The Nantai Princess Nantai Line Co Ltd and Another v Cargo Laden on the MV Nantai Princess and Other Vessels and Others

• Jurisdiction: South Africa
• Citation: 1997 (2) SA 580 (D)

The Nantai Princess
Nantai Line Co Ltd and Another v Cargo Laden on the MV Nantai Princess and Other Vessels and Others
1997 (2) SA 580 (D)

1997 (2) SA p580

Citation	1997 (2) SA 580 (D)
Case No	A12/94
Court	Durban and Coast Local Division
Judge	Levinsohn J
Heard	March 2, 1995
Judgment	June 19, 1995
Counsel	D J Shaw (with him GO Van Niekerk) for the applicants; V Soni for the second and fourth respondents; C E Puckrin (with him JP Vorster) for the third respondent

Flynote : Sleutelwoorde G

Company — Winding-up — Commencement of — Companies Act 61 of 1973, s 348 — Date on which winding-up deemed to commence is date on which application for winding-up filed at Court.

Company — Winding-up — Void attachments after commencement of winding-up H — Companies Act 61 of 1973, s 359(1)(b) — Concept 'any attachment' referred to in s 359(1)(b) wide enough to cover 'arrest' in sense of asset being detained by legal process for particular purpose — Arrest of assets belonging to company in liquidation in terms of Admiralty Jurisdiction Regulation Act to found action in rem after commencement of winding-up void in terms of s 359(1)(b) of Companies Act. I

Shipping — Admiralty action in rem — Arrest of cargo belonging to company to found action in rem between date on which application for winding-up of company filed and date on which application granted — In terms of s 348 of Companies Act 61 of 1973 winding-up deemed to commence when application for winding-up filed — Any attachment against assets of company after commencement of winding-up void in terms of J

1997 (2) SA p581

s 359(1)(b) — Concept 'any attachment' referred to in s 359(1)(b) wide enough A to cover 'arrest' in sense of asset being detained by legal process for particular purpose — Arrest of cargo accordingly void.

Headnote : Kopnota

In terms of s 348 of the Companies Act 61 of 1973 the winding-up of a company is B deemed to have commenced 'at the time of the presentation to the Court of the application for the winding-up'. Section 359(1)(b) of the Companies Act provides that 'any attachment . . . put into force against the estate or assets of the company after the commencement of the winding-up shall be void'.

The application for the winding-up of the second respondent company had been filed C on 16 June 1993. After a number of postponements, the application was heard and granted on 8 March 1994. On 20 January 1994 the applicants had arrested cargo in a number of containers belonging to the second respondent to found an action in rem in terms of the Admiralty Jurisdiction Regulation Act 105 of 1983. Their subsequent application for an order authorising the sale of the arrested goods in terms of s 9 of the D Admiralty Jurisdiction Regulation Act was opposed. The matter was settled by consent, the Court directing that the provisional liquidators of the second respondent sell the cargo as the agents of the Court, and the parties reserving the right to reinstate the application on the same papers. In the reinstated application, the applicants sought (1) confirmation of the arrest of the cargo and (2) that the fund constituted in terms of E the Court order authorising the sale of the cargo be declared to be a fund constituted in terms of s 9(2) of the Admiralty Jurisdiction Regulation Act.

Held, that the date referred to in s 348 of the Companies Act was the date on which the application for the winding-up had been filed at the Court. The winding-up of the second respondent had therefore commenced on 16 June 1993. (At 586G–H.) F

Held, further, that the concept 'any attachment' referred to in s 359(1)(b) of the Companies Act was wide enough to cover 'arrest' in the sense of an asset being detained by legal process for a particular purpose. (At 590H–I.)

Held, accordingly, that the arrest of the cargo on 20 January 1994 in terms of the Admiralty Jurisdiction Regulation Act had been an attachment within the meaning of s 359(1)(b) of the Companies Act and was, accordingly, void. (At 590I.) G

Cases Considered

Annotations

Reported cases

The following decided cases were cited in the judgment of the Court:

Re Australian Direct Steam Navigation Co (1875) LR 20 Eq 325

The Constellation and Others [1965] 3 All ER 873 (PDA)

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

Re Lancashire Cotton Spinning Co, Ex parte Carnelley (1887) 35 ChD 656 (CA)

Lief NO v Western Credit (Africa) (Pty) Ltd 1966 (3) SA 344 (W)

Marais v Leighwood Hospitals (Pty) Ltd 1950 (3) SA 567 (C)

Rennie NO v South African Sea Products Ltd 1986 (2) SA 138 (C)

Venter NO v Farley 1991 (1) SA 316 (C) I

The Zafiro: John Carlbom & Co Ltd v Owners of SS Zafiro [1959] 2 All ER 537 (PDA).

Statutes Considered

Statutes

The following statutes were considered by the Court:

The Admiralty Jurisdiction Regulation Act 105 of 1983, ss 1(1), 9: see Juta's Statutes of South Africa 1995 vol 1 at 2-101–2-102, 2-106

The Companies Act 61 of 1973, ss 348, 359(1)(b): see Juta's Statutes of South Africa 1995 vol 2 at 1 - 185, 1 - 186. J

1997 (2) SA p582

Case Information

Application for the confirmation of an arrest in rem and for a declaration that a fund be A a fund constituted in terms of s 9 of the Admiralty Jurisdiction Regulation Act 105 of 1983. The facts appear from the reasons for judgment.

D J Shaw SC (with him G O van Niekerk) for the applicants.

No appearance for the first respondent. B

V Soni for the second and fourth respondents.

C E Puckrin SC (with him J P Vorster) for the third respondent.

Cur adv vult.

Postea (19 June 1995). C

Judgment

Levinsohn J:

On 20 January 1994 the applicants instituted an action in rem against the cargo on board the vessel MV Nantai Princess and other vessels. The action was a maritime claim within the meaning of s 1(1)(i), (ee) and (ff) of the Admiralty Jurisdiction Regulation Act 105 of 1983 (as amended) ('the Act'). In the said action D the first applicant claimed payment of the amounts of R142 889,60 and R2 739 756 respectively. The second applicant's claim was for R694 192,50. As far as the first applicant was concerned, it was alleged that it was owed amounts in respect of ocean freight charges and in respect of transfer and storage (also known as overstay), release E and terminal handling charges said to be due in terms of the contract of carriage.

As far as the second applicant is concerned, its cause of action was said to be a claim for indemnity in respect of storage charges incurred and disbursed on the first applicant's behalf to the South African Container Depot ('SACD'). Simultaneously F with the institution of the said action the defendant cargo was arrested by the Sheriff of this Court, the goods in question being identified by container numbers and bills of lading.

Following the arrest the applicants applied for an order authorising the sale of the arrested goods in terms of s 9 of the Act. The second and third respondents were joined in this application. The applicants, after setting out details of their respective G claims, disclosed that the third respondent had served notices claiming a lien over the said containers. The serving of these notices resulted in a situation where the containers could not be cleared by customs and remained in storage at the SACD.

The application for the sale of the goods was opposed. One Barend Gert Steyn de H Wet, in his capacity as the provisional liquidator of the second respondent ('the company'), deposed to an affidavit resisting the relief sought on certain grounds which I shall deal with presently. The third respondent, represented by his legal adviser, one Booysen, likewise deposed to an affidavit in opposition to the relief sought. The third respondent asserted that the arrest of the cargo in question was void; in the alternative, I the third respondent alleged that if the Court was disposed to order the sale of the goods, such sale should be subject to a lien in the favour of the third respondent in terms of s 114 of the Customs and Excise Act 91 of 1964. It was also alleged that certain of the containers had already been seized in terms of s 88 of the Customs and Excise Act.

This application came before the Court on 22 April 1994. On that J

1997 (2) SA p583

Levinsohn J

date it was settled and an order by consent was made by Didcott J. The Court A directed that the contents of the containers would be sold by the provisional liquidators, who would act as the agents of the Court for that purpose. The order contained detailed directions in regard to the manner in which price realised should be dealt with. B

Importantly, the order recorded that it was made without prejudice or waiver of any of the rights the parties to the litigation may have. In para 6 the parties reserved the right to reinstate the application on the same papers duly supplemented with a view to determine any matter raised. Furthermore, all questions of costs were reserved. C

Subsequent to the order and pursuant thereto the cargo was sold. The applicants now seek the relief which was set forth from pp 232–7 of the application papers before me. The applicants, inter alia, claim the following principal relief:

'1.

That the arrest by the applicants of the first respondent and the cargo contained in containers numbered NTLU2241506 and NTLU2222738 be D and is hereby confirmed.

2.

That the seizures and detentions of 115 containers containing the first respondent in terms of ss 88 and 114(2) respectively of the Customs and Excise Act 91 of 1964 be and are hereby declared to be void. E

3.

That the fund constituted pursuant to para 3(i) of the order of this Court made on 22 April 1994 ("the fund") be and is hereby declared to be a fund constituted in terms of s 9(2) of the Admiralty...