THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 376/18
In the matter between:
SEASPAN HOLDCO 1 LIMITED

FIRST APPELLANT
SEASPAN CORPORATION

SECOND APPELLANT
MV ‘SEASPAN GROUSE’

THIRD APPELLANT
and
MS MARE TRACER SCHIFFAHRTS
GMBH & CO KG

FIRST RESPONDENT
MS MARE TRAVELLER SCHIFFAHRTS
GMBH & CO KG

SECOND RESPONDENT
Neutral citation: MV Seaspan Grouse: Seaspan Holdco 1 Ltd v MS Mare
Traveller Schiffahrts GmbH (376/18) [2019] ZASCA 02 (1
February 2019)
Coram:
Maya P, Wallis, Molemela, Makgoka and Schippers JJA
Heard:
12 November 2018

Delivered: 1 February 2019
Summary: Admiralty – s 3(4) of Admiralty Jurisdiction Regulation Act 105 of
1983 (AJRA) – in rem action based on in personam liability of owner of ship –
arrest of associated ship – s 3(7) of AJRA requiring that associated ship be owned
at commencement of action by person personally liable on claim – s 1(2) of AJRA
– commencement of action date on which process instituting action served in
terms of s 1(2)(a)(i).

ORDER

On appeal from: KwaZulu-Natal Division, Durban, of the High Court,
exercising its admiralty jurisdiction (Gyanda J sitting as court of first instance)
reported sub nom:
Seaspan Grouse:
Seaspan Holdco and Others v MS Mare Tracer Schiffahrts and Another 2018 (5)
SA 284 (KZD):
The appeal is upheld with costs, such costs to include those consequent
upon the employment of two counsel.
The order of the high court is set aside and replaced with the following:
‘It is ordered that:
(a)
The arrests of the Seaspan Grouse under case numbers A69/2016 and
A70/2016 be and are hereby set aside.
(b)
The Registrar of the High Court, Durban, is directed to release the cash
held as security for the respondents’ claims to an account nominated by the
applicants’ attorney of record within five court days.
(c)
The respondents are to pay the costs of this application.’
The period of five days in para (b) of the High Court’s order in para 2 of
this order is to run from the date of this order.

JUDGMENT

Wallis and Schippers JJA (Maya P and Molemela JA concurring):

[1] Under the Admiralty Jurisdiction Regulation Act 105 of 1983 (the AJRA),
a claimant may issue a summons in rem and warrant of arrest in respect of a
vessel, or obtain an order for its attachment to found and confirm jurisdiction (ad
fundandam et confirmandam jurisdictionem), before the vessel named in the
summons or attachment order comes within the area of jurisdiction of a South
African court. It is therefore possible for a change in ownership of the vessel to
occur between the time when the summons is issued, or the attachment order is
granted, and the arrest or attachment. This appeal addresses the consequences of
that occurring in the context of a summons and warrant of arrest issued against
an associated ship. However, it was accepted in argument that the position would
be no different in the case of a summons in rem and warrant of arrest issued
against the ship in respect of which the maritime claim arose.

[2] In the Monica S1 the Admiralty judge, then Brandon J, was confronted
with this issue. He held that in English admiralty law the action commenced with
the issue of the writ. The right of the claimant to assert a statutory right of action
in rem arose from that time and was enforceable by the arrest of the named vessel.
A change in ownership of the vessel after the issue of the writ made no difference
to the claimant’s entitlement to arrest the vessel. For obvious reasons such writs
have come to be referred to as protective writs. Although it has been questioned
insofar as its exposition of the historic position is concerned, writers in this field

1 The Monica S [1967] Lloyd’s Rep 113 (QB Adm); [1967] 3 All ER 740 (QBD).

have accepted it.2 Counsel for the appellant did not question its application in
English law, although it is not clear that it is as widely accepted as suggested by
counsel for the respondents.3

[3] In the present case, Gyanda J, sitting in the KwaZulu-Natal Division,
Durban of the High Court, in the exercise of its admiralty jurisdiction, held that
the Monica S correctly reflected the position in our law. In a case raising the same
issue in the Western Cape Division of the High Court, exercising its admiralty
jurisdiction, Burger AJ reached the opposite conclusion.4 It falls to this court to
decide which was correct. The appeal is before us with leave granted by Gyanda
J.

The facts
[4] The facts are uncontroversial. The first and second respondents (the
respondents) are German registered companies. They owned the motor vessels,
Mare Tracer and Mare Traveller respectively, and chartered them to Hanjin
Shipping Co Ltd (Hanjin Shipping). Each respondent had a claim for unpaid
charter hire against Hanjin Shipping arising out of those charters.

2 Derrington and Turner The Law and Practice of Admiralty Matters 11-12, para 2.07 describe this as a
characteristic of the action in rem. See also Nigel Meeson and John Kimbell Admiralty Law and Practice (4th ed,
2011) paras 3.90 to 3.93.
3 Damian J Cremean Admiralty Jurisdiction, Law and Practice in Australia, New Zealand, Singapore and Hong
Kong (3rd ed, 2008) 189 said that it is doubtful whether it applies in Australia arising from the operation of ss 6
and 15 of the Admiralty Act 1988 (Cth), but the Monica S could possibly apply in New Zealand, Singapore and
Hong Kong. The same passage appears in Admiralty Jurisdiction, Law and Practice in Australia, New Zealand,
Singapore, Hong Kong and Malaysia (4th ed 2015) 186 with the same possibility extended to Malaysia. The
correctness of Brandon J’s decision was left open by the Court of Appeal in In re Aro Co Ltd [1980] 1 Ch 196 at
208-9, but there are clear indications in the judgment of Brightman LJ that he regarded it as correct. It was
apparently initially followed in Singapore, but rejected in Dauphin Offshore Engineering and Trading Pte Ltd Inc
v Owners of the Vessel Capricorn [1999] 2 SLR 390 at 398 a judgment not available to us. It has been followed
in Cyprus. Demetriou Pampos and Others v SS Sapphire Seas (2000) 1 CLR 1680. In view of the approach adopted
in argument we have not further explored this question.
4 MS Mare Traveller Tebtale Marine Inc v MS Mare Traveller Schiffahrts GmbH & Co KG 2018 (2) SA 490
(WCC).

[5] Hanjin Shipping was at one stage South Korea’s largest container line and
one of the world’s top ten container carriers in terms of capacity. On 1 September
2016 the Seoul Central District Court granted an order commencing rehabilitation
proceedings in respect of Hanjin Shipping. The following day the respondents
caused summonses in rem and warrants of arrest, referred to in argument as
protective writs, to be issued out of the KwaZulu-Natal Division, Durban and
various other divisions of the High Court in an endeavour to enforce their claims.
These cited various associated ships as defendants, including the vessel that is the
subject of this appeal, the Seaspan Grouse, formerly the Hanjin Gdynia.

[6] The registered owner of the Hanjin Gdynia, when the appellants issued
their protective writs, was J O O Shipping SA. This was a one ship company, the
sole shareholder of which was an employee of Hanjin Shipping, who was entirely
under the direction of his employer. After Hanjin Shipping commenced
rehabilitation proceedings, the mortgagee of the Hanjin Gdynia, Societé
Generale, exercised its rights under the mortgage to take effective possession of
the vessel. It caused J O O Shipping to sell it to Seaspan Holdco 1 Limited
(Seaspan), the first appellant, in terms of a Memorandum of Agreement (MOA)
dated 14 December 2016. Delivery pursuant to the MOA occurred on
29 December 2016. The purchase of the Hanjin Gdynia occurred simultaneously
with the purchase of three other vessels the Hanjin Atlanta, the Hanjin Kingston
and the Hanjin Monaco. Seaspan’s purpose in acquiring these vessels was to re-
sell them at a profit, which it has done in respect of the Hanjin Gdynia. All of this
occurred before Hanjin Shipping was declared bankrupt on 17 February 2017.

[7] The South Korean courts have held that structuring the ownership of a
vessel in the manner described in para 6 is lawful and valid. The effect is that the
employee, who is the registered owner of the shares in the ship-owning company,
is entitled to dispose of the vessel. A creditor may not go behind the employee’s

ownership to his employer, Hanjin Shipping. Accordingly, there was no dispute
before us that the sale of the Hanjin Gdynia to Seaspan was an arms-length and
bona fide transaction. Seaspan became the registered owner of the vessel, now
renamed the Seaspan Grouse, before the vessel was arrested and without
knowledge of the protective writs.

[8] On 23 August 2017 the respondents arrested the Seaspan Grouse in Durban
pursuant to the protective writs they had issued nearly a year earlier. The arrests
were discharged after security, in the form of cash was lodged with the Registrar
of the High Court, Durban. On 18 September 2017 Seaspan and its holding
company, the second appellant, applied to set aside the arrest and to procure
repayment of the security. The High Court dismissed the application for the
reasons already described.

The issue
[9] The respondents’ claims against Hanjin Shipping were claims in personam,
based on obligations arising under the two charterparties. Under the AJRA
maritime claims may be pursued in two ways, either by way of an action in
personam against the person liable in respect of the claim, or by way of an action
in rem. The respondents could have followed either course in pursuing their
claims, but elected to proceed by way of an action in rem.

[10]  A maritime claim may be enforced by way of an action in rem if the
claimant has a maritime lien over the ship in respect of which the claim arose (the
ship concerned), or if the owner of the ship concerned would be liable in an action
in personam in respect of that claim.5 We do not need to concern ourselves with

5 Section 3(4) of the AJRA. An action in rem may be pursued against property other than the ship concerned in
certain circumstances, but for present purposes it suffices to approach the matter as though an action in rem may
only be brought against a ship.

cases where the claimant has a maritime lien over the property to be arrested. Our
law recognises only a limited number of maritime liens6 and the nature of the
maritime lien is that it is enforceable against the ship notwithstanding a change
in ownership.7 Accordingly the problem in this case does not arise where the
claimant has a maritime lien. Here the in rem procedure was invoked on the basis
that the claimant had a claim in personam against the owner of the property to be
arrested.

[11] Section 3(6) of the AJRA provides that an action in rem may be brought
by the arrest of an associated ship instead of the ship concerned.8 Section 3(7)
provides that:
(7) For the purposes of subsection (6) an associated ship means a ship, other than the ship in
respect of which the maritime claim arose–
(i)
owned, at the time when the action is commenced, by the person who was the owner of
the ship concerned at the time when the maritime claim arose; or
(ii)
owned, at the time when the action is commenced, by a person who controlled the
company which owned the ship concerned when the maritime claim arose; or
(iii)
owned, at the time when the action is commenced, by a company which is controlled
by a person who owned the ship concerned, or controlled the company which owned
the ship concerned, when the maritime claim arose.’

[12] The critical words in each of these subsections are ‘owned, at the time
when the action is commenced’. It is common cause that the respondents’ claims
were claims in personam against Hanjin Shipping and that all of the Hanjin
vessels named in the protective writs were at the time of their issue controlled by
Hanjin Shipping. Accordingly, if the respondents’ actions against the Seaspan
Grouse commenced when the protective writs were issued on 2 September 2016,

6 Transol Bunker BV v MV Andrico Unity and Others; Grecian-Mar SRL v MV Andrico Unity and Others 1989
(4) SA 325 (A) at 331G-H and 354F-H.
7 MV Andrico Unity, ibid, 331H- 332A.
8 Owners of the MV Silver Star v Hilane Ltd (The Silver Star)[2014] ZASCA 194; 2015 (2) SA 331 (SCA) para
14.

the change in ownership of the vessel occurred after the actions commenced. In
that event the respondents remained entitled to cause the vessel to be arrested in
pursuance of their claims, notwithstanding the change in ownership. If the actions
only commenced when the summons and warrant of arrest were served, they were
not, because at that time the vessels were not owned by a person identified in any
of the subsections of s 3(7).

[13] The AJRA provides in s 1(2)(a) for when an action commences. It contains
four subsections describing the commencement of an admiralty action in different
circumstances. The respondents submitted that s 1(2)(a)(iii) was applicable and
that their actions commenced when the protective writs were issued. Seaspan
contended that s 1(2)(a)(i) was applicable and that the action commenced when
the process instituting the action was served. As J O O Shipping SA no longer
owned the vessel at that date it submitted that the arrests of the Seaspan Grouse
fell to be set aside. The issue is which is correct.

The arguments
[14] Counsel for Seaspan submitted that the correct approach to s 1(2) was first
to identify the relevant purpose for which it was necessary to determine when an
admiralty action commenced. There are two places in the AJRA itself where this
is relevant, namely, in determining whether a vessel is an associated ship in terms
of s 3(7)(a) and in the ranking of claims in terms of s 11(4)(c). However, the
section’s scope of operation is far wider, because many maritime contracts
contain clauses that require action to be instituted or suit to be brought within a
particular time. There are also international maritime conventions such as the
Hague Rules9 and its successors, principally the Hague-Visby Rules,10 and the

9 International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (“Hague Rules”
and Protocol of Signature (Brussels, 25 August 1924).
10 The Hague Rules as amended by the Brussels Protocol, 1968 now a schedule to the Carriage of Goods by Sea
Act 1 of 1986; Article 3(6).

Salvage Convention,11 that contain limitation or time bar provisions, the operation
of which is dependent upon when claimants commence an action to pursue their
claims. Some of these may be compulsorily applicable to maritime contracts. In
addition there is the general law governing prescription, or limitation of actions
as it is described in some jurisdictions.

[15] Counsel submitted that, where it is necessary to determine when an
admiralty action commenced, the appropriate commencement date under s 1(2)
must be selected having regard to the relevant purpose. These commencement
dates overlap, so it is necessary to choose which is applicable in every situation.
The proper interpretation of s 1(2) is a matter of South African law in accordance
with established principles of interpretation of statutes12 and there is no need to
have regard to English or other foreign authority in that regard. The action in rem
against an associated ship is a unique institution existing nowhere else in the
world and it is therefore necessary to pay close attention to the principles
underpinning the AJRA in determining whether a vessel is an associated ship.
There is little point in having regard to English law as to the nature and effect of
issuing a writ in proceedings in rem, when we are construing a South African
statute that differs materially from its English counterpart.

[16] He contended that this construction preserved the underlying purpose of
the associated ship, which is that liability should be imposed where it properly
lies by virtue of common ownership or common control.13 Accepting that the
purchaser of a vessel may be unaware of the existence of a maritime lien, he
submitted that it was inappropriate to extend the potential liabilities of purchasers

11 International Convention on Salvage, 1989 now a schedule to the Wreck and Salvage Act 94 of 1996; Article
23.
12 Natal Joint Municipal Pension Fund v Endumeni Municipality (Endumeni) [2012] ZASCA 13; 2012 (4) SA
593 (SCA) para 18 approved as correctly reflecting our law in Airports Company South Africa v Big Five Duty
Free (Pty) Ltd [2018] ZACC 33 para 29.
13 Euromarine International of Mauren v The Ship ‘Berg’ and Others 1986 (2) SA 700 (A) at 712A.

to statutory rights in rem arising from a lengthy and indeterminate14 list of
maritime claims, going considerably beyond those identified in the Arrest
Convention.15 Finally, he submitted that, s 39(2) of the Constitution requires the
court to construe the AJRA in a manner that best promotes the spirit, purport and
objects of the Bill of Rights. A construction of s 3(7) that permitted the arrest of
vessels as associated ships, even though there was no connection at all between
the person liable in personam on the claim and the ship being arrested, was not
the interpretation that best promoted the spirit, purport and objects of the Bill of
Rights and in particular s 25 thereof dealing with the right to property.

[17] Counsel for the respondents adopted a different approach. He submitted
that there is no overlap between the different subsections of s 1(2) and that the
only provision relevant to the present case is s 1(2)(a)(iii). He relied upon the
judgment in this court in the Jute Express16 to contend that s 1(2)(a)(i) applies
only to claims in personam and not proceedings in rem. The purpose of the AJRA
was to assist maritime claimants by facilitating the arrest of vessels, not only the
ship concerned, but also associated ships.17 A maritime lien travels with the ship
notwithstanding a change in ownership and there is no reason why the same
should not be true of claims giving rise to a statutory right in rem. This is
particularly so given that, in countries such as the United States of America,18
maritime liens are by statute afforded to a far wider group of claims than in the
United Kingdom. There is no harm in this because the issue of protective writs
and the application of the principle in the Monica S is a well-recognised feature
of maritime commerce, so that purchasers insure against the risk of such claims

14 See s 1(1) of the AJRA sv ‘maritime claims’ especially sub-para (ee).
15 Convention for the Unification of Certain Rules Relating to the Arrest of Sea Going Ships (Brussels 1952).
16 MV Jute Express v Owners of the cargo lately laden on board the MV Jute Express 1992 (3) SA 1 (A) at 17B.
17 MV Heavy Metal: Belfry Marine Ltd v Palm Base Maritime SDN BHD [1999] ZASCA 44; 1999 (3) SA 1083
(SCA) para 6 (per Smalberger JA); Northern Endeavour Shipping (Pty) Ltd v Owners of MV NYK Isabel 2017 (1)
SA 25 (SCA) paras 44-45.
18 Federal Maritime Liens Act 46 U.S.C. § 31301 – 31343.

being pursued against the vessels they purchase. The purchaser of a vessel usually
has no means of ascertaining whether it is burdened by a maritime lien. The
position is different in regard to statutory rights of action in rem arising by virtue
of the issue of a protective writ, because in South Africa there is a separate register
of admiralty actions and it is commonplace for attorneys to be instructed to
undertake searches to check for the existence of protective writs.

[18]  Counsel submitted that the existence of the statutory right of action in rem
had been recognised from the time that the jurisdiction of the Admiralty Court in
England had been extended by the statutes of 1840 and 1861.19 This was the effect
of the judgment in the Monica S and it had never been challenged in any
jurisdiction that, like South Africa, originally derived its admiralty jurisdiction
from England via the Colonial Courts of Admiralty Act.20 The Monica S was
applicable in South African admiralty proceedings prior to the AJRA and there
was no reason for it not to form part of our admiralty law under the AJRA.

[19] He contended that s 1(2)(a) served to identify one fixed date of
commencement of an action in all cases and that it was absurd to speak of an
action having several different commencement dates depending upon different
purposes. Once an action has commenced it has commenced for all purposes. The
word ‘relevant’ could not be taken to detract from the impact of the word ‘any’,
which in its ordinary connotation means ‘each and every’ and encompasses all
purposes. The 1992 amendments to the AJRA had been formulated in the light of
the decision in the Jute Express and the court should be guided by what was
decided in that case in construing the amended section.

19 Admiralty Court Act, 1840 (3 & 4 Vict. c. 65) and Admiralty Court Act, 1861 (24 Vict. c. 10).
20 Colonial Courts of Admiralty Act, 1890 (53 & 54 Vict).

[20] In the heads of argument counsel drew attention to the approach to
construing the expression ‘maritime lien’ in the AJRA in the Andrico Unity.21
The court held that in terms of s 6(1)(a) of the AJRA it was bound to apply
English admiralty law to that question, because the matter before it was whether
the plaintiffs had maritime liens over the MV Andrico Unity. He contrasted this
with The Silver Star.22 There the issue was whether the ship concerned in relation
to the maritime claim that had given rise to an arbitration award, was also the ship
concerned for the purposes of the award itself. The court said this was a matter of
statutory interpretation of the relevant provisions of the AJRA, and that no
question of resorting to s 6(1)(a) arose. The submission advanced, somewhat
tentatively, was that, if the Andrico Unity remained good law, the question in this
case fell to be answered by resort to English law.

[21] The point was not taken any further in the course of oral argument and
rightly so, although it was again raised in supplementary heads of argument,
delivered after the hearing in response to a question by the court. In the
application of s 6(1) in the present case the ‘matter’ was when the actions in rem
against the Seaspan Grouse commenced, for the purpose of its arrest as an
associated ship. That involved the interpretation of s 1(2) of the AJRA, which for
any relevant purpose deals with when an admiralty action commences. Even
assuming that determining the date of commencement of an action in rem was a
matter, in respect of which a South African court of admiralty would have had
jurisdiction under the Colonial Courts of Admiralty Act, s 6(2) of the AJRA
provides that nothing in s 6(1) shall derogate from the provisions of a South
African law applicable to that matter. Here there is an express provision of the
AJRA dealing with the very question and we are enjoined to interpret and apply

21 The Andrico Unity at 334A-335C.
22 Op cit, fn 9, para 31.

that provision, whatever may have been the previous position in English
admiralty law.

Section 1(2) of the AJRA and the Jute Express
[22] The competing submissions of counsel were closely bound up with the
history of this section and the judgment in the Jute Express, which dealt with it
as originally enacted. Some consideration must therefore be given to the original
text of s 1(2) and to what was decided in the Jute Express.

[23]  Prior to its amendment in 1992, s 1(2) provided:
‘For the purposes of any law, whether of the Republic or not, relating to the prescription of or
the limitation of time for the commencement of any action, suit, claim or proceedings, an
admiralty action shall be deemed to have commenced–
(a)
by the making of an application for the attachment of property to found jurisdiction if the
application is granted and the attachment carried into effect;
(b)
by the issue of any process for the institution of an action in rem if that process is
thereafter served;
(c)
by the service of any process by which that action is instituted.’

[24] The ambit of the section was considerably narrower than in its present
form. Its only concern was to deal with statutory regimes governing prescription
or limitation of actions in respect of maritime claims.23 In the forefront of the
minds of those who drafted the AJRA was the provision of Article 3(6) of the
Hague and Hague-Visby Rules, which provided, in relevant part, that:
‘... the carrier and the ship shall in any event be discharged from all liability whatsoever in
respect of the goods, unless suit is brought within one year after the delivery of the goods or
the date when the goods should have been delivered.’
These rules applied by statute in many countries in relation to contracts for the
carriage of goods from those countries and, as such, the question of when ‘suit is

23 D J Shaw QC Admiralty Jurisdiction and Practice in South Africa 34.

brought’ was one well recognised in maritime circles in South Africa when the
AJRA was enacted. It had arisen specifically in relation to an attachment, where
the court held that the making of the application amounted to the bringing of suit
for the purpose of the Hague Rules.24 Not surprisingly, therefore, that situation
was dealt with in s 1(2)(a).

[25] The Jute Express did not raise an issue under s 1(2). No process had been
issued and no arrest of the vessel had been effected, because security for the claim
had been given to prevent its arrest in terms of s 3(10)(a) of the AJRA. However,
the summons was only issued (and served) more than a year after security had
been furnished. The owners of the vessel raised a special plea that the claim was
time-barred in terms of the contractual incorporation of the Hague Rules in the
bill of lading, as suit had not been brought within one year of the claim arising.
The issue was whether obtaining security amounted to the bringing of suit,
because of the provision in s 3(10)(a) of the AJRA that if security had been given
the vessel was deemed to have been arrested and to be under arrest.

[26] The claimants argued that s 3(5) of the AJRA provided that an action in
rem shall be instituted by the arrest of the vessel. Section 3(10)(a) deemed the
vessel to have been arrested and to be under arrest if security was given to prevent
its arrest. The object of the deeming provision was to bring about the same
situation as would have prevailed had the vessel actually been arrested.
Accordingly, the claimants should be deemed to have instituted an action and to
have brought suit as required by Article 3(6).25 The counter argument was that
s 3(5) reflected the requirement that an action in rem required the arrest of the
vessel, not that the action was commenced (suit was brought) by the arrest. The
latter was inconsistent with both English admiralty and South African procedure.

24 Dave Zick Timbers (Pty) Ltd v Progress Steamship Co Ltd 1974 (4) SA 381 (D).
25 Jute Express pp 11C-E and 15I.

This approach was consistent with the provisions of s 1(2) as it then stood. There
was nothing in s 3(10)(a) to indicate that an action was deemed to commence by
the giving of security to prevent the arrest of the vessel. That would create an
anomaly, where an action might have commenced, notwithstanding the fact that
no court exercising admiralty jurisdiction was in any way seized of the matter or
had any knowledge of its existence. Such a conclusion was inconsistent with the
entire notion of bringing suit as embodied in the Hague Rules.26

[27] The judgment began by saying that the question in issue was whether an
action in rem is commenced by arrest or by the issue of summons.27 The central
concern of the parties was whether suit had been brought in terms of Article 3(6)
of the Hague Rules. The court accepted that to bring suit was to commence
appropriate proceedings for enforcing the claim.28 The claimants contended that
the institution of the action in rem in terms of s 3(5) of the AJRA constituted the
commencement of the proceedings.

[28] Howie AJA, who gave the judgment of the court, rejected this contention,
giving eight reasons for doing so.29 In summary they were these:

 In South African procedure all actions commence with the issue of
summons.30
 Where the legislature thought it necessary to deal with the commencement of
an action, in the context of interrupting prescription or limitation provisions,
it did so in s 1(2), departing from the ordinary position in our law.31

26 Jute Express, p 10F-11B.
27 Jute Express, p 11I-J.
28 Jute Express, p 13I-J.
29 Jute Express, p 16H-19H.
30 Marine and Trade Insurance Co Ltd v Reddinger 1966 (2) SA 407 (A) at 413D; Labuschagne v Labuschagne;
Labuschagne v Minister van Justisie 1967 (2) SA 575 (A) at 584.
31 Kleynhans v Yorkshire Insurance Co Ltd 1957 (3) SA 544 (A).

 The claimant’s argument created a contradiction between s 1(2)(b) which
provided that an action in rem commenced by the issue of process for its
institution, and s 3(5), which required the action to be instituted by an arrest.
 The purpose of s 3(5) was to make arrest an essential requirement of an action
in rem.
 The distinction between the Afrikaans translation of ‘commenced’ in s 1(2)
(‘ŉ aanvang te geneem het’) and ‘instituted’ in s 3(5) (‘word ingestel’) made
it plain that in speaking of the institution of the action the legislature was not
concerned with its commencement.
 In the old practice under the Colonial Courts of Admiralty Act, action was
commenced by the issue of summons, and there was no reason to alter the
situation when enacting the AJRA.
 Holding that the action was commenced by an arrest or deemed arrest gave
rise to anomalies. On the one hand, until the vessel was arrested there would
be no action, notwithstanding the existence of a summons. On the other, where
security was given to prevent an arrest, there would be an action without a
summons and there can be no action without a summons.
 Lastly, construing the AJRA as meaning that the action commenced with the
issue of summons was in accordance with established procedure and created
no inconsistencies or incongruities.

[30] It is helpful to point out what was not decided in the Jute Express. The
court did not decide that an arrest, actual or deemed, was unnecessary in order to
institute an action in rem. Nor did it express any view on the consequences of
issuing a summons, beyond saying it was the commencement of an action, and
accordingly necessary for the purpose of bringing suit in terms of Article 3(6) of
the Hague Rules.

[31] The AJRA and ss 1(2) and 3(7) in particular were amended by way of the
Admiralty Jurisdiction Regulation Amendment Act 87 of 1992, which was passed
on 18 June 1982 and commenced on 1 July 1982. Mr Mullins suggested that the
amendments to s 1(2) were precipitated by the decision in the Jute Express. That
cannot be correct. The Bill giving rise to the amending Act and containing s 1(2)
in its current form was tabled in Parliament on 26 February 1992, a month before
the judgment. The explanatory note reveals that it had been debated by the
Maritime Law Association and considered by several judges president and legal
bodies. It made comprehensive changes to the AJRA in a number of areas. It
seems more likely that in the debates leading up to the Bill’s preparation the issue
raised in the Jute Express was considered, possibly in the light of the judgment
in the court below handed down over a year earlier.32

The amended s 1(2)
[32] The section reads as follows:
‘(a)   An admiralty action shall for any relevant purpose commence –
(i)
by the service of any process by which that action is instituted;
(ii)
by the making of an application for the attachment of property to found jurisdiction;
(iii)
by the issue of any process for the institution of an action in rem;
(iv)
by the giving of security or an undertaking as contemplated in section 3(10)(a).
(b)  An action commenced as contemplated in paragraph (a) shall lapse and be of no force and
effect if-
(i)
an application contemplated in paragraph (a) (ii) is not granted or is discharged or
not confirmed;
(ii)    no attachment is effected within twelve months of the grant of an order pursuant to
such an application or the final decision of the application;
(iii)    a process contemplated in paragraph (a) (iii) is not served within twelve months of
the issue thereof;

32 Owners of the Cargo lately laden aboard the MV Jute Express v MV Jute Express 1991 (3) SA 246 (D).

(iv)    the property concerned is deemed in terms of section 3(10) (a) (ii) to have been
released and discharged.’

[33] The immediate question is whether the section fixes a single
commencement date for every admiralty action, being the date first occurring
among the alternatives in s 1(2)(a), or whether there is a choice of
commencement date, depending upon the purpose for which the date of
commencement of the action is relevant.

[34] The enquiry inevitably commences with the language of the section33 and
particularly the words ‘for any relevant purpose’. Prior to its amendment s 1(2)
was only concerned with the commencement of an admiralty action in the context
of statutory time bars and limitation periods. Now it applies to any relevant
purpose. While the word ‘any’ usually connotes ‘all’, meaning must be given to
the word ‘relevant’. It cannot be ignored as suggested by counsel. Even if it were,
it would not lead inevitably to the conclusion that the date of commencement of
the action would be the same for every purpose arising in relation to a particular
claim. Whenever there is more than one date that could apply a choice must be
made.

[35] The phrase ‘any relevant purpose’ emphasises that the previous restriction
to statutory time bars and limitation periods has been removed and that the section
now encompasses all circumstances where the date of commencement of the
action is relevant.  Semantically, the addition of the word ‘relevant’, suggests that
the purpose for which the enquiry has to be made affects which of the four
possibilities listed in the subsections of s 1(2) applies in any given situation.

33 Endumeni, op cit.

There is nothing linguistically to indicate that the earliest date must be chosen
and any later ones ignored.

[36]  Mr Mullins contended that subsections (i) to (iv) deal with separate and
distinct situations. He relied upon the following passage from the Jute Express:34
‘In the normal course, prescription is not interrupted by the issue of summons but by the service
of summons … and, as already mentioned, an action is not commenced by the service of
summons but by the issue of summons. Manifestly the Legislature intended to unify the
moment of commencement in relation to prescription on the one hand and statutory time
limitations on the other. One finds, therefore, that in the case of an action in rem the moment
of commencement is deemed to be the issue of process and, in the case of an action in
personam, the service of process (see s 1(2)(c))’ (Emphasis added.)

[37] With respect, the deeming provisions to which reference was made did not
unify the moment of commencement in respect of prescription and statutory time
limitations. Prescription commences running when the debt is due, not when
summons is either issued or served. It appears that Howie AJA had in mind the
interruption of prescription and the bringing of suit and like expressions in other
statutory limitation periods. Even then the deeming provision did not unify the
two. Prescription would be interrupted and a time bar defeated by service of a
summons in actions in personam, other than one where an attachment was
necessary. In actions in personam where an attachment was necessary,
prescription would be interrupted and a time bar defeated by making the
application for attachment. In an action in rem the same time bar on the same
claim would be defeated without service by the mere issue of a summons. This
was hardly satisfactory.

34 Jute Express 17A-B.

[38] Mr Mullins submitted that in the last sentence of this passage the court
drew a distinction between an action in rem, where the issue of summons would
commence the action, and an action in personam where service was necessary.
As the present s 1(2)(a)(i) is in the same terms as the former s 1(2)(c), he argued
that it could not be invoked in regard to an action in rem. We do not think that is
correct. It reads into the subsection a restrictive limitation that is not to be found
in its language. The preamble refers generally to ‘an admiralty action’, which
includes both an action in rem and an action in personam. It goes on to provide
that the action will commence by the service of process ‘by which that action is
instituted’. There is no warrant for reading that as if the words ‘that action’ read
‘an action in personam’. It also ignores the provisions of s 1(2)(a)(ii) dealing
specifically with when proceedings commence in the case of an action in
personam instituted by an attachment. In our view, Howie AJA was doing no
more than contrasting cases where no attachment was necessary, because the
defendant was an incola, or had consented or submitted to the jurisdiction, or was
a company with a registered office in South Africa, with an action in rem. In those
cases s 1(2)(c) would determine when the action commenced and, in accordance
with established procedural law governing prescription, that would be on service
of summons. The court was well aware that in those cases the action would
procedurally have commenced when the summons was issued.

[39] There was no need for Howie AJA to consider whether s 1(2)(c) might also
apply in some instances to actions in rem. If he had, an obvious example would
have been where a warrant was obtained without issuing a summons where a
court ordered the issue of the warrant. In that event, there seems to be no reason,
linguistic or practical why, in order to defeat a time bar, or interrupt prescription,
the action should not have commenced by service of the warrant in terms of the
former s 1(2)(c). One can readily imagine a scenario where a vessel came into
port unexpectedly, to take on bunkers or collect urgently needed spare parts, and

it was necessary both to secure its arrest before it left and defeat an imminent time
bar. In that situation there might not be an adequate opportunity to prepare a
summons. We can think of no good reason why the service of the warrant of arrest
in those circumstances would not defeat the time bar, when service of an
attachment order would have done so.

[40] Reverting to the present s 1(2), Mr Mullins sought to bolster his argument
that s 1(2)(a)(i) related only to actions in personam, by submitting that there was
a clear correspondence between ss 1(2)(a)(ii) and ss 1(2)(b)(i) and (ii); between
ss 1(2)(a)(iii) and ss 1(2)(b)(iii); and ss 1(2)(a)(iv) and ss 1(2)(b)(iv). There was
no need for a provision that the action would lapse after service of process in
terms of ss 1(2)(a)(i) because the action would then be before the court. That
would be the situation with an action in personam, but an action in rem would
commence earlier and therefore it was necessary to provide for the situation
where the summons was not served.

[41] There were two problems with this submission. The first was the one to
which we have already drawn attention, namely that in some circumstances,
admittedly unusual, a warrant of arrest could be authorised without the issue of
summons. The second is that the point of correspondence between the subsections
of s 1(2)(a) and those of s 1(2)(b) was raised in the minority judgment in the Cape
Spirit,35 but not in the reported argument of counsel, and the majority did not
accept it. It is not in our view sound.

[42] Turning to the subsections, s 1(2)(a)(i) speaks of service of process by
which the action is instituted. Section 3(5) of the AJRA, (which was not amended

35 MT Cape Spirit: Owners of the cargo lately laden on board the mt Cape Spirit v mt Cape Spirit and Others
1999 (4) SA 321 (SCA) para 27.

in 1992) says an action in rem shall be instituted by an arrest. There is no reason
at the level of language for saying that these should not correspond. The same
applies to s 3(2)(c), which says that an action in personam may be instituted
against a person whose property has been attached. The fact that in both cases
there are other provisions of s 1(2)(a) that could apply does not affect this. There
is no reason to confine subsection (i) to actions in personam as submitted by the
respondents.

[43] The other three subsections of s 1(2)(a) provide a date earlier than service
of process and concurrent attachment or arrest as the date of commencement of
an admiralty action. The only significant difference between them and the earlier
version of the section is the inclusion of subsection (iv), making the giving of a
security or an undertaking under s 3(10)(a) a ground for the commencement of
an admiralty action. Nothing suggests that their inclusion was not primarily
directed at prescription, limitation provisions and time bars, as had originally
been the case. The reference to giving security or an undertaking dealt with the
situation that arose in the Jute Express. The difference between the different
subsections emphasises the likelihood that different relevant purposes might
require different dates of commencement of the action.

[44] There is a further difficulty. On the respondents’ argument, s 1(2)(a)(iv)
creates a situation where an action has commenced, but no court is seized of it or
is even aware of its existence. The court in the Jute Express characterised that as
‘compatible with neither logic nor established practice’.36 Clearly that is so. It
points in favour of a construction of s 1(2)(a) that requires the court to choose the
commencement date that is appropriate to the relevant purpose. Interruption of
prescription or a time bar is one thing, but the entitlement to arrest an associated

36 Jute Express 19C-F.

ship that has changed ownership since the warrant was issued is an entirely
different matter.

[45] A significant anomaly is created on the respondents’ approach. It flows
from the provisions of s 1(2)(b), which provide for the lapsing of actions
commenced in the circumstances set out in s 1(2)(a)(ii) to (iv). That is a novel
concept in our civil procedure. Actions may be dismissed for non-prosecution,
but nowhere do they lapse automatically. Where there has been service of the
process by which the action is instituted, there is no mention of the action lapsing
in any circumstance. In the context of time bar and limitation provisions, as well
as under our own law governing prescription,37 the requirement that suit be
brought, or action instituted, or prescription be interrupted by the commencement
of action, carries with it an obligation, express or implied, that the suit or action
is continued to finality. If it is withdrawn or lapses, the time bar, limitation period
or prescription can be invoked to defeat the claim in subsequent proceedings as
if there had been no interruption. This implies that the primary purpose of the
provisions of ss 1(2)(a)(ii) to (iv) is to assist claimants to comply with time bars
or limitation periods by bringing proceedings timeously.

[46] Finally, there is manifestly an overlap between the different subsections of
s 1(2)(a), in the sense that in any one case more than one of the situations
described in those subsections may arise. It would have been relatively easy and
obvious in those circumstances to say in the section that the action would
commence in all cases when the first occurring of those situations occurred. We
appreciate that this is something of a makeweight point, but it does provide a
pointer as to the proper construction of the section.

37 Prescription Act 68 of 1969, s 15(2).

[47] All of these factors, in our view, support the notion that s 1(2)(a) provides
a flexible standard for determining when an action commences, depending upon
the relevant purpose for which that enquiry has to be made. Turning from there
to the wider context, s 3(4) is important. It says that a maritime claim may be
enforced by an action in rem if the claimant has a maritime lien over the property
to be arrested. There can be no doubt that the lien must exist at the time of the
arrest. It may also be enforced by an action in rem if the owner of the property to
be arrested would be liable in personam on the claim. The words ‘to be arrested’
speak to the situation at the time of the arrest. It is the owner of that property who
must be liable in personam, not its former owner. The respondents’ arguments
create a disjuncture between the arrest and the underlying liability. In turn s 3(4)
is linked to the requirement in s 3(5) that an action in rem is instituted by the
arrest. This caused Shaw38 to write that:
‘In view of the provisions of s 3(5) that the action is instituted by the arrest of the property, that
is the moment when it is required that the owner [of the property to be arrested] be liable to the
claimant in the action in personam referred to in s 3(4).’
The respondents’ approach gives no effect to the provision in s 3(5) that the action
is instituted by the arrest.

[48] Both textually and contextually therefore, the approach to s 1(2)(a)
advanced by Seaspan is to be preferred. It gives effect to all the words used and
avoids the anomalies inherent in the approach of the respondents. In addition, we
bear in mind the injunction in s 39(2) of the Constitution that we should prefer an
interpretation that best gives effect to the spirit, purport and objects of the Bill of
Rights. Given that the contentions by the respondents potentially raise a question
of their compatibility with the provisions of s 25 of the Constitution, that provides
a further reason for preferring the construction advanced by Seaspan. We

38 Shaw, op cit, fn 23.

therefore hold that in applying the section the court must first identify the relevant
purpose under consideration and then select the appropriate commencement date.

The appropriate commencement date in applying s 3(7)
[49] The relevant purpose was the arrest of the Seaspan Grouse as an associated
ship. That required that, at the commencement of the action, the Seaspan Grouse
was owned by a company controlled at that time by Hanjin Shipping.39 Whether
that was so depended on whether, for that relevant purpose, the date of
commencement of the admiralty actions was the date of issue of the protective
writs (s 2(1)(a)(iii)) or the date of the arrest (s 2(1)(a)(i)). In our view it was the
latter.

[50] In the first place, using the date of service of the summons is consistent
with the provisions of ss 3(4) and (5) in two respects. It ensures that the owner of
the property to be arrested is also the person liable to the claimant in an action in
personam. It also co-ordinates the commencement of the action and the institution
of the claim.
[51] Second, that approach accords with the basic purpose of the associated ship
jurisdiction. From the outset it was directed at resolving the difficulties
occasioned by the dramatic shift to owning vessels in separate one-ship owning
companies after the Second World War.40 This was explained in the Law
Commission Report41 leading to the passage of the AJRA. There is nothing in the
AJRA to suggest that it was intended to render liable to arrest vessels having no
connection at the time of arrest, either by way of common ownership or by way

39 In terms of s 3(7)(c) of the AJRA Hanjin Shipping is deemed to have been the owner of the Mare Trader and
the Mare Traveller at the time that the respondents’ maritime claims arose. In order to arrest the Seaspan Grouse
the respondents had to show that, at the commencement of the admiralty actions in rem, the Seaspan Grouse was
owned by a company (J O O Shipping SA) that was controlled by Hanjin Shipping.
40 M J D Wallis The Associated Ship and South African Admiralty Jurisdiction 41-43.
41 South African Law Commission, Project 32, 15 September 1982, para 7.3.

of common control, to either the ship concerned in the case of an associated ship,
or the person liable in personam on the claim.

[52] Third, considerable difficulties arise if, instead of proceeding in rem,
whether against the ship concerned or an associated ship, the claimant seeks to
enforce its claim in personam, commencing with the attachment ad fundandam
et confirmandam jurisdictionem of the same vessel.42 On the respondents’
approach, s 1(2)(a)(ii) means that the commencement of the action for the
purposes of the attachment would be when application was made for an order. If
arrests and attachments are to be dealt with in a consistent fashion, it should
follow that, having obtained an order in advance of the vessel’s arrival, the
claimant would be entitled to attach it, notwithstanding any change in ownership
between that date and the execution of the attachment order.

[53] This would involve a profound change in our law governing such
attachments. Corbett JA in Lendalease,43 said:
‘It is clear law that an applicant seeking the attachment of his debtor’s property ad fundandam
jurisdictionem must satisfy the Court, on a balance of probabilities, that the property to be
attached belongs to the debtor. The onus is upon the applicant to do so. The Court will not
order the attachment of the property of another for the purpose of founding jurisdiction because
to do so would be futile and of no effect.’

[54] We do not think that the AJRA as originally enacted had that result. Section
4(4) demonstrates that, when it was thought necessary to alter the law governing
attachments in admiralty cases, this was done expressly. Neither s 4(4) in its
original form, nor s 1(2), had that effect expressly. There is no warrant for saying
that a change of this significance was brought about indirectly. It would have

42 AJRA s 4(4) has permitted this since the amendments in 1992.
43 Lendalease Finance (Pty) Ltd v Corporacion de Mercadeo Agricola & others 1976 (4) SA 464 (A) at 489B-C.

been inconsistent with the Law Commission’s report on the review of the law of
admiralty,44 which drew attention to the fact that the existing situation, where one
court applied two separate systems of law to essentially similar matters,
depending on whether the case was brought in the ordinary courts or before the
courts sitting as colonial courts of admiralty, was unsatisfactory. Although the
existing admiralty law was to be the basis of reform,45 the report recognised ‘that
the rules of Roman-Dutch law ought, so far as is possible, to be preserved and
that concepts foreign to the South African legal system ought not to be introduced
…’.46

[55] Two fundamental changes were made to the established Roman Dutch law
in regard to attachments ad fundandam et confirmandam jurisdictionem.47 The
first, in s 4(4)(a), varied the rule that an attachment could only be obtained by a
peregrinus48 against another peregrinus if there existed, in addition, some other
ground of jurisdiction (ratione jurisdictionis).49 The second, in terms of s 4(4)(b),
permitted an application for an attachment to be brought notwithstanding that the
property to be attached was not yet within the area of jurisdiction of the court. In
that event the attachment order could be served when the property, almost
invariably a ship or its bunkers or stores, came within the jurisdiction. There was
nothing to suggest that over and above these changes an attachment order
procured in advance of the vessel’s arrival could be executed notwithstanding a
change in ownership in the interim.

[56] The AJRA placed attachments on the same footing as arrests. Where the
basis of the claim was in personam liability, the claimant had a choice of remedy.

44 South African Law Commission, Project 32, 15 September 1982.
45 Ibid, para 6.4.
46 Ibid, para 6.3.
47 Shaw, op cit, pp 49-50.
48 A person not residing in South Africa. See Tick v Broude and Another 1973 (1) SA 462 (T) at 467C-471E.
49 Ewing McDonald & Co Ltd v M & M Products Co 1991 (1) SA 252 (A) at 258I-259D.

In both it was permissible to set in train the proceedings that would lead to the
arrest or attachment, before the ship arrived in the court’s area of jurisdiction and
execute the process after it had done so. Either step could be taken a considerable
period in advance of the ship’s arrival. That was consistent with the fact that
proceedings by way of arrest and attachment serve the same purposes of founding
or confirming jurisdiction and of providing security for the claim.50 In South
African law once security has been obtained, by way of the attachment or arrest,
a person taking transfer of ownership of the vessel does so subject to the prior
rights afforded thereby – qui prior est tempore potior est iure.51 There was no
mechanism whereby a right taking precedence over that of a bona fide new owner
could be created before attachment.

[57] The amendments effected in 1992 did not affect the matter. Section 1(2)
was amended; ownership of the associated ship was expressly required to be
when the action commenced; and, the power to attach was extended to associated
ships. None of these addressed directly the question of a change in ownership
between the date on which the application for an attachment order was made and
the date of service of that order.

[58] In their supplementary heads of argument respondents’ counsel did not
contend for such a revolutionary change. They accepted that if there were a bona
fide change in ownership between the date on which an attachment order was
obtained, and the date upon which it could be executed it would no longer be
lawful to attach the ship. Applying that to this case would mean that, if an

50 Yorigami Maritime Construction Co Ltd v Nissho-Iwai Co Ltd 1977 (4) SA 682 (C) at 697H-698E; MT Argun:
Sheriff of Cape Town v MT Argun, her Owners and All Persons Interested in Her and Others; Sheriff of Cape
Town MT Argun, her Owners and All Persons Interested in Her and Another 2001 (3) SA 1230 (SCA) para 30, p
1244E-F.
51 Krause v Van Wyk en andere 1986 (1) SA 158 (A) at 171G-J; Wahloo Sand BK en Andere v Trustees, Hambly
Parker Trust en Andere 2002 (2) SA 776 (SCA) paras 12-15. It was suggested at one point in the argument that
an attachment or an arrest gives rise to a pignus judiciale, or judicial pledge, but this is incorrect as that arises
from an attachment in execution. Union and Rhodesia Wholesale Ltd v Brown & Co 1922 AD 549 at 558-559.

application for an attachment order had been made on 2 September 2016, the date
when the summonses in rem were issued, the Seaspan Grouse could lawfully
have been arrested in Durban in an action in rem, but could not have been attached
in the action in personam. That is absurd when dealing with the same claim, the
same in personam liability, and the same ship or associated ship.

[59] Counsel submitted that there was a further difficulty in relation to a security
arrest of an associated ship in terms of s 5(3) of the AJRA. Such an arrest is
neither an action in rem nor an action in personam, but an arrest ordered by the
court for the purpose of providing security for a claim. Section 5(3) empowers
the court to order the arrest of any property ‘if the person seeking the arrest has a
claim enforceable by an action in personam against the owner of the property
concerned or an action in rem against such property’. This includes an associated
ship on the basis that the claimant has an action in rem against the vessel. In order
to arrest the vessel as an associated ship it is necessary to determine who owned
it when the ‘action is commenced’ against it. Having regard to the definition of
‘admiralty action’ in s 1, he submitted that the application for the security arrest
is an admiralty action.

[60] In the ordinary course a security arrest would only be sought once the
vessel was in port,52 and the earliest date for commencement of that action, on the
respondents’ argument, would be when the application papers were issued after
the vessel arrived in port. A protective writ could have been issued at a much
earlier stage, in which case, if a change in ownership had occurred between the
date of issue of the protective writ and the date of issue of the application papers
in the security arrest, the vessel could be arrested in an action in rem, but could

52 We understand that on occasions when the vessel’s arrival was imminent and the duration of its stay likely to
be brief, orders for security arrests were issued conditional on the vessel’s arrival and subject to an affidavit being
lodged with the Registrar of the court when it arrived, after which the arrest order would be issued. There is no
provision in the AJRA providing for this procedure, but it is unnecessary for us to decide whether it is permissible.

not be arrested as security for the same claim. That is a further significant
anomaly, recreating as it would the situation where vessels were arrested in
actions in rem purely for the purpose of obtaining security for proceedings
elsewhere and not in order to pursue a claim before a South African court.53

[61] All these difficulties are avoided by selecting the date in s 1(2)(a)(i) as the
date of commencement of the action for the purposes of all associated ship arrests.
That would accord with the view of Shaw, cited above in para 47, in relation to
the ship concerned. Our attention was drawn to a summary of the previous
position in regard to associated ship arrests in the Pericles GC,54 which suggested
that under the original s 3(7)(a)(i), dealing with sister ships,55 the relevant date
for ownership of an associated ship was the date upon which the maritime claim
arose. The summary appeared to be based on a concession by counsel in the heads
of argument and the example given would not in any event have altered the
outcome of the case. In The Heavy Metal56 this court unanimously approved the
statement by Shaw57 that:
‘If, therefore, A, at the relevant time (that is, at the time of the arrest) owns a ship, that ship
will be an associated ship if A, at the time when the maritime claim arose, was the owner of
the ship concerned. Changes of ownership in the ship concerned after the time when the
maritime claim arose are irrelevant, as is the question whether the ship which is an associated
ship was owned by A at the time when the maritime claim arose.’
In our view the latter statement was a correct description of the original position
in regard to associated ships and the amendments to s 3(7) were merely
confirmatory of the existing position.

53 The Eleftheria (1969) 2 All ER 641 (PDA) at 645; Intercontinental Export Company (Pty) Limited v m.v. "Dien
Danielsen" 1982 (3) SA 534 (N) at 541D-H.
54 National Iranian Tanker Co v MV Pericles GC 1995 (1) SA 475 (A) at 480E-F, 481C-D and 485D-F.
55 Ships having the same owner. Under the Arrest Convention provision was made for the arrest of a sister ship in
place of the ship in respect of which the maritime claim arose.
56 MV Heavy Metal: Belfry Marine Ltd v Palm Base Maritime SDN BHD [1999] ZASCA 44; 1999 (3) SA 1083
(SCA) para 49.
57 Shaw, op cit, 37-38.

[62] It must be borne in mind that the Monica S only affords a claimant a
security interest because it permits the vessel to be arrested where there has been
a change in ownership between the issue of the writ and its service when the
vessel is arrested. Hofmeyr58 explains why in South Africa a security interest does
not accrue before an arrest:
‘The issue of process for the institution of proceedings in rem will not serve to protect the
creditor from the effects of the owner’s sequestration or liquidation or the intervention of
business rescue proceedings. That protection will accrue only when the creditor secures its
position by making an arrest. The notion that the security interest or charge accruing pursuant
to an action in rem attaches to the res at different times depending on whether or not insolvency
or business rescue proceedings has intervened is, from a jurisprudential point of view, less than
satisfactory. Moreover, the purposes of arrest are to obtain jurisdiction over the res and to
provide security for the claim. Neither result is achieved unless an arrest is made. Pending
arrest jurisdiction is not obtained and the security interest can be no more than a contingent
one. In these circumstances it seems artificial to regard the res as being burdened with the
security interest before arrest. Admittedly the charge created by the maritime lien is also
contingent on arrest but the maritime lien is an exceptional legal phenomenon and has always
been treated as sui generis.’
[63] In the face of these considerations the reliance placed on the Monica S was
misplaced. Accepting that the decision correctly reflected the English law under
the Colonial Courts of Admiralty Act, and therefore South African admiralty law
prior to 1983, the AJRA defined the circumstances in which an action in rem can
be brought, whether against the ship concerned or an associated ship. It also
preserved the action in personam based on the attachment ad fundandam et
confirmandam jurisdictionem, which does not exist in English law. The arrest
provisions of the AJRA are incompatible with the decision in the Monica S and
therefore that judgment cannot apply in South African admiralty law, whether in
relation to the arrest of the ship concerned or an associated ship. That does not
mean that protective writs cannot be issued in South Africa and served when the

58 Gys Hofmeyr Admiralty Jurisdiction Law and Practice in South Africa 2 ed 2012 at 129, footnotes omitted.

vessel comes within the jurisdiction. It merely means that such a writ gives no
protection to a claimant against an intervening bona fide change of ownership.

Conclusion
[64] The appeal must succeed. We make the following order:
1 The appeal of the first and second appellants is upheld with costs, such costs
to include those consequent upon the employment of two counsel.
2 The order of the high court is set aside and replaced with the following:
‘It is ordered that:
(a)
The arrest of the Seaspan Grouse under case numbers A69/2016 and
A70/2016 be and are hereby set aside.
(b)
The Registrar of the High Court, Durban, is directed to release the cash
held as security for the respondents’ claims to an account nominated by the
applicants’ attorney of record within five (5) court days.
(c)
The respondents are to pay the costs of this application.’
The period of five days in para (b) of the High Court’s order in para 2 of
this order is to run from the date of this order.
__________________________
M J D WALLIS

__________________________
A SCHIPPERS
JUDGES OF APPEAL

Makgoka J (Dissenting)

[65] I have had the privilege of reading the erudite judgment prepared by my
colleagues Wallis JA and Schippers JA (the first judgment). Regrettably, I
respectfully disagree with their construction of the relevant provisions of the
AJRA. On my interpretation of those provisions, the right to arrest the vessel
pursuant to the action in rem accrues as at the date on which an action in rem
commences – the date of issue of the writ of summons, alternatively, such writ
and the arrest. I would thus dismiss the appeal with costs. Below is a brief
exposition of my reasons for that conclusion.

[66] The relevant facts giving rise to the dispute are common cause, and have
been admirably set out in the first judgment. Thus, they will not be repeated here.
The relevant sections of the AJRA are ss 1(2), 3(4), 3(5), 3(6), 3(7) and 6. The
AJRA was amended on 1 July 1992 by the Admiralty Jurisdiction Regulation
Amendment Act 87 of 1992 (the Amendment Act) in several respects.

[67] Before I consider the relevant provisions, I will briefly state the following:
the nature and purpose of a maritime lien; the broad interpretational principles
within which the provisions should be construed; a consideration of the state of
our law as at the date of the enactment of the AJRA; and the policy considerations
underlying the AJRA. I consider these, in turn.
[68] The nature and purpose of a maritime lien was aptly described by Binnie J
in Holt Cargo Systems Inc v ABC Containerline N.V (Trustees of) [2001] SCC
90;  [2001] 3 SCR 907 para 26:
‘Broadly speaking, a maritime lien arises without registration or other formality when debts of
a specific nature are incurred by or on behalf of a ship. The lien creates a charge which “goes
with the ship everywhere, even in the hands of a purchaser for value without notice, and has a
certain ranking with other maritime liens, all of which take precedence over mortgages” (The
Tolten, [1946] P.135 (C.A), per Scott L.J., at p.150). It may be described, in that sense, as a
“secret lien.”

As to the necessity for such a lien, the learned judge explained in para 27:
‘The reason for this privileged status for maritime holders is entirely practical. The ship may
sail under a flag of convenience. Its owners may be difficult to ascertain in a web of corporate
relationships. . . Merchant seamen will not work the vessel unless their wages constitute a high
priority against the ship. The same is true of others whose work or supplies are essential to the
continued voyage. The Master may be embarrassed for lack of funds, but the ship itself is
assumed to be worth something and is readily available to provide a measure of security.
Reliance on that security was and is vital to maritime commerce. Uncertainty would undermine
confidence. The appellant Trustees’ claim to “international comity” in matters of bankruptcy
must therefore be weighed against competing considerations of a more ancient and at least
equally practical international system – the law of maritime commerce.’
[69] South Africa has not been insulated from the practical difficulties and
considerations referred to above. In the Jute Express59 this court, with reference
to Shaw Admiralty Jurisdiction and Practice in South Africa at 25 et seq and
several English authorities, observed that the primary purpose of an arrest in an
in rem action is ‘to give the action utility and effectiveness by affording the
plaintiff pre-judgment security’.
[70] The principles which should inform the interpretation of relevant
provisions of the AJRA, are trite. They must be construed by a conventional
process of statutory interpretation. This includes giving consideration to the
language used in the light of the ordinary rules of grammar and syntax; the context
in which the provisions appears; the apparent purpose to which they are directed
and the material known to those responsible for the enactment of the AJRA. See
Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA
13; [2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA) para 18.
[71] Section 39(2) of the Constitution enjoins courts, when interpreting any
legislation, to promote the spirit, purport and objects of the Bill of Rights. Where

59 Supra fn 16.

the court is faced with two interpretations, one constitutionally valid and the other
not, the court must adopt the constitutionally valid interpretation provided that to
do so would not unduly strain the language of the statute. See Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others In re: Hyundai Motor Distributors (Pty) Ltd
and Others v Smit NO and Others 2000 (10) BCLR 1079; 2001 (1) SA 545 (CC)
paras 23-25.  On the other hand, where a provision is reasonably capable of two
interpretations, the one that better promotes the spirit, purport and objects of the
Bill of Rights should be adopted. See Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd
and Another 2009 (1) SA 337 (CC); 2008 (11) BCLR 1123 (CC) paras 46, 84 and
107. Courts must also adopt a generous and purposive approach as explained by
the Constitutional Court in Ferreira v Levin NO & others; Vryenhoek & others v
Powell NO and Others 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC) para 46.
[72] At the outset, it is useful, for historical context to the AJRA, to establish
the state of the law immediately prior to its promulgation. In this regard, s 6(1) is
relevant. It provides that a court in exercise of its admiralty jurisdiction shall, with
regard to any matter in respect of which a court of admiralty had jurisdiction
immediately before the commencement of the Act, apply the law which the High
Court of Justice of the United Kingdom in the exercise of its admiralty
jurisdiction would have applied with regard to such matter at such
commencement, insofar as that law can be applied. Section 6(2) provides that the
provisions of subsection (1) shall not derogate from the provisions of any other
law of the Republic applicable to matters described in the subsection. Obviously,
the AJRA is part of ‘any other’ law envisaged in s 6(2). Of course all these are
subject to the Constitution.
[73] The principle entrenched in s 6 was accepted by this court in Transol
Bunker BV v MV Andrico Unity and Others: Grecian-Mar SRL v MV Andrico

Unity and Others 1989 (4) SA 325 (SCA) at 334C-336B. The case concerned the
recognition of foreign maritime liens in South Africa. It was held that when a
South African court exercises its admiralty jurisdiction in terms of the AJRA, it
was required to apply English admiralty law as it existed on 1 November 1983,
including the relevant principles of English private international law. See also
Marcard Stein & Co v Port Marine Contractors (Pty) Ltd and Others 1995 (3)
SA 663 (A) at 671H-J where this court had to decide on the conflict of laws, in
particular which system of law governed the transfer of ownership of a ship. The
court held that the issue had to be resolved by reference to the law applied by the
English High Court exercising admiralty jurisdiction as at 1 November 1983.
[74] In The Silver Star60 para 31 this court accepted that once the jurisdictional
hurdles are overcome, the provisions of s 6 are applicable in the adjudication of
maritime claims. There is no dispute that in this case the issue had moved beyond
jurisdiction. It is common cause that the court a quo exercised admiralty
jurisdiction to the ‘matter’ referred to in s 6(1), which related to whether the
claimant had maritime lien over the property arrested, and thus whether the arrest
orders should be set aside. This matter fell within the pre-existing jurisdiction of
the court, which was enjoined to administer English law.
[75] In sum, therefore, by virtue of s 6(1) the law which would have applied
immediately prior to the promulgation of the AJRA is the English admiralty law.
It can be summarised as follows: With the institution of suit in rem, a contingent
right of security is created upon the ship which will be brought into effect by the
arrest of the ship, regardless of change of ownership between the issue and the
arrest. This is the essence of the judgment in the Monica S61, which was

60 Supra fn 8.
61 Supra fn 1.

underpinned by policy considerations to protect maritime claimants.62 The
judgment has been accepted and applied in a number of Commonwealth
jurisdictions, including Hong Kong, Australia, and Singapore.
[76] In the court a quo, the parties, correctly in my view, accepted that the
Monica S reflected our law prior to the promulgation of the AJRA, and that the
latter mirrors that of its English and Commonwealth counterparts. That law is
applicable unless it is incompatible with the AJRA or inconsistent with the
Constitution. It is correct that the Monica S was based on the interpretation of the
relevant provisions of English admiralty law.  However, it assumes some
importance by virtue of s 6(1). It also provides a useful historical context to the
interpretation of the AJRA. Accordingly, the attempt by the appellants to
minimise the significance of the judgment should not find favour.
[77] In the Jute Express this court was concerned with whether in terms of the
AJRA (before the amendment in July 1992) an admiralty action in rem is
commenced by arrest or by the issue of summons. An in rem arrest of a vessel
had been pre-empted by the provision of security, giving rise to a deemed arrest
in terms of s 3(10)(a). The court had regard to, among others, s 3(5) which
provided that an action in rem is instituted by the arrest of property. Despite the
wording of s 3(5), it was held that an admiralty action commenced with the issue
of the in rem summons, and not with the arrest of the defendant vessel. With
reference to Rule 5 of the rules made in terms of the English Vice-Admiralty
Courts Act 1863 (in force in South Africa by virtue of the Colonial Courts of
Admiralty Act 1890), the court concluded that an action in rem commences in all
instances with the issue of summons. This was ‘either because of established

62 A Mandaraka-Sheppard Modern Maritime Law Volume 1: Jurisdiction and Risks 3 ed (2013) at page 104.

procedural law or because of the terms of s 1(2)(b) of the Act’ (at 20F). The latter
section is the equivalent of the current s 1(2)(a)(iii). I shall return to this aspect.
[78] It is correct that the Jute Express did not express any view on the
consequence of issuing a summons beyond saying it was a commencement of an
action. However, the judgment remains relevant to the issue in dispute, for two
reasons. First, it underlines the English heritage of South African maritime law,
in particular the historical nature of an in rem action as it developed in English
maritime law, which is stated in the Monica S. Second, it is significant in the
manner in which it interpreted s 1(2)(c) in the original Act. It concluded that
reference in that subsection to service of process by which the admiralty action is
commenced, must be reference to the service of a summons in personam, and not
in rem, because the commencement of an in rem action had been dealt with in
s 1(2)(b).
[79] The Jute Express was delivered on 27 March 1992. As correctly pointed
out in the first judgment, the Bill giving rise to the AJRA was tabled in parliament
in February 1992, a month before the judgment, and that discussions around it
had taken place many months before. It follows that the debates leading to the
adoption of the Bill could not have been influenced by the Jute Express. However,
the Bill was assented to by parliament on 18 June 1992, three and half months
after the judgment was delivered. It is therefore more likely that before assenting
to the Bill, parliament was aware of the judgment, in particular the construction
this court had placed on s 1(2)(c) as stated above.
[80] It is safe to make this assumption because leading maritime law
practitioners took a keen and active part in the shaping of the AJRA,63 and

63 See South African Law Commission’s Report on the Review of the Admiralty, 1982.

presumably, the Amendment Act. The inference is thus almost irresistible that
those who were responsible for the final draft of the Amendment Act must have
had the Jute Express judgment before them when the Amendment Act was finally
assented to. If that construction was at odds with its intention, the legislature
would no doubt have clarified the point before the enactment of the Bill.

[81] What is more, there is no discernible suggestion in the Amendment Act to
do away with the practice of issuing protective writs. The preamble to the
Amendment Act states the purpose thereof as:
‘To amend the Admiralty Jurisdiction Regulation Act, 1983, so as to define or define anew
certain expressions; to further regulate court procedure; to extend the powers of the court
regarding orders for the attachment of property to found jurisdiction; to make further provision
for the sale of arrested property; to make express provision for referring claims against a fund
to a referee; and to further regulate the ranking of claims; and to provide for matters connected
therewith’.
[82] To my mind, therefore, the cumulative effect of s 6(1) and the Jute Express
is a strong pointer that shortly before the commencement of the AJRA, the
position of our admiralty law was as stated in the Monica S. That position, as
already stated, was that an action in rem commenced with the issue of the writ of
summons in rem, and could be enforced against the defendant vessel regardless
of a change of ownership in the time before the arrest of the vessel.
[83] In construing the relevant provisions of the AJRA, it is important to bear
in mind the important differences between the in rem and in personam procedures
in the AJRA. As correctly pointed out in the respondents’ supplementary written
submissions, the in rem procedure is peculiar to admiralty jurisdiction, whereas
the action in personam and attachment procedure derive their origins from the
Roman-Dutch common law.

[84] Also, consideration should be given to the particular and unique difficulties
which maritime claimants face in seeking to enforce their claims, and to the novel
procedures which have developed over time to assist maritime claimants in this
regard. These policy considerations have found expression in the AJRA, as
accepted by this court in The Heavy Metal64 and The NYK Isabel.65
[85] In The Heavy Metal at 1106I it was stated that the principal purpose of the
AJRA is to assist the party applying for the arrest rather than the party opposing
it. It was also observed at 1105G-H that the object of the associated ship arrest
provisions was to enable the arrest of an associated ship instead of the guilty ship.
Its purpose is to benefit the party applying for the arrest by providing it with a
method of recovery against an alternative defendant. This affords the party relief
to which it would otherwise not have been entitled.
[86] Similarly, in The NYK Isabel para 45, it was observed that the manifest
purpose of the Act is to assist maritime claimants to enforce maritime claims. The
provisions of the Act should therefore be given a generous interpretation
consistent with that purpose. The appellants did not take issue with the policy
consideration underlying the AJRA. Instead, their submission was that their
construction of the relevant sections is not inconsistent with the said policy, and
is moreover, constitutionally compliant.
[87] The above considerations, and the fact that the practice of issuing
protective writs has been a long-standing practice in South Africa and a number
of jurisdictions with which we share common-law heritage, largely influence my
interpretation of the relevant sections of the AJRA, to which I now turn.

64 Supra fn 17.
65 Supra fn 17.

[88] Before the amendment, s 1(2) read:
‘For the purpose of any other law, whether of the Republic or not, relating to the prescription
of or the limitation of time for the commencement of any action, suit, claim or proceedings, an
admiralty action shall be deemed to have commenced –
(a) by the making of an application for the attachment of property to found jurisdiction if the
application is granted and the attachment carried into effect;
(b) by the issue of any process for the institution of an action in rem if that process is thereafter
served;
(c) by the service of any process by which that action is instituted.’

[89] After the amendment, s 1(2) reads:
‘(a) An admiralty action shall for any relevant purpose commence-

(i)
by the service of any process by which that action is instituted;
(ii)
by the making of an application for the attachment of property to found jurisdiction;
(iii)
by the issue of any process for the institution of an action in rem;
(iv)
by the giving of security or an undertaking as contemplated in section 3(10)(a).
(b) An action commenced as contemplated in paragraph (a) shall lapse and be of no force and
effect if-
(i)
an application contemplated in (a)(ii) is not granted or is discharged or not
confirmed;
(ii)
no attachment is effected within twelve months of the grant of the order pursuant
to such application or the final decision of the application;
(iii)
a process contemplated in paragraph (a)(iii) is not served within twelve months of
the issue thereof;
(iv)
the property concerned is deemed in terms of section 3(10)(a)(ii) to have been
released and discharged.’

[90] Section 3(4) provides for the enforcement of a maritime claim by an action
in rem, subject to two alternate conditions: if the claimant has a maritime lien
over the property to be arrested, or if the owner of the property to be arrested
would be liable to the claimant in an action in personam in respect of the cause

of action concerned. Section 3(6) provides for an action in rem to be brought by
the arrest of an ‘associated ship’. Section 3(7)(a) defines an ‘associated ship’.
Under the original definition, the person was required to own the associated ship
when the maritime claim arose. In the amended version, ownership is required
when the action is commenced.

[91] Before the amendment, s 1(2) was concerned only with statutory
prescription or limitation of time for the action. In its amended form, it has been
widened to include, in addition to those issues, the commencement date of
admiralty action ‘for any relevant purpose’. The amendment also retained the
same requirement that the in rem summons be served or the attachment be put
into effect, but incorporated relevant time limits in s 1(2)(b).

[92] On behalf of the appellants, it was submitted that the commencement date
for a maritime claim by way of an action in rem may, for the relevant purpose,
fall within ss 1(2)(a)(i) and 1(2)(a)(iii). Accordingly, although an admiralty
action can only be commenced once, the actual commencement date must depend
on the purpose relevant to that action. In terms of s 1(2) an action in rem is thus
not only commenced by the mere issue of any process but also, in appropriate
circumstances, ‘by the service of any process by which that action is instituted.’
Thus, submitted counsel, in the context of the commencement of an action in rem
against an associated ship, the action commences either on the date upon the
process instituting the action served, which date will coincide with the arrest of
the vessel, or on the date of its deemed arrest (if security is given).

[93] I disagree. As counsel for the appellants accept, procedurally, an action can
only commence once. The further difficulty with that contention is that there is a
clear distinction between the two subsections. As correctly submitted on behalf
of the respondents, properly construed, s 1(2)(a)(i) is restricted to an action in

personam, where it has not been necessary to attach property to found
jurisdiction, and to any other proceedings which are not otherwise specifically
provided for in s 1(2), but within the broad definition of admiralty action.  Section
1(2)(a)(i) cannot possibly include an action in rem because such action is
specifically provided for in ss 1(2)(a)(iii) and 1(2)(b)(iii).

[94] In the Jute Express reference was made to s 1(2)(c) – the equivalent of the
current s 1(2)(a)(i) – as applying to an action in personam, distinct from s 1(2)(b)
– the equivalent of the current s 1(2)(a)(iii) – which provides for an action in rem.
Although s 1(2) has been amended, its essence remains the same post the
amendment. There is therefore no reason why the construction adopted in the Jute
Express in respect thereof should not be followed. It is a canon of interpretation
that where the legislature employs words that have previously received judicial
interpretation, and in a later statute uses the same language in dealing with the
same subject matter, it intends that language so used by it be given meaning
already judicially attributed to it. See Ex Parte Minister of Justice: In re R v Bolon
1941 AD 345 at 359-360.

[95] Section 1(2) must of course be read with the other relevant sections. With
regard to s 3(4), it does not stipulate that the requirements set out in the subsection
must be present at the time that the arrest is effected. It is therefore neutral in
relation to when the requisite personal liability of the owner of the ship must be
present for purposes of a direct action in rem. But, as stated already, s 1(2)
provides that an admiralty action in rem commences, ‘for any relevant purpose’
with the issue of the in rem summons.  Section 3(6) provides for an action in rem
by the arrest of an associated ship, whereas s 3(7) – which defines an associated
ship for the purposes of an action in rem – provides that the relevant time for
determining the requisite control of the associated ship is when the action is
commenced.

[96] On the appellants’ construction, the relevant time for the determination of
the requisite control of an associated ship would be different to the time for
determining the requisite ownership of a ship which is the subject of a direct
action in rem. It is difficult to accept that the legislature would have intended this.
Properly construed, the better view seems to be that for purposes of an action in
rem, the jurisdictional requirements must be present when the action commences,
ie when the summons is issued, and the action in rem is thereby commenced. This
construction is fortified by the wording of s 3(7) after the 1992 amendment.
Whereas under the original definition the relevant time when the person or
company, as the case may be, was required to own the associated ship was when
the maritime claim arose, the section now provides that the relevant time is when
the action is commenced. In any event, as already emphasised, this was our
common law position as of 1 November 1983, derived from English law, as
articulated in the Monica S.

[97] This leads me briefly to s 4(4)(d). It provides that a court may order the
attachment of any ship, which, if the action concerned had been an action in rem,
would be an associated ship. I must say this subsection does not seem particularly
helpful in determining the relevant time when the jurisdictional requirements in
an in rem action, should be present. Be that as it may, the attachment referred to
in the subsection would found the court’s jurisdiction for determination of the in
personam liability of the ship concerned. This is because s 3(6) and s 3(7) do not
relate for in personam liability of the associated ship’s owner. It must be borne in
mind that s 3(7) refers to ‘when the action is commenced’ in the definition of an
associated ship. This must perforce refer to an action in rem, and not in personam.

[98] With regard to the constitutional injunction, it is instructive that the
appellants, apart from not challenging the constitutionality of the AJRA, have not

identified any right likely to be infringed by the effect of a protective writ.
However, the right likely to be implicated is in s 25 of the Constitution, which
prohibits arbitrary deprivation of property. In the context of maritime law, and
the peculiar difficulties associated with the enforcement of maritime claims, I am
unpersuaded that the respondents’ construction of the relevant provisions of the
AJRA are not constitutionally compliant.

[99] The legislature would have been aware of the unique difficulties
experienced by maritime claimants in enforcing their claims. Importantly, the
legislature would have been aware of the long-standing practice of issuing
protective writs in rem against defendant vessels to protect claimants against,
among others, changes of ownership. As counsel for the respondents pointed out,
the in personam debtor is in many instances, a peregrinus, and its vessels would
be likely to call at a South African port sporadically, if at all. As such, a writ of
summons in rem could be issued, but probably not served immediately.
[100] There is nothing in the AJRA that suggests that the legislature had intended
a radical departure from the prevailing law as at the date of its enactment. And,
once this is accepted that the Monica S principle reflected the law at that date,
only the clearest intention of the legislature should gravitate us to the appellants’
argument. At the risk of repetition, there is simply no such intention in the
language of the AJRA as amended. I agree with counsel for the respondents that
the process of issuing protective writs is entrenched, rather than done away with,
in the AJRA.
[101] Thus, the construction contended for by the appellants would be a radical
departure from the existing law, and would remove from the maritime claimants
the right to issue protective writs, which had been a long-established practice.

Thus, absent a clear indication that the legislature intended to place South Africa
on a radically different trajectory in admiralty law from the Commonwealth
jurisdictions, it must be presumed to have intended to continue with the practice.
The practical difficulties postulated in para 58 of the main judgment may point to
inherent weaknesses in the AJRA. But they do not, in my view, lead to a result
contrary to the intention of the legislature as shown by the context and other
considerations referred to in this judgment. Put differently, those anomalies are
not sufficient to deviate from the clear textual and contextual indications in the
AJRA.
[102] Viewed in this light, the appellants’ construction would be at odds with the
presumption of statutory interpretation that the legislature is presumed not to
intend changing the law more than is necessary, particularly when taking away
existing rights. See Cloete Murray N.O. and Another v Firstrand Bank Ltd [2015]
ZASCA 39; 2015 (3) SA 438 (SCA) para 40. In his work, Interpretation of
Statutes (1992) 159, the learned author Devenish describes this as ‘a seminal and
pervasive presumption’, which facilitates legal certainty and the administration
of justice.
[103] The meaning that counsel for the appellants sought to assign to the relevant
provisions of the AJRA is not supported by their plain wording, especially s 1(2),
s 3(6) and s 3(7). Although the issue in dispute arises squarely for the first time
in this case, how this court has interpreted related provisions previously provides
some guidance. None of those cases support the appellants’ interpretation, which,
in my view, unduly strains the language of the Act. This is unnecessary, as the
relevant provisions are clear and unambiguous, and permit only of the
construction in favour of the respondents. The respondents’ interpretation gives
effect to the policy underlying the AJRA. Furthermore, it recognises the practical
difficulties encountered by maritime claimants and the need for jurisprudential

comity among common-law jurisdictions. As trenchantly remarked by Rand J in
Laane and Balster v Estonian State Cargo & Passenger Steamship Line [1949]
SCR 530 at 545, in maritime commerce, ‘rules of practical convenience
commanding general assent are a virtual necessity’.
[104] In sum, I find the respondents’ submissions far more compelling,
especially given the historical context of the AJRA. For all these considerations
I am impelled to the conclusion that the court a quo was correct in its
interpretation of the relevant provisions of the AJRA. I would accordingly
dismiss the appeal with costs, including costs of two counsel.

_______________
T M MAKGOKA
JUDGE OF APPEAL

APPEARANCES

For Appellant:
M J Fitzgerald SC (with him R Fitzgerald)

Instructed by:

Bowmans, Cape Town,
Matsepes Inc, Bloemfontein

For Respondents:
S Mullins SC (with him J McKenzie)

Instructed by:

Shepstone & Wylie, Cape Town,
Phatshoane Henney Attorneys, Bloemfontein