THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 684/2019
MT ‘PRETTY SCENE’

In the matter between:

GALSWORTHY LIMITED

APPELLANT
and
PRETTY SCENE SHIPPING S.A.
FIRST RESPONDENT
MT ‘PRETTY SCENE’

SECOND RESPONDENT

Neutral citation: MT Pretty Scene: Galsworthy Ltd v Pretty Scene
Shipping S.A. and Another (Case No 684/19) [2021]
ZASCA 38 (12 April 2021)
Coram:
WALLIS, ZONDI, MOCUMIE and SCHIPPERS JJA and
GOOSEN AJA
Heard:
19 March 2021
Delivered: This judgment was handed down electronically by
circulation to the parties’ representatives by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 09h45 on 12 April 2021.
Summary: Arrest of an associated ship in terms of ss 3(6) and (7) of the
Admiralty Jurisdiction Regulation Act 105 of 1983 (the AJRA) – defect
in summons not justifying the setting aside of a warrant of arrest –

procedural requirements of Admiralty Rule 4 – requirements for a
summons in terms of Admiralty Rule 2(1) – Practice Directive 27 of the
KwaZulu-Natal Division of the High Court – summons only required to
set out a clear and concise statement of the claim – does not require same
detail as a pleading.
Association – provisions of s 3(7)(c) of the AJRA – charterer deemed to
be the owner of the ship concerned when the claim in issue arose –
immaterial whether charterer no longer the charterer at that time.
When does a claim arise – in case of a claim on an arbitration award
claim inextricably linked to underlying maritime claim – claim arises
when the underlying claim arose.
Second arrest in anticipation of first arrest being set aside – such an arrest
permissible – not barred by s 3(8) of AJRA – proper interpretation of that
section.

ORDER

On appeal from: KwaZulu-Natal Division of the High Court,
Pietermaritzburg (Mbatha J, Madondo DJP and Van Zyl J concurring):
The appeal is upheld with costs.
The order of the full court of the KwaZulu-Natal Division in the
appeal in case no A23/2015 is set aside and replaced by the following
order:
'(a)
The appeal is upheld with costs, such costs to include the costs of
two counsel where two counsel were employed.
(b) The order of the high court is set aside and replaced by the following
order:
'The application to set aside the arrest of the Pretty Scene is dismissed
with costs.'
The order of the full court of the KwaZulu-Natal Division in the
appeal in case no A65/2016 is set aside and replaced by the following
order:
'The appeal is dismissed with costs.'

JUDGMENT

Wallis JA (Zondi, Mocumie and Schippers JJA and Goosen AJA
concurring)

[1] On 18 June 2007 and by way of the exchange of recapitulation
messages dated 17 and 18 June 2007, the appellant, Galsworthy Ltd
(Galsworthy), let and Parakou Shipping PTE Ltd (Parakou Shipping)
hired the MV Canton Trader (to be renamed Jin Kang) on a time charter
party for a minimum of 60 and maximum 63 months with delivery due to
take place at Singapore between March and April 2009. Parakou
Shipping did not intend to trade the Jin Kang, but concluded a
back-to-back five year charter party with an entity called Ocean Glory at
a slightly higher charter rate. However, with the collapse in the charter
market as a result of the world financial crisis in 2008, Ocean Glory went
into liquidation. Thereafter the shareholders and directors of Parakou
Shipping sought unsuccessfully to extricate it from the charter with
Galsworthy. Ultimately Parakou Shipping refused to take delivery of the
vessel when tendered.

[2] Arbitration in London followed in which Galsworthy sought
damages from Parakou Shipping for its repudiation of the charter party.
In a First Final Arbitration Award dated 31 August 2010 the appointed
arbitrators declared:
‘… that the parties entered into a legally binding charter party as a result of the
ratification by the Charterers of the terms set out in the recapitulation messages of
17 and 18 June … and that the Charterers are accordingly in repudiatory breach of
charter.’

Flowing from that conclusion the arbitrators made an award in favour of
Galsworthy in an amount of US$2 673 279.15. Parakou Shipping had
conceded during the course of the hearing that if they were found to be in
breach of charter they were liable for damages in that sum. The balance
of Galsworthy’s claim for additional damages and costs was reserved for
further adjudication. On 13 May 2011 the arbitrators made a Second Final
Arbitration Award in favour of Galsworthy for payment of damages in
the sum of US$38 579 000, together with interest and costs.

[3] The present appeal arises from Galsworthy’s attempts to enforce
payment of those awards by way of an action in rem against the
MT Pretty Scene as an associated ship in relation to the Jin Kang. It
initially arrested the Pretty Scene on 18 June 2016. The first respondent,
Pretty Scene Shipping SA (PSS), the owner of the Pretty Scene, applied
to set the arrest aside. The application came before Vahed J and the arrest
was set aside on 31 October 2016. Vahed J refused leave to appeal, but
this court granted leave to appeal to the full court of the KwaZulu-Natal
Division. In anticipation of an unfavourable judgment from Vahed J,
Galsworthy effected a second arrest of the Pretty Scene on
28 October 2016. An application by PSS to set aside that arrest, and a
counter-application for security for a claim for wrongful arrest under
s 5(4) of the Admiralty Jurisdiction Regulation Act 105 of 1983 (the
AJRA), were dismissed by Henriques J on 10 August 2017. Reasons were
provided on 22 September 2017. Like Vahed J, Henriques J refused leave
to appeal, but this court again granted leave to appeal to the full court.

[4] The two appeals were heard in a consolidated hearing on
1 August 2018 and judgment was delivered (Mbatha J, with Madondo
DJP and Van Zyl J concurring) on 4 March 2019. The appeal against

Vahed J’s order was dismissed and that against Henriques J’s judgment
upheld. In the result both arrests were set aside and the counter-
application for security for costs was granted. The order of the full court
does not specify the terms on which security was ordered, merely
recording that:
‘The applicant's counter-application be and is hereby upheld with costs, costs to
include costs of two counsel where applicable.’
It must be accepted therefore that the order was in the terms prayed and
meant that security was to be provided in an amount in excess of
US$6.6 million, plus interest and costs. The appeals are before us by
virtue of the grant of special leave by this court.

Mootness
[5] PSS contended that the appeals had become moot, because after its
arrest the Pretty Scene was sold and the proceeds distributed under ss 9
and 11 of the AJRA. It is common cause that Galsworthy received
nothing in consequence of that sale and distribution. On that basis it was
submitted that success in the appeals would have no practical effect or
result and therefore that they should be dismissed in terms of s 16(2)(a)(i)
of the Superior Courts Act 10 of 2013.

[6] There is no merit in this contention. In the first instance there
remains a live issue in that the full court's order that Galsworthy provide
security for PSS's claim for damages for wrongful arrest remains in
existence, albeit that security has not yet been furnished. In any event the
jurisdiction of the South African courts to deal with such a claim has been
established.1 Furthermore, the case raises matters of importance in regard

1 Mediterranean Shipping Co v Speedwell Shipping Co Ltd and Another 1986 (4) SA 329 (D).

to admiralty procedure and it is desirable that these be resolved in the
wider interests of clarifying the law and practice in admiralty cases.2

THE FIRST ARREST
The procedural objection to the first arrest
[7] Galsworthy applied ex parte to judges in KwaZulu-Natal,3 the
Eastern Cape and the Western Cape, for orders directing the registrars of
those courts to issue warrants of arrest and accompanying writs of
summons in respect of eight vessels. The eight vessels were product
tankers alleged to be associated ships in relation to the Jin Kang.
Galsworthy brought the applications before judges because it wanted
confidentiality orders in respect of the applications and the warrants of
arrest, with a view to ensuring that Parakou Shipping would not learn of
them and divert the vessels elsewhere to avoid arrest. This could occur
via an inspection of the register of admiralty actions at the courts. It is not
uncommon for confidentiality orders to be sought and granted in
admiralty proceedings, both in rem and in personam.

[8] The application was brought in the conventional form on notice of
motion supported by an affidavit detailing the claim; the basis for
association; and the reasons for seeking confidentiality. The order was
granted in all three divisions. The warrants and writs of summons in the
KwaZulu-Natal Division were subsequently extended for two years by
way of a further order granted on 29 March 2016.

[9] An application to set aside the arrest of the Pretty Scene was
launched on 1 July 2016, two weeks after its arrest. When the arrest was

2 Merak S, The: Sea Melody Enterprises SA v Bulktrans (Europe) Corporation 2002 (4) SA 273 (SCA).
3 The application came before Mnguni J under Case No A20/2015.

made only the warrant of arrest and writ of summons were served, but a
copy of the application papers was furnished to PSS's attorneys by
Galsworthy's attorneys before the application to set aside the arrest was
launched. The application raised a number of issues, principal among
which was a procedural objection that the summons did not comply with
the requirements of the judgment in The Galaecia4 and Practice
Directive 27 ('the Directive') issued by the KwaZulu-Natal Division of
the High Court. This objection was upheld by Vahed J and the arrest set
aside. He did not address any of the other grounds on which the arrest
was challenged. His decision was upheld by the full court for essentially
the same reasons as his.

[10] With respect, this conclusion was erroneous for the following
reasons:
(a)
PSS's procedural objection was misconceived, as a warrant of
arrest cannot be set aside because of deficiencies in the writ of summons;
(b)
the decision in The Galaecia was misconstrued;
(c)
the approach to the Directive misconstrued Admiralty Rule 2(1)(b)
and imposed requirements on the contents of a summons that are
inconsistent with the general structure of the Admiralty Rules,
unnecessary and unduly burdensome;
(d)
the summons in any event complied with the requirements of the
Directive in the only respect in which it was challenged.
Each of these will be dealt with in turn.

The misconceived challenge to the warrant

4 The Galaecia: Vidal Armadores SA v Thalass Export Co Ltd SCOSA D 252 (D). SCOSA is an
acronym for Shipping Cases of South Africa a private publication of maritime judgments. The
judgment is on the Maritime Law Association of South Africa's website http://www.mlasa.co.za/wp-
content/uploads/downloads/2010/02/Durban%20Division/2006/MFV%20Galaecia%20part%201.pdf.

[11] For the purposes of considering this point I will assume that PSS
was correct in saying that the writ of summons was defective. However,
its aim was to set aside the arrest of the Pretty Scene. Accordingly, it
needed to show that the order directing the registrar to issue the warrant
of arrest was invalid. For the procedural objection to have effect, the
defect in the summons had to invalidate both the order that the warrant of
arrest be issued and the warrant itself.

[12]  The parties appeared to accept that the invalidity of the summons
would lead inexorably to the invalidity of the warrant of arrest. The
assumption was that the two are mutually interdependent, that is, the one
cannot exist without the other. That is not the case. This is apparent from
Admiralty Rule 4(3), which provides that the registrar may only issue a
warrant of arrest if summons has been issued, but makes an exception in
the case where the arrest is ordered by the court. The court may order an
arrest without a summons being issued, as may well occur in
circumstances of extreme urgency. If a vessel is about to depart from the
jurisdiction an arrest may be ordered on affidavits, or oral evidence,
placed before a judge at home in the middle of the night. While this is
fortunately relatively unusual, it does occur and the rule accommodates it.
What it demonstrates is that there is no link between the arrest and the
summons. A deficiency in the latter does not affect the validity of the
former.

[13] Even were the summons and the warrant of arrest linked I fail to
see on what basis, a defect in the summons would invalidate the arrest. A
summons that is defective for non-compliance with Admiralty Rule
2(1)(b), which was the complaint here, is nonetheless a summons. It is
not a nullity, merely because the claim is insufficiently specified. A

defective summons may serve to interrupt the running of prescription5
and may be amended.6 Although counsel for PSS devoted a substantial
portion of the heads of argument to the procedural objection, he did not
suggest that the summons was either invalid or a nullity. Nor did he
explain why the defect in the summons should invalidate the arrest.

[14] A warrant issued by the registrar under Admiralty Rule 4(3) might
possibly be invalid if no summons had been issued, but that is not the
situation here. There was a summons, but it was alleged to be defective.
Nonetheless, the judge ordered the registrar to issue it and to issue the
warrant of arrest. He did so on the basis of the information contained in
an affidavit that dealt in detail with the basis for the alleged association.
On the facts contained in the affidavit he was correct to order the registrar
to issue the summons and warrant of arrest.

[15] That brings me to the last point under this head. Where an in rem
arrest is challenged, the onus is on the arresting party to justify the arrest.
It is well established that in doing so they may rely on grounds not
advanced at the time of the arrest. On this basis it has been held that an
entirely new case may be advanced to sustain the arrest.7 In the Andrico
Unity the claimants said they had supplied bunkers to the owner of the
vessel. When it transpired that the vessel was subject to a demise charter,
this case was abandoned in favour of an allegation that the supply of
bunkers created a maritime lien enforceable against the owners, even
though they were not personally liable. The court held this change in

5 Sentrachem Ltd v Prinsloo 1997 (2) SA 1 (A) at 15J-16D.
6 Uniform Rule 28. See the discussion on this rule in Van Loggerenberg et al Erasmus Superior Court
Practice.
7 Transol Bunker BV v MV Andrico Unity and Others; Grecian-Mar SRL v MV Andrico Unity and
Others 1987 (3) SA 794 (C) at 798D-800E, confirmed on appeal in Transol Bunker BV v MV Andrico
Unity and Others; Grecian-Mar SRL v MV Andrico Unity and Others 1989 (4) SA 325 (A).

stance to be permissible because it was open to the arresting party to
justify the arrest on any lawful basis available to it. That is precisely what
Galsworthy did in response to the application to set aside the arrest. It
relied on the affidavit before the judge who granted the initial order to
show that notwithstanding any deficiencies in the summons there was a
sufficient case that the Pretty Scene was an associated ship in relation to
the Jin Kang.8 If one is entitled to alter the entire basis of one’s case in
order to sustain an arrest, I can see no reason why one cannot, when the
arrest is challenged, supplement a deficient summons in the same way.

The Galaecia and Practice Directive 27
Background
[16] Ordinarily, a party seeking to arrest a vessel in rem for the purpose
of an admiralty action against the vessel applies to the registrar of the
high court for the issue of a warrant of arrest.9 This is a procedure that has
been part of our admiralty procedure since 1799 in the Cape and 1856 in
KwaZulu-Natal. Before the enactment of the AJRA it was the procedure
followed in our courts sitting as courts of admiralty under the Colonial
Courts of Admiralty Act of 1890.10 It also reflects in large measure the
procedure in actions in rem in many other jurisdictions around the world.
In view of the consequences for the shipowner whose ship is wrongly
arrested,11 courts in practice generally accept (and are correct to do so)

8 The full court mistakenly thought that this affidavit may not have been before Mnguni J because it
bore a different case number to the summons. It overlooked that it bore the case number of the
application that served before Mnguni J.
9 Admiralty Rule 4(2)(a).
10 Colonial Courts of Admiralty Act of 1890 (53 & 54 Vic. C27).
11 See the oft-quoted remarks of Didcott J in Katagum Wholesalers Commodities Co Ltd v The MV Paz
1984 (3) SA 261 (D) at 269H-270A in regard to the serious consequences of arresting a ship. It must be
borne in mind that this was a minority judgment and its strictures in regard to procedures and the
strength of the case that an applicant has to make were not shared by the majority and have not been
endorsed in later decisions.

that an application to set aside an arrest is a matter that should be dealt
with urgently and given priority.

[17] The registrar may refer the question whether the warrant should be
issued to a judge.12 In determining whether to do so the registrar does not
rely on any personal knowledge of maritime law, but is concerned with
whether the requirements for such an arrest as set out in the rules and the
AJRA are satisfied. On occasion the legal representatives for the
applicant indicates that this is desirable, because the facts were not
straightforward. However, most arrests are relatively straightforward.

[18]  In order to assist the registrar, the rule provides that a warrant of
arrest will only be issued if the summons in the action has been issued
and a certificate from the arresting party has been submitted to the
registrar:
(a)
stating that the claim is a maritime claim and is one in respect of
which the court has jurisdiction, or will have jurisdiction once the arrest
is effected;
(b)
stating that the property sought to be arrested is the property in
respect of which the claim lies, or an associated ship that may be arrested
in terms of s 3(6) of the AJRA;
(c)
saying whether any security has been given to prevent the arrest or
procure the release of the vessel from arrest and, if so, providing details
of such security;
(d)
certifying that the contents of the certificate are true and correct to
the best of the knowledge, information and belief of the signatory and the
source of such knowledge and information.13

12 Admiralty Rule 4(2)(b).
13 Admiralty Rule 4(3).

[19] In practice the certificate will almost invariably be furnished by the
applicant's attorney, who owes duties to the court as one of its officers.
These duties are particularly onerous where the proceedings are ex parte
as is almost always the case with both an arrest and an attachment ad
fundandam et confirmandam jurisdictionem. The potentially contentious
legal issues in relation to the contents of the certificate are whether the
claim is a maritime claim; whether the court has jurisdiction or will
acquire jurisdiction as a result of an arrest; and, in the case of an
associated ship arrest, whether the target of the arrest is an associated ship
in relation to the ship concerned. One would expect that, if the facts
showed that any of these were potentially controversial, this would be
drawn to the attention of the registrar and the latter would refer the matter
to a judge. Otherwise, the matters set out in the certificate are largely of a
formal nature and not such as to put the registrar on enquiry or require
consideration by a judge.

The decision in The Galaecia
[20] The process outlined above, together with the brevity of the
summons in the case before him, occasioned Combrinck J some concern
in The Galaecia.14 He criticised the summons in that case for its lack of
particularity and perceived non-compliance with the provisions of
Admiralty Rule 2(1)(b). He said that the certificate under Admiralty
Rule 4(3), the requirements for which were summarised in the previous
paragraph, did little to ensure that the arresting party's claim was not
frivolous or spurious, especially as the signatory might have no personal
knowledge of the contents. In regard to the procedure generally he
thought it debatable whether it would pass constitutional muster and

14 Op cit, fn 4.

expressed concern at the time it took to resolve issues concerning the
validity of arrests.

[21]  Combrinck J concluded, by saying:
'In future practitioners would be well advised to ensure that a summons complies with
the provisions of Rule 2(1)(b). In addition, I see no reason why the Certificate in
terms of Rule 4(3) should not be made by a representative of the arresting party who
has knowledge of the matter and that a facsimile of such Certificate accompany the
arrest warrant. With respect to the registrars of this and other Courts, I doubt whether
they have any knowledge whatsoever of Admiralty law. Yet they must decide whether
sufficient facts and contentions are made in the summons for the defendant to know
on what basis for instance, it is said that the defendant vessel is an associated ship of
the ship in respect of which the claim is made. In terms of Rule 4(2)(b), the Registrar
may refer to a Judge the question whether a warrant should be issued. Without of
course wishing to fetter the Registrar's discretion it would appear to me a salutary
precaution for the Registrar in the majority of cases to refer these matters to a judge
for decision. As a matter of practice this should henceforth be done. I have discussed
this matter with a number of senior judges in this Division and they are in agreement
that a practice rule to the above effect should be introduced.'

[22] This judgment led to the introduction of the Directive. It reads:
'27 Admiralty Arrest Warrants in terms of Rule 4(3)
The attention of practitioners is drawn to the fact that Rule 2(1)(a) provides for a clear
and concise statement of the nature of the claim. The certificate with regard to the
warrant in terms of Rule 4(3) provides for a statement by the giver of the certificate
that the contents of the certificate are true and correct to the best of the knowledge,
information and belief of the signatory. The source of any such knowledge and
information must be given.
As the matters to be certified include a statement that the claim is a maritime claim
and that the property sought to be arrested is the property in respect of which the
claim lies or, if the arrest is an associated ship arrest, that the ship is an associated
ship which may be arrested, it is inherent in the nature of the certificate that the
signatory should believe on proper grounds that there is a claim and also that it is

enforceable by the arrest of the property to be arrested. It follows therefore, in the
case of an associated ship arrest, that the certifier believes that the ship is an
associated ship. It is therefore necessary that the summons should contain a statement
of the facts upon which the claim is based and a statement of the facts on the basis of
which it is stated that the ship is an associated ship.
It is desirable that the certificate should be signed by an attorney practising in the
Court out of which the warrant is issued. In order to deal with cases of difficulty
Rule 4(2)(b) provides that the Registrar may refer to a judge the question whether a
warrant should be issued. In the vast majority of cases this is neither necessary,
practicable nor desirable. It should be done in any case of difficulty either in regard to
the claim or in regard to a question of association. In order to assist the Registrar the
responsibility for identifying cases that should be referred to a judge will in the first
instance rest on the attorney providing the certificate. When requesting a warrant,
therefore, the attorney should submit in addition to the certificate required by
Rule 4(3) a statement that the attorney knows of no circumstances making it desirable
to refer the issue of the warrant to a judge. In the absence of such a statement the
Registrar will refer the matter to a judge under Rule 4(2)(b).'

[23] The Directive diverged in significant respects from the judgment in
The Galaecia, in part no doubt because of the representations made by
the Maritime Law Association referred to in a note in the South African
Law Journal that criticised the departure from established practice
occasioned by the practice directive.15 The two principal suggestions in
the judgment, namely that the certificate under Admiralty Rule 4(3) be
made by a representative of the arresting party and that the registrar
should in the majority of cases refer the matter to a judge, were not
included. Like the judgment the Directive emphasised the need for the

15 Darryl Cooke 'The Galaecia' (2007) 124 SALJ 247 at 251. The representatives of the MLA were
D J Shaw QC and M J D Wallis SC. We were informed from the Bar by Mr Wragge SC, who appeared
for Galsworthy, that there is no equivalent practice directive in either the Western Cape or Eastern
Cape divisions of the high court. Cooke's criticism was described as 'well-directed' in Gys Hofmeyr
Admiralty Jurisdiction Law and Practice in South Africa (2d, 2012) at 157, fn 291.

summons to comply with Admiralty Rule 2(1)(b). This merely
emphasised the existing position.

[24]  The Galaecia did not lay down any new rule or provide any
authority relevant to this or any other case. The owner had not sought to
set aside the arrest on procedural grounds.16 It was set aside because the
claim was not a maritime claim.17 The judgment drew attention to the
provisions of Admiralty Rule 2(1)(b) and suggested that three allegations
in the summons were conclusions of law.18 Without elaboration it was
said that the failure to comply with the rule gave rise to practical
problems for the owner seeking to set aside the arrest and procedural
difficulties.19 It criticised the certificate furnished by the attorney because
he had no personal knowledge of the facts being certified as true and
correct. However, the Directive performed a volte face by requiring the
certificate to be given by an attorney practising in the jurisdiction of the
KwaZulu Natal Division. It rejected the automatic referral of applications
to a judge.

[25]  The argument for PSS, and the judgments in the high court at first
instance and the full court, attached far greater significance to The
Galaecia than was warranted. Given that no procedural issue was
addressed in argument and the application was determined on the basis
that the claim was not a maritime claim advanced, the judgment was no

16 The owner was represented by senior counsel experienced in maritime matters.
17 The full court erred in thinking otherwise.
18 This was a mistake as at most the summons contained only two allegations that might be
characterised as conclusions of law. It seems that the judge had in mind the certificate by the attorney
under Admiralty Rule 4(3), which referred to three separate provisions of the AJRA.
19 The court referred to SY Sandokan: Owner of the SY Sandokan v Liverpool and London Steamship
Protection and Indemnity Association Ltd 2001 (3) SA 824 (D) at 827D-828J, and the explanation for
admitting a fourth set of affidavits, to enable the arresting party to respond to the allegations by the
owner of the arrested vessel. It did not suggest that this was problematic. It is by no means unusual for
this to be done in applications to set aside arrests and attachments.

more than an extended obiter dictum concerning procedural issues. It had
no binding effect and was not adopted in terms in the Directive. It
stressed the importance of Admiralty Rule 2(1)(b) without any analysis of
its requirements. It has not been reported and its relative anonymity
should be preserved.

The Practice Directive
[26] The Directive is of greater importance, because it involves a matter
of practice that the high court is entitled to regulate in the exercise of its
inherent powers.20 It does not have the same standing as a rule
promulgated under statutory authority, but it may supplement any rule,
provided that it does not subvert it or the overall scheme of the rules
governing a particular area of practice. Three of the Directive's explicit
requirements are uncontroversial. They are that it is desirable that the
person giving the certificate under Admiralty Rule 2(3) be an attorney
practising in the KwaZulu-Natal Division; that the signatory should
specify the source of their knowledge; and that the signatory should state
that they know of no circumstance making it desirable that the matter be
placed before a judge, failing which the registrar will refer it to a judge.

[27] The only potentially controversial provision was the requirement
that the summons should contain the facts upon which the claim was
based and the facts on which it was stated that a ship was an associated
ship. I say potentially controversial because it is not clear what facts were
being referred to. The two courts below erred in relation to what
constitutes facts for the purposes of a summons and the extent of the facts
required to be embodied in the summons. They demanded more than was
contemplated in the Directive and, in the result, approached the summons

20 Section 173 of the Constitution.

on the stringent basis demanded of a pleading, which is inapplicable to a
summons.

[28] The application to set aside the first arrest focussed entirely on the
adequacy of the writ of summons. It quoted the following allegation from
para 17:
'Parakou Shipping is deemed to be the owner of the 'Jin Kang' in terms of Section
3(7)(c) of the Admiralty Jurisdiction Regulation Act 105 of 1983, as amended.'
The deponent said that 'such a statement is a conclusion of law and not a
statement of fact' and submitted that it did not comply with the practice
directive because it did not satisfy the requirement that 'sufficient
particulars [must be pleaded] to enable the defendant to identify the facts
and contentions upon which the claim is based'. No other part of the
summons was attacked.

[29] I will deal at a later stage with three arguments raised on the merits
of the arrest and the claim that the Pretty Scene was an associated ship in
relation to the Jin Kang. It suffices for present purposes to say that none
raised any dispute in regard to the facts on which Galsworthy relied in
alleging an association. These were that the individual who controlled
Parakou Shipping, at the time the original claim arose and when the first
arbitration award was handed down, was a Mr Por Liu and that he
controlled PSS through being the sole shareholder of its parent company
Parakou Tankers Inc. These allegations were contained in the founding
affidavit in the application for an order that the registrar issue the
warrants of arrest. They were therefore before the judge who granted that
order.

[30]  Although none of this was disputed on the papers before it, the full
court decided that Mr Por Liu did not control Parakou Shipping. It did so
after reading a Singaporean judgment in proceedings where the court held
that, despite all the shares in Parakou Shipping having been transferred by
his parents to Mr Por Liu and an associate in December 2008, his father
Mr CC Liu continued to control the affairs of Parakou Shipping. That was
not an issue before the full court and it was not a finding that the court
was entitled to make. Even if factually correct this was not decisive of the
issue of control in the light of the judgment in the Heavy Metal.21 While
that judgment is controversial, its application was not in issue before
either the full court or this court. On the basis of the distinction it drew
between de facto and de iure control of a company, even if Mr CC Liu
retained de facto control of Parakou Shipping, his son acquired de iure
control, which sufficed for the purposes of the association.

The judgments
[31] Vahed J held that the absence of any factual support for the
allegations in para 17 of the summons rendered it defective in accordance
with the practice directive and the principles espoused in The Galaecia.
He correctly identified that this was the cause for complaint and then
quoted in full the judgment in The Galaecia. After citing two decisions
dealing with pleadings,22 not the contents of a summons, he rejected the
contention that the summons only required the cause of action to be set
out 'in concise terms' and also the submission that the writ of summons
had been authorised by a judge on the basis of an affidavit setting out the
facts in considerable detail. His conclusion was that had the judge's

21 The Heavy Metal: Belfry Marine Ltd v Palm Base Maritime SDN BHD [1999] ZASCA 44; 1999 (3)
SA 1083 (SCA).
22 Trope and others v South African Reserve Bank 1993 (3) SA 264 (A)(Trope) at 273A-B and Buchner
and Another v Johannesburg Consolidated Investment Co Ltd (Buchner) 1995 (1) SA 215 (T) at 216G-
H.

attention been drawn to The Galaecia and the practice directive he would
not have authorised the issue of the writ of summons and the warrant of
arrest. This led him to set aside the arrest without addressing the other
grounds advanced by PSS.

[32] Turning to the full court's decision it is difficult to distil the precise
ground upon which it upheld the high court's judgment. I trust I do it no
injustice in saying that the principal points appear to be the following.
The requirements of Admiralty Rule 2(1)(b) are peremptory.
The Galaecia was the progenitor of the practice directive and was a
binding judgment of the court. In The Galaecia the arrest of the vessel
was set aside on the basis of procedural defects in the summons. The
court rejected the contention that defects in the summons did not matter
as the facts were before the judge at the time he granted the order for the
issue of the summonses and warrants of arrest.23 It held that in any event
the high court had exercised its discretion judiciously in setting aside the
arrest. In this it erred because there was no indication in Vahed J's
judgment that he thought that he was exercising a discretion.

[33] Bar the last item, these were the same reasons that motivated the
high court in reaching its conclusion. There was also a separate section of
its judgment, in which the full court held that the high court was correct
to conclude that association had not been proved on a balance of
probabilities. However, this section did not deal with whether association
was proved on a balance of probabilities, nor did it address any of the
grounds raised by PSS and mentioned in para 29 as reasons why

23 For some reason it went on to express doubts as to whether that was factually the case, on the basis
that the case number of the summons differed from that on the affidavit placed before the judge in the
initial application. This was incorrect as the full court overlooked the fact that this application bore the
case number that it said gave rise to a doubt.

association had not been established. Instead, it relied on the deficiencies
in the summons and certificate by Galsworthy's attorney that had already
been considered. This led it to the conclusion that the summons was
defective and had properly been set aside.

[34] For the sake of completeness, I should mention that the full court
referred to the decisions in Windrush Intercontinental24 and the Cape
Courage.25 However, neither case was concerned with an alleged
deficiency in the summons. Both were opposed applications seeking to
set aside the arrest of the vessels concerned on a full set of affidavits
supported by documents and expert evidence. The question in Windrush
was whether the applicant had established that the claims enjoyed a
maritime lien. In the Cape Courage it was whether, where the ownership
of the ship concerned changed on delivery of the vessel under a sale
agreement, the association had been established. The argument was a
technical one about when the maritime claim arose. Neither case bore
upon the present situation.

The proper approach to Admiralty Rule 2(1)(b)
[35] Given that the decision in relation to the first arrest was based on
The Galaecia and the Directive and their approach to a conventional
application to the registrar for the issue of a warrant of arrest it is best to
start there. The process in such an application was outlined earlier in
paras 16 to 18 of this judgment. Ordinarily the summons will be issued at
the same time as the warrant of arrest. The requirements in respect of a

24 Windrush Intercontinental SA and Another v UACC Bergshav Tankers AS [2016] ZASCA 199; 2017
(30 SA 1 (SCA).
25 MV Cape Courage: Bulkship Union SA v Quannas Shipping Co Ltd and Another [2009] ZASCA 74;
2010 (10 SA 53 (SCA).

summons are contained in Admiralty Rule 2, the relevant portions of
which read as follows:
(1) (a) A summons shall be in a form corresponding to Form 1 of the First Schedule
and shall contain a clear and concise statement of the nature of the claim and of the
relief or remedy required and of the amount claimed, if any.
(b)  The statement referred to in paragraph (a) shall contain sufficient particulars to
enable the defendant to identify the facts and contentions upon which the claim is
based.
(2)  Subject to the provisions of subrule (3), the summons shall set forth the matters
referred to in rule 17(4) of the Uniform Rules.'

[36] Some background to this rule is helpful. Until the AJRA came into
force, our admiralty law and procedure were contained in the Colonial
Courts of Admiralty Act (the CCA) and the Rules promulgated under the
CCA (the CCA Rules). The action in rem was derived from the CCA and
was deliberately preserved in the AJRA. Under CCA Rule 3(1) every
action was commenced by a writ of summons indorsed with the nature of
the claim, the relief or remedy required and the amount claimed, if any.
Forms of indorsement of claims were provided in Appendix 7 to the CCA
Rules. The first example read:
'(1)
Damage by collision
The Plaintiffs as owners of the Ship "Mary" [her cargo and freight &c, or as the case
may be] claim the sum of £ _____ against the Ship "Jane" for damage occasioned by a
collision which took place [state where] on the _____ day of _________ 18__; and
for costs.'
Similar forms of indorsement in respect of salvage, pilotage, towage,
master's wages and disbursements and seamen's wages followed. All
were characterised by the same brevity.

[37] CCA Rule 29 provided that a warrant for the arrest of property in
an action in rem might be issued by the registrar at the time of, or at any
time after, the issue of the summons. The warrant was to be issued on the
filing of an affidavit to lead warrant filed with the court. The affidavit
was required to state the nature of the claim and that the aid of the court
was required. The form of an affidavit to lead warrant was set out in
Appendix 11. It was terse requiring only a statement that the claimant had
a claim against the named vessel and stating the nature of the claim. This
would normally follow the indorsement to the summons. CCA Rule 30
added some simple requirements in respect of three claims. For example,
in an action for wages the national character of the ship had to be
specified and the indorsement had to show that notice had been given to
the consular officer of the state to which the ship belonged, if there was
one residing in the particular colony where the CCA was being invoked.
These did not affect the overall requirement in relation to the nature of
the claim.

[38] The procedure incorporated into the AJRA was simple and
uncomplicated. This was reflected in the original rules. Admiralty
Rule 2(1), which remains in its original form, follows the language of
CCA Rule 3(1). Form 1 to the Admiralty Rules, requiring the concise
terms of the cause of action to be set out in the summons, clearly intended
an endorsement along the lines of those contained in Appendix 7. Insofar
as an arrest was concerned, the requirement of an affidavit to lead warrant
was abolished and replaced by the certificate required under Admiralty
Rule 4(3), which rule has been unaltered since inception. The certificate

is generally to much the same effect as the previous affidavit to lead
warrant.26

[39] The amendment to Admiralty Rule 2(1) by the introduction of
Rule 2(1)(b) merely clarified what was required from a claimant in
providing a clear and concise statement of the nature of the claim.
Sufficient particulars had to be furnished to enable the defendant to
identify the facts and contentions on which the claim was based, but no
more than that. The amendment was not directed at expanding the scope
of Rule 2(1)(a).

[40] In England the requirements in regard to a summons and the issue
of a warrant of arrest are not significantly different. The claim form in an
admiralty claim in rem27 requires only 'brief details of the claim'.
Particulars of claim may be annexed or must follow within 75 days. The
latter is what usually happens.28 A claim for damages for breach of
contract on behalf of eighteen unidentified parties situated at eighteen
different addresses in regard to unspecified goods carried on board a ship
in 1982 was rightly said to be insufficient to give brief details of the claim
as required.29 In another case it was said that the writ should give
sufficient information to enable the recipient to identify the occasion on
which the breach of contract occurred, by identifying the voyage on
which on which the ship was engaged when the cargo was damaged and
the approximate date of the voyage.30 Neither judgment suggested any
greater detail. Nor is the declaration31 in support of an application for the

26 Shaw, Admiralty Jurisdiction and Practice in South Africa 107.
27 Practice Direction 61.3.1 requiring the claim to be in Form ADM 1.
28 Nigel Meeson and John A Kimbell Admiralty Jurisdiction and Practice (4d, 2011) para 4.7, p 144.
29 The "Tuyuti" [1984] 2 Lloyd's Rep 51.
30 The "Jangmi" [1988] 2 Lloyd's Rep 462.
31 Practice Direction 61.5.1 (2) and Form ADM 5.

issue of a warrant of arrest any more stringent. It requires only that the
nature of the claim be stated.

[41] Unlike Rule 17(2) of the Uniform Rules of Court, which
distinguishes between a combined summons and a simple summons, the
latter being used when the claim is for a debt or liquidated demand,
Form 1 to the Admiralty Rules applies to all claims, whether liquid or
unliquidated. Its terms are the same as Form 9 in the First Schedule to the
Uniform Rules. It requires plaintiffs to set out in 'concise terms' their
cause of action. I do not think that the requirement in Admiralty Rule
2(1)(a) that the claim be clear materially adds to this. Clarity and
conciseness are not mutually exclusive. I share Cooke's view32 that:
'It is difficult to think of a situation where a plaintiff sets out the concise terms of the
cause of action, but in doing so does not provide a clear statement of the nature of the
claim in the summons.'

[42] Admiralty Rule 2(2) should not be overlooked. It requires a
summons in admiralty to set forth the matters in Uniform Rule 17(4).
Those are the identification of the defendant – name, address, occupation
and if being sued in a representative capacity, that capacity – and the full
names, gender (if a natural person), residence and, if suing in a
representative capacity, that capacity of the plaintiff. Bearing in mind that
Admiralty Rule 2(3) permitted the plaintiff to be cited as the owner or
insurer of a named ship or cargo, or the owner, master and crew of a
particular ship and Rule 2(4) permitted the property being sued in rem to
be named as the defendant, these are not onerous requirements.

32 Op cit, fn 15, at 252.

[43] A comparison of the Admiralty Rules with the Uniform Rules is
helpful. Long-standing authority holds that a simple summons requires no
more of the plaintiff than a label for the claim, giving a general indication
of the claim the defendant has to meet.33 It does not require the
particularity or precision of particulars of claim. The similarity between
the language of Admiralty Rule 2(1)(a) and Form 1, and their
counterparts in the Uniform Rules, suggests that little more should be
required in Admiralty. Under the Uniform Rules an unliquidated claim
requires a summons to which are attached particulars of claim. In
admiralty no distinction is drawn between a liquidated and unliquidated
claim and no pleadings are required unless the action is opposed.34 This is
consistent with the earlier admiralty practice where pleadings were only
required if ordered by the court.35 Provided the nature of the claim – not
necessarily a complete cause of action – appears from the summons that
appears to suffice.

[44]  Did the introduction of Admiralty Rule 2(1)(b) alter this in the
manner suggested in The Galaecia? The rule's wording is unfortunate, in
that it borrowed from Uniform Rule 18(4), which deals with the
requirements of pleading in a set of particulars of claim or a declaration
accompanying a combined summons. This led the high court in this case
to cite the two judgments dealing with the requirements of pleadings
referred to earlier.36 However, neither addressed the problem before it,

33 See the general discussion in Globe Engineering Works Ltd v Ornelas Fishing Co (Pty) Ltd 1983 (2)
SA 95 (C).
34 Admiralty Rule 9(1).
35 Incorporated General Insurance Ltd v Shooter t/a Shooter's Fisheries 1987 (1) SA 842 (AD) was
conducted under the AJRA without pleadings under the rules applicable before the Admiralty Rules
were promulgated.
36 Op cit, fn 29 and 30.

not least because they dealt with pleadings, not the contents of a
summons, and a summons is not a pleading.37

[45] The first judgment, Trope, is authority for the proposition that one
pleads facts and not conclusions of law, unless they flow from those facts.
But, in a summons, the plaintiff is not required to plead its case. The rule
requires it to set out sufficient particulars to enable the defendant to
identify the facts and contentions upon which the claim is based. Neither
the facts nor the contentions need be set out in the summons provided the
defendant has sufficient particulars to identify them. To hold otherwise
would require the summons to assume the form of particulars of claim,
which are not required unless the action is defended. That seems,
however, to have been the consequence of The Galaecia and the
Directive, if this case is any guide. The summons runs over six pages and
twenty paragraphs, with two annexures adding another sixteen pages.
That is hardly consistent with a concise statement of the nature of the
claim.

[46] Buchner is a very confusing judgment. A summons in the format
prescribed in form 9 stated that the defendant owed the plaintiff the
amount claimed 'pursuant to an agreement' concluded on a specified date.
The court held that it could not provide a proper foundation for a claim
for summary judgment, because an affidavit confirming the validity of
the claim was ineffective unless the terms of the agreement giving rise to
the defendant's liability had been set out. In concluding that the 'label'
was insufficient the court relied upon the provisions of rule 18(4). This
was incorrect as the stage of pleadings had not been reached, so that rule

37 Icebreakers No 83 (Pty) Ltd v Medicross Health Care Group (Pty) Ltd 2011 (5) SA 130 (D),
followed in the cases cited in ABSA Bank Ltd v Janse van Rensburg and another 2013 (5) SA 173
(WCC) para 5.

was inapplicable. Whether the result was correct, because the label was
insufficient to support a claim for summary judgment, is neither here nor
there. It had no relevance to the issue in this case.

[47] To sum up, Admiralty Rule 2(1)(a) requires only a clear and
concise statement of 'the nature of the claim'. A clear and concise
statement of the material facts on which the claim is based, with
sufficient particulars to enable the other party to reply thereto, is only
required when it becomes necessary to file particulars of claim.38 By way
of example therefore, a statement that the claim is for damage to cargo
under a bill of lading; or for hire due under a charterparty; or for salvage
of a named vessel or cargo; or for collision damage to a named vessel;
satisfies that requirement. Sub-rule (b) requires that sufficient particulars
of the claim are given to enable the defendant to identify the facts and
contentions on which the claim is based. In the examples given, that can
be achieved by identifying the bill of lading; identifying the charterparty;
identifying the vessels involved in the collision and saying when and
where it took place; or saying what was salvaged and whether this was in
terms of a salvage agreement. This is slightly more detailed than is
necessary to satisfy the 'label' requirement of a simple summons under the
Uniform Rules, but not much. Beyond the few pertinent facts needed to
satisfy this requirement, the rule does not require the facts upon which the
claim is based to be furnished.

[48] The aim of Admiralty Rule 2(1) is to ensure that the registrar, the
defendant, and the court seized of the matter if it is not defended and no
pleadings were filed,39 would know in broad terms what the claim was

38 Admiralty Rule 9(3)(a).
39 Admiralty Rule 9(1).

about. It was not intended that the summons should be equivalent to a set
of particulars of claim, which is what occurred in the present case. That
would fly in the face of Admiralty Rules 9(1) and (2), which direct that
particulars of claim are only delivered when the action is defended. It
accords with the historic approach of admiralty cases that they should be
dealt with quickly,40 inexpensively and relatively informally. This is
reinforced by the fact that in admiralty cases there are no requests for
particulars and no exceptions on the grounds that a pleading is vague and
embarrassing.

[49]  The approach in The Galaecia and the Directive has occasioned
uncertainty in regard to the requirements of Admiralty Rule 2(1)(b) and
led to precisely the situation that the rules were intended to avoid, namely
excessive and unnecessary prolixity in drafting summonses. The
Directive has created confusion in regard to the facts needed to be set out
in the summons. Equally unclear was the requirement to state the facts on
which an associated ship arrest was based. Did this require the same, or
possibly more, detail than a set of particulars of claim? No-one knew.
And the consequence of this uncertainty was the taking of technical
objections to arrests, such as the procedural objection in this case that has
now engaged the attention of four courts.

[50] The time has come to end this confusion and to return admiralty
practice to the simplicity the Admiralty Rules intended it to have. The
Directive acted as a wholesome corrective to some of the views expressed
in The Galaecia and is in general unimpeachable. Regrettably the one
sentence reading:

40 Between tide and tide was the historical description.

'It is therefore necessary that the summons should contain a statement of
the facts upon which the claim is based and a statement of the facts on the basis of
which it is stated that the ship is an associated ship'
has been the source of confusion. A well-meaning attempt to convey to
practitioners that achieving what Rule 2(1) required necessitated enough
information to enable the defendant to identify in broad terms the facts
and contentions on which the claim was based, has been misconstrued. In
the present case, a reference to and identification of the two awards
without more would have sufficed to indicate the nature of the claim.
Instead, the Directive has been taken to require, and been interpreted by
two courts as requiring, the kind of detail that should appear in particulars
of claim. The only way in which to remedy this is to say that the final
sentence in para 2 of the Directive is inconsistent with the requirements
of the rule and is no longer to be followed. There is no reason to qualify
any of the other requirements of the Directive.

The summons was not defective
[51] The summons contained twelve paragraphs dealing with the two
arbitration awards, both of which were annexed. The defendant therefore
knew the nature of the claim against it and the facts on which it was
based. It was only necessary for Galsworthy to say that it suffered
damages as a consequence of the repudiation of a charterparty and these
damages had been quantified in the two identified arbitration awards in
proceedings between Galsworthy and Parakou Shipping. Everything else
was surplusage.

[52] As far as association was concerned, the summons made repeated
references to the repudiated charterparty between Galsworthy and
Parakou Shipping. The pleaded reliance on s 3(7)(c) was unmistakeably

based on this. Even assuming that para 17 of the summons was a
conclusion of law, it was one that followed inevitably from the factual
allegations concerning the charterparty. The summons said that Parakou
Shipping was the charterer of the Jin Kang and referred to the statutory
provision deeming the charterer to be the owner. The basis for reliance on
s 3(7)(c) was clear. The defendant was apprised of the facts and
contentions on which the claim that it was an associated ship was based.
It was not entitled to anything more. Accordingly, the summons was not
defective on the basis advanced in the application to set aside the arrest.

[53]  No attack was mounted on the following allegation reading:
'The Defendant is an associated ship of the mv "Jin Kang" as defined in terms of
Section 3(6) and (7) of the Admiralty Act. The Plaintiff's claims are accordingly
enforceable by an action in rem against the Defendant.'
For the avoidance of doubt, it is desirable to deal with this. I do not
regard this as purely a conclusion of law. It is primarily one of fact,
because it is necessarily implicit in it that PSS fitted one of the three
categories set out in s 3(7)(a) of the AJRA.41 All are concerned with
control of the two vessels at the critical times. Either the two vessels have
the same owner; or the owner of the one and the person controlling the
company owning the other are the same; or the person controlling the two
ship-owning companies at the statutorily relevant times are the same.42
This is not an allegation that is in any way bewildering to the owner of
the arrested vessel, who will undoubtedly know whether any of these
situations is in fact the case. The allegation did not come as any surprise
to PSS, as is apparent from the founding affidavit in the application to set
aside the first arrest. Nonetheless it studiously avoided dealing with the

41 Owners of the MV Silver Star v Hilane Ltd [2014] ZASCA 194; 2015 (2) SA 331 (SCA) para 14.
42 It would be unusual, but there is no reason in principle why in a pleading the three possibilities could
not be pleaded in the alternative.

allegations of common control implicit in the summons and explicitly
made in the founding affidavit in support of the application for an order
that the registrar issue the warrants of arrest. This allegation also satisfied
the requirements of Rule 2(1)(b).

[54] For those reasons, even on the basis of the requirements of the
practice directive and The Galaecia as construed in the courts below, the
summons was not defective.

Summary on the procedural objection
[55]  It follows that for the reasons set out in para 10 and amplified
above, the summons was not defective and the warrant of arrest under
which the Pretty Scene was arrested was valid. Subject to the arguments
on the merits, which the judge did not decide, the arrest should not have
been set aside at first instance and the full court should not have
dismissed the appeal against that order. I turn then to deal with the
arguments on the merits.

Association
[56] If its procedural objection was dismissed, PSS contended that the
Pretty Scene was not in fact an associated ship in relation to the Jin Kang.
The focus of the objection was the application of s 3(7)(c) in relation to
the Jin Kang. In regard to the underlying claim based on repudiation of
the charter party – the conclusion of which was not disputed – it alleged
that as Parakou Shipping had refused to take delivery of the vessel it
never became the charterer for the purposes of s 3(7)(c). As regards the
claims under the arbitration awards it contended that at the stage of those
awards Parakou Shipping was no longer the charterer of the Jin Kang.
Lastly it contended that at the time the second arbitration award was

handed down Parakou Shipping had been placed in voluntary liquidation
in Singapore and accordingly was no longer controlled by Mr Por Liu but
by the liquidators.

[57] Each of these arguments depended upon the proper construction of
s 3(7)(c) of the AJRA, but in order to appreciate the point it is necessary
to examine s 3(7)(a) as well. The two sections read as follows:
'(7)(a) 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.
(c) If at any time a ship was the subject of a charter-party the charterer or
subcharterer, as the case may be, shall for the purposes of subsection (6) and this
subsection be deemed to be the owner of the ship concerned in respect of any relevant
maritime claim for which the charterer or the subcharterer, and not the owner, is
alleged to be liable.’

[58] Sub-section 3(7)(a)(iii) was the provision relevant to Galsworthy's
claims. The Pretty Scene was owned at the time the action was
commenced by a company that was controlled by Parakou Tankers Inc,
which was in turn controlled by its sole shareholder, Mr Por Liu. Where
the charterer is personally liable for the claim it is deemed in terms of
s 3(7)(c) to be the owner of the ship concerned for the purposes of an
associated ship arrest. In order therefore for the Pretty Scene to be an
associated ship in relation to the Jin Kang it was necessary that Mr Por
Liu should have controlled the charterer Parakou Shipping at the time the

claims arose. That is how this court explained the provisions of ss 3(7)(a)
and (c) in the Silver Star.43

[59] A new submission, advanced for the first time in this court, was
based on the judgment in the Seaspan Grouse,44 where it was held that
the action commenced on the date of service, rather than the date of issue,
of the summons. It was submitted that no evidence had been led to show
who controlled PSS at the time of service of the summons. It will be
recalled that the shares in PSS were wholly owned by Parakou
Tankers Inc and when the order for the arrest was sought it was alleged
that Mr Por Liu was the sole shareholder in Parakou Tankers Inc. This
was admitted in the application to set aside the arrest. The attorney who
deposed to the founding affidavit said that his instructions came inter alia
from Mr Por Liu, 'the Director and President' of PSS. There was no
suggestion that his position in regard to either Parakou Tankers Inc or
PSS had altered in the interim. Had that been alleged Galsworthy would
have been entitled to respond to it. There was no merit in this point.

The original claim
[60] PSS contended in regard to the original claim based on the
repudiation of the charterparty that Parakou Shipping never became the
charterer of the Jin Kang. It submitted that for this reason the deeming
provision could not be invoked against it. The difficulty with this
submission was that in the First Final Arbitration Award dated 31 August
2010 the appointed arbitrators declared:
‘… that the parties entered into a legally binding charter party as a result of the
ratification by the Charterers of the terms set out in the recapitulation messages of 17

43 Op cit, fn 41, paras 14 and 16.
44 The Seaspan Grouse: Seaspan Holdco 1 Ltd v MS Mare Traveller Schiffahrts GmbH [2019] ZASCA
2; 2019 (4) SA 483 (SCA).

and 18 June … and that the Charterers are accordingly in repudiatory breach of
charter.’
The finding that there was a binding charterparty binds PSS. Until the
repudiation was accepted that charterparty existed, albeit that Parakou
Shipping was in repudiatory breach thereof. While technically its claim
for damages would only have arisen at the moment the repudiation was
accepted, in the Cape Courage,45 the correctness of which was not
challenged, it was said:
'… when a claim has 'originated' and enough factors are present to indicate that the
owner or controller of the ship concerned at that time (or those for whose actions or
omissions it is liable) has 'offended', … another ship owned or controlled by that
person when the claim is enforced may be arrested in respect of the claim. Damage
resulting from the offending actions or omissions by the owner or controller (or for
which it is liable) may not yet have been suffered but if it is clear that it will in due
course be suffered, I think that it is not stretching language to say that the claim has
"arisen".'
This broad, one might say practical, approach to when a claim arises
suffices to dispose of the objection insofar as it related to the original
claim for damages.

[61] In its heads of argument in this court and before the full court, PSS
advanced an alternative argument that the original claim had been
extinguished as a matter of English law in consequence of the two
arbitration awards. The contention that English law applied relied on the
choice of law clause in the charterparty and the provisions of s 6(1) of the
AJRA. The proposition that the claim had been extinguished by the award

45 MV Cape Courage: Bulkship Union SA v Quannas Shipping Co Ltd and Another [2009] ZASCA 74;
2010 (1) SA 53 (SCA) para 23.

was based on a passage from the speech of Lord Goff of Chieveley in The
Indian Grace (No 1).46

[62] As to the first of these, the arbitration clause in the charterparty
provided that 'English law shall apply.' PSS argued that this clause was
effective by virtue of s 6(5) of the AJRA and operated to make s 34 of the
English Civil Jurisdiction and Judgments Act 1982 applicable to the
awards, thereby resulting in the original claim becoming merged with the
arbitration awards. I am not persuaded that this proposition is correct. A
choice of law clause in a charterparty serves to identify the legal system
that will apply to the dispute between the parties. It does not ordinarily
serve to identify the law governing the conduct of the arbitration
proceedings or the consequences of an arbitration award. That is
determined by the law of the seat of the arbitration, in this case, England,
where the Arbitration Act 1996 (1996, c 23) would apply. English law
would have applied to the resolution of the charterparty dispute even if
the seat of the arbitration had been Singapore or South Africa. But that
would not have brought the provisions of either the English Arbitration
Act or the Civil Jurisdiction and Judgments Act into play. The argument
accordingly stumbles at the first hurdle. But even if it did not, it would
fall at the second.

[63] The passage from the speech of Lord Goff was contrasting a
discussion on the principles of res judicata and issue estoppel in English
law, with the doctrine of merger. It reads:
' The principle, which is sometimes called the doctrine of merger in judgment, is that
a person—

46 The Indian Endurance: Republic of India and others v India Steamship Co Ltd [1993] 1 All ER 998
(HL) at 1003-1004. It is known as The Indian Grace because that was the name of the ship on which
the damaged cargo giving rise to the claim was carried.

"in whose favour an English judicial tribunal of competent jurisdiction has
pronounced a final judgment … is precluded from afterwards recovering before any
English tribunal a second judgment for the same civil relief on the same cause of
action …"
(See Spencer Bower and Turner on the Doctrine of Res Judicata (2nd edn, 1969)
p 355, para 423.)
The basis of the principle is that the cause of action, having become merged in the
judgment, ceases to exist, as is expressed in the Latin maxim transit in rem judicatam'
After explaining that the principle did not apply to a foreign judgment,
although it could give rise to both res judicata and issue estoppel, Lord
Goff went on to say:'
It was to remove this anomaly that s 34 of the Civil Jurisdiction and Judgments Act
1982 was enacted. This provides:
"No proceedings may be brought by a person in England and Wales or Northern
Ireland on a cause of action in respect of which a judgment has been given in his
favour in proceedings between the same parties, or their privies, in a court in another
part of the United Kingdom or in a court of an overseas country, unless that judgment
is not enforceable or entitled to recognition in England and Wales or, as the case may
be, in Northern Ireland."'

[64] Two points emerge from this passage. The first is that the principle
of merger that concerned Lord Goff related to the effect of a judgment by
an English court, not an arbitration. The second is that s 34 applies to
judgments of foreign courts not arbitration awards. This disposed of the
alternative argument.

[65] For the sake of completeness an argument that an English
arbitration award had a similar effect to the doctrine of merger in
judgment was advanced and rejected in the Silver Star.47 Counsel did not
submit that we should depart from that decision and, having reviewed

47 Op cit, fn 41, paras 21-32.

what I said there, I can see no reason to do so. The argument that the
claim for damages for repudiation of the charterparty no longer exists
must fail.

The arbitration awards
[66] The Silver Star48 held that the intervention of an arbitration award
did not mean that the ship in respect of which the claim had originally
arisen was no longer the ship concerned for the purposes of an arrest.
Accordingly, the Jin Kang is the ship concerned in determining whether
the Pretty Scene is an associated ship in relation to it. But Parakou
Shipping was no longer the charterer of the Jin Kang when the two
arbitration awards were made. PSS argued that for this reason Parakou
Shipping's deemed ownership of the Jin Kang had ceased, so that it was
not the owner of the ship concerned when the claims arose.

[67] When does the claim on an arbitration award arise? In its heads of
argument PSS submitted that the AJRA contemplates that an arbitration
award is a 'self-standing' claim not dependent upon the merits of the
underlying claim. But that does not mean that the claim on the arbitration
award can be detached from the underlying claim. In the Yu Long
Shan,49 Marais JA described a claim based on an arbitration award as an
entirely derivative cause of action. By that he meant that there must be an
underlying claim that is essential to the existence of an award. This is also
apparent from sub-sec (aa) of the definition of a maritime claim50 which
refers to a claim for, arising out of or relating to:

48 Op cit, fn 41, para 32.
49 MV Yu Long Shan: Drybulk SA v MV Yu Long Shan 1998 (1) SA 646 (SCA) at 653F-H. See also MV
Ivory Tirupati: MV Ivory Tirupati v Badan Urusan Logistik (aka Bulog) 2002 (2) SA 407 (C) at
419 C-D.
50 AJRA, s 1(1) s v 'maritime claim'.'

'any judgment or arbitration award relating to a maritime claim, whether given or
made in the Republic or elsewhere'. (Emphasis added.)
An arbitration award alone is not a maritime claim. Only one that has the
quality of 'relating to a maritime claim' is a maritime claim. It does not
suffice to allege that an arbitration award has been made. It is necessary
to plead and prove that it was an award in relation to a maritime claim.
The two are inextricably tied together. The arbitration award is the
determination of the existence and extent of the pre-existing liability in
respect of that maritime claim. It is a distinct claim in the sense that its
fate is not dependent on the merits of the underlying maritime claim and
proof of such a claim requires proof of different elements to the original
claim,51 but in considering when that claim arises for the purposes of an
associated ship arrest it is necessary to have regard to the underlying
claim.

[68] The claim on which the award is based must necessarily have
arisen before the award was made and the award refers back to the
original claim. If one applies the logic of the Cape Courage in that
situation, then the claim on the award arises at the same time as the
original claim on which the award is based. That conclusion disposes of
the objections in relation to the awards.

[69]  There is, however, an even stronger reason for saying that the
objection is unsound. It flows from the language of s 3(7)(c) itself and the
scope of its deeming provision. The charterer is deemed to be the owner
of the ship concerned 'in respect of any relevant maritime claim for which
the charterer and not the owner is alleged to be liable'. The ship

51 MV Ivory Tirupati: MV Ivory Tirupati v Badan Urusan Logistik (aka Bulog) 2003 (3) SA 104 (SCA)
para 32.

concerned is the Jin Kang. The relevant maritime claims are, in the first
instance the underlying claim giving rise to the awards, and secondly the
claims based on the awards, of which the underlying claim is an essential
component. The charterer is the person personally liable for those claims.
Section 3(7)(c) says that, for the purposes of an associated ship arrest in
relation to those claims, the charterer is deemed to be the owner of the
ship concerned. PSS submits that this is irrelevant because it was not the
charterer when the arbitration awards were made. But the deeming is for
the purpose of s 3(7)(a), and the sole concern of s 3(7)(a) is ownership of
the ship concerned at the time the maritime claim arose. It follows that
the deeming must be a deeming of ownership when the claim arose,
because no other situation is relevant under s 3(7)(a). On PSS's argument,
the deeming would still exist, but it would be a 'deeming in the air',
because of an unexpressed qualification attaching to it. There is no
justification for that construction in the language of the section.

[70]  The opening words of s 3(7)(c), namely, 'if at any time a ship was
the subject of a charterparty', reinforce this. PSS's contention would add a
qualification to these words, namely: 'If at the time the claim arose a ship
was the subject of a charterparty'. Not only is such reading-in not justified
on ordinary principles of interpretation, but it would undermine the
purpose of introducing the deeming, namely to make a vessel under the
control of the erstwhile charterer liable to be arrested as an associated
ship in relation to a claim against the charterer.52 The critical feature for
the purposes of the deeming is that the ship concerned was under charter

52 Silver Star op cit, fn 41, para 15.

and the claim is one for which the charterer is liable. It is not concerned
with whether the claim arose while the charterparty remained extant.53

[71] When the claim lies against the owner of the vessel, the fact that
their ownership has terminated subsequently, or even that the vessel no
longer exists, is neither here nor there. They were the owner at the time
the claim arose and that is an end to the matter. The purpose of the
deeming provision is to place the charterer who is liable for the claim in
the same position as the owner. The vessel was under charter and the
charterer, and not the owner, was liable for certain claims arising in
relation to the vessel. Accordingly, for the purpose of identifying an
associated ship that may be pursued in respect of that claim they will be
deemed to be the owner of the ship when the claim arose. PSS's second
argument cannot be sustained.

The liquidation
[72] In regard to the second arbitration award PSS had a further string
to its bow. It arose from the fact that before the second arbitration award
was handed down Parakou Shipping had been placed in voluntary
winding up in terms of the Singapore Companies Act (Cap 50, Revised
2006). It was submitted that the effect of this was that at the time the
claim arose Parakou Shipping was no longer controlled by Mr Por Liu,
but by the liquidators.

[73] The fallacy in this contention is that it assumes that the claim under
the second arbitration award arose when the award was made. This seeks
to separate it from the arbitration process that led to the first award. Such

53 MV F Elephant: Gulf Sheba Shipping Ltd v MV F Elephant and Others 2012 (3) SA 633 (WCC) para
23 and 28. I do not agree with the proposition in the latter paragraph that this interpretation does not fit
comfortably in the scheme of the AJRA.

separation is impermissible. There was only one arbitration process
arising out of one referral under the charterparty. At the end of the initial
hearing the first award was made and the question of further damages was
reserved for future determination.54 Accordingly the claim being
adjudicated in the second award was the claim that had been the subject
of the initial reference and the first award. That claim arose at the same
time as the claim in the first award. For the reasons given in relation to
the first award this objection too cannot be sustained.

The additional arguments
[74] PSS contended in the application to set aside the first arrest that the
original claim for damages for repudiation of the charterparty had
prescribed in terms of the English Limitation Act 1980. I do not think it
necessary to canvass the merits of this argument. On its own it is not a
ground upon which the arrest could be set aside. Prescription, or
limitation as it is referred to in some other jurisdictions, usually requires a
careful consideration of the facts surrounding the claimant's endeavours
to pursue a claim. The original claim related to the repudiation of a
charterparty concluded between companies operationally based in Hong
Kong and Singapore. Whether the choice of English law to govern the
contract imports the English Limitation Act is by no means clear. It is one
thing to say that the claim could not be pursued in an English court, but
all that the statute appears to do is bar, not extinguish, the claim. We
received no argument on why a South African court would be bound by
an English statute governing limitation, if our own law would not regard
the claim as prescribed. If limitation is viewed as a procedural question,
the ordinary principle that the procedural rules of other jurisdictions are

54 Para D of the First and Final Award reads:
'WE RESERVE jurisdiction to deal with all outstanding issues in the arbitration, including all
remaining issues as to quantum and all issues as to costs.'

not enforced by our courts would come into play. It seems to me that the
point is one that can only be resolved at trial on a full conspectus of the
facts. It is a defence on the merits and does not form a basis for setting
aside the arrest.

[75] Many of these considerations point to the same conclusion in
relation to the further contention that the claim for damages is res
judicata in consequence of the arbitration awards. In any event, if that is
so, it is unclear how it assists PSS or why it should lead to the arrest
being set aside. If anything, it would prevent PSS from disputing liability
for the claim.

Conclusion on the first arrest
[76] For the reasons set out above the procedural objection that formed
the main ground of objection to the first arrest should not have been
upheld and the arguments challenging the association on its merits were
without merit. The other two points raised in the affidavit in support of
the application to set aside the arrest did not, whatever their merits,
suffice to justify the setting aside of the arrest.

[77]  It follows that on every ground advanced in the papers, whether or
not dealt with in the judgment, the arrest of the Pretty Scene should not
have been set aside. Nor should the judgment have been upheld on appeal
by the full court. However, one cannot, without more, conclude that the
appeal in that regard must be upheld.

[78]  The reason for this slightly surprising statement is that the second
arrest occurred because it was correctly anticipated that the first arrest
would be set aside. The application brought to set aside that arrest raised

several additional issues that had not been part of the argument in the first
case and the full court reached conclusions on them in upholding the
appeal against the judgment of Henriques J. Some of these new issues,
albeit not raised in the first application, overlap with the issues in that
application. In this appeal no clear distinction has been drawn between
the first and the second arrest in advancing the arguments and it has been
submitted indiscriminately that both appeals should fail on all the grounds
argued. It was correctly submitted that PSS was entitled to advance any
legal argument open to it on the papers to sustain the judgment of the full
court in relation to both appeals.

[79] This gives rise to the curious situation that on the grounds
advanced in the application to set aside the arrest and the arguments
advanced before Vahed J the arrest should have been sustained. Had that
occurred there would have been no call to maintain the second arrest
obtained two days before his judgment. The certificate in terms of
Admiralty Rule 4(3) stated expressly that Galsworthy would withdraw
the second action if the first arrest was sustained and its existing action
were held to be valid. In that event, the new arguments that were
advanced in the application to set aside the second arrest and canvassed
before the full court and this court, would probably never have seen the
light of day. However, it is necessary, with as little repetition as possible,
to deal with these arguments, and any that arose specifically in relation to
the second arrest. This will affect the order we make and possibly also
questions of costs.  I turn then to deal with the second arrest.

THE SECOND ARREST
[80] Galsworthy applied to the registrar for the issue of a warrant of
arrest and this was granted without the matter being referred to a judge.

At the outset of her judgment Henriques J summarised the grounds upon
which PSS applied to set aside the arrest. The only grounds not common
to the application to set aside the first arrest were:
(a)
that the second arrest was an abuse of process and both the issue of
the fresh summons and the application for the issue of the warrant of
arrest should have been referred to a judge;
(b)
Section 299(1) of the Singaporean Companies Act imposed a
moratorium on the enforcement of Galsworthy's claims;
(c)
In terms of ss 3(6) and (8) of the AJRA it was not permissible for
Galsworthy to arrest the Pretty Scene for the same debt, while the original
arrest was still in place.

Abuse of process
[81] The basis for this contention was set out in the founding affidavit
in the application to set aside the second arrest. It claimed that it was
prima facie vexatious to issue and serve a second summons for the same
relief on the same cause of action while the first action was still pending.
This was particularly so given the nature of the action. Furthermore it was
deliberately concealed from Vahed J and from PSS so as to constitute a
material non-disclosure. Finally, it was said that Galsworthy already had
sufficient security for its claims as a result of steps taken by the
liquidators of Parakou Shipping in Singapore resulting in security in
excess of its claims being provided.

[82] The underlying premise of this was that it was an abuse of process
for Galsworthy to take steps to protect its position in the event of the first
arrest being set aside. It was not suggested that there was any legal bar to
it seeking a second arrest. The permissibility of a second arrest in those

circumstances has been recognised since 1842.55 The cases where it was
held that a duplication of proceedings constituted an abuse of process,
were cases in which an issue had been fully litigated before one court and
the losing party then sought to relitigate them in other proceedings.56 That
was not the situation here. The second action was instituted in
anticipation of the first arrest being set aside. The warrant was only
served two days before Vahed J delivered his judgment. There was an
undertaking to withdraw the second arrest and summons if the first was
held to be valid. None of that is indicative of an abuse. The defence of lis
alibi pendens was available to PSS if Galsworthy did not fulfil its
undertaking. There was no risk of double security having to be furnished.
There was no ulterior purpose underlying the arrest.57 It was being used
for its intended purpose of commencing an action in rem.

[83] The complaint that Vahed J was not informed of the second arrest
was without substance. He was not concerned with what Galsworthy
intended to do in anticipation, or in consequence, of his judgment. It
could not have affected the judgment. The proceedings before him were
complete, save for the issue of the judgment. If anything, approaching
him in relation to the second arrest might have been seen as an attempt to
influence or interfere with his judgment. There was no need to refer the
application for the issue of the summons and warrant to a judge. Had it
been referred, the fact that an arrest already existed and that the
application was brought in anticipation of that being set aside, would not
have provided grounds for refusing to instruct the registrar to issue the

55 Roberts v Tucker (1828-1840) 3 Menzies 130.
56 See the authorities referred to in Caesarstone Sdot-Yam Ltd v The World of Marble and Granite 2000
CC and Others [2013] ZASCA 129; 2013 (6) SA 499 (SCA) paras 45 – 48.
57 Hudson v Hudson and Another 1927 AD 259 at 268.

summons – its perceived flaws having been remedied – and the warrant
of arrest.

[84] An allegation of abuse of process is not lightly upheld,58 especially
given the constitutionally protected right of access to courts. The only
point raised in this regard that might give pause was the allegation that
Galsworthy already held sufficient security for its claims. It transpired
from its answering affidavit that the allegation was not correct. Arising
out of Mareva injunctions, security had been given to the liquidators of
Parakou Shipping in Singapore in respect of claims against its former
directors and associated entities. It was not security available to
Galsworthy to execute on the arbitration awards. Any advantage accruing
to it was indirect and dependent on the outcome of that litigation and the
execution on that security by the liquidators. In its only reference to the
abuse of process argument the full court said that this security provided
security for the claims of all the creditors including Galsworthy. That was
incorrect as was the statement that it sufficed to cover all the claims by
Galsworthy. For those reasons the abuse of process argument was
correctly rejected by Henriques J.

The moratorium
[85] It is unclear whether the full court upheld this argument. It
depended on the application of a moratorium granted to Parakou Shipping
under Singaporean law having worldwide effect. Ordinarily statutes have
territorial effect only and the statutes of one country do not apply

58  MV Alina II (No 2): Transnet Ltd v The Owner of the MV Alina II [2011] ZASCA 129; 2011 (6) SA
206 (SCA) para 10.

elsewhere in the world.59 Section 299 has no binding effect in South
Africa unless the liquidators in Singapore have sought and been granted
recognition in this country on terms that would impose a moratorium not
only in respect of direct claims against Parakou Shipping, but also claims
against vessels owned by other companies and arrested as associated
ships.60 That is not the case and there is no merit in this point.

Sections 3(6) and (8) of the AJRA.
[86] Section 3(8) of the AJRA provides that:
'Property shall not be arrested and security therefor shall not be given more than once
in respect of the same maritime claim by the same claimant.'
The wording of the section is adapted from the opening words of Article
3(3) of the Arrest Convention, 1952,61 which reads:
'A ship shall not be arrested, nor shall bail or other security be given more than once
in any one or more of the jurisdictions of any of the Contracting States in respect of
the same maritime claim by the same claimant: and, if a ship has been arrested in any
of such jurisdictions, or bail or other security has been given in such jurisdiction
either to release the ship or to avoid a threatened arrest, any subsequent arrest of the
ship or of any ship in the same ownership by the same claimant for the maritime claim
shall be set aside, and the ship released by the Court or other appropriate judicial
authority of that State, unless the claimant can satisfy the Court or other appropriate
judicial authority that the bail or other security had been finally  released before the
subsequent arrest or that there is other good cause for maintaining that arrest.'
The context of this provision of the Convention, which was an agreement
between States, was the possibility of multiple arrests in multiple
different countries arising out of the same maritime claim. In the United
Kingdom and jurisdictions applying English maritime law an action in

59 Chancellor. Masters and Scholars of the University of Oxford v Commissioner for Inland Revenue
1996 (10 SA 1196 (A) at 1250F-H; American Soda Ash Corporation CHC Global (Pty) Ltd v
Competition Commission of South Africa and Others 2003 (5) SA 633 (CAC) para 17.
60 Ward and Another v Smit and Others: In re Gurr v Zambia Airways Corporation Ltd 1998 (3) SA
175 (SCA) at 179D-J; CMC v CIPC and Others [2020] ZASCA 151 para 32.
61 International Convention Relating to the Arrest of Sea-Going Ships (Brussels, May 10, 1952).

rem could only be pursued against the ship in respect of which the
maritime claim arose. In other countries any property could be attached
provided it was owned by the person liable on the claim. Article 3(1) was
a compromise between these two situations in permitting the arrest not
only of the particular ship in respect of which the maritime claim arose,
but also any other ship owned by the same person as the owner of the
particular ship. Article 3(3) was directed at the possibility of multiple
arrests in different countries with security having to be furnished several
times in respect of the same claim.62

[87] The background to s 3(8) of the AJRA was fundamentally different
from that of the Arrest Convention. Prior to the enactment of the AJRA,
if a ship was arrested in rem, either the ship would stand as security, or
any bail furnished to secure its release would stand in its stead,
precluding a further arrest.63 Similarly once a vessel had been attached ad
fundandam et confirmandam jurisdictionem either it remained under
attachment, or security would be furnished for its release. Save in unusual
circumstances,64 a second attachment was impermissible. When the
AJRA was enacted s 3(8) stated the general rule in admiralty, but made it
subject to the power of the court to order increased security and authorise
the arrest of property under s 5(2)(d).65

[88] Construing s 3(8) as if it were a statutory enactment of Article 3(3)
of the Arrest Convention in South Africa is therefore inappropriate. South

62 C/f Inter Maritime Management SA v Companhia Portuguesa de Transportes Maritimos EP 1990 (4)
SA 850 (AD) (the H Capelo) where the appellant had attached two different vessels in different
jurisdictions in South Africa and two other vessels in Senegal in respect of the same claim. For a more
detailed discussion see Wallis The Associated Ship and South African Admiralty Jurisdiction 231-235.
63 The Christiansborg (1885) 10 PD 141 (CA) at 152, 154 and 155-6; The Point Breeze [1928] P 135;
The Daien Maru No 18 [1986] 1 Lloyd's Rep 387.
64 See the H Capelo op cit, fn 62.
65 Shaw, op cit, fn 26, p 67.

Africa is not a party to the Convention and the extensive list of maritime
claims in the AJRA, as well as the associated ship arrest provisions,
would preclude our membership. Section 3(8)'s sole purpose is to govern
arrests in South Africa under the AJRA. If proceedings have been brought
elsewhere a disaffected defendant may raise the defence of lis alibi
pendens. If vessels have been arrested, or security furnished, elsewhere,
this must be disclosed in the certificate furnished by the attorney for the
arresting party in terms of Admiralty Rule 4(3) and may affect the terms
of the arrest and the security that may be obtained in that way. It will also
be relevant to the exercise by the court of its powers under s 5(2) of the
AJRA in regard to the terms of any arrest, and s 7(1) of the AJRA to
decline jurisdiction or stay proceedings.

[89]  This brief exposition of the purpose and effect of s 3(8) is
necessitated by the fact that in argument before Henriques J and the full
court reliance was placed upon the decision in the Fortune 2266 in support
of PSS's arguments. While this is not the occasion to deal with that court's
approach to s 3(6), which was mentioned in the high court, but formed no
part of the argument in the full court or before us, it is right to say that in
two respects the Fortune 22 does not correctly reflect the law in relation
to s 3(8) and was in consequence wrongly decided. First, it held that
English law applied to the application of the section, by virtue of s 6(1) of
the AJRA.67 Second, it held, on the basis of the international nature of
maritime disputes, that the section extended to arrests made in
jurisdictions other than South Africa.68 Neither proposition is correct. The
interpretation of s 3(8) is not a matter of English law, but one of the

66 MV Fortune 22: Owners of the MV Fortune 22 v Keppel Corporation Ltd 1999 (1) SA 162
(C)(Fortune 22).
67Ibid at 165E-H.
68 Ibid at 165H-166B and 167G-H.

proper construction of a South African statute, by a conventional process
of statutory interpretation in terms of South African law.69 Second, the
AJRA is concerned with the jurisdiction and procedure to be applied in
admiralty cases in South Africa. It is a piece of domestic legislation and
there is nothing to indicate that its purpose in s 3(8) was to extend its
application to arrests occurring in other jurisdictions contrary to the
general rule that statutes do not have extra-territorial effect.70

[90] Henriques J correctly approached s 3(8) on the basis outlined
above. She held that the effect of this section is that a second arrest of the
same ship in relation to the same claim is only prohibited where security
has been given for that claim. The section prohibits the arrest of the same
property more than once. It is only when there has been an arrest of
specific property and security has been given 'therefor' that the
prohibition applies.71 This accords with the decision in Great River
Shipping.72 The only difference between that case and this is that there the
second arrest was obtained after the first arrest had been set aside, but in
my view that is a difference of no moment.

[91] The section provides that if particular property has been arrested
and security given to secure its release, it may not be arrested again in
respect of the same maritime claim by the same claimant. If the security
is insufficient the remedy is to be found in s 5(2)(dA) of the AJRA. But
the prohibition in the section is narrow. It does not operate to prevent the

69 Silver Star op cit, fn 41, para 31.
70 See the cases cited in fn 59.
71 A submission that the prohibition extended to the arrest not only of the specific property but to
property in general was advanced in MV Ivory Tirupati: MV Ivory Tirupati v Badan Urusan Logistik
(aka Bulog) 2002 (2) SA 407 (C) at 419I-J. It was incorrect.
72 Great River Shipping Inc v Sunnyface Maritime Ltd 1992 (2) SA 87 (C) at 88E-90A. See also MV
Wisdom C: United Enterprises Corporation v STX Pan Ocean Co Ltd 2008 (1) SA 665 (C) para 15.
The point was not pursued in the subsequent appeal.

arrest of other property in respect of the same maritime claim by the same
claimant, even where security has been furnished in relation to the
property first arrested. The decision to the contrary in MV La Pampa73 is
plainly wrong on this point. Where there is a second arrest the only
possible issue is whether that is an abuse of process or vexatious
rendering the arrest liable to be set aside on that ground.

Conclusion on the second arrest
[92]  For those reasons Henriques J correctly dismissed the application
to set aside the second arrest. The primary ground upon which the full
court overturned her decision was that the Pretty Scene was not an
associated ship in relation to the Jin Kang. That subject has been fully
addressed in dealing with the first arrest and it is unnecessary to explore it
further. The full court erred in upholding the appeal against the judgment
of Henriques J. That leaves only the question of the counter-application.

The counter-application
[93]  The counter-application was based on ss 5(2)(b) and (c) of the
AJRA and security was sought for a claim for wrongful arrest in terms of
s 5(4) of the AJRA. Two grounds were advanced for saying that
Galsworthy had arrested the Pretty Scene without reasonable and
probable cause and requiring excessive security. The first was the
allegation that Galsworthy was pursuing the arrest as a tactical ploy and
not seeking to recover payment through the court process. In other words,
it was contended that the arrests were an abuse of the process of the court.
The second was that the claim for security was excessive because of the
first arrest – which had been set aside – and because of the security
allegedly held by Galsworthy in Singapore.

73  MV La Pampa: Louis Dreyfus Armateurs SNC v Tor Shipping 2006 (3) SA 441 (D) para 42.

[94] These allegations were disputed. Galsworthy maintained that its
sole purpose in pursuing the arrests was to obtain a judgment and
payment of what was owing to it. As discussed in para 84 it transpired
that Galsworthy held no direct security for its claims, but was dependent
on the liquidators of Parakou Shipping succeeding in their actions against
former directors and being able to realise from the security they held
amounts sufficient to pay Galsworthy's claims. A creditor who arrests or
attaches property to pursue a claim in terms of the AJRA is entitled to
security (possibly restricted to the value of the property) up to the amount
of its reasonably arguable best case.74 That means that Galsworthy was
entitled to security for the full amounts owing to it under the arbitration
awards, together with interest and costs. There is nothing to sustain the
contention that its requirements for security were excessive.

[95] In upholding the counter-application the full court commenced by
asking, but not answering, the question: 'When do the multiple arrests
give rise to an action against Galsworthy?' After referring to s 3(8) it
arrived at the conclusion that:
'Galsworthy has pursued its claim against Parakou Shipping in Singapore and there
was no need for it to pursue the same claim in South Africa. … This was a classic
case of pursuing the same claims in two different jurisdictions. … I find the arrests to
have been wrongful. It is my finding that Galsworthy was not entitled to pursue any
claim against the Pretty Scene parties.'
It seems that the full court confused the in rem proceedings by
Galsworthy in South Africa, with the proceedings by Parakou Shipping
through its liquidators against its previous directors. It was not correct to

74 The Moschanthy' [1971] Lloyd's Rep 37 at 44 recently endorsed by the Court of Appeal in Stallion
Eight Shipping Co SA v Natwest Markets PLC [2018] EWCA Civ 2760; [2019] 1 Lloyd's Rep 406 para
82(iv).

say that Galsworthy had brought proceedings against Parakou Shipping in
Singapore. There was no question of it having pursued the same claim in
different jurisdictions.

[96]   Not surprisingly there was no attempt to support these
conclusions in PSS's heads of argument. The argument advanced in
support of the order for security was the one advanced in the application.
For the reasons I have given it should not have succeeded.

Result
[97] In the circumstances, the full court erred in dismissing the appeal
against Vahed J's judgment and upholding the appeal against the
judgment of Henriques J. The appropriate relief is simply to reverse this
situation. The practical implications of that in the light of the sale of the
Pretty Scene will no doubt be resolved between the parties.

[98] I make the following order:
The appeal succeeds with costs.
The order of the full court of the KwaZulu-Natal Division in the
appeal in case no A23/2015 is set aside and replaced by the following
order:
'(a)
The appeal is upheld with costs, such costs to include the costs of
two counsel where two counsel were employed.
(b) The order of the high court is set aside and replaced by the following
order:
'The application to set aside the arrest of the Pretty Scene is dismissed
with costs.'

The order of the full court of the KwaZulu-Natal Division in the
appeal in case no A65/2016 is set aside and replaced by the following
order:
'The appeal is dismissed with costs.'

_________________

M J D WALLIS
JUDGE OF APPEAL

Appearances

For appellant:
M Wragge SC

Instructed by:
Shepstone & Wylie, Durban;
Matsepes Inc, Bloemfontein

For respondent:
G D Harpur SC

Instructed by:
Norton Rose Fulbright South Africa Inc, Durban;
Webbers, Bloemfontein.