IN THE HIGH COURT OF SOUTH AFRICA
DURBAN AND COAST LOCAL DIVISION
(EXERCISING ITS ADMIRALTY JURISDICTION)

CASE NO. A104/98

NAME OF SHIP: mv 'Bunga Mas Tiga'

In the matter between:
OWNERS OF CARGO FORMERLY LADEN
ON BOARD THE mv 'BUNGA MAS TIGA' -- Plaintiff
and
CONFREIGHT CARGO MANAGEMENT CENTRE
(PROPRIETARY) LIMITED
t/a CARGO MANAGEMENT CENTRE -- Defendant

per: THERON J
Date Delivered: 26 September 2001
(full text available)

The Facts:

The plaintiff purchased 320 window fitting air-conditioning units from Topaire SDN BHD of Singapore. Topaire was obliged to arrange carriage of the goods to Hong Kong and the plaintiff ex Hong Kong. The Plaintiff contracted with Italfreight SA (Pty) Ltd acting as agent for the Allied Seafreight Line (‘ASL’) for the carriage of goods ex Hong Kong. The ASL is a Non-Vessel Owning Common Carrier entity (‘NVOCC’) registered with the International Federation of Freight Forwarders Associations ("FIATA") for the Aprile Group, a group specialised in international freight forwarding, based in Genoa. Italfreight is the Aprile Group’s South African Company registered with the FIATA.

The plaintiff’s contract with Italfreight was for the carriage of cargo laden on the Bunga Mas Tiga, from Hong Kong to Johannesburg on the terms of ASL’s bill of lading usual form. ASL thereafter contracted with the Malaysian International Shipping Corporation (‘MISC’) for the transport from Hong Kong to Durban on the terms of the MISC bill of lading usual form or general trading conditions.

The plaintiff instituted action against the defendant for damage to the goods incurred while the cargo was stored at the defendant’s premises in Durban. The defendant’s sought to rely on the so-called ‘Himalaya clauses’ contained in both the bill of lading issued by ASL and by MISC.

The Himalaya clause seeks to extend protective terms of the contract to sub- contractors or agents of one of the parties as against the other party. In each bill of lading, the carrier contracted not only on his own behalf but as agent or trustee of the person by whom carriage was undertaken. The defendant alleged that the plaintiff stepped outside of the contractual nexus by suing the defendant and that the plaintiff sought to circumvent the contractual protection clauses. The defendant’s defence thus depended on the defendant establishing a contractual nexus between the plaintiff and the defendant in terms of which the enforceability of the plaintiff’s claim in delict was restricted to the provision of time – bar contained in the plaintiff’s bill of lading with either the ASL or the MISC. The question for the case at hand was whether the Himalaya clause is applicable to a party twice removed from a party to the contract.

In Santam Insurance Co v South Africa Stevedores Ltd 1989 (1) SA 182 (D) the extended agency doctrine was adopted as part of South African law provided it either conforms with the requirements of the stipulatio alteri or meets 3 requirements namely: (1) the bill of lading makes it clear that the carrier intended by its terms to protect the defendant; (2) the carrier by the bill contracted for the defendant’s protection as well as for his own ; and (3) the authority of the carrier to act for the defendant in this respect, whether antecedently or by ratification, is made out.

1. ASL acted as agent for the plaintiff;
2. Defendant authorised MISC to contract for its protection;
3. MISC ratified ASL’s action;
4. MISC , in contracting to store the containers, acted as agent for ASL – flowing form the agency of MISC, privity of contract exists between ASL and the defendant; and
5. Stipulatio alteri

1. The plaintiff contracted with ASL and not with ASL sub-contractors. Thus there is no proper basis for the defendant’s contention that the defendant can rely on the MISC bill of lading time-bar and the Himalaya clause by virtue of the fact that ASL contracted with MISC on behalf of the plaintiff, and that the defendant, by its standard trading conditions, authorised MISC to contract for the defendant’s protection;

2.+3. There is no evidence suggesting that MISC authorised or ratified the ASL’s act in purporting to contract as agent or trustee for MISC or the defendant, irrespective of the terms of authority furnished by the defendant to MISC;

4. Clause 4.1 of the MISC bill of lading provided that the "carrier shall be entitled to sub-contract on any terms the whole or part of the carriage". Accordingly, MISC was not acting on anybody’s behalf but its own when it contracted with the defendant to store the containers; and

5. The court stated that assuming it was a stipulatio alteri, it had to be asked whether the defendant accepted the benefit of the stipulatio. It was common cause that there was no express communication of such an acceptance. The defendant’s argument that the plaintiff must have known that the defendant had stored the containers prior to instituting the action against the defendant and that this constituted communication of the implied acceptance of the benefit extended by the ASL bill of lading was held to be fallacious.

Accordingly held that the defendant could not avoid liability to the plaintiff by relying on the Himalaya clause and the time-bar contained in either of the bills of lading.

Rapporteur: Arabella Bennett

IN THE HIGH COURT OF SOUTH AFRICA
DURBAN AND COAST LOCAL DIVISION
(EXERCISING ITS ADMIRALTY JURISDICTION)

OVERTURNED ON APPEAL

NAME OF SHIP: MV “MERAK S”

In the matter between:
SEA MELODY ENTERPRISES SA -- Applicant
and
BULKTRANS (EUROPE) CORPORATION -- Respondent

Hearing:            20/09/99
Judgement:            25/02/2000
NILES-DUNER J:

Security Arrest –  in terms of S 5 (3) of the Admiralty Jurisdiction Regulation Act, 105 of 1983, for claims to be brought in arbitration proceedings in London – Guarantee – what constitutes “security” in terms of the Act – Application for counter-security in terms of S 5 (2) (b) & (c).

Respondent brought an application for arrest of mv “Merak S” in terms of S 5 (3) of the Act as security for claims it intended to pursue against applicant in arbitration proceedings in London. Claims arising out of charterparty concluded between respondent and applicant in respect of the mv “Merak S”.

The vessel was released after a bank guarantee was put up to  secure the claims of the arresting party in such arbitration proceedings.

The bank guarantee was put up in terms of a court order by Jappie J directing the arresting party to accept such guarantee as “security for its claims” against delivery of which the vessel was to be released. The court further granted leave to the owners of the “Merak S” to apply to the court for a reduction of security sought by the arresting party and to compel the arresting party to put up counter-security in respect of counterclaims to be brought by way of arbitration proceedings in London.

Application now brought by applicant against respondent for:

1. Substitution of existing guarantee with fresh bank guarantee in lesser amount in terms of S 5 (2) (d) of the Act,

2. An order in terms of S 5 (2) (b) or (c) of the Act that the respondent provide security for applicants counter-claims to be brought by way of arbitration proceedings in London, for amounts due to the applicant by the respondent arising out of the same charterparty agreement.

3. An order in terms of S 5 (2) (c) of the Act, that if respondent does not provide a bank guarantee as sought, the guarantee in favour of the respondent will immediately lapse and be of no force or effect.

Held that in granting the applicant leave to apply for the relief it presently seeks Jappie J did not intend to deprive the respondent of any of it’s legal rights, including the right to contend that this court has no power to grant such relief under the sections of the Act relied upon by the applicant.

Issued adjudicated as follows:

1. Whether the guarantee furnished to the respondent by FNB constitutes security in respect of which this court has the power, in terms of S 5 (2) (d) to grant the relief sought by the applicant.

2. Whether the courts power to order the giving of security in terms of S 5 (2) (b) includes a claim / counterclaim contemplated in proceedings before a foreign tribunal

3. Whether the securing of a counterclaim contemplated in proceedings before a foreign tribunal and unrelated to an arrest in terms of S 5 (3) is a condition that may be imposed by the court in terms of S 5 (2) (c).

Held that is a distinction between security in terms of the Act and a private contractual undertaking between the arresting creditor and either the owner of the vessel or a third party in terms of which the arresting creditor’s claim is secured.

Security in terms of the Act is furnished to the Court through the Registrar and is under the control of the court. There must be something tangible, held or controlled by the Registrar which may be used to satisfy the judgement. If security cannot be held by the court, it is not within the control of the court, and not subject to the powers vested in the court in terms of S 5 (2) (d)

The guarantee in question constitutes a private contractual undertaking given by FNB to the respondent in order to secure the respondent’s claims against the applicant. Fact that order of Jappie J directed applicant to accept the guarantee as “security” does not make it security for the purposes of S 5 (2) (d) of the Act. Only an order for the release of the vessel upon basis that court considered that respondent’s claims were adequately secured by the guarantee.

Therefore applicant’s claim for relief in terms of S 5 (2) (d) must fail.

Not disputed that applicant has genuine and reasonable need for security for it’s counterclaim. Court has power to order the giving of security in terms of S 5 (2) (b) or (c) for a counterclaim where defendant has been compelled to litigate in a South African Court by virtue of an arrest or attachment at the instance of the plaintiff.

Held that S 5 (2) (b) can only be invoked in relation to actions in rem or in personam proceeding before the courting the exercise of it’s admiralty jurisdiction, and the relief provided by this section is not available to a claimant in foreign proceedings.

Held that as the undertaking given to the respondent does not constitute security for the purposes of the Act, there no longer exists “anything done” or “to be done” in terms of S 5 (2) (c) of the Act which the court may make conditional upon the provision of security to the applicant for it’s counterclaim.

Held further that in any event applicant could avail itself of S 5 (2) (c) as respondent had established all requirements for a security arrest in terms of S 5 (3). That section does not make it a condition of an arrest for security that the other party’s counterclaim should be secured.

Accordingly applicants claim for counter-security must also fail.

Application dismissed with costs.

Rapporteur: Lindsay Hussey

IN THE HIGH COURT OF SOUTH AFRICA
(Durban and Coast Local Division)

mv "Stella Tingas" [Case No. A.224/97 - reportable] --
per Booysen  J. (Judgment delivered 7 May 2001)
(Full text available in .pdf format)

In the matter between
OWNERS mv "STELLA TINGAS" (Plaintiff)
and
mv "ATLANTICA" (First Defendant)
TRANSNET LIMITED t/a PORTNET (Second Defendant)
and
TRANSNET LIMITED t/a PORTNET (First Third Party)
PETER BUFFART (Second Third Party)
Admiralty action in rem and in personam

The Facts:

The Plaintiff is the owner of the "Stella Tingas", a vessel berthed alongside in the Durban Harbour and loading cargo on 17 June 1997 when the m.v. "Atlantica" (First Defendant) entered the Durban Harbour under pilotage and with two tugs in attendance and collided with the "Stella Tingas".

The masters, officers and crew of the "Atlantica" were at all material times employed by the owner of the vessel and acting within the course and scope of their employment.

The pilot was at all material times employed by the Second Defendant (Transnet) and acting within the course and scope of his employment.

The harbour of Durban is a compulsory pilotage harbour with regard to which the provisions of paragraph 10 of Schedule 1 to the Legal Succession to the South African Transport Services Act, No 9 of 1989.

The pilotage referred to in paragraph 5(b) of the particulars of claim was compulsory pilotage and the pilot was a person duly licensed by the Second Defendant to act as a pilot at Durban harbour and an employee of the Second Defendant.

Whether the collision was caused by the recklessness, alternatively gross negligence, alternatively negligence of the master, officers and crew of the "Atlantica"; the pilot or the Second Defendant;

Whether ito section 6 of 1983 the United Kingdom Pilotage Act of 1983 was applicable;

Whether ito section 35 of the United Kingdom Pilotage Act of 1983, the owners of the "Atlantica" were liable for the negligence of the pilot who acted as their agent and within the course and scope of his authority;

Whether apportionment should take place between Defendants and Third Parties;

Whether Third Parties were liable to compensate the First Defendant; and

Whether ito Uniform Rule 33(4) the quantum of the Plaintiff’s claim could be dealt with later.

Held (1) First Defendant was not liable to the Plaintiff as there was no suggestion of misconduct on the part of the master, officers or crew of the "Atlantica". However the Second Defendant was liable for the Plaintiff’s damages as the court said that the pilot had a somewhat dare devil attitude and that his actions were at the very least grossly negligent. This was inter alia based on the fact that:

having regard to the speed of the vessel, its size and the fact that it was not aligned properly, the pilot erred in trying to enter the channel at an angle;

he knew that he was about to enter a narrow and shallow channel where the danger of a sheer caused by the suction effect or the banking effect or both, was always present if he went too fast;

he know that in the event of a sheer he would have very little time to avoid a collision; and

he knew that the consequences of a collision in the harbour involving a vessel of the size of the "Atlantica" would be considerable.

The Second Defendant was ordered to pay the Plaintiff’s costs.

Held (2) & (3) In terms of section 6 the court had to apply the law which the High Court of Justice of the United Kingdom in the exercise of its admiralty jurisdiction would have applied at the commencement of the act, insofar as that law could be applied. The jurisdiction of a Court of Admiralty was governed by the Admiralty Jurisdiction of the English High Court as it existed in 1890. A claim for damage done by a ship was governed by the Colonial Courts of Admiralty Act of 1890 (see section 7, Admiralty Court Act of 1861). The court accepted that section 6(1)(a) included the rules of English law relating to private international law. The English common law provided that where the foreign law provides for compulsory pilotage in the sense that the pilot takes charge of the navigation of the ship, an English Court would not hold the owner liable. Paragraph 10 of Schedule 1 to the Legal Succession to the South African Transport Services Act 9 of 1989 made it clear that the whole of the navigation of the vessel was handed to the pilot. In the circumstances it was held that the First Defendant was not liable on the basis of the United Kingdom Pilotage Act.

Held (4) & (5) & (6): The matter was adjourned sine die for the determination of the quantum of Plaintiff’s claim and for the order regarding the First Defendant’s costs.

Rapporteur: Arabella Bennett

IN THE HIGH COURT OF SOUTH AFRICA
Durban and Coast Local Division
Exercising its Admiralty Jurisdiction

[Case No. 105/2000]

Name of Ship: mv "Minas Del Frio"
per: Squires J
Date delivered: Not stated but July – end Sept 2002
Appellant’s attorneys: Not indicated
Respondent’s attorneys: Attorneys: Not indicated/ Counsel: Mr Shaw)
(Full text available -- .pdf format)

In the matter between:
Naviera Insular Frigorifica — Applicant
and
Joy Shipping Company — Respondent

IN THE HIGH COURT OF SOUTH AFRICA
(DURBAN AND COAST LOCAL DIVISION)
(EXERCISING ITS ADMIRALTY JURISDICTION)

Case No: A 163/99

Name of ship(s): mvf “Amer Yumana” and mvf “Amer Whitney”

In the matter between:
SHIPPERS D’SINGAPORE PTE LTD -- Plaintiff 
and
mv "AMER WHITNEY" -- Defendant
before: SQUIRES J

The defendant vessel, MV “Amer Whitney” was arrested as security for a claim for payment in respect of work carried out and services rendered on the MV “Amer Yamuna” by the plaintiff company, Shippers D’Singapore PTE LTD. Plaintiffs alleged that the vessels were associated ships in terms of section3(6) & (7) of the Admiralty Jurisdiction Regulation Act, as at the time the claim arose the defendant vessel was owned by a company controlled by the same person (Mr Ravi Kumar Mehrotra) as the company owning the “Amer Yamuna”.

It was not disputed that the plaintiff had a claim against the owner of the “Amer Yamuna”, nor that the claim could be enforceable in rem against that vessel. Control of the company owning the “Amer Yamuna” was not in dispute. Identity of control of the company owning the “Amer Whitney” was disputed by the defendant.

In terms of s3(7)(b)(ii) of the Act Mr Mehrotra would be deemed to control that company if he had the power directly or indirectly to do so. Squires J held that that power does not necessarily come from control of the shares in a company and it is the object of the legislation to look beyond the façade established by the real owner in order to protect his assets from creditors.

In his judgement he refers to the distinction between the de jure situation of direct control, and the de facto situation of indirect power as set out in MV “Heavy Metal” : Belfry Marine v Palm Base Maritime 1999 (3) SA as providing the basis for holding that the “Amer Whitney” is an associated ship of the “Amer Yamuna”, by reason of section 3(7)(a)(iii) read in conjunction with 3(7)(b)(ii) of the Act. It was held that the formation of the various companies and the trust was not a genuine exercise in separation of control, but rather an exercise in damage limitation concealing his assets from attachment and execution by creditors.

IN THE HIGH COURT OF SOUTH AFRICA
(Durban and Coast Local Division)
(Exercising its Admiralty Jurisdiction)

mv "MSC MICHELE" [Case No. A95/99] -- 16 November 2000

In the matter between:
SOUTHERN MARINE SERVICES CC (Applicant)
and
MEDITERRANEAN SHIPPING COMPANY SA (First respondent)
MARK ATKINSON (Second respondent)

Admiralty action in personam

before Galgut J
(full text available -- Adobe Acrobat Reader available here for free download)

Application for attachment of first respondent’s right to freight monies held on it’s behalf by its Durban agent. Attachment in order to confirm jurisdiction in admiralty action in personam which applicant proposes to institute against first respondent for damage and loss of income caused by MSC Michele colliding with a synchrolift leased by the applicant in Durban harbour.

According to the law applicant had a maritime lien over the ship in terms of which it instructed its then attorney, the second respondent, to institute an action in rem against the ship. This was duly done by the arrest of the ship.

An undertaking was provided to and accepted by the applicant to secure the release of the ship from arrest.

The owner of the damaged synchrolift, Dorbyl Marine, also instituted an action in rem against the ship for damages resulting from the collision.

Both actions arose out of the same collision and an order was granted to consolidate the two actions.

Before trial, Dorbyl Marine’s action was settled with the owner of the ship who paid them an undisclosed sum. Applicants claim was to be resisted as it was regarded as having no merit. Applicants action did not come to trial as it was withdrawn on the basis of a settlement reached between attorneys acting on behalf of the ship and the second respondent. Each party was to pay its own costs.

Applicant maintains that this settlement was reached without its consent or knowledge. Applicant contends that second respondent acted negligently or in breach of their contract, and that applicant suffered damages as a result.

Applicant therefore also seeking an order for the consolidation of its action against the second respondent with its action against the first respondent.

Applicant alleges that negligence on the part of the master and crew caused the collision. As ship was under demise charter at the time of the collision, the master and crew were the servants of the first respondent, not the owner, and they were acting within the course and scope of their employment at the relevant time. First respondent therefore vicariously liable for any negligence on their part. Applicant therefore contends that it has the right to proceed in personam against first respondent.

First respondent opposes the application to attach the freight monies on the following grounds:

1. The terms of the letter of undertaking precluded any further action against the owner of the ship or the first respondent (demise charterer).
2. The settlement which precluded any further action, was by its terms concluded with the first respondent.

Held that it was on behalf of the ship that the notice of opposition was filed, not on behalf of the first respondent. The correspondence between the respective attorneys was in their capacities as representatives of the parties to the action in rem. The letter was therefore written on behalf of the ship, not the first respondent. Statement in the letter to the effect that there must be no attempt “to reinstitute action de novo” refers to the fresh institution of an action in rem, against the ship for the same relief as claimed in the action sought to be settled.

Counsel for the first respondent submits in the alternative that the settlement of an action in rem has the automatic legal effect of settling any action in personam.

Held that this was based on the BANCO (1971) 1 All E 524 , decision of which the facts differed to this case and the rule has not been adopted in South Africa.

Lastly respondents contended that the court was not entitled to grant the damages sought by the applicant as he was not the owner of the synchrolift and therefore any loss suffered was purely economic. S 6 of the Admiralty Jurisdiction Regulation Act 105 of 1983 requires our courts to apply the law applied by the High Court of England, and in English law no action lies for pure economic loss.

Held based on the decisions of the English courts in the MINERAL TRANSPORTER (1985) 2 All E 935 and the ALIAKMON (1986) 2 All E 145, the rule is not absolute. Exception have been recognised where the claimant has a possessory right or title to the damaged goods.

Neither have our courts have not closed the door on claims for pure economic loss. ADMINISTRATEUR, NATAL v TRUST BANK VAN AFRIKA BPK 1979 (3) SA 324 (A). Each case is dealt with on its own facts. The matter can only properly be dealt with by hearing oral evidence on the facts at a trial.

Rapporteur: Lindsay Hussey

IN THE HIGH COURT OF SOUTH AFRICA
(Durban and Coast Local Division)

MV Stainless Kobe [Case No. A471/95] -- 25 November 1996

In the matter between
ZATSEPIN ANDREY and SEVENTEEN OTHERS (First to eighteenth applicants)
and
THE FUND ARISING FROM THE SALE OF THE mv "STAINLESS KOBE" (Respondent)
DE NATIONALE INVESTERINGS BANK NV (First intervening creditor)
and
't WAPEN VAN MARION BV (Second intervening creditor)

before The Hon. Mr Justice Combrink
(full text available -- Adobe Acrobat Reader available here for free download)

IN THE HIGH COURT OF SOUTH AFRICA
(Durban and Coast Local Division)

The Niki T [Case No. 7737/2000] 

In the matter between:

Chong Sun Wood Products PTE Ltd, Applicant
And
K & T Trading Limited, 1^st Respondent
L T Shipping, 2^nd Respondent

(NB – this matter was not adjudicated upon as an admiralty claim.)

Application for attachment to found and confirm jurisdiction.
Point in Limine, Whether facts disclosed in applicants launching papers sufficient to sustain a cause of action. All facts necessary to sustain a cause of action must be disclosed in papers, action distinguished from application.
Facts found to be insufficient to sustain cause of action. Rule nisi discharged.

The applicant was seeking an order for the attachment of certain logs lately laden aboard the vessel "Niki T" in order to found and confirm jurisdiction in respect of an action it sought to bring against the 1st respondent for breach of contract in respect of the sale of the said logs.

The 1st respondent raised the point that the facts contained in the applicants launching papers were insufficient to sustain a cause of action in respect of the attachment.

On an analysis of the facts presented in the founding papers the court concluded that the logs were the property of the applicant, it having acquired ownership once the logs were loaded on board the vessel, the sale contract being f.o.b..

The 1st respondent contended that in this case the attachment would be bad for two reasons:

1. There was no ratio jurisdictiones justifying this court to hear the portion of the claim sounding in money; and
2. That there was no property of the respondent (defendant) within the courts jurisdiction available for attachment.

The court in respect of (a) concluded, after reference to the Supreme Court of Appeals decision in Ewing McDonald & Co. Ltd v M&M Products Co., that in claims sounding in money between two peregrini, a ratio jurisdictiones is required in addition to an attachment or arrest to found and/or confirm jurisdiction.

As to (b), the court stated that the onus rests on the party seeking to attach the property to prove that it is indeed the property of the debtor.

The court delved into the aspects of claims in rem and personam and the requirement for a concomitant attachment when the property in question was within the courts jurisdiction.

The court stated that, where the applicant asserts ownership over property, there is no reason to attach that property as such an attachment would not increase the effectiveness of the courts jurisdiction.

The court concluded that the aim of an attachment to found and confirm jurisdiction is to render the exercise of the court more effective, and not to prevent the removal of the property from its jurisdiction. The plaintiffs remedy in that regard, according to the court, would be in the form of an interdict.

The rule nisi in which the provisional attachment has been granted was thus discharged.

Rapporteur: Edmund Greiner

IN THE HIGH COURT OF SOUTH AFRICA
(Durban and Coast Local Division)

[Case No. A64/98 and A65/98]

Name of ship(s): mfv "DUBYSA" and mfv "DAUGAI"

In the matter between:
Manuel Pestana de Abrue, Applicant
And
Diana Leiteriene , First Respondent
Marius Kristanavicius, Second Respondent

The Lithuanian State Enterprise, First Intervening Party
of Fishing Marine (JURA)

The applicant had, pursuant to arresting the vessels in respect of various amounts allegedly owed to him by the respondents, whom he believed to be the owners, sought an order for the sale of the vessels in terms of section 9 of the Act. The amounts were in respect of the maintenance and running expenses of the vessels that the applicant was operating. The claimant had based the arrest of the vessels on the statutory right in rem provided for in terms of section 3(4)(b) of the Act.

The intervening party claimed however that it was the owner of the vessels, the sale agreement between it and the two respondents (which was one by auction) never having come to fruition due to non-payment of their deposits. This being the case, it was alleged that the order for the sale of the vessels had been incorrectly given, as the claimant could, in such an instance not have a statutory right in rem, as the applicant had not brought its claim against the owner of the property which it had arrested.

It was argued by applicants counsel that the arrests, and therefore the subsequent sale of the vessel were not defeated by such an allegation, as section 1(1)(o) read together with section 11(8) of the Act conferred a maritime lien on the applicant in respect of disbursements made by the applicant for master and crews wages, and thus the applicant had a claim against the property arrested.

Applicants counsel conceded that, but for section 11(8) the applicant would have no lien unless he had obtained the leave of the court to acquire such lien.

Counsel for the intervening party argued that section 11(8) did not automatically confer a lien on the applicant, and that it pertained only to the ranking of claims subsequent to a sale.

The court considered, but decided it was unnecessary to rule on this issue on the basis that the applicant, in its papers had never based its claim, nor alleged, that it had a maritime lien. The court thus rescinded the sale order.

Rapporteur: Edmund Greiner

IN THE HIGH COURT OF SOUTH AFRICA
DURBAN AND COAST LOCAL DIVISION