THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case no: 768/2018
In the matter between:

ATAKAS TICARET VE NAKLIYAT AS
APPELLANT

and

GLENCORE INTERNATIONAL AG
RESPONDENT

Neutral citation:  Atakas Ticaret VE Nakliyat AS v Glencore International AG (768/2018)
[2019] ZASCA 77 (30 May 2019)

Coram:
Ponnan, Swain, Zondi and Schippers JJA and Gorven AJA

Heard:
23 May 2019

Delivered:
30 May 2019

Summary:
Discretion of court to permit or refuse joinder in terms of s 5(1) of the
Admiralty Jurisdiction Regulation Act 105 of 1983 left untouched by the International
Arbitration Act 15 of 2017.

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: KwaZulu-Natal Local Division of the High Court, Durban (Lopes J
sitting as court of first instance):

1.
The appeal is upheld with costs, including those occasioned by two counsel.
2.
The order of the court below is set aside and in its stead is substituted the
following:
‘(a)
The respondent, Glencore International AG (Glencore), is joined as the third
defendant in the action in terms of s 5(1) of the Admiralty Jurisdiction Regulation Act
105 of 1983.
(b)
The applicant, Atakas Ticaret Ve Nakliyat AS, is granted leave to supplement its
particulars of claim in order to plead its cause of action against Glencore.
(c)
Glencore is ordered to pay the costs occasioned by the opposition to this
application, such costs to include those consequent upon the employment of two
counsel.’

______________________________________________________________________

JUDGMENT
______________________________________________________________________

Ponnan JA (Swain, Zondi and Schippers JJA and Gorven AJA concurring):

[1] On 18 December 2012 the appellant, Atakas Ticaret Ve Nakliyat AS (Atakas), a
Turkish company, purchased a consignment of coal from the respondent, Glencore
International AG (Glencore). Atakas chartered the MV ‘Cecilia B’ (the vessel) from EFE
Shipping and Trading Limited of Istanbul to carry the consignment from the port of
Richards Bay in KwaZulu-Natal, South Africa to Turkey. On 30 October 2013 and

shortly after the loading of the consignment had been completed, an explosion occurred
in the number 6 cargo hold of the vessel. Subsequent investigations suggested that
heated coal had been loaded, which heated further after the hold had been closed, and
ignited. As a result of the explosion the voyage had to be abandoned and the cargo
unloaded.

[2] On 26 June 2014 Atakas instituted a delictual action in personam against the
operator of the coal terminal, the Richards Bay Coal Terminal (Pty) Ltd (RBCT), out of
the High Court of South Africa, KwaZulu-Natal Division, Durban, in the exercise of its
admiralty jurisdiction in terms of the Admiralty Jurisdiction Regulation Act 105 of 1983
(the AJRA). The latter denied liability and inter alia raised the following special plea:
‘4.1
The Plaintiff was the purchaser of the coal and its loading on board the mv “Cecilia B” at
the First Defendant’s terminal occurred:
4.1.1 in terms of the contract concluded between the Plaintiff and the seller of the coal;
and
4.1.2 pursuant to the seller’s contractual obligation owed to the Plaintiff to deliver the
coal on board the mv “Cecilia B”.
4.2
The alleged damages suffered by the Plaintiff are in the nature of consequential loss.
4.3
The Plaintiff was vested with contractual remedies arising out of the delivery of hot coal
as is alleged, alternatively could have secured or retained such remedies pursuant to its
contract with the seller of the coal.
4.4
In the circumstances:
4.4.1 there is no justification for the extension of the Aquilian action so as to afford the
Plaintiff a right to claim in delict against the First Defendant; and
4.4.2 the Plaintiff is not vested with any action in delict against the First Defendant for
recovery of its alleged damages.
WHEREFORE the First Defendant prays that the First Defendant’s special plea is upheld and
the Plaintiff’s action is dismissed with costs, such costs to include the costs consequent upon
the employment of senior counsel.’

[3] On 23 February 2016 the vessel’s owners were joined as the second defendant
to the proceedings. Given the nature of RBCT’s special plea, Atakas applied in terms of
s 5(1) of AJRA to join Glencore as the third defendant in the action. In resisting the

joinder, Glencore raised three defences: first, that clause 171 of the sale contract (the
sale contract) between Atakas and Glencore provided that disputes should be referred
to arbitration; second, that the claim had prescribed and third, that the applicant’s claims
were too remote. The second and third defences were not persisted in.

[4] Although not presaged in the papers, the International Arbitration Act 15 of 2017
(the IAA) became the centrepiece of Glencore’s first defence when the joinder
application was argued before the court on 9 March 2018. That the IAA had not been
mentioned earlier is hardly surprising because it only came into operation on 20
December 2017, after both the answering and replying affidavits had been filed. As it
turned out, it was only when Glencore’s heads of argument were filed shortly before the
matter was argued, that reference was made to the IAA for the first time. Glencore
contended that: (i) clause 17 of the sale contract is an ‘arbitration agreement’ as defined
in s 1 of the IAA;2 and (ii) in terms of the IAA, read with article 8 of the Model Law,3 the
court was required to stay the proceedings and refer the matter to arbitration unless it
found the sale contract to be null and void, inoperative or incapable of being
performed.4 Accordingly, so the contention went, if Glencore was joined as a co-
defendant it would deliver a special plea in which reliance would be placed on article 8

1 Clauses 17 and 18 of the sale contract provide:
‘17.  Any dispute arising out of in connection with this contract, including any question regarding its
existence, validity or termination, shall be referred to and finally resolved by arbitration under the Rules of
the London Court of International Arbitration (LCIA), which Rules are deemed to be incorporated by
reference into this clause. The seat, or legal place, of arbitration shall be London. The language to be
used in the arbitration shall be English.’
18.  This contract, including the arbitration clause, shall be governed by, interpreted and construed in
accordance with the substantive laws of England and Wales excluding the United Nations Convention on
Contracts for the International Sale of Goods of April 11, 1980 (CISG).’
2 It was accepted that the arbitration clause in the sale contract is an ‘arbitration agreement’ as defined in
s 1 of the International Arbitration Act.
3 UNCITRAL Model Law on International Commercial Arbitration adopted by the United Nations
Commission on International Trade Law on 21 June 1985, as amended by the said Commission on 7 July
2006 ‘UNCITRAL Model Law on International Commercial Arbitration GN 1454, GG 41347, 20 December
2017’. The Model Law is incorporated as Schedule 1 to the International Arbitration Act.
4 Article 8 of the Model Law provides:
‘(1)  A court before which an action is brought in a matter which is the subject of an arbitration agreement
shall, if a party so requests not later than when submitting his or her first statement on the substance of
the dispute, stay those proceedings and refer the parties to arbitration unless it finds that agreement is
null and void, inoperative or incapable of being performed.
(2)  Where an action referred to in paragraph (1) of this article has been brought, arbitral proceedings
may nevertheless be commenced or continued and an award may be made, whilst the issue is pending
before the court’.

of the Model Law to seek a stay of the action against it. The court (per Lopes J) upheld
Glencore’s argument. It referred to various foreign authorities called in aid by Glencore
and concluded that it would be ‘futile to order the joinder of Glencore in the action’. The
issue of whether joinder would be ordered on the facts, if a discretion remained, was not
addressed by the court.

[5] Section 5(1) of the AJRA provides:
‘A court may in the exercise of its admiralty jurisdiction permit the joinder in proceedings in
terms of this Act of any person against whom any party to those proceedings has a claim,
whether jointly with, or separately from, any party to those proceedings, . . . or in respect of
whom any question or issue in the action is substantially the same as a question or issue which
has arisen or will arise between the party and the person to be joined and which should be
determined in such a manner as to bind that person, . . . and notwithstanding the fact that he is
not otherwise amenable to the jurisdiction of the Court . . .’.
The powers of joinder in terms of the section are far-reaching.5 The extension of the
court’s admiralty jurisdiction in terms of s 5(1) ‘was, from a practical point of view,
clearly necessary in the interests of convenience and in order to prevent multiple
proceedings’.6 Of s 5(1), Scott JA stated:
‘. . . the object of the Legislature was clearly to permit all the parties to a dispute to be joined in
an action. The absence of such provision could well result in an undesirable situation of courts
in different countries having to adjudicate on the same or substantially the same issues arising
out of the same incident or set of facts.’ 7

[6] In determining whether to grant a joinder application, the court exercises a
discretion.8 Part of the assessment by a court in the exercise of its discretion will include
a consideration of whether there exists an alternate forum that has been agreed as the
place for the resolution of disputes. This is because s 7(1)9 of the AJRA allows a

5 MY ‘Summit One’: Farocean Marine (Pty) Ltd v Malacca Holdings Ltd 2005 (1) SA 428 (SCA); [2004] 3
All SA 279 (SCA) (MY ‘Summit One’) para 17.
6 G Hofmeyr Admiralty Jurisdiction: Law and Practice in South Africa 2 ed (2012) at 212.
7 MY ‘Summit One’ fn 5 para 18.
8 Ibid.
9 Section 7(1) provides:
‘(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,

defendant brought before a South African admiralty court to seek a stay or discharge of
the action by reason of an arbitration agreement or other relevant factor suggesting
jurisdiction in another forum.10 The AJRA is a special Act which governs all admiralty
matters that come before our courts. It confers wide-ranging jurisdiction upon11 and
vests South African admiralty courts with the powers set out therein. Those powers
include ordering that any matter pending or arising in proceedings before it be referred
to arbitration (s 5(2)(e)) or staying proceedings to enable the matter in dispute to be
referred to arbitration (s 7(1)(b)). Given that the vast majority of admiralty disputes are
subject to agreements that can be classified as international arbitration agreements
(almost every charterparty, contract of carriage, construction and repair contract and
provision of supplies contract includes such a provision) the effect of an implied repeal
or restriction on the scope of the discretion conferred on a court by ss 5(1) and 7(1) of
the AJRA would be extraordinarily far reaching.

[7] If accepted, the effect of the judgment of the court a quo is to put a red line
through those provisions of the AJRA. However, as explained in Minister of Justice and
Constitutional Development and others v Southern African Litigation Centre and others
[2016] ZASCA 17; 2016 (3) SA 317 (SCA) para 118:
‘. . . repeal by implication is not favoured. An interpretation of apparently conflicting statutory
provisions which involve the implied repeal of the earlier by the later ought not to be adopted
unless it is inevitable. . . . Any reasonable construction which offers an escape from that is more
likely to be in consonance with the real intention of the Legislature. . . . As it was put in
Wendywood Development (Pty) Ltd v Rieger & another 1971 (3) SA 28 (A) at 38:

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.
(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.’
10 See MV Iran Dastghayb Islamic Republic of Iran Shipping Lines v Terra-Marine SA [2010] ZASCA 118;
2010 (6) SA 493 (SCA).
11 Section 2(1) provides:
‘Subject to the provisions of this Act each provincial and local division, including a circuit local division, of
the Supreme Court of South Africa shall have jurisdiction (hereinafter referred to as admiralty jurisdiction)
to hear and determine any maritime claim (including, in the case of salvage, claims in respect of ships,
cargo or goods found on land), irrespective of the place where it arose, of the place of registration of the
ship concerned or of the residence, domicile or nationality of its owner.’

“It is necessary to bear in mind a well-known principle of statutory construction, namely, that
statutes must be read together and the later one must not be so construed as to repeal the
provisions of the earlier one, unless the later statute expressly alters the provisions of the earlier
one or such alteration is a necessary inference from the terms of the later statute.”’
Here, there is an interpretation that offers an ‘escape’ from an implied repeal of the
earlier by the latter. It is article 1(5) of the Model Law, which provides:
‘This Law shall not affect any other law of the Republic by virtue of which certain disputes may
not be submitted to arbitration or may be submitted to arbitration only according to provisions
other than those of this Law.’
The phrase ‘any other law’ in article 1(5) plainly encompasses the AJRA. Thus, what the
court a quo conceived as an insurmountable obstacle (namely, the IAA) to the exercise
of its discretion under ss 5(1) and 7(1) of the AJRA was more illusory than real.

[8] In my view, the IAA accordingly left untouched the discretion to permit or refuse
the joinder of Glencore. The court a quo did not exercise that discretion and this court is
now free to do so.12 In heads of argument filed with this court on behalf of Glencore the
following appears:
‘14.
Glencore agrees the existence of a prima facie case is a prerequisite for the excise by a
court of its discretion to order the joinder of a party to an action in terms of section 5(1) and that
convenience is a relevant factor. Glencore also agrees that the object of section 5(1) is to avoid
multiple proceedings.
15.
Glencore also does not dispute that Atakas demonstrated that it has a prima facie case
for its contention that the coal loaded on board the vessel heated and that the explosion on
board the vessel on 30 October 2016 was caused by its heating. Glencore, however, does not
accept that it breached the sale agreement or that the heating of the cargo was the cause of the
explosion.’
In the light of those concessions, it seems to me appropriate to permit the joinder of
Glencore as the third defendant in the proceedings.

12 MY ‘Summit One’ fn 5 para 18.

[9] In the result:
1.
The appeal is upheld with costs, including those occasioned by two counsel.
2.
The order of the court below is set aside and in its stead is substituted the
following:
‘(a)
The respondent, Glencore International AG (Glencore), is joined as the third
defendant in the action in terms of s 5(1) of the Admiralty Jurisdiction Regulation Act
105 of 1983.
(b)
The applicant, Atakas Ticaret Ve Nakliyat AS, is granted leave to supplement its
particulars of claim in order to plead its cause of action against Glencore.
(c)
Glencore is ordered to pay the costs occasioned by the opposition to this
application, such costs to include those consequent upon the employment of two
counsel.’

_________________
V M Ponnan
Judge of Appeal

APPEARANCES:

For Appellant:

R W F MacWilliam SC (with him PJ Wallis)

Instructed by:

Webber Wentzel, Cape Town

McIntyre van der Post, Bloemfontein

For Respondent:

M Wragge SC

Instructed by:

Clyde & Co., Cape Town

Lovius Block, Bloemfontein