Saharawi Arab Democratic Republic and Another v Owners and Charterers of the Cherry Blossom and Others

• Jurisdiction: South Africa
• Citation: 2017 (5) SA 105 (ECP)

Saharawi Arab Democratic Republic and Another v Owners and Charterers of the Cherry Blossom and Others
2017 (5) SA 105 (ECP)

2017 (5) SA p105

Citation	2017 (5) SA 105 (ECP)
Case No	1487/17
Court	Eastern Cape Local Division, Port Elizabeth
Judge	Mbenenge ADJP, Plasket J and Goosen J
Heard	June 15, 2017
Judgment	June 15, 2017
Counsel	Anton Katz SC (with D Cooke) for the applicants.; M du Plessis (with A Coutsoudis and D Simonsz) for the fourth and fifth respondents.

Flynote : Sleutelwoorde E

International law — Jurisdiction of courts — Act occurring abroad — Applicants seeking attachment of ship's cargo unlawfully taken from non-self-governing territory of Western Sahara — High Court holding that violation of inhabitants' sovereignty over territory's natural resources justifying granting of application — Order made with rider that cargo would be allowed to F proceed if appropriate security furnished.

International law — Jurisdiction of courts — Act of state doctrine — Principle that domestic courts should exercise judicial restraint in pronouncing on acts of foreign states — Courts to be guided by Constitution when deciding whether to decline adjudication. G

International law — Non-self-governing territory under article 73 of United Nations Charter — Right to self-determination — Sovereignty over natural resources — Ownership of cargo of phosphate mined by private company in Morocco-claimed and — controlled part of Western Sahara — High Court finding that sovereignty over cargo vesting in people of Western Sahara, legitimately represented by applicants — Granting application for its attachment H pending vindicatory action by applicants.

International law — State immunity — Protection from indirect impleading — Party invoking protection to show that non-party state's rights and liabilities at international law affected by decision of domestic court. I

Headnote : Kopnota

The court had to decide whether to confirm its temporary interdict ordering the attachment of NM Cherry Blossom's cargo. The decision involved consideration of the international law applicable to the ownership and exploitation of the natural resources of Western Sahara, the applicant's right to interim relief, and the applicability of the act of state doctrine and the principle of state immunity. J

2017 (5) SA p106

Cherry A Blossom had docked at Coega Harbour, Port Elizabeth, to take on bunkers en route to New Zealand when the temporary order was granted. The phosphate on board was mined by a Moroccan company in the Morocco-controlled part of Western Sahara. The applicants were the Saharawi Arab Democratic Republic (the SADR), a government in exile that claimed B sovereignty over Western Sahara and controlled the part not controlled by Morocco, and the Polisario Front, the local liberation movement. While the SADR — proclaimed by the Polisario Front in 1976 — was not a United Nations (UN) member, it was recognised by several member states, including South Africa. The UN designated Western Sahara a non-self-governing territory, conferring the right of self-determination on its inhabitants (1963, 1966), and recognised the Polisario Front as their legitimate representative C (1979). In an advisory opinion handed down in 1975, the International Court of Justice found that Morocco had no claim to Western Sahara. [*] In 2006 the UN's recognition of the sovereignty of peoples and nations over their natural resources (1960, 1962) was extended to the inhabitants of non-self-governing territories. Lastly, the SADR's own constitution (2015) provided that its mineral wealth belonged to the people.

Only D two of the listed respondents opposed the confirmation of the temporary order: OCP SA, the exporter of the cargo, and its subsidiary, Phosphates de Boucraa SA, its miner. They claimed they had the right, under Moroccan law, to mine phosphate in Western Sahara. While the Moroccan government took no part in the proceedings, the respondents argued that since it was indirectly impleaded, state immunity and the act of state doctrine precluded the court from hearing the matter.

Held E

Interim interdict

The applicants met the requirements for an interim interdict: the facts established, on a prima facie basis, that the people of Western Sahara owned the Cherry Blossom's cargo, and the balance of convenience favoured the F applicants (see [51] – [52]).

State immunity

Since there was no South African authority on what constituted indirect impleading of a state, the court would have regard to customary international law (see [63]). In the English case of Belhaj v Straw [2017] UKSC 3, G in which arguments similar to those made by the respondents were advanced, the court held that, to be protected, the non-party state's legal interests had to be directly affected — the mere fact that its rights and liabilities were in issue was not enough (see [74], [81]). Given that a finding by a South African court on the legality of respondents' mining operations in Western Sahara would not directly affect the international-law rights or H liabilities of Morocco, the claim to state immunity would fail (see [83] – [84]). (The fact that Morocco's political or moral interests might be affected by the court's determination was deemed irrelevant (see [85]).)

Foreign act of state doctrine

This was a doctrine of domestic rather than international law (see [86]). Courts dealing with complex issues at the interlocutory stage were obliged to I decide only such issues as were strictly necessary (see [92]). The court would, in deciding whether to adjudicate the matter, be guided by the Constitution, specifically the right of access to courts (see [96]). Since the matter was complex and the nature of the foreign act relied on by the

2017 (5) SA p107

respondents unclear, the decision on justiciability would best be dealt with A on the pleadings by the trial court (see [89] – [101]).

Order

Since the applicants made out a case for an interim interdict, the temporary interdict would be confirmed and the respondents restrained from removing the cargo from the jurisdiction of the court pending the determination of the applicants' vindicatory action, which they had to institute within a B month (see [101], [107.1], [107.10]). The sheriff would be authorised to release the cargo from attachment in the event that suitable security was furnished to the applicants (see [107.4]).

Cases cited

Southern Africa C

Colonial Government v WH Tatham (1902) 23 NLR 153: referred to

Ex parte Matshini and Others 1986 (3) SA 605 (E): referred to

Fedsure Life Assurance Co Ltd v Worldwide African Investment Holdings (Pty) Ltd and Others 2003 (3) SA 268 (W): dictum in para [28] applied

Geyser v Nedbank Ltd and Others: In re Nedbank Ltd v Geyser 2006 (5) SA 355 (W): dictum in para [9] applied D

Hart v Stone (1883) 1 Buch Appeal Cases 309: referred to

Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre and Others 2016 (3) SA 317 (SCA) (2016 (4) BCLR 487; [2016] 2 All SA 365; [2016] ZASCA 17): dictum in para [66] applied

Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D): E dictum at 384F – G applied

Setlogelo v Setlogelo 1914 AD 221: dictum at 227 applied

Spur Steak Ranches Ltd and Others v Saddles Steak Ranch, Claremont, and Another 1996 (3) SA 706 (C): dictum at 714B – H applied

Stern and Ruskin NO v Appleson 1951 (3) SA 800 (W): dictum at 813B – C applied F

Stuart v Ismail 1942 AD 327: referred to

Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others 1999 (2) SA 279 (T): dictum at 334D – F applied

Tshwane City v Afriforum and Another 2016 (6) SA 279 (CC) (2016 (9) BCLR 1133; [2016] ZACC 19): dicta in paras [49] and [146] – [147] applied G

Van Zyl and Others v Government of RSA and Others 2005 (11) BCLR 1106 (T) ([2005] 4 All SA 96): referred to

Van Zyl and Others v Government of the Republic of South Africa and Others 2008 (3) SA 294 (SCA): dictum in para [5] applied

Van Zyl v Wilson and Another ECG 5772/15: referred to

Webster v Mitchell 1948 (1) SA 1186 (W): dictum at 1186 – 1187 applied. H

England

Belhaj v Straw [2017] UKSC 3: discussed

Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2006] UKHL 26 ([2007] 1 AC 270; [2007] 1 All ER 113): referred to

Kuwait Airways Corporation v Iraqi Airways Company I [2002] UKHL 19 ([2002] 2 WLR 1353; [2002] 3 All ER 209): referred to

Kuwait Airways Corporation v Iraqi Airways Company and Others [1995] 3 All ER 694 (HL): referred to

R (on the application of Western Sahara Campaign UK) v Revenue and Customs Commissioners [2015] EWHC 2898 (Admin) ([2015] All ER (D) 153 (QB)): referred to. J

2017 (5) SA p108

European Union A

Council of European Union v Polisario Front C-104/16: considered.

International Court of Justice

East Timor (Portugal v Australia) [1995] ICJ Rep 90: distinguished

Monetary Gold Removed from Rome [1954] ICJ Rep 19: distinguished

Western B Sahara Advisory Opinion [1975] ICJ Rep 12: referred to.

United States

WS Kirkpatrick & Co Inc v Environmental Tectonics Corp, International (1990) 493 US 400: referred to.

Case Information

Anton C Katz SC (with D Cooke) for the applicants.

M du Plessis (with A Coutsoudis and D Simonsz) for the fourth and fifth respondents.

An application for the confirmation of a temporary order granted before Revelas J on 1 May 2017.

Order D

1.

The first to fifth respondents be interdicted and restrained from taking the cargo of phosphate presently on board the NM Cherry Blossom (the cargo) from the jurisdiction of the court in Algoa Bay, pending the determination of the applicants' action for, inter alia, E delivery of the cargo (the action), save in the event of suitable...