MT Cape Spirit Owners of the Cargo Lately Laden on Board the MT Cape Spirit and Others

• Jurisdiction: South Africa
• Judge: Van Heerden DCJ, Vivier JA, Howie JA, Olivier JA, Farlam AJA
• Judgment Date: 09 June 1999
• Docket Number: 24/98
• Hearing Date: 11 May 1999
• Counsel: D J Shaw QC for the appellants M J D Wallis SC for the respondents
• Court: Supreme Court of Appeal

MT Cape Spirit
Owners of the Cargo Lately Laden on Board the MT Cape Spirit and Others
1999 (4) SA 321 (SCA)

1999 (4) SA p321

Citation	1999 (4) SA 321 (SCA)
Case No	24/98
Court	Supreme Court of Appeal
Judge	Van Heerden DCJ, Vivier JA, Howie JA, Olivier JA, Farlam AJA
Heard	May 11, 1999
Judgment	June 9, 1999
Counsel	D J Shaw QC for the appellants; M J D Wallis SC for the respondents

Flynote : Sleutelwoorde

Shipping — Security — Lapsing of — Admiralty Jurisdiction Regulation Act 105 of 1983, s 3(10)(a)(i) and (ii) — Fiction C created by deeming provision in subpara (i) applicable whether security given to prevent arrest of property or given after actual arrest or attachment to obtain release of property — Security given after arrest to secure release of property thus lapsing in terms of subpara (ii) and claim lapsing in terms of s 1(2)(b)(iv) where claimant failing to take further steps within one year of security being given. D

Headnote : Kopnota

The first respondent vessel had been arrested in rem in an action for damages as the instance of the appellants on 18 January 1995. It was released on 15 February 1995 after security had been provided by its insurers. Some two years thereafter, E because no further step in the proceedings had been taken by the appellants, the respondents sought and obtained an order in a Local Division declaring that the security had lapsed in terms of s 3(10)(a)(ii) of the Admiralty F Jurisdiction Regulation Act 105 of 1983 and that the appellants' action had consequently lapsed in terms of s 1(2)(b)(iv). In an appeal it was argued for the appellant that s 3(10)(a)(ii) applied only where security had been given to prevent the arrest of the vessel concerned ('pre-arrest security') and therefore did not apply in this instance, where security had been given to obtain the release from actual arrest of the vessel ('post-arrest security'). The basis of the argument was that, whereas s 3(10)(a)(i) spoke of property 'deemed to have been arrested or attached' (pre-arrest security) 'and to be under arrest or attachment' (post-arrest security), s 3(10)(a)(ii) spoke only of 'property deemed . . . to have been arrested or attached'. G

Held (per Olivier JA; Van Heerden DCJ, Vivier JA and Howie JA concurring, Farlam AJA dissenting), that the appellants' contention ignored the fact that the fiction employed by subpara (i), H namely 'shall be deemed to have been arrested or attached and to be under arrest or attachment', was expressly made applicable if security was given 'at any time, whether before or after the arrest or attachment'. The plain meaning of those words was that the fiction was to be applied whether security had been given before any arrest took place or after an actual arrest or attachment. (Paragraph [7] at 337H/I-I/J.)

Held, further, that subpara (i) specifically equated I the giving of the security or undertaking 'to prevent the arrest or attachment of the property or to obtain the release thereof from arrest or attachment': the fiction applied to both cases. (Paragraph [8] at 338B/C-C/D.)

Held, further, that once the fiction employed by subpara (i) came into operation its content in both cases was (a) that the property was deemed to have been arrested or attached and (b) it was deemed to be under arrest or J

1999 (4) SA p322

attachment. Part (a) related to a A legal consequence taking place at the moment when security was given and part (b) related to the future, a continuous legal state of affairs. Part (b) followed automatically as soon as part (a) occurred. In drafting subpara (ii), therefore, it had been unnecessary for the Legislature to have repeated part (b) of the B fiction, having already made it clear that part (b) took effect as soon as part (a) occurred. Because part (b) followed automatically on part (a) repetition of (b) would have been tautologous. (Paragraph [9] at 338F-H.)

Held, further, that the appellants had advanced no cogent reason why the Legislature should have distinguished between a case where security was given a day before the arrest and where it was given after the arrest. (Paragraph [10] at 338H-I.) The appeal was accordingly dismissed.

The decision in MV Cape Spirit: Owners of the C Cargo Lately Laden on Board the MT Cape Spirit v MT Cape Spirit (previously known as the MT Stainless Mariner) and Others 1998 (2) SA 952 (D) confirmed.

Cases Considered

Annotations A

Reported cases

MT Cape Spirit: Owners of the Cargo Lately Laden on Board the MT Cape Spirit v MT D Cape Spirit (previously known as the MT Stainless Mariner) and Others 1998 (2) SA 952 (D): confirmed on appeal

Kleynhans v Yorkshire Insurance Co Ltd 1957 (3) SA 544 (A): considered

MV Jute Express v Owners of the Cargo Lately Laden on Board the MV Jute Express 1992 (3) SA 9 (A): considered

Manyasha v Minister of Law and E Order 1999 (2) SA 179 (SCA): considered

R v County Council of Norfolk (1891) 65 LT Rep NS 222: considered.

Statutes Considered

Statutes

The Admiralty Jurisdiction Regulation Act 105 of 1983, ss 1(2)(a), 1(2)(b)(iv), 3(10)(a)(i) and (ii): see Juta's Statutes of South Africa 1998 vol 1 at 2-111, 2-112.

Case Information

Appeal from a decision in the Durban and Coast Local F Division (Levisohn J). The nature of the issues appears from the judgments of Olivier JA and Farlam AJA.

D J Shaw QC for the appellants: The G provisions of s 3(10)(a)(1) and (ii) of the Admiralty Jurisdiction Regulation Act 105 of 1983 were introduced by the Admiralty Jurisdiction Regulation Amendment Act 87 of 1992. The Act, before amendment, had no provision equivalent to para (ii). The changes effected by the amendment were therefore, that para (i) referred to cases where the undertaking had been given to a particular person and the property was then deemed to be under arrest at the instance of that person. At the time of the amendment the relevant provisions of Admiralty Rule 3(5)(a) read as follows: H

'Any person desiring to obtain the release of any property from arrest may obtain such release with the consent of the person who caused the said arrest to be effected or on giving security in a sum representing the amount of the value of the relevant property or the amount of the Plaintiff's claim whichever amount is the lower which amount shall be deposited as security with the Registrar and be dealt with in terms of Rule 19.' I

Rule 19(5) provided for the investment of the amount. Before the amendment, therefore, the situation was as follows: 1. Property could be protected from arrest by the giving of an undertaking (or security) in terms of s 3(10)(a). 2. If property had been arrested, it could be J

1999 (4) SA p323

released. 2.1 By the giving of an undertaking to obtain the A release. 2.2 By the consent of the person at whose instance the arrest had been obtained. 2.3 By the giving of security for the value of the claim or the value of the vessel in terms of Rule 3(5)(a). 3. In all these cases s 3(10)(a) deemed the vessel still to be under arrest even though it had been released. 4. Where by B virtue of the undertaking the vessel had never been arrested, then it was deemed to have been arrested and to be under arrest. Since the amendment the position is substantially different. It is only where an undertaking has been given to a particular person that para (i) applies. It does not, therefore, apply where the release has been by virtue of Rule 3(5)(a). Further, in view of the terms of s 3(11) and s 11 it is not even clear how any security deposited with the Registrar in terms of Rule 3(5) is to be dealt with. In the circumstances s 3(10) is far from all-embracing, and falls far C short of any object of affording relief to those who have given security. The taking of any step after the undertaking has been given prevents s 3(10)(a)(ii) from operating. Although a reference to deeming may be used merely to emphasise a position as opposed to extending a meaning (S v Rosenthal 1980 (1) SA 65 (A) D at 75G; St Aubyn (LM) and Others v Attorney-General (No 2) [1951] 2 All ER 473 (HL) at 498F), the primary meaning is that it extends the meaning to cases which would not otherwise be covered by the word. Ter Beek v United Resources CC 1997 (3) SA 315 (C) at 331C - E; Barclays Bank Ltd v Inland Revenue Commissioners [1960] 2 All ER 817 (HL) at 820A. Some confusion is caused by E the wish of the draftsman to be too brief. The situation is that, where a vessel has been arrested, there is no room for it to be deemed to be arrested. If it is released then it is appropriate to regard it as being deemed still to be under arrest. Where, however there has never been an arrest, then it is necessary to provide that there shall be a deemed arrest. Paragraph (ii) expressly deals only with a deemed F arrest. It omits, apparently deliberately, the words in para (i), 'and to be under arrest'. It seems, therefore, that the distinction between a deemed arrest and a deemed continuation of an arrest after release was present to the mind of the draftsman and the Legislature. This construction would give effect to the object of the previous s 3(10) G as stated in MV Jute Express v Owners of the Cargo Lately Laden on Board the MV Jute Express 1992 (3) SA 9 (A) at 15E, 18C - F. In these circumstances, as the vessel was in fact arrested, the provisions of s 3(10)(a)(ii) do not apply. On that ground alone the application should have been dismissed.

Even if the property in this case is deemed in terms of para H (i) to have been arrested it is not released unless 'no further step in the proceedings, with regard to a claim by the person concerned, is taken within one year of the giving of any such security or undertaking'. The significance of the commas (one of which appears in the Afrikaans version) is that (reading 'a claim' as 'the claim')...